SMARA Amendments Moving Forward in State Senate

by Stoel Rives LLP
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SB 1270, sponsored by State Senator Fran Pavley (D-Agoura Hills), survived the Senate Committee on Natural Resources and Water on April 29, 2014 by a 7-2 vote.  Some additional amendments were made yesterday, May 7, 2014.  Last year the Legislature passed SB 447, which, as discussed in our October 1, 2013 post, modified the Office of Mine Reclamation’s authority to list or delist a mine on its list of “good mines” under Cal. Pub. Resources Code § 2717 (also called the “AB 3098 List”).  The modifications were generally welcomed, though in his signing statement Governor Brown indicated that he was signing the bill with the caveat that the Legislature rework the Surface Mining and Reclamation Act (“SMARA”).

Enter SB 1270 and its efforts to overhaul SMARA law in California.  Though present in the initial draft, the following items have been deleted from the bill as it is currently written:

  • SB 1270 will not amend the AB 3098 List provisions as modified last year.  Notably, the first version of the bill allowed “affected persons” to appeal the presence of a mine on the list.  This provision has been taken out of the bill.
  • The initial draft of the bill transferred from lead agencies to the State Mine Inspector the authority to conduct mine inspections, shifting inspection duties away from the local lead agency.  This provision has been deleted.
  • The provision transferring the sole authority for approving financial assurances to the Director of the Department of Conservation has been deleted.

The following items remain in the bill as amended:

  • If the State Mining & Geology Board (the “Board”) finds that a local lead agency is violating compliance laws, e.g., approving noncompliant plans, it could assign the agency’s authority to the State Mine Inspector (who will head the Division of Mines, the renamed Office of Mining Reclamation) to approve or disapprove reclamation plans and financial assurances.  This is a departure from existing law, where the Board itself had the authority to exercise powers of the lead agency after such a determination. 
  • A local lead agency would be permitted to cede its authority to the State Mine Inspector if it chooses to do so.
  • Where the State Mine Inspector has assumed the lead agency’s authority, the State Mine Inspector would have to approve a current reclamation plan and financial assurances.  Arguably, this means that any reclamation plan and/or financial assurances that have previously been approved would no longer be valid, and a mine operator would be required to seek new approvals.  The May 7, 2014 amendments deleted “current” where the local lead agency still retains control.
  • SB 1270 creates a mandatory notice of violation and remedial process, which the local lead agency or the State Mine Inspector must undertake if either finds that mining operations do not comply with the law. 
  • Portions of reclamation plans and the annual inspections for mining operations must be certified by a registered professional geologist, geophysicist or professional engineer.
  • A minimum $1,000 reporting fee has been added.  This fee is assessed on a per-acre basis and, most concerning, has no maximum.

SB 1270 has been referred to the Appropriations Committee, and many have stated that the bill is likely to pass through the Senate to the Assembly due to author Fran Pavley’s strong influence in the Senate.

 

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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