BILL NUMBER: SB 1270 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Pavley
FEBRUARY 21, 2014
An act to amend Sections 607, 677, 2006, 2207, 2208, 2733, 2770,
2772, 2773.1, 2774, 2774.1, and 2774.4 of, and to add Sections 2006.5
and 2717.5 to, the Public Resources Code, relating to mining.
LEGISLATIVE COUNSEL'S DIGEST
SB 1270, as introduced, Pavley. Surface mining operations.
(1) Under existing law, the Department of Conservation, under the
supervision of the Director of Conservation, is comprised of various
entities, including the State Mining and Geology Board, and the work
of the department is divided into divisions including the California
Geological Survey and the Office of Mine Reclamation. Existing law
requires the board to nominate, and the director to appoint, the
State Geologist to advise the director regarding technical,
scientific, and engineering issues, including the scientific quality
of the products and activities of the California Geological Survey,
and requires the State Geologist to meet specific qualifications.
This bill would instead require an unspecified individual or
entity to appoint the State Geologist and would make that individual
responsible for the management of the California Geological Survey.
The bill would change the qualifications for that person. The bill
would also designate the Office of Mine Reclamation as the Division
of Mines, would require an unspecified individual or entity to
appoint a State Mine Inspector to be responsible for the management
of the Division of Mines, and would prescribe the specific
qualifications for that person.
(2) Existing law requires the owner of operator of a mining
operation to forward annually to the director and the lead agency a
report that provides specified information with respect to the mining
operation.
This bill would require that report to be submitted to the State
Mine Inspector and the lead agency.
(3) The Surface Mining and Reclamation Act of 1975, administered
by the board, prohibits a person, with exceptions, from conducting
surface mining operations unless, among other things, a reclamation
plan, as specified, is submitted to and approved by, and financial
assurances for reclamation have been approved by, the lead agency for
the operation. Existing law provides an appeals process for
decisions of the lead agency in approval or denial of approval of a
reclamation plan.
This bill would instead make the director responsible for
reviewing and approving financial assurances in surface mining
operations and would require the director to take specified actions
in seeking forfeiture of those financial assurances. The bill would
also provide an appeals process for the director's approval or denial
of approval of financial assurances. The bill would require a
portion of the reclamation plan to be certified by a registered
professional geologist, geophysicist, or professional engineer and to
include a schedule with time limits for completing reclamation, as
specified, and would require the lead agency to determine a time
period for reclamation to be complete in certain circumstances. By
imposing additional duties on lead agencies, this bill would impose a
state-mandated local program.
(4) Existing law requires the lead agency to conduct an inspection
of a surface mining operation with 6 months of receipt by the lead
agency of the annual report described in (2) above. Under existing
law, if the lead agency or the director determines that a surface
mining operation is not in compliance, the lead agency or director is
required to notify the operator of that violation.
This bill would instead require the director to conduct an
inspection of those operations withing one year of receipt of the
report by the State Mine Inspector. The bill would require the notice
of violation to include, among other things, specific remedial steps
to be taken to correct the noncompliance and also information on
time to comply.
(5) Existing law requires the board to assume the powers and
duties under the act of the lead agency if, following a public
hearing, as prescribed, the board finds deficiencies in the lead
agency's implementation and enforcement of the act.
This bill would authorize a lead agency to unilaterally and
voluntarily relinquish its responsibilities under the act and would
require the board to assume those responsibilities. The bill would
also authorize the lead agency to resume its relinquished role if
certain requirements are met.
(6) Existing law requires the board to adopt a schedule of fees to
cover the department's costs of carrying out specified provisions
and to impose an annual reporting fee on each mining operation, not
to exceed $4,000 annually for any single mining operation and not be
less than $100. Existing law requires the board to adjust the fees if
the director determines the resources collected were greater to or
less than the department's costs.
This bill would require that an annual reporting fee on each
mining operation not be less than $1,000 and would require the fee to
be based on a cost per acre as determined by the board. The bill
would authorize the board to recommend expenditures of these funds as
part of the annual budget process and would require the board to
adjust the fees if the State Mine Inspector determines the revenues
collected were greater to or less than the department's costs.
(7) Existing law requires the department to 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 the status of
compliance of certain surface mining operations, 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 authorize an affected mine operator, a lead agency
with jurisdiction over the operation, or an affected person to
appeal to the board the department's determination regarding a mining
operation's placement on, removal from, or denial of placement on or
removal from, the list.
(8) 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. The Legislature finds and declares the following:
(a) Since its passage, the implementation of the Surface Mining
and Reclamation Act of 1975 has depended on coordinated
administrative efforts by local governments, the Department of
Conservation, and the State Mining and Geology Board. Two of the
major goals of the act are to encourage production and conservation
of minerals in California, and to assure reclamation of mined lands.
(b) The essential components of the act for each of the more than
2,000 mines in California are annual inspections, reclamation plans
for mines that have ceased production, and a financial surety
mechanism to pay for reclamation in the event the operator is unable
or fails to do so.
(c) It is the intent of the Legislature that siting decisions for
mines and the approval of reclamation plans for those mines remain
with local governments.
(d) The act provides for approval procedures for financial
assurances and reclamation plans that depend on active inspections,
remediation of compliance shortfalls, and appropriate updates to
financial assurance commitments. Based on a review of official state
data, industry and government analysts agree that the goals of the
act are not being achieved because of multiple failures in the
internal processes of this important legislation. As examples:
(1) Twenty-five percent of mines that have closed have not begun
reclamation. This includes about 100 mines in the state.
(2) Inspection rates by counties who serve as lead agencies under
the act, over a multiyear period, range from 66 percent to 74
percent, inclusive, but 12 counties have inspection rates below 50
percent.
(3) Data on inspections by cities that serve as lead agencies
under the act, over the same multiyear period, indicate that 22
cities have inspected all of its mines annually, 25 cities have an
inspection rate below 50 percent, and 14 have never inspected a mine.
(4) Financial assurance documents that ensure the ability to pay
for mine reclamation are not routinely updated. The adjustment rate
for counties is about 27 percent, based on official data, and about
20 percent for cities.
(e) It is the intent of the Legislature to retain the existing
structure of the act while improving the statutory relationships
between state and local government entities by strengthening the
interconnections between inspections, financial assurances, and
reclamation plans, in order to ensure improved compliance with the
provisions of this important law.
SEC. 2. 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) Office of Mine Reclamation. Division
of Mine s.
SEC. 3. Section 677 of the Public Resources Code is amended to
read:
677. The board shall nominate, and the director shall
appoint, the State Geologist, who (a)
A State Geologist shall be appointed and shall be responsible
for the management of the California Geological Survey. The State
Geologist shall either be registered in compliance with the
Geologist and Geophysicist Act (Chapter 12.5 (commencing with Section
7800) of Division 3 of the Business and Professions Code) at least
one year from the date of appointment, or the Board for Professional
Engineers , and Land Surveyors ,
and Geologists may, upon the review of academic and
professional experience, grant registration. The State Geologist
shall possess general knowledge of mineral resources,
resources and structural geology,
seismology, engineering geology, and related disciplines in science
and engineering, and the reclamation of mined lands and waters
engineering . The State Geologist shall advise
the director regarding technical, scientific, and engineering issues,
including the scientific quality of the division's
products and activities of the California Geological
Survey .
(b) A State Mine Inspector shall be appointed and shall be
responsible for the management of the Division of Mines. The State
Mine Inspector shall either be registered in compliance with the
Geologist and Geophysicist Act (Chapter 12.5 (commencing with Section
7800) of Division 3 of the Business and Professions Code) or the
Professional Engineers Act (Chapter 7 (commencing with Section 6700)
of Division 3 of the Business and Professions Code) at least one year
from the date of appointment, or the Board for Professional
Engineers, Land Surveyors, and Geologists may, upon the review of
academic and professional experience, grant registration. The State
Mine Inspector shall possess general knowledge of mining, mineral
resources, structural geology, seismology, engineering geology, and
related disciplines in science and engineering, and the reclamation
of mined lands and waters. The State Mine Inspector shall advise the
director regarding technical, scientific, and engineering issues,
including the scientific quality of the products and activities of
the Division of Mines.
SEC. 4. Section 2006 of the Public Resources Code is amended to
read:
2006. "State Geologist" means the individual holding the office
created by subdivision (a) of Section 677.
SEC. 5. Section 2006.5 is added to the Public Resources Code, to
read:
2006.5. "State Mine Inspector" means the individual holding the
office created by subdivision (b) of Section 677.
SEC. 6. 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 State
Mine Inspector annually, not later than a date established by
the director, State Mine Inspector, 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, State Mine Inspector, or
court.
(3) The location of the mining operation, its name, its mine
number as issued by the Bureau of Mines or the director,
State Mine Inspector, 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 financial assurances.
(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, State Mine Inspector, 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 paragraphs
(1) to (16), inclusive, of 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), (c), (d), 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 State Mine Inspector 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 Bureau of Mines,
State Mine Inspector , 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 reports to the director State Mine
Inspector 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 minimum fee for any single mining
operation may not exceed four thousand dollars ($4,000)
annually and may not be less than one hundred
thousand dollars ($100)
($1,000) 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, beginning with the 2005-06
2014- 15 fiscal year and annually thereafter.
(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 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 board shall
consider and establish a cost per acre 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 and undisturbed by mining
activities, and the acreage subject to the
reclamation plan , and other factors addressed by the approved
reclamation plan .
(B) Regulations adopted pursuant to this subdivision shall be
adopted by the board in accordance with 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 three million five
hundred thousand dollars ($3,500,000), 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 2005-06 fiscal year and
annually thereafter shall be based on a cost per acre,
subject to the approved reclamation plan, as determined by the board
pursuant to paragraph (2) . If the director
State Mine Inspector 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 State Mine
Inspector or board pursuant to this chapter or Chapter 9
(commencing with Section 2710) shall be deposited in the Mine
Reclamation Account. The board may recommend expenditures of
these funds as part of the annual budget process. The
money moneys 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 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. 7. Section 2208 of the Public Resources Code is amended to
read:
2208. The State Mine Inspector, director ,
or a qualified assistant may at any time enter or examine any and all
mines, quarries, wells, mills, reduction works, refining works, and
other mineral properties or working plants in this state in order to
gather data to comply with the provisions of this chapter.
SEC. 8. Section 2717.5 is added to the Public Resources Code, to
read:
2717.5. (a) An affected mine operator, a lead agency with
jurisdiction over the operation, or an affected person, may appeal to
the board the department's determination regarding a mining
operation's placement on, removal from, or denial of placement on or
removal from, the list identified in subdivision (b) of Section 2717.
(b) An appeal pursuant to subdivision (a) shall be subject to the
following requirements, as applicable:
(1) The appeal shall be made in writing, on a form provided by the
board, and shall be received by the board within 15 days of the
operator's, lead agency, or affected person's receipt of a notice of
the department's determination as described in subdivision (a), or
within 15 days of the department's posting of the notice on its
Internet Web site.
(2) An appeal filed by a lead agency shall demonstrate good cause
for reversal of a determination.
(3) An appeal filed by an affected person other than a lead agency
shall demonstrate that the affected person has a sufficient
connection to, or direct impact from, the operation of the mine at
issue.
(4) Where the board is the lead agency, it may not appeal the
decision of the department but may follow the department's procedures
for removal of a mining operation from the list. The board may hear
an appeal filed by any other party pursuant to subdivision (a).
(5) The appeal shall demonstrate, as a necessary element of the
appeal, that the facts and issues relevant to the appeal were brought
to the attention of the department prior to the department's
determination described in subdivision (a).
(c) The board shall promptly notify the department and the lead
agency that the appeal has been received by the board. Where the
appeal is filed by the lead agency or the board is the lead agency,
no notice to the lead agency shall be required.
(d) (1) A mining operation seeking placement on the list shall not
be placed on the list pending the final outcome of an appeal filed
pursuant to subdivision (a).
(2) A mining operation appealing the department's removal of the
operation from the list shall remain on the list pending the final
outcome of an appeal filed pursuant to subdivision (a).
(e) (1) (A) The board shall hear the appeal if the chair of the
board or his or her designated hearing officer determines the appeal
is within the jurisdiction of the board and the appeal raises a
substantial issue related to the department's determination regarding
a mining operation's placement on, removal from, or denial of
placement on or removal from, the list.
(B) A determination of the board's jurisdiction by the chair or
his or her designee shall consider all of the following:
(i) Whether the information presented with the appeal presents any
dispute of the material fact or facts supporting the department's
determination.
(ii) Whether the appeal is an attempt to challenge an enforcement
decision or a court decision.
(iii) Whether the appellant has standing.
(iv) Whether the appeal is timely.
(v) Whether the facts constituting the basis for the appeal have
been presented to the department prior to the department's
determination as described in subdivision (a).
(vi) Whether any relevant circumstances exist that are not
specifically identified but which, in the judgment of the chair or
his or her designee, preclude the appeal.
(2) If the chair or hearing officer finds, based on the criteria
described in paragraph (1), that the appeal is not within the
jurisdiction of the board or does not raise a substantial issue, the
chair or his or her designee shall refuse to grant the appeal and the
department's decision shall be deemed final for purposes of seeking
judicial review of that decision.
(f) A decision by the board pursuant to this section shall not
preclude any party from initiating a new proceeding to be included on
the list, to be maintained on the list, or to effect removal of a
mining operation from the list, in accordance with this section or
based on new or different circumstances than were determined by the
chair or his or her designee on a previous appeal.
SEC. 9. 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 which that
is readily adaptable for alternate land uses
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, stabilization, or
other measures ; and shall be certified by a registered
professional geologist, geophysicist, or professional engineer
.
SEC. 10. 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,
and 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 and
financial assurances for reclamation pursuant to the reclamation plan
have been submitted to and approved by the director 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 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, 2015,
the lead agency director shall
administratively review and make any changes to ensure
those existing financial assurances are in accordance with
subdivision (d) prior to January 1, 1992
2016 . 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 the director's approval prior to January
1, 1991, 2016, shall submit financial
assurances for reclamation to the director for review in
accordance with subdivision (d).
(d) The lead agency's review of a reclamation plan submitted
pursuant to subdivision (b) or the director's review 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
director shall require that financial assurances
for reclamation be sufficient to perform reclamation of lands
remaining disturbed. Reclamation For purposes
of this chapter, reclamation plans or financial
assurances determined to substantially meet these
requirements shall be approved by
the lead agency for purposes of this chapter
and financial assurances determined to
substantially meet these requirements shall be approved by the
director . Reclamation plans or financial assurances determined
not to substantially meet these requirements shall be returned to
the operator within 60 days. The operator has
shall have 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 , or the revised reclamation
plan shall be returned to the director 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 is approved by a lead agency
and financial assurances for reclamation are approved by the
lead agency director .
(e) (1) A person who, based on the evidence
of the record, can substantiate claims
that a lead agency has either (1) (A)
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 approve or deny approval of a
reclamation plan , or financial assurances for
reclamation, (2) (B) failed to act within a
reasonable time of receipt of a completed application, or
(3) (C) 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.
(2) A person who, based on the evidence of the record, claims that
the director has either (A) 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, in
reaching a decision to approve or deny approval of financial
assurances, or (B) failed to review and approve 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
or the director'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
operator 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 to the lead agency
or the revised financial assurances to the lead agency
director 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 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 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.
(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).
SEC. 11. 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 portion, of any,
any mined lands, and who plans to conduct
surface mining operations on the lands.
(b) All documentation for the reclamation plan shall be submitted
by the lead agency to the department at one time.
(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 and termination of
surface mining operation.
(4) The maximum anticipated depth of the surface mining operation.
(5) The size and legal description of the lands that will be
affected by the surface mining operation, a map that includes the
boundaries and topographic details of the lands, a description of the
general geology of the area, a detailed description of the geology
of the area in which surface mining is to be conducted, the location
of all streams, roads, railroads, and utility facilities within, or
adjacent to, the lands, the location of all proposed access roads to
be constructed in conducting the surface mining operation, and the
names and addresses of the owners of all surface interests and
mineral interests in the lands.
(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 uses,
will be accomplished, as certified by a registered
professional geologist, geophysicist, or professional engineer,
pursuant to Section 2733, including both of the following:
(A) A description of the manner in which 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
minimizing erosion and sedimentation will occur.
(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) A schedule with time limits, updated annually, for completing
reclamation in accordance with the reclamation plan and the
then-current condition of the mining site.
(11)
(12) Any other information which
that the lead agency may require by ordinance.
(d) An item of information or a document required pursuant to
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 Division
13 (commencing with Section 21000), may be included in the
reclamation plan by reference, if that item of information or that
document is attached to the reclamation plan when the lead agency
submits the reclamation plan to the director for review. To the
extent that the information or document referenced in the reclamation
plan is used to meet the requirements of subdivision (c), the
information or document shall become part of the reclamation plan and
shall be subject to all other requirements of this article.
(e) Nothing in this section is intended to limit or expand the
department's authority or responsibility to review a document in
accordance with Division 13 (commencing with Section 21000).
SEC. 12. Section 2773.1 of the Public Resources Code is amended to
read:
2773.1. (a) Lead agencies shall require financial assurances
, as determined by the director based on the most recent inspection,
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 assurances 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),
which that the lead agency
director 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) (A) The amount of financial assurances
required of a surface mining operation for any one year shall be
adjusted annually by the director to account for new lands
disturbed by surface mining operations, inflation, and reclamation
of lands accomplished in accordance with the approved reclamation
plan.
(B) The annual adjustment of financial assurances is not subject
to the procedures specified in paragraph (3) of subdivision (d) of
Section 2774 unless made in response to an amendment to an existing
reclamation plan.
(4) The financial assurances shall be made payable to the lead
agency and the department. Financial assurances 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
director 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
director 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) If the lead agency or the board, following a 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 commencing
reclamation, either the lead agency or the director shall do all of
the following:
(1) Notify the operator by personal service or certified mail that
the lead agency or the director intends to take appropriate action
to forfeit the financial assurances and specify the reasons for so
doing.
(2) (A) Allow the operator 60 days to
commence or cause the commencement of reclamation in accordance with
its approved reclamation plan and require that reclamation be
completed within the time limits specified in the approved
reclamation plan or some other time period mutually agreed upon by
the lead agency or the director and the operator.
(B) If no time period is specified in the reclamation plan, or if
the time period specified is determined by the lead agency to be
inappropriate for the condition of the site, the lead agency shall
determine a time period for reclamation to be completed if an
agreement for such a time period cannot be reached between the lead
agency and the operator.
(3) Proceed to take appropriate action to require forfeiture of
the financial assurances if the operator does not substantially
comply with paragraph (2).
(4) Use the proceeds from the forfeited financial assurances to
conduct and complete reclamation in accordance with the approved
reclamation plan. In no event shall the financial assurances be used
for any other purpose. The operator is responsible for the costs of
conducting and completing reclamation in accordance with the approved
reclamation plan which that are in
excess of the proceeds from the forfeited financial assurances.
(c) Financial assurances shall no longer be required of a surface
mining operation, and shall be released, upon written notification by
the lead agency, with the concurrence of the director,
which shall be forwarded to the operator and the director,
operator, that reclamation has been completed in
accordance with the approved reclamation plan. If a 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 or the director until new financial
assurances are secured from the new owner and have been approved by
the lead agency director in accordance
with Section 2770.
(d) (1) The lead agency shall have primary
responsibility to seek forfeiture of 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 seek forfeiture of financial assurances and
reclaim mine sites pursuant to subdivision (b) only if both of the
following occurs:
(1)
(A) The financial incapability of the operator or the
abandonment of the mining operation has come to the attention of the
director.
(2)
(B) 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, and has not
taken appropriate measures to seek forfeiture of the financial
assurances and reclaim the mine site; and one of the following has
occurred:
(A)
(i) The lead agency has been notified in writing by the
director that failure to take appropriate measures to seek
forfeiture of the financial assurances or to reclaim the mine site
shall result in actions being taken against the lead agency under
Section 2774.4.
(B)
(ii) 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)
(iii) The lead agency notifies the director in writing
that its good faith attempts to seek forfeiture of the financial
assurances have not been successful.
The director shall comply with subdivision (b)
(2) The director, in seeking
forfeiture of financial assurances and reclaiming mine
sites. sites, shall do all of the following:
(A) Notify the operator by personal service or certified mail that
the director intends to take appropriate action to forfeit the
financial assurances and specify the reasons for so doing.
(B) (i) Allow the operator 60 days to commence or cause the
commencement of reclamation in accordance with its approved
reclamation plan and require that reclamation be completed within the
time limits specified in the approved reclamation plan or some other
time period mutually agreed upon by the director and the operator.
(ii) If no time period is specified in the reclamation plan, or if
the time period specified is determined by the director to be
inappropriate for the condition of the site, the director shall
determine a time period for reclamation to be completed if an
agreement for such a time period cannot be reached between the
director and the operator pursuant to clause (i).
(C) Proceed to take appropriate action to require forfeiture of
the financial assurances if the operator does not substantially
comply with subparagraph (B).
(D) Use the proceeds from the forfeited financial assurances to
conduct and complete reclamation in accordance with the approved
reclamation plan. In no event shall the financial assurances be used
for any other purpose. The operator shall be responsible for the
costs of conducting and completing reclamation in accordance with the
approved reclamation plan that are in excess of the proceeds from
the forfeited financial assurances.
(e) The board may adopt regulations specifying financial assurance
mechanisms other than surety bonds, irrevocable letters of credit,
and trust funds, which that the board
determines are reasonably available and adequate to ensure
reclamation pursuant to this chapter, but these mechanisms may not
include financial tests, or surety bonds executed by one or more
personal sureties. These mechanisms may include reclamation bond pool
programs.
(f) On or before March 1, 1993, the The
board shall adopt , and update as required,
guidelines to implement this section. The guidelines are exempt
from the requirements of 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. 13. 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
receipt of financial assurances approved
by the director, 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) The lead agency director shall
conduct an inspection of a surface mining operation within
six months one year of receipt by the
lead agency State Mine Inspector 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. In no event shall a lead agency
the director inspect a surface mining operation less than
once in any calendar year. The lead agency
director may cause an inspection to be conducted by a state
licensed geologist, state licensed civil engineer, state licensed
landscape architect, or state licensed forester, 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. All inspections shall be conducted
using a form developed by the department and approved by the board
that shall include the professional licensing and disciplinary
information of the person who conducted the inspection. The operator
shall be solely responsible for the reasonable cost of the
inspection. The lead agency director
shall notify the director lead agency
within 30 days of the date of completion of the inspection that the
inspection has been conducted. The 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. If the surface mining operation
has a review of its reclamation plan, financial assurances, or an
interim management plan pending under subdivision (b), (c), (d), 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 notice shall so indicate. The lead agency
director shall forward to the operator a copy of the notice, a
copy of the completed inspection form, and any supporting
documentation, including, but not limited to, any inspection report
prepared by the geologist, civil engineer, landscape architect, or
forester, who conducted the inspection.
(c) Before approving a surface mining operation's reclamation
plan, financial assurances, including existing financial
assurances reviewed by the lead agency plan
pursuant to subdivision (c) of Section 2770, or any amendments, the
lead agency shall submit the plan, assurances,
plan or amendments to the director for review. All
documentation for that submission shall be submitted to the director
at one time. When the lead agency submits a reclamation plan or plan
amendments to the director for review, the lead agency shall also
submit to the director, for use in reviewing the reclamation plan or
plan amendments, information from any related document prepared,
adopted, or certified pursuant to Division 13 (commencing with
Section 21000), and shall submit any other pertinent information. The
lead agency shall certify to the director that the reclamation plan
is complete and in compliance with the applicable
requirements of this chapter and Article 1 (commencing with Section
3500) of Chapter 8 of Division 2 of Title 14 of the California Code
of Regulations and the lead agency's mining ordinance in effect at
the time that the reclamation plan is submitted to the director for
review.
(d) (1) The director shall have 30 days from the date of receipt
of a complete reclamation plan or complete plan
amendments submitted pursuant to subdivision (c), and 45
days from the date of receipt of financial assurances submitted
pursuant to subdivision (c), (c) to prepare
written comments, if the director so chooses. The lead agency shall
evaluate written comments received from the director relating to the
reclamation plan, plan or plan
amendments, or financial assurances within a
reasonable amount of time.
(2) The lead agency shall prepare a written response to the
director's comments describing the disposition of the major issues
raised by the director's comments, and submit the lead agency's
proposed response to the director at least 30 days prior to approval
of the reclamation
plan, plan or plan amendment, or
financial assurance amendment . The lead agency's
response to the director's comments shall describe whether the lead
agency proposes to adopt the director's comments to the reclamation
plan, plan or plan amendment,
or financial assurance amendment . If the lead
agency does not propose to adopt the director's comments, the lead
agency shall specify, in detail, why the lead agency proposes not to
adopt the comments. Copies of any written comments received and
responses prepared by the lead agency shall be forwarded to the
operator. The lead agency shall also give the director at least 30
days' notice of the time, place, and date of the hearing before the
lead agency at which time the reclamation plan,
plan or plan amendment, or financial assurance
amendment is scheduled to be approved by the
lead agency. If no hearing is required by this chapter, or by 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 reclamation plan, plan or plan
amendment, or financial assurance amendment
. The lead agency shall send to the director its final response
to the director's comments within 30 days following its approval of
the reclamation plan, plan or plan
amendment, or financial assurance amendment
during which period the department retains all powers, duties,
and authorities of this chapter.
(3) (A) Prior to approving initial financial assurances for a
reclamation plan or any amendments, pursuant to subdivision (a) of
Section 2770, the director shall have 45 days from the date of
receipt of a complete reclamation plan or complete plan amendments
submitted pursuant to subdivision (c) to prepare financial assurances
for reclamation pursuant to the proposed reclamation plan and to
submit the proposed financial assurances to the lead agency for
review.
(B) The lead agency shall have 30 days from the date of its
receipt of the financial assurances to evaluate the financial
assurances prepared by the director and to submit written comments,
if the lead agency so chooses.
(C) The director shall evaluate any written comments received from
the lead agency pursuant to subparagraph (B) and shall prepare a
written response to the lead agency's comments, describing the
disposition of the major issues raised by the lead agency's comments.
The response shall indicate whether the director proposes to adopt
the lead agency's comments or, if not, shall specify, in detail, why
the director does not propose to adopt the lead agency's comments.
Copies of any written comments received and responses prepared by the
director shall be forwarded to the operator. The director shall
submit the response and the approved financial assurances to the lead
agency and to the operator within 30 days of receipt of the lead
agency's comments.
(3)
(4) To the extent that there is a conflict between the
comments of a trustee agency or a responsible agency that are based
on the agency's statutory or regulatory authority and the comments of
other commenting agencies which are received by the lead agency
pursuant to 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.
(e) 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 this
section shall be cause for action under Section 2774.4.
SEC. 14. 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 shall notify the
operator of that violation by personal service or certified mail.
The notice of violation shall specify the remedial steps to be
taken to correct any noncompliance identified in the notice, as well
as a reasonable time for compliance of each instance of
noncompliance if compliance cannot reasonably be attained within 30
days of the date of the notice. If the
a violation extends beyond 30 days after the date of the lead
agency's or the director's notification, unless the operator has
accepted a scope of work and schedule, agreed to by the lead agency
or the director, for achieving compl iance, the lead
agency or the director may shall 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. 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 State Mine Inspector 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 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. 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 purposes other than to cover
the reasonable costs incurred by the director or the State Mine
Inspector 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. 15. Section 2774.4 of the Public Resources Code is amended to
read:
2774.4. (a) If the board finds that a lead agency either has (1)
approved reclamation plans or , prior to January 1, 2015,
financial assurances which that are not
consistent with this chapter, (2) failed , prior to January 1,
2015, to inspect or cause the inspection of surface mining
operations as required by this chapter, (3) failed to seek forfeiture
of financial assurances and to carry out 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, or (6) failed to submit information to the
department as required by this chapter, the board shall exercise any
of the powers of that lead agency under this chapter, except for
permitting authority.
(b) If, no sooner than three years after the board has taken
action pursuant to subdivision (a), the board finds, after a public
hearing, that a lead agency has corrected its deficiencies in
implementing and enforcing this chapter, and the rules and
regulations adopted pursuant to this chapter, the board shall restore
to the lead agency the powers assumed by the board pursuant to
subdivision (a).
(c) Before taking any action pursuant to subdivision (a), the
board shall first notify the lead agency of the identified
deficiencies, and allow the lead agency 45 days to correct the
deficiencies to the satisfaction of the board. If the lead agency has
not corrected the deficiencies to the satisfaction of the board
within the 45-day period, the board shall 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 surface mining operators within the lead
agency's jurisdiction who have submitted reports as required by
Section 2207.
(d) Affected surface mining operators and interested persons have
the right, at the public hearing, to present oral and written
evidence on the matter being considered. The board may, at the public
hearing, place reasonable limits on the right of affected surface
mining operators and interested persons to question and solicit
testimony.
(e) If, after conducting the public hearing required by
subdivision (c), the board decides to take action pursuant to
subdivision (a), the board shall, based on the record of the public
hearing, adopt written findings which explain all of the following:
(1) The action to be taken by the board.
(2) Why the board decided to take the action.
(3) Why the action is authorized by, and meets the requirements
of, subdivision (a).
In addition, the findings shall address the significant issues
raised, or written evidence presented, by affected surface mining
operators, interested persons, or the lead agency. 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) The lead agency, any affected surface mining 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 review of the board's action taken pursuant to subdivision (a)
by filing in the superior court a petition for 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.
(g) (1) A lead agency may unilaterally and voluntarily relinquish
its responsibilities under this chapter, and the board shall assume
those responsibilities.
(2) (A) No sooner than three years after relinquishing its lead
agency responsibilities, the lead agency may request the board to
authorize it to resume its role as a lead agency.
(B) If the board finds, after holding a public hearing as
described in subdivision (d), that the lead agency has corrected all
deficiencies, if any, pursuant to subdivision (a) in implementing and
enforcing this chapter and its implementing regulations, the board
shall restore to the agency the lead agency powers assumed by the
board pursuant to this subdivision.
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.