BILL ANALYSIS �
AB 1609
Page 1
Date of Hearing: April 16, 2012
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Wesley Chesbro, Chair
AB 1609 (Lara) - As Introduced: February 7, 2012
SUBJECT : Surface mining: determinations: appeals
SUMMARY : Prevents the Department of Conservation (Department)
from excluding or removing a surface mining operator from the AB
3098 List without first providing notice and an opportunity to
appeal. Allows surface mining operations to remain on the AB
3098 List if the operator is in compliance with an order
addressing noncompliance with the Surface Mining and Reclamation
Act (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 State Mining and Geology Board (Board)
within the Department
2)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
in the AB 3098 List (see #3 below).
3)Requires the Department, at a minimum, to quarterly publish
the AB 3098 List, which is a list identifying all of the
following surface mining operations:
a) Surface mining operations for which a report has been
submitted to the Department that indicates (1) a
reclamation plan and financial assurances have been
approved pursuant to SMARA, (2) the operations are in
compliance with state 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 the Department.
AB 1609
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b) Surface mining operations for which an appeal is pending
before the Board pursuant to #4 below, 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.
4)Authorizes a person to appeal an action or inaction to the
Board if he or she can substantiate that a lead agency has
done any of the following:
a) Failed to act according to due process or has relied on
considerations not related to the specific applicable
reclamation plan filing requirements, reclamation plan
standards, financial assurances requirements, and the lead
agency's surface mining ordinance in reaching a decision to
deny approval of a reclamation plan or financial assurances
for reclamation.
b) Failed to act within a reasonable time of receipt of a
completed application.
c) Failed to review and approve reclamation plans submitted
by March 21, 1988 or financial assurances submitted by
January 1, 1991 pursuant to specified standards.
THIS BILL :
1)Requires that the AB 3098 List include surface mining
operations that are in compliance with an order issued by the
Department or lead agency addressing any noncompliance with
SMARA.
2)Requires the Department to give notice to a surface mining
operation that will be excluded from the AB 3098 List. The
notice shall be given by personal service or certified mail.
The surface mining operation shall have 30 days from the date
of receipt of service in which to file an appeal with the
Board. An appeal shall be scheduled and heard at a public
hearing within 60 days from the date the appeal is filed, or a
longer time as may be mutually agreed upon by the Board and
AB 1609
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the appellant. When a timely appeal is filed on behalf of a
surface mining operation to remove the operation from the AB
3098 List, the surface mining operation shall remain on the
list pending the final outcome of that appeal.
3)Requires that in an appeal filed pursuant to #2 above, the
record before the Board consist of the record before the
Department and any other relevant evidence that, in the
judgment of the Board, should be considered.
4)Authorizes the appellant in an appeal filed pursuant to #2
above to obtain a review of the Board's determination by
commencing an action in court for a writ of mandate within 90
days following that determination. The court shall exercise
its independent judgment when reviewing the case.
FISCAL EFFECT : Unknown
COMMENTS :
1)Background. AB 3098 (1992) established the "AB 3098 List,"
which lists each surface mining operation regulated under
SMARA that meets all of the following conditions: the
operation has an approved reclamation plan; the operation has
an approved financial assurance; the operation has filed its
annual report; the operation has paid its reporting fee; and
the operation has had its annual inspection by the lead agency
which reflects the operation is in compliance with SMARA.
Additionally, an operation may remain on the AB 3098 List if
it has a pending appeal with the Board regarding approval of
the reclamation plan or financial assurances, provided that
the appeal has not been pending for more than 180 days.
The significance of the AB 3098 List is that if a surface
mining operation is not included on the list, which is
published at least quarterly, it cannot sell sand, gravel,
aggregates, or other mined materials to a state or local
agency. According to the author, "public sector work is a
vital revenue stream for construction aggregates industry,
with 43 percent of production estimated to be consumed by
public entities." The author further claims that "to many of
the mine operators, removal from the list will ultimately put
them out of business with hardly any chance of reopening
operations."
AB 1609
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2)Purpose of the Bill. The author and the surface mining
industry have raised the concern that a mining operator may be
taken off of the AB 3098 list for a SMARA violation even if it
has entered into an agreement with the lead agency to correct
the violation and is complying with the agreement. Violations
can range from issues that can be addressed with quick fixes,
such as failure to maintain fencing or establish appropriate
invasive weed control, to issues related to boundary lines and
slope stability, which may require more time to address. This
bill allows a surface mining operation to stay on the AB 3098
list if it is in compliance with an order or an agreement with
the lead agency or the Department. According to the author,
this will likely allow many mining operators to stay in
business while taking action to meet the requirements of
SMARA.
The author and the surface mining industry have also expressed
the need for a formal notice and appeal process for the
Department's decision to remove or exclude an operator from
the AB 3098 list.
While Department staff has indicated that the Board generally
attempts to work with a mining operator at length before
excluding or removing the operation from the AB 3098 list, the
Board is interested in working with the industry to develop
appropriate due process protections.
3)Potential Regulations. The Department has prepared draft
regulations for the Board to consider regarding the
administrative process for removal and reinstatement of a
surface mining operation from the AB 3098 List. On July 26,
2011, the Policy and Legislation Committee of the Board moved
for the Board's executive officer to hold several workshops
throughout the state to receive comment on the preliminary
proposed language. At the March 8, 2012 Policy and Legislation
Committee meeting, the executive officer reported that "due to
other commitments and scheduling conflicts, no such workshops
to date have been scheduled."
4)Suggested Amendments. The author and committee may wish to
consider amendments that allow a surface mining operation to
stay on the AB 3098 list pending the outcome of an appeal of a
notice to exclude or remove an operation from the list
provided that such appeal shall not have been pending for more
than 180 days. This 180 day provision is consistent with
AB 1609
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similar provisions related to appeals regarding denied
reclamation plans and financial assurances. The author and
committee may also wish to consider amendments that prevent a
surface mining operator from appealing a notice to exclude or
remove an operation from the list if the Board has already
adjudicated the claims asserted in the notice through another
action, such as an appeal to the Board regarding a denied
reclamation plan. This prevents a surface mining operator
from having two different opportunities to contest the same
claims.
REGISTERED SUPPORT / OPPOSITION :
Support
California Construction & Industrial Materials Association
Specialty Minerals, Inc.
Strategic Engineering and Science, Inc.
Vulcan Materials Company
Opposition
None on file
Analysis Prepared by : Mario DeBernardo / NAT. RES. / (916)
319-2092