BILL ANALYSIS �
AB 1609
Page 1
ASSEMBLY THIRD READING
AB 1609 (Lara)
As Amended May 25, 2012
Majority vote
NATURAL RESOURCES 9-0 APPROPRIATIONS 17-0
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|Ayes:|Chesbro, Knight, |Ayes:|Fuentes, Harkey, |
| |Brownley, Dickinson, | |Blumenfield, Bradford, |
| |Grove, Halderman, | |Charles Calderon, Campos, |
| |Huffman, Monning, Skinner | |Davis, Donnelly, Gatto, |
| | | |Ammiano, Hill, Lara, |
| | | |Mitchell, Nielsen, Norby, |
| | | |Solorio, Wagner |
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SUMMARY : Requires the "AB 3098 List" to include surface mining
operations that are in compliance with an order addressing
noncompliance with the Surface Mining and Reclamation Act
(SMARA) and expands and alters the appeal process for surface
mining operations removed or excluded from the list.
Specifically, this bill:
1)Requires that the AB 3098 List include surface mining
operations that are in compliance with an order issued by the
Department of Conservation (Department) or lead agency
addressing any noncompliance with SMARA. (See EXISTING LAW 2)
and 3) for an explanation of the AB 3098 List.).
2)Requires the Department to give notice to a surface mining
operation that will be excluded or removed from the AB 3098
List. An appeal must be filed within 30 days from when the
notice was served. An appeal must be heard by the State
Mining and Geology Board (Board) 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 parties. If a timely
appeal is filed on behalf of a surface mining operation, the
surface mining operation is to remain on the list pending the
final outcome of that appeal, if the appeal has not been
pending for more than 180 days.
3)Requires the Board to deny a request for an appeal if a) the
notice alleges violation(s) that are ministerial in nature and
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not constituting a substantial violation, in which case the
appellant has 30 days to correct the violation and achieve
compliance; or, b) the specific claims asserted in the notice
have been adjudicated or are pending adjudication before the
Board or a lead agency in a separate action.
4)Authorizes the appellant 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.
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 Board.
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.
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: i) a
reclamation plan and financial assurances have been
approved pursuant to SMARA; ii) the operations are in
compliance with state reclamation standards; iii) the
operations are in compliance with the state's financial
assurance guidelines; and, iv) the annual reporting fee has
been submitted to the Department;
b) Surface mining operations for which a certain appeal is
pending before the Board, provided that the appeal has not
been pending before the Board for more than 180 days; and,
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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.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, to implement this bill, the Department would incur
administrative work beyond its existing workload. New or
increased activities would include providing notice to surface
mining operations not to be included on the AB 3098 List,
tracking appeals for purposes of the 30-day appeal right, and
costs to administer a greater number of appeals.
While it is reasonable to expect list exclusion appeals to
increase as a result of this bill, the extent of this increase
is unknown, though limiting appeals to nonministerial actions
should reduce the number of appeals. The Department estimates a
potential increase of 40 additional appeals annually, which, in
addition to the other new or increased responsibilities created
by this bill, would require two full time staff to administer at
an annual cost of approximately $300,000. Because statute caps
the fees that fund the Department's mining regulatory
activities, these costs would result in cost pressure that would
lead to reductions in some undefined area of departmental
activity.
COMMENTS : AB 3098 (Sher), Chapter 1077, Statutes of 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
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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."
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.
Analysis Prepared by : Mario DeBernardo / NAT. RES. / (916)
319-2092
FN: 0003935