BILL ANALYSIS Ó
AB 1142
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Date of Hearing: April 11, 2106
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Das Williams, Chair
AB 1142
(Gray) - As Amended March 16, 2016
SUBJECT: Mining and geology: surface mining
SUMMARY: Makes numerous changes to the Surface Mining and
Reclamation Act (SMARA) that are all part of the year-long
stakeholder process convened by the Governor's office in 2015 to
recommend substantive and procedural changes to the state's
mining laws.
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). Reclamation plans and financial assurances must be
submitted to the Director of the Department of Conservation
(DOC) for review.
2)Requires the Board to impose an annual reporting fee for each
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active or idle mining operation. Specifies that the maximum
fee for any single mining operation may not exceed $4,000
annually and may not be less than $100 annually, as adjusted
for the cost of living, for the purpose of carrying out SMARA.
3)Provides a mechanism by which the Board can strip a local
agency of its lead agency status for failure to implement
state law; the Board then serves as the lead agency.
4)Requires the Board to adopt regulations that establish state
policy for the reclamation of mined lands in accordance with
the intent of SMARA.
5)Requires lead agencies to require financial assurances for
each surface mining operation to ensure reclamation is
performed in accordance with the surface mining operation's
approved reclamation plan.
6)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.
7)Requires lead agencies to conduct annual mine inspections to
determine compliance with SMARA.
8)Establishes administrative penalties of not more than $5,000
per day from the original date of noncompliance for operators
who violate or fail to comply with an order by the lead agency
or the director.
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9)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
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.
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.
10)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 or DOC.
THIS BILL:
1)Requires DOC to provide an accounting of how mining fee
revenue is spent.
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2)Defines "reclamation" and "financial assurances",
3)Allows DOC to appeal financial assurance approvals that they
believe are inadequate to the Board.
4)Clarifies the financial assurance and reclamation plan appeal
process to the Board, establishes time frames for hearings,
specifies issues that need to be considered, and clarifies
under what circumstances the Board can decline to hear
appeals.
5)Clarifies what must be included in a reclamation plan,
including requiring maps, diagrams, and calculations in the
reclamation plan be done by appropriately licensed
professionals.
6)Requires lead agencies to certify that the proposed
reclamation plan is complete and compliant with applicable
statutes and regulations.
7)Allows DOC to make a determination of incompleteness and
remand the reclamation plan back to the lead agency for
improvements prior to approval. Sets a deadline of 30 days
for DOC to notify a lead agency and the operator that a
reclamation plan is incomplete. Sets deadline of 30 days for
DOC to prepare written comments on the reclamation plan after
notifying that a reclamation plan is incomplete.
8)Prohibits a financial assurance mechanism shall not be
released without the consent of the lead agency and DOC.
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9)Clarifies how a lead agency may cause the forfeiture of
financial assurance mechanism when an operator is financially
incapable of completing reclamation in accordance with its
approved reclamation plan
10)Requires the Board to develop a form for submission of
financial assurances.
11)Establishes a formal process for review of financial
assurance cost estimate (FACE) by DOC, and includes the
ability of the DOC to require consultations with lead agencies
when they do not agree with the DOC's assessment of the FACE.
Requires lead agencies to explain in writing why the lead
agency is not modifying the FACE pursuant to comments made by
the DOC.
12)Allows a lead agency employee, under specified conditions, to
conduct inspections of surface mining operations conducted by
the lead agency.
13)Specifies that if the operator does not request an inspection
date or the lead agency is unable to inspect on the requested
date, the lead agency must provide a minimum five days written
notice of a pending inspection or a date that is agreed upon
by the operator. Deletes the requirement for a lead agency to
conduct an inspection within 6 months of receipt of the report
and instead requires inspections at 12-month intervals.
14)Requires that DOC to establish an inspection training program
that all inspectors must complete by July 1, 2020. Requires
inspectors to retake the training at least every five years.
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15)Requires inspection reports to be submitted to the DOC within
90 days and specify what is to be included in the reports.
16)Requires lead agency to outline intended plan of action to
remedy violations noted in inspection report.
17)Allows DOC or the Board to apply to the small claims court or
superior court to collect unpaid administrative fees. Allows
the lead agency or DOC to assess administrative penalties on
operators who do not pay annual reporting fees.
FISCAL EFFECT: According to the Senate Appropriations
Committee, there are unknown costs to the Surface Mining and
Reclamation Account for additional review by the director of
reclamation plans and financial assurances.
COMMENTS:
1)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
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
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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.
In the Governor's signing statement for SB 447 (Lara, 2013),
Chapter 417, Statutes of 2013, he called for a top-to-bottom
review of SMARA. 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;
c) Financial assurances are not released until reclamation
is complete;
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d) Financial assurance can be used for reclamation if the
mine owner does not reclaim their mine;
e) Quality inspections of mines occur annually;
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.
The goal of these talks is to amend SMARA to meet its intent.
DOC released language on these issues and solicited feedback
from stakeholders. This language was amended into this
bill and SB 209 (Pavley), and, therefore, the current bill is
the product of the Governor's stakeholder process.
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1)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 toward 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 creates a new layer of DOC review of
reclamation plans to ensure they are complete and to give the
Director an opportunity to improve the plans. AB 1142 also
attempts to improve financial assurances by making sure they
are adequate and prevent the release of mechanisms prior to
completion of reclamation by requiring both the DOC and lead
agency to agree to their release.
2)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 can be included in a SMARA permit. These
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conditions can include requirements that deal with water
quality issues and streambed alterations. 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 mines frequently or adequately. AB 1142
requires the DOC to establish an inspection training program
and for inspectors to retake the program every five years.
3)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. AB 1142 allows
the lead agency or DOC to assess administrative penalties of
operators who do not pay annual reporting fees. AB 1142
provides the Board with more tools to work with lead agencies
to address problems with their implementation of SMARA, such
as remedial plans or taking away some of their powers.
REGISTERED SUPPORT / OPPOSITION:
Support
None on file
AB 1142
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Opposition
None on file
Analysis Prepared by:Michael Jarred / NAT. RES. / (916) 319-2092