Reminder - New SMGB Regulation: Lead Agency Mining Ordinance Certification

Lead agencies should be aware that the public comment period on a proposed new State Mining and Geology Board (SMGB) regulation ends today, September 30, 2013, at 5 p.m.

The proposed regulation would add new Article 16 to the SMGB regulations that implement the state Surface Mining and Reclamation Act (SMARA), with a single new section. New Section 4000 would require all lead agencies to notify the SMGB of the adoption or amendment of a mining ordinance to allow the SMGB to review and certify the ordinance as consistent with SMARA. The new provision would read as follows:

Article 16. Mining Ordinances

Section 4000. Certification and Recertification of Mining Ordinances

(a). Upon adoption of a new mining ordinance, or amendment of an existing mining ordinance, a lead agency shall, within 30 days of such action, provide written notice of the complete text of the resulting mining ordinance to the State Mining and Geology Board, to enable the Board to review the ordinance in accordance with Public Resources Code Sections 2774.3, 2774.5(a) and 2774.5(b).

(b). Where a lead agency has not provided the Board with timely notice of the complete text of its mining ordinance, consistent with subparagraph (a) herein, the mining ordinance shall not be considered to be in accordance with state policy until the mining ordinance is certified by the Board as being in accordance with state policy.

NOTE

Authority cited: Sections 2755, 2756, 2758, 2759 and 2769, Public Resources Code. Reference: Sections 2774.5(a) and 2774.5(b) and 2774.5(c), Public Resources Code.

Lead agencies and operators alike should note that a lead agency’s failure to comply with the above new requirement would result in the SMGB’s takeover of the lead agency’s authority to review and approve reclamation plans until the lead agency adopts or amends its mining ordinance to the SMGB’s satisfaction. While SMARA currently requires the SMGB to review and certify lead agency mining ordinances for compliance with SMARA, neither SMARA nor the SMGB regulations specify a procedure for this review.

The SMGB began discussing this new regulation in December 2012, and developed draft language between January and April 2013. This proposed regulation is a central component of the SMGB’s effort to more closely regulate and monitor lead agency mining ordinances. As part of this initiative, SMGB is also currently working to digitize all existing certified lead agency mining ordinances, and will soon make those ordinances accessible to the public from a single repository on the SMGB’s website.

Comments on the proposed regulation should be submitted by 5 p.m. today, and directed to:

Mr. Stephen M. Testa, Executive Officer

State Mining and Geology Board

801 K Street, Suite 2015

Sacramento, California 95814

Phone: (916) 322–1082

Fax: (916) 445–0738

Stephen.Testa@conservation.ca.gov

OR

Amy Scott, Executive Assistant

State Mining and Geology Board

801 K Street, Suite 2015

Sacramento, CA 95814

Phone: (916) 322–1082

Fax: (916) 445–0738

Amy.Scott@conservation.ca.gov

The California Regulatory Notice Register, which contains additional information regarding the proposed regulation, can be accessed here.

To link to a downloadable version of this article, please click here.

© 2011-2013 Copyright ~ Harrison, Temblador, Hungerford & Guernsey LLP. All rights reserved.

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.