California Senate Bill SB108 Introduced / Bill

 BILL NUMBER: SB 108INTRODUCED BILL TEXT INTRODUCED BY Senator Rubio JANUARY 13, 2011 An act to amend Sections 2727.1 and 2770 of the Public Resources Code, relating to surface mining. LEGISLATIVE COUNSEL'S DIGEST SB 108, as introduced, Rubio. Surface mining: idle mines. The Surface Mining and Reclamation Act of 1975, with exceptions, prohibits a person from conducting a surface mining operation unless, among other things, a reclamation plan has been submitted to and approved by the lead agency for the operation. The act requires an operator, within 90 days of a surface mining operation becoming idle, to submit to the lead agency for review and approval, an interim management plan. The act defines idle to mean a curtailment for a period of one year or more of surface mining operations by more than 90% of the operation's previous maximum annual mineral production, with the intent to resume those surface mining operations at a future date. This bill would instead define idle to mean that an operator of a surface mining operation has curtailed production at the surface mining operation, with the intent to resume the surface mining operation at a future date, for a period of one year or more by more than 90% of its maximum annual mineral production within any of the last 5 years. The bill would exempt from being considered idle certain surface mining operations, including those operations where the operator has expended in the prior 2 years $25,000 or more on capital improvements or operating costs in connection with the surface mining operation. The act requires a surface mining operation that remains idle for over one year after becoming idle, without obtaining approval of an interim management plan, in certain circumstances, to be considered abandoned and requires the operator to commence and complete reclamation in accordance with the approved reclamation plan. This bill would instead authorize, among other things, a lead agency to order, in certain circumstances, a surface mining operation that remains idle for over one year after becoming idle, without obtaining approval of an interim management plan, to file an interim management plan within 90 days of the order, or commence implementation of any interim management plan contained in the surface mining operation's approved reclamation plan. If the operator does not act as specified, the bill would authorize the lead agency to order the operator to promptly commence and complete reclamation in accordance with the approved reclamation plan. The act authorizes an interim management plan to remain in effect for a period not to exceed 5 years, after which, the lead agency is authorized to take certain actions, including renewing the interim management plan for another period not to exceed 5 years, if the lead agency finds that the surface mining operator has complied fully with the interim management plan. This bill would authorize the lead agency to continuously renew the interim management plan for additional 5-year periods, if the lead agency finds that the surface mining operator has complied fully with the interim management plan. Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 2727.1 of the Public Resources Code is amended to read: 2727.1.  (a)    "Idle" means  to curtail for a period of one year or more surface mining operations by more than 90 percent of the operation's previous maximum annual mineral production, with the intent to resume those surface mining operations at a future date   that an operator of a surface mining operation has curtailed production at the surface mining operation, with the intent to resume the surface mining operation at a future date, for a period of one year or more by more than 90 percent of its maximum annual mineral production   within any of the last five years, except as provided in subdivision (b)  .  (b) A surface mining operation shall not be considered idle in any of the following circumstances:   (1) The surface mining operation has produced, during any 12-month period in the prior two years, either 25,000 or more of combined tons of mineral and waste or 10 percent or more of the operation's previous maximum annual combined production of mineral and waste within any of the last five years.  (2) The operator of the surface mining operation has expended in the prior two years twenty-five thousand dollars ($25,000) or more on capital improvements or operating costs in connection with the surface mining operation.   (3) The operator of the surface mining operation has curtailed production at the surface mine as a result of circumstances beyond the reasonable control of the operator, including, without limitation, force majeure events, legal action, regulatory or judicial orders, strikes, work slowdowns or stoppages, lockouts, governmental restrictions, inability to secure necessary supplies, materials or labor, or acts or failures to act of third parties upon whom the operator's ability to conduct surface mining operations is dependent.   (4) The operator of the surface mining operation can otherwise demonstrate that the surface mining operation is not in fact idle.   (c) This section does not preclude a surface mining operation that was deemed idle prior to January 1, 2012, from seeking a redetermination of idle status pursuant to this section.  SEC. 2. Section 2770 of the Public Resources Code is amended to read: 2770. (a) Except as provided in this section,  no   a  person shall  not  conduct surface mining operations unless a permit is obtained from, a reclamation plan has been submitted to and approved by, and financial assurances for reclamation have been approved by, the lead agency for the operation pursuant to this article. (b)  Any   A   person with an existing surface mining operation who has vested rights pursuant to Section 2776 and who does not have an approved reclamation plan shall submit a reclamation plan to the lead agency not later than March 31, 1988. If a reclamation plan application is not on file by March 31, 1988, the continuation of the surface mining operation is prohibited until a reclamation plan is submitted to the lead agency. For purposes of this subdivision, reclamation plans may consist of all or the appropriate sections of any plans or written agreements previously approved by the lead agency or another agency, together with any additional documents needed to substantially meet the requirements of Sections 2772 and 2773 and the lead agency surface mining ordinance adopted pursuant to subdivision (a) of Section 2774, provided that all documents which together were proposed to serve as the reclamation plan are submitted for approval to the lead agency in accordance with this chapter. (c) If a person with an existing surface mining operation has received lead agency approval of its financial assurances for reclamation prior to January 1, 1991, the lead agency shall administratively review those existing financial assurances in accordance with subdivision (d) prior to January 1, 1992. The review of existing financial assurances shall not be considered a project for purposes of Division 13 (commencing with Section 21000).  Any   A  person with an existing surface mining operation  which   that  does not have financial assurances that received lead agency approval prior to January 1, 1991, shall submit financial assurances for reclamation for review in accordance with subdivision (d). (d) The lead agency's review of reclamation plans submitted pursuant to subdivision (b) or of financial assurances pursuant to subdivision (c) is limited to whether the plan or the financial assurances substantially meet the applicable requirements of Sections 2772, 2773, and 2773.1, and the lead agency surface mining ordinance adopted pursuant to subdivision (a) of Section 2774, but, in any event, the lead agency shall require that financial assurances for reclamation be sufficient to perform reclamation of lands remaining disturbed. Reclamation plans or financial assurances determined to substantially meet these requirements shall be approved by the lead agency for purposes of this chapter. Reclamation plans or financial assurances determined not to substantially meet these requirements shall be returned to the operator within 60 days. The operator has 60 days to revise the plan or financial assurances to address identified deficiencies, at which time the revised plan or financial assurances shall be returned to the lead agency for review and approval. Except as specified in subdivision (e) or (i), unless the operator has filed on or before July 1, 1990, an appeal pursuant to subdivision (e) with regard to nonapproval of the reclamation plan, or has filed on or before January 1, 1994, an appeal pursuant to subdivision (e) with regard to nonapproval of financial assurances, and that appeal is pending before the board, the continuation of the surface mining operation is prohibited until a reclamation plan and financial assurances for reclamation are approved by the lead agency. (e)  Any   A  person who, based on the evidence of the record, can substantiate that a lead agency has either (1) failed to act according to due process or has relied on considerations not related to the specific applicable requirements of Sections 2772, 2773, and 2773.1, and the lead agency surface mining ordinance adopted pursuant to subdivision (a) of Section 2774, in reaching a decision to deny approval of a reclamation plan or financial assurances for reclamation, (2) failed to act within a reasonable time of receipt of a completed application, or (3) failed to review and approve reclamation plans or financial assurances as required by subdivisions (c) and (d), may appeal that action or inaction to the board. (f) The board may decline to hear an appeal if it determines that the appeal raises no substantial issues related to the lead agency's review pursuant to this section. (g) Appeals that the board does not decline to hear shall be scheduled and heard at a public hearing within 45 days of the filing of the appeal, or  any   a  longer period as may be mutually agreed upon by the board and the person filing the appeal. In hearing an appeal, the board shall only determine whether the reclamation plan or the financial assurances substantially meet the applicable requirements of Sections 2772, 2773, 2773.1, and the lead agency surface mining ordinance adopted pursuant to subdivision (a) of Section 2774. A reclamation plan or financial assurances determined to meet these requirements shall be approved. A reclamation plan or financial assurances determined not to meet these requirements shall be returned to the person filing the appeal with a notice of deficiencies, who shall be granted, once only, a period of 30 days, or a longer period mutually agreed upon by the operator and the board, to correct the noted deficiencies and submit the revised reclamation plan or the revised financial assurances to the lead agency for review and approval. (h) (1) Within 90 days of a surface mining operation becoming idle, as defined in Section 2727.1, the operator shall submit to the lead agency for review and approval, an interim management plan. The review and approval of an interim management plan shall not be considered a project for purposes of Division 13 (commencing with Section 21000). The approved interim management plan shall be considered an amendment to the surface mining operation's approved reclamation plan, for purposes of this chapter. The interim management plan shall provide measures the operator will implement to maintain the site in compliance with this chapter, including, but not limited to, all permit conditions. (2) The interim management plan may remain in effect for a period not to exceed five years, at which time the lead agency shall do one of the following: (A) Renew the interim management plan for  another   an additional  period not to exceed five years,  which may be continuously renewed for additional five-year periods at the expiration of each five-   year period,  if the lead agency finds that the surface mining operator has complied fully with the interim management plan. (B) Require the surface mining operator to commence reclamation in accordance with its approved reclamation plan. (3) The financial assurances required by Section 2773.1 shall remain in effect during the period that the surface mining operation is idle. If the surface mining operation is still idle after the expiration of its interim management plan, the surface mining operation shall commence reclamation in accordance with its approved reclamation plan. (4) Within 60 days of the receipt of the interim management plan, or a longer period mutually agreed upon by the lead agency and the operator, the lead agency shall review and approve the plan in accordance with its ordinance adopted pursuant to subdivision (a) of Section 2774, so long as the plan satisfies the requirements of this subdivision, and so notify the operator in writing. Otherwise, the lead agency shall notify the operator in writing of any deficiencies in the plan. The operator shall have 30 days, or a longer period mutually agreed upon by the operator and the lead agency, to submit a revised plan. (5) The lead agency shall approve or deny approval of the revised interim management plan within 60 days of receipt. If the lead agency denies approval of the revised interim management plan, the operator may appeal that action to the lead agency's governing body, which shall schedule a public hearing within 45 days of the filing of the appeal, or  any   a  longer period mutually agreed upon by the operator and the governing body.  (6) Unless review of an interim management plan is pending before the lead agency, or an appeal is pending before the lead agency's governing body, a surface mining operation which remains idle for over one year after becoming idle as defined in Section 2727.1 without obtaining approval of an interim management plan shall be considered abandoned and the operator shall commence and complete reclamation in accordance with the approved reclamation plan.   (6) (A) Unless review of an interim management plan is pending before the lead agency, or an appeal is pending before the lead agency's governing body, the lead agency may order a surface mining operation that remains idle for over one year after becoming idle as defined in Section 2727.1, without obtaining approval of an interim management plan, to file an interim management plan within 90 days of the order or to commence implementation of the interim management plan contained in the surface mining operation's approved reclamation plan.   (B) If the operator files an interim management plan within 90 days or commences implementation of any interim management plan contained in the surface mining operation's approved reclamation plan in accordance with an order pursuant to subparagraph (A), the plan shall have the same effect as an interim management plan filed pursuant to paragraph (1), and it shall remain in effect for five years from the date that the surface mining operation became idle.   (C) The lead agency shall provide the operator of a surface mining operation ordered to file or commence implementation of an interim management plan pursuant to subparagraph (A) the right to appeal the order to the governing body of the lead agency within 30 days following the operator's receipt of notice of the relevant order on grounds that the surface mining operation is not idle or on other grounds as the operator may deem relevant.   (D) If the operator does not file, or commence implementation of, an interim management plan within 90 days in accordance with an order pursuant to subparagraph (A), or does not file an appeal of the order pursuant to subparagraph (C), or does not file an interim management plan within 90 days of a final, adverse decision of an appeal, the lead agency may order the operator to promptly commence and complete reclamation in accordance with the approved reclamation plan.  (i)  Any   An  enforcement action  which   that  may be brought against a surface mining operation for operating without an approved reclamation plan, financial assurance, or interim management plan, shall be held in abeyance pending review pursuant to subdivision (b), (c), (d), or (h) or the resolution of an appeal filed with the board pursuant to subdivision (e), or with a lead agency governing body pursuant to subdivision (h).