BILL ANALYSIS �
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| SENATE COMMITTEE ON NATURAL RESOURCES AND WATER |
| Senator Fran Pavley, Chair |
| 2013-2014 Regular Session |
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BILL NO: SB 1270 HEARING DATE: April 29, 2014
AUTHOR: Pavley URGENCY: No
VERSION: February 21, 2014 CONSULTANT: Bill Craven
DUAL REFERRAL: No FISCAL: Yes
SUBJECT: Surface mining operations.
BACKGROUND AND EXISTING LAW
1. The Surface Mining and Reclamation Act (SMARA) is the primary
state statute that applies to the surface mining activities in
California for both hard metals, minerals, and sand and gravel.
It is administered by the Department of Conservation (DOC) ,
which has administratively created the Office of Mine
Reclamation (OMR) as the primary mine regulator for California.
2. DOC also contains the California Geological Survey, headed by
the state geologist. The state geologist is nominated by the
State Mining and Geology Board and appointed by the director of
DOC.
3. SMARA generally prohibits surface mining unless a permit is
obtained from DOC, a reclamation plan is approved, and financial
assurances have been approved. Local land use permits are also
required.
4. Annual inspections of mines are conducted by the lead agency,
and those inspections form the basis for surety documents
(called "financial assurances" in SMARA) that can be used to pay
for any mine reclamation costs in the event a mine operator
defaults on the obligation to reclaim a mine at the end of its
useful life. In most circumstances, the lead agency is
responsible for developing an adequate financial assurances
surety.
5. In most instances, the lead agency is the local land use
permitting agency, although SMARA provides for the State Mining
and Geology Board (SMGB) to become the lead agency in cases
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where the local agency does not fulfill its statutory
obligations. This process is quasi-judicial with appeals
possible to the SMGB.
6. SMARA does not affect the local land use siting or permitting
decisions by local governments. It does, however, impose
administrative responsibilities on local governments in their
capacity as local lead agencies.
7. SMARA is an entirely fee-based program. Minimum fees of $100
apply to most mines, and the maximum is $4000. The overall
program costs are capped by statute at $3.5 million, adjusted
for inflation. The caps on mine operators and the overall
program costs has generated no increase in revenue to DOC for
several years. In fact, DOC has greater expenditure authority
than available fee revenues in annual budget bills.
8. The Senate Natural Resources and Water Committee Science
Fellow in 2012 identified many examples of failed SMARA
implementation that involves both local and state government.
Highlights of this review indicated that more than 100 closed
mines have not begun reclamation, that the rate of conducting
required annual inspections hovers in the 25% and 50% range for
cities and counties, respectively, and that financial assurance
surety documents are updated by 27 percent of the counties and
only 20 percent of the cities. The data collection system of DOC
has been criticized for data gaps. The Committee report was
based on reported data.
PROPOSED LAW
This bill would do all the following:
1. Require the SMGB to nominate at least two qualified
individuals to the director of DOC for the position of state
geologist. The bill would retain the existing professional
qualifications for those nominations.
2. Create a Division of Mines (DOM) headed by the State Mine
Inspector (SMI) who would be appointed by the director of DOC.
The SMI would be required to be a registered geologist or
professional engineer.
3. The annual inspections would be conducted by a registered
geologist or civil engineer who works for the local lead agency
or the DOM or who is in private practice but who has not worked
for the mining industry in the county for at least one year.
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4. The SMGB would have a separate line item in the budget.
5. The fees would be capped and the program costs would be
capped, and would include the reasonable costs of the SMGB as
well as the DOM.
6. The Abandoned Mines Land Unit would be required to provide to
the SMI a report on its activities.
7. The financial assurances approved by the lead agency would be
done at least annually and any changes would be based on the
annual inspection. The same provision would attach to mines for
which the SMI has become the lead agency.
8. The format for reclamation plans would be standardized by the
SMGB.
9. Local agency mineral resource management plans (MRMP) and
amendments thereto would be provided to the SMGB which currently
does not receive any such notice. The SMGB would retain its
existing authority to certify those ordinances and amendments to
MRMPs would not be effective until such certification occurs.
10. Inspections of mines owned by public agencies would not be
conducted by employees of that agency.
11. The SMI would be provided an opportunity to review and
comment on the adequacy of financial assurances developed by the
lead agency, and would be authorized to seek judicial review of
financial assurances instead of persuading the Attorney
General's office to do so.
12. If any violations are discovered during the annual
inspection, a notice of violation would be sent to the operator
along with a schedule to correct any noncompliance. A process
for a hearing is provided.
13. The SMI, in addition to the Attorney General, would be
authorized to enjoin imminent and substantial threats to the
public health or the environment.
14. Local lead agencies would retain their existing lead agency
status and responsibilities under SMARA provided they annually
certify to the SMGB that they (1) have approved an adequate
reclamation plan and financial assurances for each mine in its
jurisdiction, (2) the its MRMP has been certified by the SMGB,
and that all notices of reclamation established by existing law
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have been recorded.
15. Local lead agencies would be able to voluntarily relinquish
any or all of its responsibilities under SMARA which would be
assumed by the SMI. A procedure to reclaim local lead agency
status is proposed that mirrors the existing process of
reclaiming local lead agency status when the SMGB has assumed
lead agency status.
16. The SMGB would become an appeals and rule-making body. When
the state would take over a local lead agency for SMARA
non-compliance, the state's responsibilities would be shifted to
the SMI.
17. There are numerous other technical amendments, many of which
shift responsibilities of the director of DOC to the new state
mine inspector.
ARGUMENTS IN SUPPORT
According to the author, SMARA is long overdue for a serious
review of its strengths and weaknesses. The last major
amendments to SMARA occurred in 1991, although isolated issues
have been addressed over the years.
As noted in the background, the author commissioned a review of
existing SMARA compliance data two years ago that documented
very inconsistent application and enforcement of SMARA. Some
local governments have not been conducting required annual
inspections or updating financial assurances. The state has not
been aggressive in supervising the counties, although it has
removed local lead agency authority from several of the most
egregious counties.
The overall thrust of the bill, according to the author, is to
update and professionalize SMARA, to establish qualifications
for the leadership of the new Division of Mines, and to improve
the functional relationships between local governments and the
DOC. Enforcement would be strengthened by requiring a notice of
violations and a schedule to fix any violations. Reporting
would be improved in several ways: The SMGB would be provided
more information from local governments and the abandoned mines
unit would file annual reports on its activities.
A coalition of environmental organizations, headed by the bill's
sponsor, the Sierra Fund, argues that too many mines are not
inspected annually, which in turn means that the financial
assurance/surety documents that build on those inspections are
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also inadequate. In addition, according to a study done by the
SMGB in 2011, no lead agency has compelled reclamation of an
abandoned mine in 19 years.
This coalition also argues that SB 1270 will improve SMARA
enforcement by conditioning local lead agencies retention of
their responsibilities on undertaking annual inspections. At the
same time, local lead agencies that want to shed themselves of
SMARA-related work would be able to voluntarily relinquish it to
the state.
The coalition also states that creating and professionalizing a
new division of mines which should have significant benefits
within the department.
Both Brian Baca, a former member of the SMGB, and James Jacobs,
the current president of the American Institute of Professional
Geologists, California Section, are in support because of the
heightened awareness of the need for competent professionals to
oversee the state's mining laws.
ARGUMENTS IN OPPOSITION
Recent amendments may have addressed many, but probably not all,
of the opposition. These amendments include deletion of the
provision that would have shifted all annual inspections and
preparation of financial assurance documents away from local
lead agencies, and restoration of the caps on individual mine
fees and the overall program costs.
Staff is aware, based on a recent conversation with some of the
opposition, that a subset of other issues remain unresolved to
the opposition.
These include:
1. The primary remaining objection of the industry trade
association is the use of the word "current" on page 15, line
28, to describe reclamation plans and financial assurances that
must be approved prior to surface mining operations. The
opposition wants to make sure that all mines do not have to
update their reclamation plans annually. The first suggested
amendment addresses that concern.
2. While the author has agreed to re-instate the caps on the
fees, the exact amount of those caps is not established yet.
3. Some local governments object to the new provision
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prohibiting them from inspecting their own mines.
4. There is some opposition to requiring reclamation plans to be
certified by professional geologists or engineers.
5. The ability of the SMI or local lead agency verify compliance
with an order is objected to by some in the industry.
6. Opposition continues to the mandatory notice of violations
during annual inspections.
7. Staff is aware of other drafting questions posed by the
opposition.
COMMENTS
It is important to note that almost all of the opposition
addressed the introduced version of the bill. It was the intent
of the author to address the vast majority of those issues in
the most recent amendments to the bill, while recognizing that
not all the issues have been resolved and while also committing
to continue the series of meeting with the various parties that
has occurred so far. In particular, the amendments:
1. Local lead agencies retain their existing capabilities to
conduct inspections and develop financial assurances, as well as
approve reclamation plans. Many local governments mistakenly
believed that the bill would strip away local land use control,
which was never in the bill at all. Nevertheless, many local
governments also do not want to lose their ability to administer
their SMARA responsibilities, and that mechanism remains in the
bill.
2. Fees are capped. The amount of the caps will depend on some
financial data that staff is obtaining from DOC. This data will
be reviewed in a transparent process with all of the
stakeholders.
3. The amendments deleted the entire section concerning
amendments to the AB 3098 list-the process by which mines are
approved to sell products to local and state governments. The
proposed citizen suit provision generated considerable
opposition, but it has been deleted.
4. Staff is not sure what the best solution is for the issue
about local governments inspecting their own mines, since one of
the goals of the bill is to improve that effort through the use
of qualified professionals who exercise independent judgment,
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but it is a topic on which further conversation is warranted.
5. There is probably a way to restore a role for landscape
architects and foresters on the re-vegetation aspects of
certifying reclamation plans, which is an issue raised by some
opposition letters.
6. The author has directed staff to hold a series of meetings
with the local government and industry groups, as well as other
stakeholders. The amendments reflect the progress of that
process which will continue assuming the bill advances from this
Committee.
SUGGESTED AMENDMENTS
AMENDMENT 1
Delete "current" on page 15, lines 28 and 29. Add a cross
reference to the requirement for annual financial
assurances.
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SUPPORT
Sierra Fund (sponsor)
Natural Resources Defense Council
California League of Conservation Voters
Brian Baca, former SMGB Board Member
American Institute of Professional Geologists, California
Section
Karuk Tribe
National Parks Conservation Association
Environmental Working Group
Klamath River keeper
California native Plant Society
Earthworks
Clean Water Action
Sierra Nevada Alliance
Trust for Public Land
OPPOSITION
Regional Council of rural Counties
JF Shea Construction
County of Santa Cruz
County of Imperial
County of Siskyou
League of Cities
California State Association of Counties
California Chamber
National Federation of Independent Business
California Independent Petroleum Association
California Business Properties Association
California Manufacturers and Technology Association
California Business Industry Association
Clearlake lava
Central Sierra mining Association
Vulcan Materials
Granite Rock
Cemex
The Land Designers
City of Lake Elsinore
County of Riverside
County of Del Norte
County of Inyo
County of Lake
California Construction Industry Materials Association
California Asphalt Paveement Association
County of Colusa
Brubaker-Mann, Inc.
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County of San Bernardino
Rich-Ted Trucking
Syar industries
City of Irwindale
County of Mendocino
Enviromine, Inc.
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