BILL ANALYSIS Ó
SB 209
Page 1
Date of Hearing: July 13, 2015
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Das Williams, Chair
SB
209 (Pavley) - As Amended July 7, 2015
SENATE VOTE: 25-13
SUBJECT: Surface mining: inspections and financial assurances.
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). 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
SB 209
Page 2
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 of 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 director.
SB 209
Page 3
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)Renames the Office of Mine Reclamation to instead be the
Division of Mines and creates the Supervisor of Mines and
SB 209
Page 4
Reclamation to direct the Division.
2)Clarifies when construction is exempt from SMARA.
3)Increases the maximum annual reporting fee for any single
mining operation to $10,000 annually over a three year period.
Increases the total allowable revenue generated by the
reporting fees to 8,000,000 annually.
4)Defines "financial assurance" as an approved current financial
assurance cost estimate and a financial assurance mechanism
that is at least equal to the current approved financial
assurance cost estimate.
5)Requires maps, diagrams, or calculations that require
professional preparation be prepared by a California licensed
professional.
6)Creates a new process for the review reclamation plans,
including that the lead agency must provide the Director with
a complete reclamation plan for the Director to review and
comment on. Requires the lead agency to respond to the
Director's comments and either describe how they planning on
adopting the comment or reasons why they will not adopt the
comment.
7)Requires each surface mining operation to have financial
assurance mechanisms (mechanisms) that are at least equal to
the annual financial assurance cost estimate. Prohibits the
release of the mechanisms unless there is written consent from
the lead agency and DOC. Requires subsequent operators of
surface mining operations to post a mechanism within 30 days
of transfer of operation.
SB 209
Page 5
8)Streamlines and clarifies the process to seize the financial
assurances if the operator cannot perform reclamation in order
for the lead agencies to use the proceeds to conduct a
complete reclamation.
9)Allows, subject to Board regulations, mechanisms to include a
corporate financial test to comprise 75% of the financial
assurance.
10)Allows a lead agency employee to inspect surface mining
operations that are owned by the local agency.
11)Requires DOC and the Board to adopt regulations that set
minimum qualifications for a person conducting an inspection
of a surface mining operation and provide a training program
for all surface mine inspectors.
12)Requires the lead agency to combine the notice of violations
with an order to comply if the violation cannot be corrected
within 30 days. Allows an order to comply to take effect
without a hearing if the operator does not request one. Allows
an order to comply to include administrative penalties of not
more than $5,000 per day from the original date of
noncompliance.
13)Requires the Board to either have the lead agency develop a
remedial plan or exercise some or all of a lead agency's
powers under SMARA, except for permitting or vested rights
determinations, if the lead agency fails to implement the law.
Requires the Board to conduct a public hearing to determine if
the lead agency has corrected it implementation and
enforcement of SMARA and requires it to restore some or all of
SB 209
Page 6
its powers if it has taken corrective actions.
14)Requires lead agencies to maintain records associated with
vested right determinations.
15)Removes obsolete provisions.
FISCAL EFFECT: Unknown
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
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
SB 209
Page 7
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;
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;
SB 209
Page 8
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.
In last couple of months DOC released language on these issues
and solicited feedback from stakeholders. This language was
recently amended into SB 209, and therefore, the current bill
is the product of the Governor's stakeholder process.
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
SB 209
Page 9
protecting the public from the dangers of the mine, cleaning
up the mine, and reclaiming the mine. SB 209 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. SB 209 also attempts to improve financial
assurances by making sure they are adequate to do the
reclamations 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
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. SB 209
requires minimum qualifications for inspectors and a training
program for inspectors.
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. SB 209 streamlines
the enforcement process by allowing lead agencies or the
Director to issue an order to comply prior to the 30 day
correction period if it is clear the correction will take more
SB 209
Page 10
than 30 days to correct. It also allows for administrative
penalties to be part of an order to comply. In addition, SB
209 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.
4)Technical amendments. SB 209 uses the term "Board of
Professional Engineers and Land Surveyors." According to the
Board, it has changed its name to "The Board for Professional
Engineers, Land Surveyors, and Geologists." In addition, the
bill requires maps, diagrams, or calculations that require
professional preparation be prepared by a California licensed
professional. However, California offers many types of
licenses. The author and committee may wish to consider
amending the bill to use the correct name for the board and
require the licensed professional to be appropriately
licensed.
6)Related and Prior legislation.
AB 1142 (Gray) makes numerous and significant changes to the
Surface Mining and Reclamation Act of 1975 (SMARA). This bill
will be heard July 14 in the Senate Natural Resources and Water
Committee.
AB 1034 (Obernolte) establishes an alternative procedure for an
amendment to an approved reclamation plan that proposes to use a
designated portion of the mined lands for the construction and
operation of a renewable energy generation facility. This bill
will be heard July 14 in the Senate Natural Resources and Water
Committee.
SB 209
Page 11
SB 1270 (Pavely, 2013) would have created the Division of Mines
within DOC, which would have been responsible for the DOC's role
under mining laws, and would have amended the roles of the State
Mining and Geology 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.
REGISTERED SUPPORT / OPPOSITION:
Support
California League of Conservation Voters
California Native Plant Society
Center for Biological Diversity
CLAIM-GV
Clean Water Action
SB 209
Page 12
Endangered Habitats League
Environmental Working Group
Environment California
Native Plant Society
San Francisco Bay Keeper
San Juan Ridge Taxpayers Association
South Yuba River Citizens League
The Sierra Fund
Wolf Creek Community Alliance
Opposition
None on file
Analysis Prepared by:Michael Jarred / NAT. RES. / (916)
319-2092
SB 209
Page 13