2015 California Mining Legislation

The 2015-2016 legislative session is settling in now that the February 27 deadline to introduce new legislation has passed. Three bills propose amendments to the Surface Mining and Reclamation Act (“SMARA”).

1. SB 209. The first, SB 209, is authored by Senator Fran Pavley (D), who represents Senate District 27, covering portions of Ventura County and Los Angeles County. Among other committee assignments, Senator Pavley chairs the Senate Natural Resources and Water Committee, which hears all SMARA-related legislation. SB 209 provides that, beginning January 1, 2018, a lead agency may not use a lead agency employee to inspect a lead agency-operated surface mining operation (i.e., “self-inspect”) unless the employee is a “certified” inspector. Toward this end, the bill also requires the Department of Conservation to provide a certification training program in that same timeframe. The bill also makes a few minor technical cleanup changes.

This is Senator Pavley’s second attempt at SMARA legislation in as many years. Last year, Senator Pavley authored SB 1270, which proposed a number of controversial changes to SMARA. We commented extensively on SB 1270 here [SB 1270 A Major Shift in California Mine Regulation; SB 1270 Update]. That bill died in the Senate Appropriations Committee suspense file. Given this background, it should be expected that SB 209 is a “spot” or “placeholder” bill that Senator Pavley will amend in the near future with more substantial changes to SMARA. SB 209 has been referred to the Committee on Natural Resources and Water, and is awaiting its first hearing date.

2. AB 1034. The second bill, AB 1034, is authored by Assembly Member Jay Obernolte (R), who represents Assembly District 33, covering the majority of San Bernardino County. AB 1034 adds to the existing statutory list of activities that are exempt from SMARA by providing that the operation of a renewable energy generation facility, including related, approved land improvements, is also exempt from SMARA. AB 1034 has not yet been referred to its first substantive committee for hearing.

3. AB 1142. The third bill, AB 1142, is authored by Assembly Member Adam Gray (D), who represents Assembly District 21, covering all of Merced County and a portion of Stanislaus County. AB 1142 proposes changes to SMARA’s provisions concerning the AB 3098 List, inspections, financial assurances, reclamation plan review and approval process, and enforcement:

  • AB 3098 List: AB 1142 removes the existing January 1, 2019 sunset date for changes to SMARA enacted in 2013 (SB 447, Lara) clarifying that an operator that is complying with an order to comply may remain on the “AB 3098 List” of operations approved to provide material for public projects.

  • Inspections: AB 1142 proposes a number of changes to SMARA’s inspection provisions. First, AB 1142 clarifies that a surface mining operation must be inspected annually to determine whether the operation is in compliance with its approved reclamation plan.

    Second, the bill provides that inspections must be conducted by a licensed geologist, civil engineer, landscape architect, or forester who is experienced in land reclamation. Lead agency employees who are not licensed professionals may, however, continue to conduct inspections after completing training based on curriculum to be developed by the State Geologist. AB 1142 also provides that a lead agency may “self-inspect” lead agency-operated surface mining operations.

    Third, with respect to the SMARA inspection process, AB 1142 requires operators to submit, with the operator’s annual report, a copy of the previously completed annual inspection form and a requested date for the next annual inspection by the lead agency. If the operator does not specify an inspection date or the lead agency cannot inspect on the requested date, AB 1142 requires a lead agency to schedule an alternative date and provide the operator with 30 days’ notice. If the lead agency fails to inspect an operation on the date requested by the operator and does not provide an alternative date, the operator may retain a third party, who is a licensed professional, to inspect the operation after providing the lead agency 15 days’ notice of the inspection and an opportunity to attend.

    Fourth, and finally, AB 1142 clarifies that mine inspectors conducting a SMARA inspection are not authorized to inspect operations for purposes of evaluating compliance with other laws, including California’s clean water law, the Porter-Cologne Water Quality Control Act or the federal Clean Water Act.

  • Financial Assurances: AB 1142 clarifies that financial assurances must be reviewed each year, and adjusted, if necessary, to ensure that the financial assurances are adequate to reclaim the site in accordance with the approved reclamation plan. The bill also clarifies that no adjustment is required where existing financial assurances exceed the financial assurance cost estimate.

    AB 1142 requires an operator to submit its financial assurance cost estimate within 30 days after its annual inspection. The bill provides that the Department of Conservation has 45 days after submittal to review and provide comments on the financial assurance cost estimate, and the lead agency must either accept or reject the financial assurance cost estimate within 60 days after receiving Department of Conservation comments. The bill clarifies that the review and approval of financial assurances is not subject to CEQA.

  • Reclamation Plan Review Process: AB 1142 clarifies that a lead agency is required to submit a proposed reclamation plan or plan amendment to the Department of Conservation as early as possible in the review process in order to facilitate review of the plan pursuant to the California Environmental Quality Act (“CEQA”).

  • Enforcement – Jobs Impact: AB 1142 requires a lead agency, the Department of Conservation, or the State Mining and Geology Board, as appropriate, to take into account and seek to minimize the impact of any proposed enforcement action on the number of existing jobs supported directly or indirectly by the subject surface mining operation.

    AB 1142 has not yet been referred to its first substantive committee for hearing.

Harrison, Temblador, Hungerford and Johnson will continue to follow and provide updates on this session’s SMARA legislation.

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The materials and information in this article have been prepared by Harrison, Temblador, Hungerford & Guernsey LLP for informational purposes only and do not constitute legal advice.

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