BILL NUMBER: AB 1142 CHAPTERED
BILL TEXT
CHAPTER 7
FILED WITH SECRETARY OF STATE APRIL 18, 2016
APPROVED BY GOVERNOR APRIL 18, 2016
PASSED THE SENATE MARCH 31, 2016
PASSED THE ASSEMBLY APRIL 14, 2016
AMENDED IN SENATE MARCH 16, 2016
AMENDED IN SENATE SEPTEMBER 1, 2015
AMENDED IN SENATE AUGUST 18, 2015
AMENDED IN SENATE JULY 1, 2015
AMENDED IN ASSEMBLY JUNE 3, 2015
AMENDED IN ASSEMBLY MAY 5, 2015
AMENDED IN ASSEMBLY APRIL 6, 2015
INTRODUCED BY Assembly Member Gray
FEBRUARY 27, 2015
An act to amend Sections 2715.5, 2733, 2770, 2772, 2773.1, 2774,
2774.1, 2774.2, and 2774.4 of, to add Sections 2736, 2772.1, and
2773.4 to, and to add and repeal Section 2207.2 of, the Public
Resources Code, relating to mining and geology.
LEGISLATIVE COUNSEL'S DIGEST
AB 1142, Gray. Mining and geology: surface mining.
(1) The Surface Mining and Reclamation Act of 1975 prohibits a
person, with exceptions, from conducting surface mining operations
unless, among other things, a permit is obtained from, a specified
reclamation plan is submitted to and approved by, and financial
assurances for reclamation have been approved by the lead agency for
the operation of the surface mining operation.
This bill would revise and recast provisions of the act related to
the approval of reclamation plans and, among other things, would
require a reclamation plan filed by an operator of a surface mining
operation with a lead agency to include specified reclamation maps;
require a lead agency, when submitting a proposed reclamation plan to
the Director of Conservation, to incorporate specified items of
information and documents in the submitted reclamation plan within
certain timeframes; and require the director to take certain actions
upon receiving a proposed reclamation plan. By adding to the duties
of a local government acting as a lead agency under the act, this
bill would impose a state-mandated local program.
This bill would revise and recast provisions of the act related to
financial assurances and, among other things, would require an
operator to replace an approved financial assurance only if the
financial assurance cost estimate identifies a need to increase the
amount of the financial assurance; require a lead agency to submit a
surface mining operation's proposed financial assurance cost estimate
to the director for review, as specified; and require the director
to take certain actions upon receiving a financial assurance cost
estimate from a lead agency. By adding to the duties of a local
government acting as a lead agency under the act, this bill would
impose a state-mandated local program.
This bill also would require a lead agency or the State Mining and
Geology Board to conduct a specified public hearing if the lead
agency has evidence that an operator may be financially incapable of
performing reclamation in accordance with its approved reclamation
plan or that the operator has abandoned a surface mining operation
without completing reclamation and to take appropriate actions to
forfeit the operator's financial assurances if warranted following
that hearing.
This bill would require the director, no later than December 31,
2021, to submit a specified report to the Legislature on the
expenditure of moneys in the Mine Reclamation Account.
(2) The act requires the owner or operator of a mining operation
to forward annually to the director and the lead agency a report that
provides, among other things, proof of annual inspection by the lead
agency. The act also requires every lead agency to adopt ordinances
that establish procedures for the review and approval of reclamation
plans, and, before approving a reclamation plan, to submit the plan
to the director. The act requires a lead agency to inspect a surface
mining operation within 6 months of receiving a specified report and
to conduct an inspection no less than once every calendar year. The
act authorizes a lead agency to cause an inspection to be conducted
by a state-licensed geologist, state-licensed civil engineer,
state-licensed landscape architect, or state-licensed forester, as
specified.
This bill would revise and recast those provisions and, among
other things, would authorize a lead agency to cause an inspection to
be conducted by a qualified employee of the lead agency who meets
specified criteria and who, after January 1, 2020, has completed an
inspection workshop, as provided; impose new requirements on the lead
agency related to the timing of inspections; and require the
department to establish a training program for lead agency employees
who inspect surface mining operations no later than December 31,
2017. By adding to the duties of a local government acting as a lead
agency, this bill would impose a state-mandated local program.
(3) The act requires that the lead agency have primary
responsibility in enforcing the act. The act authorizes, in cases
where the board is not the lead agency, the director to initiate
enforcement actions if the lead agency has been notified by the
director, for at least 30 days, of a violation and has not taken
appropriate enforcement action, or the director determines there is a
violation that presents an imminent and substantial endangerment to
the public health or safety or the environment. The act establishes
procedures and timelines for an operator to have an order setting
administrative penalties reviewed by a legislative body of a lead
agency, the board, or a superior court.
This bill would revise and recast those provisions and, among
other things, would revise the timelines and actions related to the
issuance of an order to comply and, after the expiration of a
specified review period, authorize the director or the board when it
acts as a lead agency to apply to the small claims court or the
superior court, as appropriate, for a judgment to collect an unpaid
administrative penalty.
(4) 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.
(5) This bill would make its operation contingent on the enactment
and operation of Senate Bill 209 of the 2015-16 Regular Session.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 2207.2 is added to the Public Resources Code,
to read:
2207.2. (a) No later than December 31, 2021, the director shall
report to the Legislature on the expenditure of moneys in the Mine
Reclamation Account, created pursuant to Section 2207. The report
shall include all of the following:
(1) An overview of how the moneys expended over the prior five
fiscal years have been allocated between classification and
designation of areas with mineral resources of statewide or regional
significance, reclamation plan and financial assurance review, lead
agency support and assistance, annual report processing, support for
the board, enforcement, and any other activities that constituted
more than 5 percent of expenditures.
(2) Information on the portion of the fees that have been
collected from small construction aggregate providers with under
50,000 tons of production.
(3) Information on the percentage of the fees that have been paid
by metallic mineral operations.
(b) This section shall remain in effect only until January 1,
2026, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2026, deletes or extends
that date.
SEC. 2. Section 2715.5 of the Public Resources Code is amended to
read:
2715.5. (a) The Cache Creek Resource Management Plan, in
conjunction with a site specific plan deemed consistent by the lead
agency with the Cache Creek Resource Management Plan, until December
31, 2017, shall be considered to be a functional equivalent of a
reclamation plan for the purposes of this chapter. No other
reclamation plan shall be required to be reviewed and approved for
any excavation project subject to the Cache Creek Resource Management
Plan that is conducted in conformance with an approved site specific
plan that is consistent with the Cache Creek Resource Management
Plan and the standards specified in that plan governing erosion
control, channel stabilization, habitat restoration, flood control,
or infrastructure maintenance, if that plan is reviewed and approved
by a lead agency pursuant to this chapter.
(b) For the purposes of this section, the board of supervisors of
the county in which the Cache Creek Resource Management Plan is to be
implemented shall prepare and file the annual report required to be
prepared pursuant to Section 2207.
(c) Nothing in this section precludes an enforcement action by the
board or the department brought pursuant to this chapter or Section
2207 if the lead agency or the director determines that a surface
mining operator, acting under the authority of the Cache Creek
Resource Management Plan, is not in compliance with the requirements
of this chapter or Section 2207.
(d) For purposes of this section, "site specific plan" means an
individual project plan approved by the lead agency that is
consistent with the Cache Creek Resource Management Plan. Site
specific plans prepared in conformance with the Cache Creek Resource
Management Plan shall include, at a minimum, the information required
pursuant to subdivision (c) of Section 2772, shall comply with the
requirements of Article 9 (commencing with Section 3700) of
Subchapter 1 of Chapter 8 of Division 2 of Title 14 of the California
Code of Regulations, and shall be provided along with a financial
assurance estimate to the department for review and comment pursuant
to Section 2772.1 or 2773.4, as applicable. Notwithstanding the
number of days authorized by subdivision (b) of Section 2772.1 or
subdivision (c) of Section 2773.4, the department shall review the
site specific plan and the financial assurance estimate and prepare
any written comments within 15 days from the date of receipt of the
plan and the estimate.
(e) Prior to engaging in an excavation activity in conformance
with the Cache Creek Resource Management Plan, a surface mining
operation shall be required to obtain financial assurances that meet
the requirements of Section 2773.1.
(f) This section shall remain in effect only until December 31,
2017, and as of that date is repealed, unless a later enacted statute
that is enacted before December 31, 2017, deletes or extends that
date.
SEC. 3. 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 that is readily adaptable for alternate land 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, slope
stabilization, or other measures.
SEC. 4. Section 2736 is added to the Public Resources Code, to
read:
2736. "Financial assurances" means a current approved financial
assurance cost estimate and a financial assurance mechanism that is
at least equal to the current approved financial assurance cost
estimate.
SEC. 5. Section 2770 of the Public Resources Code is amended to
read:
2770. (a) Except as provided in this section, a person shall not
conduct surface mining operations unless a permit is obtained from, a
reclamation plan has been submitted to and approved by, and
financial assurances for reclamation have been approved by the lead
agency for the operation pursuant to this article.
(b) A person with an existing surface mining operation who has
vested rights pursuant to Section 2776 and who does not have an
approved reclamation plan shall submit a reclamation plan to the lead
agency not later than March 31, 1988. If a reclamation plan
application is not on file by March 31, 1988, the continuation of the
surface mining operation is prohibited until a reclamation plan is
submitted to the lead agency. For the purposes of this subdivision, a
reclamation plan existing prior to January 1, 2017, 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) Reserved]
(d) Reserved]
(e) (1) A person who can substantiate, based on the evidence of
the record, that a lead agency has either (1) failed to act according
to due process or has relied on considerations not related to the
specific applicable requirements of Sections 2772, 2772.1, 2773,
2773.1, 2773.3, and 2773.4 and the lead agency surface mining
ordinance adopted pursuant to subdivision (a) of Section 2774 in
reaching a decision to deny approval of a reclamation plan or
financial assurances for reclamation, or (2) failed to act within a
reasonable time of receipt of a completed application may appeal that
action or inaction to the board.
(2) The director may appeal a lead agency's approval of a
financial assurance cost estimate to the board if the director has
commented pursuant to Section 2773.4 that the financial assurance
cost estimate is inadequate based on consideration of the following:
(A) Section 2773.1.
(B) Article 11 (commencing with Section 3800) of Subchapter 1 of
Chapter 8 of Division 2 of Title 14 of the California Code of
Regulations.
(C) The board's financial assurance guidelines adopted pursuant to
subdivision (f) of Section 2773.1
(3) If the approved financial assurance cost estimate applies to a
reclamation plan approved for a new surface mining operation, an
expanded surface mining operation, or an interim financial assurance
due to an order to comply, stipulated or otherwise, the operator
shall provide a financial assurance mechanism pursuant to subdivision
(e) of Section 2773.4 in the amount of the approved financial
assurance cost estimate, notwithstanding an appeal filed pursuant to
this subdivision and subject to modification pending the outcome of
the appeal.
(4) If the approved financial assurance cost estimate is an update
to an existing approved financial assurance cost estimate, the
existing financial assurance mechanism shall remain in place and
shall not be adjusted until a final determination by the board on the
appeal filed pursuant to this subdivision.
(f) (1) The board may decline to hear an appeal if it determines
that the appeal raises no substantial issues related to the lead
agency's decision to deny the approval of a reclamation plan or
financial assurance, or the timeliness in reviewing a completed
application. Appeals filed by the director shall be heard by the
board.
(2) If the board takes up an appeal, the appeal 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 to by the board,
the appellant, and the operator, or, if the appeal is filed by the
director, by the board, the director, and the operator.
(g) (1) (A) When hearing an appeal filed pursuant to paragraph (1)
or (2) of subdivision (e), the board shall determine whether the
reclamation plan or the financial assurance cost estimate
substantially meets the applicable requirements of Sections 2772,
2772.1, 2773, 2773.1, 2773.3, and 2773.4; Article 1 (commencing with
Section 3500), Article 9 (commencing with Section 3700), and Article
11 (commencing with Section 3800) of Subchapter 1 of Chapter 8 of
Division 2 of Title 14 of the California Code of Regulations; and the
lead agency's surface mining ordinance adopted pursuant to
subdivision (a) of Section 2774. The board shall approve or uphold a
reclamation plan or financial assurance cost estimate determined to
meet those applicable requirements. In any event, financial
assurances for reclamation shall be sufficient to perform reclamation
of lands remaining disturbed.
(B) For purposes of this subdivision, "substantially" means actual
compliance in respect to the substance and form requirements
essential to the objectives of this chapter.
(2) (A) A reclamation plan determined not to meet the applicable
requirements of Sections 2772, 2772.1, 2773, 2773.1, 2773.3, and
2773.4; Article 1 (commencing with Section 3500), Article 9
(commencing with Section 3700), and Article 11 (commencing with
Section 3800) of Subchapter 1 of Chapter 8 of Division 2 of Title 14
of the California Code of Regulations; and the lead agency's surface
mining ordinance adopted pursuant to subdivision (a) of Section 2774
shall be returned to the operator with a notice of deficiencies. The
operator shall be granted, once only, a period of 30 days or a longer
period mutually agreed upon by the operator and the board to do both
of the following:
(i) Correct the noted deficiencies.
(ii) Submit the revised reclamation plan to the lead agency for
review and approval.
(B) Within 10 days of the hearing, the board shall provide notice
via certified mail to the lead agency, the operator, and the
department of the board's determination. The notice shall include
instructions to the operator to submit to the lead agency for
approval a revised reclamation plan consistent with the board's
determination.
(3) (A) If the board determines the lead agency's approved
financial assurance cost estimate does not meet the requirements of
Sections 2773.1 and 2773.4, Article 11 (commencing with Section 3800)
of Subchapter 1 of Chapter 8 of Division 2 of Title 14 of the
California Code of Regulations, and the board's financial assurance
guidelines adopted pursuant to subdivision (f) of Section 2773.1, the
board shall note the deficiencies and, based on the record, include
adequate cost estimates for each noted deficiency.
(B) Within 10 days of the hearing, the board shall provide notice
via certified mail to the lead agency, the operator, and the
department of the board's determination with instructions to the
operator to submit to the lead agency for approval a revised
financial assurance cost estimate consistent with the board's
determination. The instructions shall include a reasonable submission
deadline of not less than 30 days.
(C) The lead agency shall approve the revised financial assurance
cost estimate. That approval shall supersede and void the prior
approved financial assurance cost estimate.
(D) A financial assurance mechanism shall be established by the
operator pursuant to subdivision (e) of Section 2773.4 following the
approval of the financial assurance cost estimate.
(E) The failure of the operator to submit to the lead agency a
revised financial assurance cost estimate consistent with the board's
determination and deadline may be grounds for the issuance of an
order to comply pursuant to subdivision (a) of Section 2774.1.
(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 the California Environmental
Quality Act (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 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 operator 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) 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. 6. 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
of any mined lands and who plans to conduct surface mining
operations on the lands.
(b) The reclamation plan shall include a chart identifying the
page number, chapter, appendix, or other specific location in the
reclamation plan where content meeting the requirements, as
applicable, of Sections 2772, 2773, and 2773.3 and Article 1
(commencing with Section 3500) and Article 9 (commencing with Section
3700) of Subchapter 1 of Chapter 8 of Division 2 of Title 14 of the
California Code of Regulations, is located.
(c) The reclamation plan shall include all of the following
information and documents:
(1) The name and address of the 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 the
surface mining operation.
(4) The maximum anticipated depth of the surface mining operation.
(5) A reclamation plan map or maps that shall include all of the
following:
(A) Size and legal description of the lands that will be affected
by the surface mining operation and the names and addresses of the
owners of all surface interests and mineral interests in the lands.
(B) Clearly defined and accurately drawn property lines, setbacks,
and the reclamation plan boundary.
(C) Existing topography and final topography depicted with contour
lines drawn at appropriate intervals for the site's conditions.
(D) Detailed geologic description of the area of the surface
mining operation.
(E) Location of railroads, utility facilities, access roads,
temporary roads to be reclaimed, and any roads remaining for the
approved end use.
(F) All maps, diagrams, or calculations that require preparation
in accordance with the Professional Engineers Act (Chapter 7
(commencing with Section 6700) of Division 3 of the Business and
Professions Code), the Geologist and Geophysicist Act (Chapter 12.5
(commencing with Section 7800) of Division 3 of the Business and
Professions Code), or the Professional Land Surveyors' Act (Chapter
15 (commencing with Section 8700) of Division 3 of the Business and
Professions Code) shall be prepared by a California-licensed
professional, shall include his or her license number and name, and
shall bear the signature and seal of the licensee.
(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, will be accomplished, including
both of the following:
(A) A description of the manner in which known 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 that
minimizes erosion and sedimentation.
(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) Any other information 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 the
California Environmental Quality Act (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 the information, document, or
component of a document referenced in the reclamation plan is used
to meet the requirements of subdivision (c) or Section 2773 or
2773.3, the information, document, or component of a 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 the California Environmental Quality Act (Division 13
(commencing with Section 21000)).
SEC. 7. Section 2772.1 is added to the Public Resources Code, to
read:
2772.1. (a) (1) Prior to approving a surface mining operation's
reclamation plan or plan amendment, the lead agency shall submit the
reclamation plan or plan amendment to the director for review. The
reclamation plan or plan amendment shall be submitted to the director
as early as practicable in order to facilitate the lead agency's
review of the reclamation plan pursuant to the California
Environmental Quality Act (Division 13 (commencing with Section
21000)). All documentation for the submission shall be submitted to
the director at one time.
(2) An item of information, document, or component of a document
that has 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 the California Environmental
Quality Act (Division 13 (commencing with Section 21000)) shall be
incorporated into the reclamation plan or plan amendment if it is
used to satisfy the requirements of subdivision (c) of Section 2772,
Sections 2773 and 2773.3, and Article 1 (commencing with Section
3500) and Article 9 (commencing with Section 3700) of Subchapter 1 of
Chapter 8 of Division 2 of Title 14 of the California Code of
Regulations, as applicable. If an item of information, document, or
component of a document is incorporated, reference to the item shall
be added to the chart required pursuant to subdivision (b) of Section
2772 and shall be properly indexed with the corresponding appendix
reference and page numbers, if applicable. The item shall be included
in an appendix to and shall become part of the reclamation plan or
plan amendment.
(3) The lead agency shall certify to the director that the
reclamation plan or plan amendment is a complete submission and is in
compliance with all of the following:
(A) The applicable requirements of this chapter.
(B) Article 1 (commencing with Section 3500) and Article 9
(commencing with Section 3700) of Subchapter 1 of Chapter 8 of
Division 2 of Title 14 of the California Code of Regulations, as
applicable.
(C) The lead agency's surface mining ordinance in effect at the
time that the reclamation plan or plan amendment is submitted to the
director for review, except if the board is the lead agency.
(b) (1) The director shall have 30 days from the receipt of a
reclamation plan or plan amendment to notify the lead agency and
operator if the submission is incomplete. An incomplete submission is
one that does not meet the content requirements of Sections 2772,
2773, and 2773.3 and Article 1 (commencing with Section 3500) and
Article 9 (commencing with Section 3700) of Subchapter 1 of Chapter 8
of Division 2 of Title 14 of the California Code of Regulations, as
applicable. The director's notice shall specifically identify all
aspects of the submission that are incomplete.
(2) The director shall have 30 days after the date the director is
required to notify the lead agency if the submission is incomplete
to prepare written comments on the reclamation plan or plan amendment
if the director chooses.
(3) If the director has issued a notice of incomplete submission
pursuant to paragraph (1), the director's time to prepare written
comments on the reclamation plan or plan amendment shall not commence
until the director receives each item identified in the notice. The
director's time shall include any remaining time pursuant to
paragraph (1) and the time allowed pursuant to paragraph (2).
(4) The lead agency shall review and evaluate written comments
received from the director relating to the reclamation plan or plan
amendment within a reasonable amount of time.
(5) (A) The lead agency shall prepare a written response to the
director's comments received pursuant to paragraph (2) describing the
disposition of the major issues raised by the comments. The lead
agency shall submit its response to the director at least 30 days
prior to the intended approval of the reclamation plan or plan
amendment. The lead agency's response shall include either of the
following:
(i) A description of how the lead agency proposes to adopt the
director's comments to the reclamation plan or plan amendment.
(ii) A detailed description of the reasons why the lead agency
proposes not to adopt the director's comments.
(B) Copies of any written comments received and responses prepared
by the lead agency pursuant to subparagraph (A) shall be forwarded
to the operator.
(6) (A) The lead agency shall give the director at least 30 days'
notice of the time, place, and date of the hearing at which the
reclamation plan or plan amendment is scheduled to be approved by the
lead agency.
(B) If no hearing is required by this chapter, the local
ordinance, or other state law, the lead agency shall provide 30 days'
notice to the director that the lead agency intends to approve the
reclamation plan or plan amendment.
(7) (A) Within 30 days
following the approval of the reclamation plan or plan amendment, the
lead agency shall provide the director notice of the approval.
During that period, the department retains all powers, duties, and
authorities of this chapter. The lead agency shall provide, as soon
as practicable but no later than 60 days after approval of the
reclamation plan or plan amendment, certified copies of all maps,
diagrams, or calculations, signed and sealed.
(B) No later than 60 days after the approval of the reclamation
plan or plan amendment, the lead agency shall provide to the director
an official copy of the approved reclamation plan or plan amendment.
The official copy shall incorporate all approved modifications to
the reclamation plan or plan amendment and shall include an index
showing any permit conditions of approval or binding mitigation
measures adopted or certified pursuant to the California
Environmental Quality Act (Division 13 (commencing with Section
21000)) that are necessary to meet the requirements of subdivision
(c) of Section 2772, Sections 2773 and 2773.3, and Article 1
(commencing with Section 3500) and Article 9 (commencing with Section
3700) of Subchapter 1 of Chapter 8 of Division 2 of Title 14 of the
California Code of Regulations, as applicable. Those conditions of
approval and mitigation measures shall be included in an appendix to
the reclamation plan or plan amendment and shall be considered part
of the reclamation compliance requirements and subject to the annual
inspection requirements.
(c) To the extent there is a conflict between the comments of a
trustee agency or a responsible agency that are based on that agency'
s statutory or regulatory authority and the comments of other
commenting agencies that are received by the lead agency pursuant to
the California Environmental Quality Act (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.
(d) Nothing in this section is intended to limit or expand the
department's authority or responsibility to review a document in
accordance with the California Environmental Quality Act (Division 13
(commencing with Section 21000)).
SEC. 8. Section 2773.1 of the Public Resources Code is amended to
read:
2773.1. (a) Lead agencies shall require financial assurances of
each surface mining operation to ensure reclamation is performed in
accordance with the surface mining operation's approved reclamation
plan, as follows:
(1) A financial assurance mechanism 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) that the lead agency 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) The amount of financial assurances required of a surface
mining operation for any one year shall be reviewed and, if
necessary, adjusted once each calendar year to account for new lands
disturbed by surface mining operations, inflation, and reclamation of
lands accomplished in accordance with the approved reclamation plan.
An operator shall be required to replace an approved financial
assurance mechanism to bond for the reclamation of the surface mining
operation only if the financial assurance cost estimate identifies a
need to increase the amount of the financial assurance mechanism.
(4) Financial assurance cost estimates shall be submitted to the
lead agency for review on a form developed by the director and
approved by the board. The form shall be subject to the requirements
of the Administrative Procedure Act (Chapter 3.5 (commencing with
Section 11340) of Part 1 of Division 3 of Title 2 of the Government
Code).
(5) Each financial assurance mechanism shall be made payable to
the lead agency and the department. A financial assurance mechanism
shall not be released without the consent of the lead agency and the
department. A financial assurance mechanism that was approved by the
lead agency prior to January 1, 1993, and was 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 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 and the public agencies for any one year shall not exceed
that amount that is necessary to perform reclamation of lands
remaining disturbed. For purposes of this paragraph, a "public agency"
may include a federal agency.
(b) (1) If the lead agency, or the board when acting as a lead
agency, has evidence that an operator may be financially incapable of
completing reclamation in accordance with its approved reclamation
plan or that the operator may have abandoned the surface mining
operation without completing reclamation, the lead agency or the
board, when acting as a lead agency, shall conduct a public hearing
to determine whether the operator is financially capable of
completing reclamation in accordance with the approved reclamation
plan or has abandoned the surface mining operation. The hearing shall
be noticed to the operator and the director at least 30 days prior
to the hearing.
(2) If the lead agency or the board, following the public hearing
conducted pursuant to paragraph (1), 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 completing reclamation, either the lead agency or
the director shall do all of the following:
(A) 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.
(B) Proceed to take appropriate action to require forfeiture of
the financial assurances.
(C) Use the proceeds from the forfeited financial assurances to
conduct and complete reclamation in accordance with the approved
reclamation plan. If the surface mining operation cannot be reclaimed
in accordance with its approved reclamation plan, or the financial
assurances are inadequate to reclaim in accordance with its approved
reclamation plan, the lead agency or director may use forfeited
financial assurances to reclaim or remediate mining disturbances as
appropriate for the site conditions as determined by both the lead
agency and the director. The financial assurances shall not 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 or a remediation plan developed pursuant to this
section as determined appropriate by both the lead agency and the
director 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 the written concurrence
of the lead agency and the director, which shall be forwarded to the
operator and the institutions providing or holding the financial
assurance mechanism, that reclamation has been completed in
accordance with the approved reclamation plan. If a surface 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 and the director until new financial
assurances are secured from the new owner and have been approved by
the lead agency in accordance with Sections 2770, 2773.1, and 2773.4.
Within 90 days of the sale or transfer of a surface mining
operation, the new operator shall submit an appropriate financial
assurance mechanism, which may be the existing mechanism if the
existing mechanism is payable in the event of the new operator's
financial incapability or abandonment of the surface mining
operation, that is subject to review by the lead agency and the
director pursuant to subdivision (e) of Section 2773.4. Within 15
days of the sale or transfer of a surface mining operation, the new
operator shall sign a new statement of reclamation responsibility in
accordance with paragraph (10) of subdivision (c) of Section 2772.
(d) The lead agency shall have primary responsibility to seek
forfeiture of financial assurances and to reclaim mine sites pursuant
to subdivision (b). However, if 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) The financial incapability of the operator or the abandonment
of the surface mining operation has come to the attention of the
director.
(2) The lead agency has been notified in writing by the director
of the financial incapability of the operator or the abandonment of
the surface mining operation for at least 15 days, the lead agency
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) 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) 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) 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) in seeking
forfeiture of financial assurances and reclaiming mine sites.
(e) The board may adopt regulations specifying financial assurance
mechanisms other than surety bonds, irrevocable letters of credit,
and trust funds, which the board determines are reasonably available
and adequate to ensure reclamation pursuant to this chapter, but
these mechanisms shall not include financial tests or surety bonds
executed by one or more personal sureties. These mechanisms may
include reclamation bond pool programs.
(f) The board shall adopt or revise guidelines to implement this
section as necessary. The guidelines are exempt from the requirements
of the Administrative Procedure Act (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. 9. Section 2773.4 is added to the Public Resources Code, to
read:
2773.4. (a) (1) Prior to approving the financial assurances for a
new reclamation plan or adjustments to financial assurances based on
an amendment to a reclamation plan, the lead agency shall submit the
financial assurance cost estimate to the director for review.
(2) The lead agency shall provide the director with a
determination that the financial assurance cost estimate submitted
pursuant to paragraph (1) is adequate, complete, and consistent with
Section 2773.1, Article 11 (commencing with Section 3800) of
Subchapter 1 of Chapter 8 of Division 2 of Title 14 of the California
Code of Regulations, and the board's financial assurance guidelines
adopted pursuant to subdivision (f) of Section 2773.1.
(3) All documentation submitted to the director pursuant to this
subdivision shall be submitted at one time.
(b) No later than 15 days after receiving a financial assurance
cost estimate, the director shall notify the lead agency and the
operator if the submission is incomplete. An incomplete submission is
one that does not meet the content requirements of Section 2773.1,
Article 11 (commencing with Section 3800) of Subchapter 1 of Chapter
8 of Division 2 of Title 14 of the California Code of Regulations,
and the board's financial assurance guidelines adopted pursuant to
subdivision (f) of Section 2773.1. The director's notice shall
specifically identify all aspects of the submission that are
incomplete. The director's time to review the financial assurance
cost estimate shall commence upon the receipt of a submission that
contains the aspects identified in the director's notice to the lead
agency.
(c) (1) The director shall have 45 days from the date of receipt
of a complete financial assurance cost estimate to prepare written
comments if the director chooses.
(2) The lead agency shall evaluate written comments received from
the director relating to the financial assurance cost estimate within
a reasonable amount of time. 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.
(3) The lead agency shall submit its proposed response to the
director at least 30 days prior to approval of the financial
assurance cost estimate. The lead agency's response shall include
either of the following:
(A) A description of how the lead agency proposes to adopt the
director's comments to the financial assurance cost estimate.
(B) A detailed description of the reasons why the lead agency
proposes to not adopt the director's comments.
(4) Copies of any written comments received and responses prepared
by the lead agency shall be forwarded to the operator.
(5) (A) If the lead agency, in its written response to the
director's comments, proposes to not adopt the director's comments
relating to the financial assurance cost estimate, the director,
within 15 days of receipt of the lead agency's written response, may
request in writing a consultation with the lead agency to discuss the
director's comments and the lead agency's response. The request
shall include an invitation to the operator to participate in the
consultation. The consultation may be conducted in person,
electronically, telephonically, or by any means convenient to the
parties.
(B) If the director requests a consultation pursuant to this
subdivision, the lead agency shall not approve the financial
assurance cost estimate until after consulting with the director. The
consultation shall occur not later than 30 days after the director's
request unless an alternate timeframe is mutually agreed upon by the
director, lead agency, and operator.
(6) (A) The lead agency shall give the director at least 30 days'
notice of the time, place, and date of the hearing at which the
financial assurance cost estimate is scheduled to be approved by the
lead agency. If no hearing is required by this chapter, local
ordinance, or other state law, then the lead agency shall provide 30
days' notice to the director that it intends to approve the financial
assurance cost estimate.
(B) The lead agency shall send to the director its final response
to the director's comments within 30 days following its approval of
the financial assurance cost estimate, during which time the
department retains all of its powers, duties, and authority pursuant
to this chapter.
(d) (1) (A) Within 30 days of an annual inspection being conducted
pursuant to Section 2774, an operator shall provide an annual
financial assurance cost estimate to the lead agency for review.
(B) If the lead agency fails to cause the inspection of the
surface mining operation on the date requested by the operator
pursuant to Section 2207 or on the date set by the lead agency
pursuant to subdivision (c) of Section 2774, the operator shall
provide an annual financial assurance cost estimate to the lead
agency for review within 30 days of the applicable inspection date,
unless the lead agency causes the inspection to occur within that
time period, in which case the operator shall provide an annual
financial assurance cost estimate to the lead agency within 30 days
of the date of the inspection.
(2) (A) Within 60 days of receiving an operator's annual financial
assurance cost estimate, the lead agency shall do one of the
following:
(i) Deny the financial assurance cost estimate pursuant to
paragraph (6).
(ii) Submit the financial assurance cost estimate to the director
for review.
(B) The lead agency shall provide the director with a
determination that the annual financial assurance cost estimate
submitted is adequate, complete, and consistent with Section 2773.1,
Article 11 (commencing with Section 3800) of Subchapter 1 of Chapter
8 of Division 2 of Title 14 of the California Code of Regulations,
and the board's financial assurance guidelines adopted pursuant to
subdivision (f) of Section 2773.1.
(3) All documentation submitted to the director pursuant to this
subdivision shall be submitted at one time.
(4) Within 15 days of receiving an annual financial assurance cost
estimate, the director shall notify the lead agency and the operator
if the submission is incomplete. An incomplete submission is one
that does not meet the content requirements of Section 2773.1,
Article 11 (commencing with Section 3800) of Subchapter 1 of Chapter
8 of Division 2 of Title 14 of the California Code of Regulations,
and the board's financial assurance guidelines adopted pursuant to
subdivision (f) of Section 2773.1. The director's notice shall
specifically identify all aspects of the submission that are
incomplete. The director's time to review the annual financial
assurance cost estimate shall commence upon the receipt of a
submission that contains the aspects identified in the director's
notice to the lead agency.
(5) (A) Within 45 days of receiving an operator's complete annual
financial assurance cost estimate from the lead agency, the director
shall prepare written comments on the operator's annual financial
assurance cost estimate and provide the comments to the lead agency
and the operator if the director so chooses.
(B) (i) Within 30 days from receiving the director's written
comments pursuant to this subdivision, the lead agency shall evaluate
the written comments and provide the director and operator its
proposed response to the director.
(ii) The lead agency shall submit its proposed response to the
director at least 30 days prior to approving the annual financial
assurance cost estimate. The lead agency's response shall include
either of the following:
(I) A description of how the lead agency proposes to adopt the
director's comments to the annual financial assurance cost estimate.
(II) A detailed description of the reasons why the lead agency
proposes not to adopt the director's comments.
(iii) Copies of any written comments received and responses
prepared by the lead agency pursuant to this subparagraph shall be
provided to the operator.
(C) (i) If the lead agency, in its written response to the
director's comments, proposes to not adopt the director's comments
concerning the annual financial assurance cost estimate, the
director, within 15 days of receipt of the lead agency's written
response, may request in writing a consultation with the lead agency
to discuss the director's comments and the lead agency's response.
The request shall include an invitation to the operator to
participate in the consultation. The consultation may be conducted in
person, electronically, telephonically, or by any means convenient
to the parties.
(ii) If the director requests a consultation pursuant to this
subparagraph, the lead agency shall not approve the annual financial
assurance cost estimate until after consulting with the director. The
consultation shall occur not later than 30 days after the director's
request unless an alternate timeframe is mutually agreed upon by the
director, lead agency, and operator.
(D) (i) Within 60 days of receiving the director's written
comments, or of a consultation pursuant to this subdivision,
whichever is later or the due date of the director's written comments
if none are received, the lead agency shall approve or deny an
operator's annual financial assurance cost estimate.
(ii) The lead agency shall give the director at least 30 days'
notice of the time, place, and date of the hearing at which the
annual financial assurance cost estimate is scheduled to be approved
by the lead agency.
(iii) If no hearing is required by this chapter, local ordinance,
or other state law, the lead agency shall provide 30 days' notice to
the director that it intends to approve the annual financial
assurance cost estimate.
(E) Within 30 days of the lead agency's approval of the annual
financial assurance cost estimate, the lead agency shall send the
director its final response to the director's comments.
(6) If the lead agency determines an operator's annual financial
assurance cost estimate is inadequate, the lead agency shall specify
the reasons for that determination. The operator shall have 30 days
to appeal that denial pursuant to subdivision (e) of Section 2770 or
provide a revised financial assurance cost estimate incorporating the
suggested changes to the lead agency for approval by the lead agency
pursuant to this section.
(e) (1) Within 30 days of the lead agency's approval of a
financial assurance cost estimate pursuant to this section, the
operator shall provide the lead agency and the director an
appropriate financial assurance mechanism.
(2) (A) Within 15 days of receiving a financial assurance
mechanism pursuant to this subdivision, or subdivision (c) of Section
2773.1 the lead agency and the director shall review the financial
assurance mechanism to determine if the type of mechanism, including
the release instructions, meets the requirements of this chapter.
(B) Financial assurance mechanisms determined to be noncompliant
with this chapter shall be returned to the operator with instructions
on how to correct the type or release instructions of the financial
assurance mechanism.
(3) By July 1, 2018, the board shall adopt forms to implement this
subdivision as necessary. The forms shall be subject to the
requirements of the Administrative Procedure Act (Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2 of
the Government Code).
(f) The review and approval of financial assurances pursuant to
this chapter shall not be considered a project for the purposes of
the California Environmental Quality Act (Division 13 (commencing
with Section 21000)).
SEC. 10. 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 financial assurances 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) (1) The lead agency shall cause surface mining operations to
be inspected in intervals of no more than 12 months, solely to
determine whether the surface mining operation is in compliance with
this chapter. The lead agency shall cause an inspection to be
conducted by a state-licensed geologist, state-licensed civil
engineer, state-licensed landscape architect, state-licensed
forester, or a qualified lead agency employee who has not been
employed by the surface mining operation being inspected in any
capacity during the previous 12 months, except that a qualified lead
agency employee may inspect surface mining operations conducted by
the local agency. All inspections shall be conducted using a form
developed by the department and approved by the board that includes
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 shall provide a notice of completion of inspection to the
director within 90 days of conducting the inspection. The notice
shall contain a statement regarding the surface mining operation's
compliance with this chapter and a copy of the completed inspection
form, and shall specify, as applicable, all of the following:
(A) Aspects of the surface mining operation, if any, that were
found to be inconsistent with this chapter but were corrected before
the submission of the inspection form to the director.
(B) Aspects of the surface mining operation, if any, that were
found to be inconsistent with this chapter but were not corrected
before the submission of the inspection form to the director.
(C) A statement describing the lead agency's intended response to
any aspects of the surface mining operation found to be inconsistent
with this chapter but were not corrected before the submission of the
inspection form to the director.
(2) If the surface mining operation has a review of its
reclamation plan, financial assurances, or an interim management plan
pending under subdivision (b) 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 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,
forester, or qualified lead agency employee who conducted the
inspection.
(c) If an operator does not request an inspection date on the
annual report filed pursuant to Section 2207 or if the lead agency is
unable to cause the inspection of a given surface mining operation
on the date requested by the operator, the lead agency shall
provide the operator with a
minimum of five days' written notice of a pending inspection or a
lesser time period if agreed to by the operator.
(d) No later than July 1 of each year, the lead agency shall
submit to the director for each active or idle surface mining
operation within the lead agency's jurisdiction the following
information:
(1) A copy of any permit or reclamation plan amendments, as
applicable.
(2) A statement that there have been no changes during the
previous year, as applicable.
(3) The date of each surface mining operation's last inspection.
(4) The date of each surface mining operation's last financial
assurance review pursuant to Section 2773.1 for each operation
listed.
(e) (1) No later than December 31, 2017, the department shall
establish a training program for all surface mine inspectors. The
program shall be designed to include a guidance document, developed
by the department, in consultation with the board and stakeholders,
to provide instruction and recommendations to surface mine inspectors
performing inspections pursuant to subdivision (b).
(2) The training program shall include inspection workshops
offered by the department in different regions of the state to
provide practical application of the guidance document material.
(3) On and after July 1, 2020, all inspectors shall have on file
with the lead agency and the department a certificate of completion
of an inspection workshop. An inspector shall attend a workshop no
later than five years after the date of his or her most recent
certificate.
(4) The adoption of the guidance document by the department
pursuant to this subdivision shall be subject to the requirements of
the Administrative Procedure Act (Chapter 3.5 (commencing with
Section 11340) of Part 1 of Division 3 of Title 2 of the Government
Code).
SEC. 11. Section 2774.1 of the Public Resources Code is amended to
read:
2774.1. (a) (1) 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 surface mining operation, that a surface mining
operation is not in compliance with this chapter, the lead agency or
the director may issue a notice of that violation to the operator by
personal service or certified mail. If the lead agency issues the
notice, the lead agency shall send a copy of the notice to the
director. The notice shall include both of the following:
(A) A description of the violation.
(B) Actions the operator shall take to correct the violation.
(2) (A) If a lead agency or the director determines that the time
to correct the noticed violation will exceed 30 days, the lead agency
and the operator may enter into a stipulated order to comply, with
notice sent to the director. If the director initiated the
enforcement action, the director, after consulting with the lead
agency, may enter into a stipulated order to comply with the
operator. The lead agency may, but need not, join the stipulated
order with the director.
(B) A stipulated order to comply shall include a schedule and time
for compliance that the lead agency or the director, as applicable,
determines is reasonable after taking into account the actions and
legal processes required to correct the violation.
(3) (A) If the operator does not comply with a notice issued
pursuant to paragraph (1) within 30 days of being served the notice
or commit to enter into a stipulated order to comply pursuant to
paragraph (2) within 30 days of being served the notice, the lead
agency or the director may issue an order to comply 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 surface mining
activities.
(B) An order to comply issued pursuant to this paragraph shall
take effect 30 days following the service of the order to comply
unless within those 30 days the operator appeals the order to comply
and requests a hearing before the lead agency, if the lead agency
issued the order, or the board, if the director issued the order. An
order to comply issued pursuant to this paragraph shall specify all
of the following:
(i) Which aspects of the surface mining operation are inconsistent
with this chapter.
(ii) A time for compliance that the lead agency or director
determines is reasonable, taking into account the seriousness of the
alleged violation and any good faith efforts to comply with
applicable requirements.
(iii) The actions and legal processes required to correct the
alleged violation.
(C) An appeal filed pursuant to subparagraph (B) shall be noticed
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
operator and the lead agency, if the lead agency issued the order, or
the operator and the director, if the director issued the order.
(b) Reserved]
(c) An operator who violates or fails to comply with an order to
comply issued under subdivision (a) after the order's effective date
or who fails to submit a report or pay annual fees 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,
including Section 2207, or from the date of the inspection when the
violation was identified, at the discretion of the issuer of the
notice of that violation. 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
assessment 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 in
implementing this chapter or Section 2207.
(d) (1) An operator who violates or fails to comply with an order
to comply issued pursuant to paragraph (3) of subdivision (a) or a
stipulated order to comply entered into pursuant to paragraph (2) of
subdivision (a) after the order's effective date shall be removed
from the list published by the department pursuant to subdivision (b)
of Section 2717.
(2) If after a public hearing the board or lead agency denies an
appeal by the operator pursuant to subparagraph (C) of paragraph (3)
of subdivision (a), the operator shall be removed 10 working days
following the denial of the appeal from the list published by the
department pursuant to subdivision (b) of Section 2717.
(3) If the operator enters into a stipulated order to comply
between the operator and the lead agency, if the lead agency issued
the order, or the operator and the director, if the director issued
the order, within 10 working days of the denial of the appeal and the
stipulated order to comply is consistent with the order to comply
upheld by the board or lead agency and includes a stipulated schedule
for compliance, the operator shall remain on the list published by
the department pursuant to subdivision (b) of Section 2717.
(4) Issuance of a notice pursuant to paragraph (1) of subdivision
(a) or an order to comply or stipulated order to comply pursuant to
paragraph (2) or (3) of subdivision (a) shall not disqualify an
operator from eligibility for placement on the list published by the
department pursuant to subdivision (b) of Section 2717.
(e) 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.
(f) 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.
(g) (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.
(h) Remedies under this section are in addition to, and do not
supersede or limit, any and all other remedies, civil or criminal.
SEC. 12. Section 2774.2 of the Public Resources Code is amended to
read:
2774.2. (a) Within 30 days of the issuance of an order setting
administrative penalties under subdivision (c) of Section 2774.1, the
operator may petition the legislative body of the lead agency, if
the lead agency has issued the order, or the board for orders issued
by the director, for review of the order. If the operator does not
petition for review within the time limits set by this subdivision,
the order setting administrative penalties shall not be subject to
review by any court or agency.
(b) The legislative body of the lead agency or the board shall
notify the operator by personal service or certified mail whether it
will review the order setting administrative penalties. In reviewing
an order pursuant to this section, the record shall consist of the
record before the lead agency or the director and any other relevant
evidence which, in the judgment of the legislative body or the board,
should be considered to effectuate and implement the policies of
this chapter.
(c) The legislative body or the board may affirm, modify, or set
aside, in whole or in part, by its own order an order of the lead
agency or the director setting administrative penalties reviewed by
the legislative body or the board pursuant to this section.
(d) An order of the legislative body or the board issued under
subdivision (c) shall become effective upon its issuance unless the
operator petitions the superior court for review as provided in
subdivision (e). An order shall be served by personal service or by
certified mail upon the operator. Payment of an administrative
penalty that is specified in an order issued pursuant to subdivision
(c) shall be made to the lead agency or the director within 30 days
of service of the order. However, the payment shall be held in an
interest bearing impound account pending the resolution of a petition
for review filed pursuant to subdivision (e).
(e) An operator aggrieved by an order of the legislative body or
the board issued pursuant to subdivision (c) may obtain review of the
order by filing in the superior court a petition for writ of mandate
within 30 days following the issuance of the order. An operator
aggrieved by an order of a lead agency or the director setting
administrative penalties pursuant to subdivision (c) of Section
2774.1, for which the legislative body or board denies review, may
obtain review of the order in the superior court by filing in the
court a petition for writ of mandate within 30 days following the
denial of review. The provisions of Section 1094.5 of the Code of
Civil Procedure shall govern judicial proceedings pursuant to this
subdivision, except that in every case the court shall exercise its
independent judgment. If the operator does not petition for a writ of
mandate within the time limits set by this subdivision, an order of
the board or the legislative body shall not be subject to review by
any court or agency.
(f) (1) After the expiration of the time to petition for review
pursuant to subdivision (a) or (e), the director or the board acting
as the lead agency may apply to the small claims court or the
superior court, depending on the jurisdictional amount, in the county
where the administrative penalty was imposed for a judgment to
collect the unpaid administrative penalty imposed pursuant to
subdivision (c) of Section 2774.1. The application shall include all
of the following:
(A) The order setting the administrative penalty pursuant to
subdivision (c) of Section 2774.1.
(B) A notice to the operator of the right to petition for review
of the order.
(C) Either of the following:
(i) A declaration from the board that no petition was made or that
the board declined to review the petition.
(ii) A copy of the final order of the board.
(2) An application submitted pursuant to this subdivision shall
constitute a sufficient showing to warrant the issuance of the
judgment. The court clerk shall enter the judgment immediately in
conformity with the application.
(3) The judgment entered pursuant to this subdivision shall have
the same force and effect as, and shall be subject to all the
provisions of law relating to, a judgment in a civil action and may
be enforced in the same manner as any other judgment of the court.
The court shall make enforcement of the judgment a priority.
SEC. 13. Section 2774.4 of the Public Resources Code is amended to
read:
2774.4. (a) The board shall exercise some or all of a lead agency'
s powers under this chapter pursuant to subdivision (c), except for
permitting authority and vested rights determinations, if the board
finds that a lead agency has done any of the following:
(1) Approved reclamation plans or financial assurances that are
not consistent with this chapter.
(2) Failed 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.
(6) Failed to submit information to the department as required by
this chapter.
(b) The board shall conduct a public hearing no sooner than three
years after the board has taken action pursuant to subdivision (a) to
determine if a lead agency has corrected its deficiencies in
implementing and enforcing this chapter and the rules and regulations
adopted pursuant to this chapter. If the board finds the lead agency
has corrected some or all of its deficiencies in implementing and
enforcing this chapter, the board shall restore to the lead agency
some or all of the powers assumed by the board pursuant to
subdivision (a).
(c) (1) 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 provide a response
to the board on the identified deficiencies. The board may review the
lead agency's response at a regularly scheduled meeting.
(2) (A) If the board is not satisfied with the lead agency's
response, 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
operators within the lead agency's jurisdiction who have submitted
reports as required by Section 2207.
(B) At the hearing, the board shall determine if the lead agency
has engaged in the conduct described in subdivision (a). If the board
finds that the lead agency has engaged in conduct described in
subdivision (a), the board shall do either of the following:
(i) Require the lead agency to develop a remedial plan to correct
the noted deficiencies. The remedial plan shall describe specific
objectives and corresponding processes designed to address, at a
minimum, the noted deficiencies and a time that the remedial plan
will be fully implemented. The board shall set a hearing to review
the completion of the remedial plan consistent with paragraph (2) and
subdivisions (d) and (e).
(ii) Take immediate action pursuant to subdivision (a).
(d) Affected operators and interested persons have the right at
the public hearing to present oral and written evidence on the matter
being considered. At the public hearing, the board may place
reasonable limits on the right of affected operators and interested
persons to question and solicit testimony.
(e) (1) If the board decides to take action pursuant to
subdivision (a) and exercise some or all of a lead agency's powers
under this chapter, except for permitting authority and vested rights
determinations, the board, based on the record of the public
hearing, shall adopt written findings that explain all of the
following:
(A) The action to be taken by the board.
(B) Why the board decided to take the action.
(C) Why the action is authorized by and meets the requirements of
subdivision (a).
(2) In addition, the board's findings shall address the
significant issues raised, or written evidence presented, by affected
operators, interested persons, the lead agency, or the department.
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) If the board finds at the hearing held pursuant to paragraph
(2) of subdivision (c) that the lead agency has not completed the
remedial plan prepared pursuant to clause (i) of subparagraph (B) of
paragraph (2) of subdivision (c) to the board's satisfaction, the
board shall follow the procedures set forth in paragraph (2) of
subdivision (c) and subdivisions (d) and (e). If the board finds at
the hearing held pursuant to paragraph (2) of subdivision (c) that
the lead agency has completed the remedial plan prepared pursuant to
clause (i) of subparagraph (B) of paragraph (2) of subdivision (c) to
the board's satisfaction, the board shall conclude the action it has
taken pursuant to this section.
(g) The lead agency, any affected 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.
SEC. 14. 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.
SEC. 15. This act shall become operative only if both this bill
and Senate Bill 209 of the 2015-16 Regular Session are enacted and
become operative on or before January 1, 2017.