BILL ANALYSIS Ó
AB 1142
Page 1
Date of Hearing: April 27, 2015
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Das Williams, Chair
AB 1142
(Gray) - As Amended April 6, 2015
SUBJECT: Mining and geology: surface mining
SUMMARY: Makes numerous and significant changes to the Surface
Mining and Reclamation Act of 1975 (SMARA).
EXISTING LAW:
1)Creates SMARA, which prohibits a person from conducting
surface mining operations unless the lead agency for the
operation issues a surface mining permit and approves a
reclamation plan and financial assurances for reclamation.
Depending on the circumstances, a lead agency can be a city,
county, the San Francisco Bay Conservation and Development
Commission, or the California State Mining and Geology Board
(Board). However, reclamation plans and financial assurances
must be submitted to the Director of the Department of
Conservation (DOC) for review.
2)Provides a mechanism by which the Board can strip a local
agency of its lead agency status for its failure to implement
state law, the Board then serves as the lead agency.
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3)Requires the Board to adopt regulations that establish state
policy for the reclamation of mined lands in accordance with
the intent of SMARA.
4)Requires lead agencies to require financial assurances of each
surface mining operation to ensure reclamation is performed in
accordance with the surface mining operation's approved
reclamation plan.
5)Requires the financial assurance to remain in effect for the
duration of the surface mining operation and until the
reclamation is complete. Requires the amount of financial
assurance to be adjusted annually to account for new lands
disturbed by surface mining operations, inflation, and
reclamation of lands accomplished in accordance with the
approved reclamation plan.
6)Requires the lead agencies to conduct annual mine inspections
to determine compliance with SMARA.
7)Prohibits a state or local agency from acquiring or utilizing
sand, gravel, aggregates, or other mineral products from
surface mining operations unless the operation is identified
on the AB 3098 List (a reference to the 1992 bill that
established the list), which identifies all of the following
surface mining operations:
a) Surface mining operations for which a report has been
submitted to DOC that indicates that: (1) a reclamation
plan and financial assurances have been approved pursuant
to SMARA; (2) the operations are in compliance with the
state's reclamation standards; (3) the operations are in
compliance with the state's financial assurance guidelines;
and, (4) the annual reporting fee has been submitted to
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DOC;
b) Surface mining operations for which an appeal is pending
before the Board, provided that the appeal has not been
pending before the Board for more than 180 days; and,
c) Surface mining operations for which an inspection is
required and for which an inspection notice has been
submitted by the lead agency that indicates both compliance
with the approved reclamation plan and that sufficient
financial assurances have been approved and secured.
8)Allows, until January 1, 2019, a surface mine operator whose
operations are not in compliance with its approved reclamation
plan to remain on the AB 3098 list if the operator stipulated
to an order to comply with the lead agency and or DOC.
THIS BILL:
1)Requires a surface mine operator, as part of their annual
report, to request a date for their next annual inspection. If
the operator does not request an inspection date or the lead
agency is unable to inspect on that date, the lead agency
shall provide a minimum 30 days written notice of a pending
inspection or a date that is agreed upon by the operator.
2)Removes the January 1, 2019 sunset on the provision allowing
surface mining operators, whose operations are not in
compliance with its approved reclamation plan, to remain on
the AB 3098 list if the operator stipulated to an order to
comply with the lead agency and/or DOC.
3)Prohibits adjustment of financial assurances that are in
excess of the of the amount determined necessary to perform
reclamation in accordance with the surface mining operation's
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approved reclamation plan.
4)Codifies regulations dealing with the modification or release
of financial assurance and narrows the review of the surface
mining operation to the approved reclamation plan instead of
allowing for review of whether the plan meets reclamation plan
standards and whether the surface mining operator is complying
with the other requirements and intent of SMARA.
5)Allows an operator to request the lead agency and the Director
to jointly inspect and review a request for full or partial
release of a financial assurance instrument and sets a
timeline for the inspection of 90 days after the request with
a requirement for a decision on the request 45 days after the
inspection.
6)Deletes requirement that lead agency conduct an inspection
within six months of receipt of the surface mining operation
report and instead requires inspections annually. Limits
inspection to compliance with its reclamation plan instead of
compliance with the reclamation plan and with the other
requirements and intent of SMARA.
7)Requires a mine inspection to be conducted by a state licensed
geologist, state licensed civil engineer, state licensed
landscape architect, state licensed forester, or a qualified
mine inspector trained through the curriculum developed by the
bill. Allows a lead agency employee who is a qualified mine
inspector to inspect a surface mine operation conducted by
another department within the local agency.
8)Creates a new financial assurance cost estimate (FACE) process
where the operator provides the FACE to DOC and the lead
agency for review. Allows DOC to comment on the FACE. Allows
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the lead agency to evaluate DOC's comments and provide a
response to the comments. Requires the lead agency to accept
or reject the FACE within 60 days of receipt of the DOC's
comments or the due date for the comments, if comments are not
received. Creates an appeal process and timelines if the lead
agency determines the FACE is inadequate.
9)Requires, no later than April 1 of each year, DOC to provide
each lead agency with a notice listing each active or idle
surface mining operation within the lead agency's
jurisdiction.
10)Requires, no later than July 1 of each year, the lead agency
to provide the Director with the following information for
each surface mine operation:
a) A copy of any permit or reclamation plan amendments.
b) A statement that there have been no changes during the
previous year, as applicable.
c) The date of each surface mining operation's last
inspection.
d) The date of each surface mining operation's last FACE
review.
11) Requires DOC to request similar information on any new or
omitted operations.
12)Requires the form provided by DOC to include all of DOC's
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current information for each operation.
13)Exempts the review and approval of FACE from the California
Environmental Quality Act.
14)Allows the surface mine operator to fulfill the inspection
requirement with a third party selected by the operator if the
lead agency has not inspected the mine on the inspection date
requested or provided a 30 day-notice of a pending inspection.
15)Requires the State Geologist, in coordination with the
Director, Board, lead agencies, and interested parties, to
develop a curriculum for training mine inspectors.
16)Prohibits mine inspectors from inspecting mines for purposes
of evaluating compliance with local, state, or federal law
besides SMARA including, but not limited to the Porter-Cologne
Water Quality Control Act, the federal Clean Water Act, and
the Fish and Game Code.
17)Requires the lead agency, DOC, and the Board to take into
account and seek to minimize the impact of any proposed
enforcement action on the number of existing jobs supported
directly or indirectly by the operation.
FISCAL EFFECT: Unknown
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COMMENTS:
1)Author's statement.
SMARA was first adopted in 1975 and underwent significant
revisions in the early 1990s and more modest revisions to
address implementation challenges in recent years.
Recently concerns have arisen that the checks and balances
of the system may not be working properly and the Governor,
in signing SB 447 (Lara, 2013) called for a "top to bottom"
review of the Act.
The administration has recently convened a stakeholder
process to identify the potential issues within SMARA that
may require legislative action. AB 1142 (Gray) proposes
solutions to multiple identified issues. While the
stakeholder process continues, AB 1142 should move forward
and may be amended to include further identified solutions.
2)Governor's stakeholder group. SMARA was passed into law in
1975 and its intent remains unchanged. SMARA states:
It is the intent of the Legislature to create and maintain
an effective and comprehensive surface mining and
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reclamation policy with regulation of surface mining
operations so as to assure that:
(a) Adverse environmental effects are prevented or
minimized and that mined lands are reclaimed to a usable
condition which is readily adaptable for alternative land
uses.
(b) The production and conservation of minerals are
encouraged, while giving consideration to values relating
to recreation, watershed, wildlife, range and forage, and
aesthetic enjoyment.
(c) Residual hazards to the public health and safety are
eliminated.
As stated above, the Governor has called for a top to bottom
review of SMARA. The goal of these talks is to amend SMARA to
meet its intent. Multiple stakeholder group meetings have been
held to discuss the administration's concerns with SMARA.
Issues that are under discussion include:
a) Meaningful reclamation of disturbed mine lands;
b) Adequate financial assurance;
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c) Financial assurances are not released until reclamation
is complete;
d) Financial assurance can be used for reclamation if the
mine owner does not reclaim their mine;
e) Annual, quality inspections of mine occur;
f) When inspectors find non-compliance enforcement is
clear, timely, and meaningful;
g) The Board has tools to improve local SMARA
implementation;
h) Reporting fees and penalties are paid by operators and
that fees cover the cost of the program; and,
i) Inappropriate exemptions from SMARA are stopped.
On April 15, 2015, DOC developed language that they assert
will improve the quality of reclamation plans, which will
assist lead agencies and the DOC in both the review and
inspection checklist process. Language on the other issues
will be developed over time.
Parts of AB 1142 would run counter to the direction the
Governor's stakeholder group is headed by making several
changes that would result less meaningful reclamation,
inadequate financial assurance, a reduction in the quality of
inspection and meaningful enforcement.
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3)Reclamation. There are over a thousand active mines in
California that remove aggregate for building material,
metals, and minerals. California is the only state in the U.S.
where surface mine reclamation is not regulated by the state.
Local governments including cities and counties are the lead
agencies for most mines. However, DOC and the Board oversee
their permitting, inspection, and enforcement actions. Mining
operators are required under SMARA to develop and implement
reclamation plans, which will return the mine to a condition
where it can be used for another purpose after the mining
operation is complete. Annual reports and inspections are
supposed to ensure that mining operators are making progress
to reclamation. However, there are instances when the mine
operator cannot be located or is unable to complete the mine
reclamation. Financial assurances are required to make sure
there will be resources available to reclaim the mine. The
state and lead agencies have an interest in properly reclaimed
mines, because a surface mine is a large hole in the ground
and can have many dangerous features. If the mine is
reclaimed, the land can be returned to another use. If it is
not, the state or the lead agency could be responsible for
protecting the public from the dangers of the mine, cleaning
up the mine, and reclaiming the mine.
AB 1142 would prohibit adjustment of financial assurances that
are in excess of the of the amount determined necessary to
perform reclamation in accordance with the surface mining
operation's approved reclamation plan and limit the review of
the financial assurance by the lead agency. This would stop a
lead agency from increasing financial assurances to cover new
conditions such as if the mine was deeper or wider than the
approved reclamation plan allowed. Lead agencies would also
not be able to increase the financial assurance to cover
increases in the prevailing wage. AB 1142 would also prohibit
lead agencies from considering whether the reclamation plan is
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sufficient and if the mine is violating any other requirements
of SMARA before releasing the financial assurances.
4)Inspections. Lead agencies are required to annually inspect
mines to ensure they are complying with their permits,
reclamation plan, and SMARA. Permit conditions imposed by a
regional water quality control board or the Department or Fish
and Wildlife, which can include requirements that deal with
water quality issues and streambed alterations can be included
in a SMARA permit. In addition, mine inspectors are the
inspectors most often in the mine and the last inspector in
the mine before it closes. Often mine inspectors play a vital
role in ensuring compliance with other environmental laws.
However, lead agencies in the past have not always inspected
mine frequently. AB 1142 sets up a process for operators to
request a date for a mine inspection and sets up a training
component for mine inspectors. However, AB 1142 also allows
mine operators to inspect their own mines and prohibits mine
inspectors from looking at compliance with other important
environmental laws.
5)Enforcement. The largest compliance problem DOC faces is that
many mines do not file annual reports or pay their fees. Most
lead agencies do not take enforcement actions except in rare
egregious cases. According to one lead agency, last year all
of their 10 compliance orders were settled prior to a public
hearing. However, the administration has stated that when
inspections indicated non-compliance, the problems identified
are often never fixed. It is important that lead agencies have
the tools to bring mines into compliance. SB 447, until 2019,
allows surface mine operators whose operations are not in
compliance with its approved reclamation plan to remain on the
AB 3098 list if the operator stipulated to an order to comply
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with the lead agency and or DOC. AB 1142 proposes to make SB
447 permanent. However, there is not one example of this
provision being used. Prior to removing the sunset on this
provision, it is important to judge whether this provision
improves compliance with SMARA.
AB 1142 also proposes to make lead agencies take into account
and seek to minimize the impact of any proposed enforcement
action on the number of existing jobs supported directly or
indirectly by the surface mining operation. Surface mines
operations are important to many economies and most lead
agencies only use enforcement as a last resort. If an
operation is seriously out of compliance, lead agencies should
enforce on that operation. This provision could lead to larger
mines with many employees taking compliance with SMARA less
seriously than smaller mines. This also results in a precedent
where public health is pitted against employment. The goal of
SMARA should be to have sufficient mines in California to meet
the state's demand for aggregate, metals, and minerals, that
those mines are removing material in an environmentally
responsible way, and that the mine's disturbed lands are
reclaimed and returned to good use. Compliance with SMARA is
the only way that will happen.
6)Related and Prior legislation.
SB 209 (Pavley) makes numerous and significant changes to the
Surface Mining and Reclamation Act of 1975 (SMARA). This bill is
awaiting hearing in the Senate Appropriations Committee.
SB 1270 (Pavely, 2013) would create the Division of Mines within
DOC, which would be responsible for the DOC's role under mining
laws, and would amend the roles of the State Mining and Geology
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Board so that it is an appeals and rule-making body. This bill
was held in the Senate Appropriations Committee.
SB 447 (Lara), Chapter 417, Statutes of 2013, allows, until
January 1, 2019, a surface mine operator whose operations are
not in compliance with its approved reclamation plan, to remain
on the AB 3098 list if the operator stipulated to an order to
comply with the lead agency and or DOC.
7)Suggested Amendments. The author and committee may wish to
consider to following amendments to resolve the concerns
listed above:
a) Remove the deletion of the January 1, 2019 sunset on the
provision allowing surface mining operators whose
operations are not in compliance with its approved
reclamation plan to remain on the AB 3098 list if the
operator stipulated to an order to comply with the lead
agency and or DOC.
b) Remove the language from Section 2773.1 that states, "An
operator shall not be required to adjust financial
assurances that are in excess of the amount determined
necessary to perform reclamation in accordance with the
surface mining operation's approved reclamation plan" and
insert, "An operator shall only be required to replace a
financial assurance mechanism already in place to bond for
the reclamation of the surface mining operation where the
Financial Assurance Cost Estimate identifies a need to
increase the amount of the financial assurance mechanism."
c) Remove Sec. 5 (Section 2773.11) from the bill.
d) In Section 2774, remove the minimum 30-day written
notice of a pending inspection and replace with a 5-day
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notice.
e) Remove the language from Section 2774 that states, "An
operator shall not be required to adjust financial
assurances that are in excess of the amount determined
necessary to perform reclamation in accordance with the
surface mining operation's approved reclamation plan
provided that financial assurance mechanism remains in
effect" and insert, "An operator shall only be required to
replace a financial assurance mechanism already in place to
bond for the reclamation of the surface mining operation
where the Financial Assurance Cost Estimate identifies a
need to increase the amount of the financial assurance
mechanism."
f) Remove the language from Section 2774 that states, "(h)
(1) If a surface mining operation is not inspected by the
lead agency on the date requested by the operator pursuant
to Section 2207 and the operator has not received a 30-day
notice of pending inspection from the lead agency as
provided in subdivision (e), the operator may send a notice
to the lead agency and the director stating the operator's
intent to have the surface mining operation inspected by a
third party who has not been employed in any capacity by
the operator in the previous 12 months and who is a
state-licensed geologist, state-licensed civil engineer,
state-licensed landscape architect, or state-licensed
forester who is experienced in land reclamation. An
inspector retained by the operator pursuant to this section
shall provide the lead agency a 15-day notice of the
inspector's intended inspection date for the operation and
shall provide a reasonable opportunity for a representative
of the lead agency to attend the inspection."
g) Remove the language from Section 2774 that states, "(5)
Absent express authorization under this chapter, mine
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inspectors shall not inspect operations for the purpose of
evaluating compliance with separate provisions of local,
state, or federal law, including, but not limited to, the
Porter-Cologne Water Quality Control Act (Division 7
(commencing with Section 13000) of the Water Code), the
federal Clean Water Act (33 U.S.C. Sec. 1251 et seq.), and
the Fish and Game Code."
h) Remove the language from Section 2774.1 that states,
"(g) In exercising enforcement authority pursuant to this
section, the lead agency, the director, or the board, as
appropriate, shall take into account and seek to minimize
the impact of any proposed enforcement action on the number
of existing jobs supported directly or indirectly by the
surface mining operation."
i) Insert language provided by author's office allowing the
Board or DOC to apply to small claims court for unpaid
administrative penalties.
REGISTERED SUPPORT / OPPOSITION:
Support
Allied Concrete & Supply Co., Inc.
Associated Builders and Contractors of California
Associated General Contractors
BoDean
Brown Sand, Inc.
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California Asphalt Pavement Association
California Building Industry Association
California Business Properties Association
California Chamber of Commerce
California Construction and Industrial Materials Association
California Independent Petroleum Association
California Manufacturers and Technology Association
California-Nevada Conference of Operating Engineers
California State Council of Laborers
CalPortland Company
CEMEX
Granite Construction Company
Granite Rock Company
Knife River Corporation
Livingston's Concrete Service, Inc.
National Federation of Independent Businesses
Puente Ready Mix, Inc.
P.W. Gillibrand Co., Inc.
Robertson's Ready Mix
Rural County Representatives of California
Searles Valley Minerals
Stimpel-Wiebelhaus Associates, Inc.
Superior Ready Mix Concrete
United Contractors
Werner Corporation
Opposition
California League of Conservation Voters
California Native Plant Society
Center for Biological Diversity
Center for Environmental Health
Coastal Environmental Rights Foundation
Clean Water Action
Coalition for Clean Air
Environmental Working Group
Environment California
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Sierra Club
Sierra Fund (unless amended)
Analysis Prepared by:Michael Jarred / NAT. RES. / (916) 319-2092