True to his word, Governor Jerry Brown signed two bills, AB 1142 and SB 209, into law on Monday to reform California’s Surface Mining and Reclamation Act (SMARA). Now, before getting too excited, keep in mind that the new laws are nowhere near the “top to bottom” reform called for by Brown in 2013. Local control with state oversight still remains at the heart of SMARA. However, the new laws will have some real impacts on operators and lead agencies during inspections and state-review of reclamation plans and financial assurances. The most significant reforms include:
New Name but No Changes in Responsibilities
The Office of Mine Reclamation (OMR) will be renamed the “Division of Mine Reclamation” and the Director of OMR will be the “Supervisor of Mine Reclamation.” Despite a new name and title, the oversight role and responsibility of the renamed Division of Mine Reclamation and Supervisor of Mine Reclamation remain very much the same as before this reform.
Reform Is Expensive
Maximum annual fees imposed on operators will increase from $4,000 to $6,000 in 2017 to $8,000 in 2018 and to $10,000 starting in 2019.
Reclamation Plan Contents Clarified
The new laws clarified the required contents of reclamation plans for new surface mining operations. The most significant change requires all engineering, geologist, or land surveyor related maps, diagrams or calculations to include a signature and seal from a California-licensed professional. This has long been the policy of OMR, based on a policy adopted by the State Mining and Geology Board; however, that policy was never formally adopted through a rule making process applicable to all mines. As a result, the policy frequently caused confusion as to its applicability during OMR’s review process for reclamation plans.
“Official Copy” of Reclamation Plans Now Required
SMARA will now require an “official copy” of the reclamation plan and plan amendments that incorporates all approved modifications, including an index showing any reclamation related permit conditions of approval or mitigation measures under CEQA. Plans existing prior to January 1, 2017 do not need to meet this new requirement. Instead, the lead agency must provide the “official copy” to the Division no later than 60 days after approval of a reclamation plan or plan amendment. In practice, this will create more work for operators but may help avoid confusion as to inconsistencies between the reclamation plan, conditions of approval, and CEQA mitigation measures. Critical, however, to this reform is the recognition that only conditions or mitigation measures related to reclamation should be incorporated into the reclamation plan. While this has always been the law (at least from my perspective), lead agencies have not consistently taken this approach by including non-reclamation related issues in annual inspections.
New Financial Assurance Cost Estimate Form
The State Mining and Geology Board and Supervisor of Mine Reclamation have been charged with developing a new form for financial assurance cost estimates. The form will be subject to the rule making process, so operators will have a chance to comment on the form before adoption.
Inspections by Qualified Lead Agency Employees
A “qualified lead agency employee” may now conduct annual inspections of surface mines. Further, the Division of Mine Reclamation will establish a mine inspection training program and an inspection guidance document (after public review and comment) by December 31, 2017. All mine inspectors must attend the training program by July 1, 2020 and every 5 years to remain qualified to inspect surface mines.
Extended State Review Periods and Annual Review of Financial Assurances
The new laws lay out a more defined process and specific timelines for state review of reclamation plans and financial assurances. Of note, the Division of Mine Reclamation will review reclamation plans, financial assurances, amendments to reclamation plans and financial assurances and annual financial assurance cost estimates. The state comment periods will remain the same (30 days for reclamation plans; 45 days for financial assurances); however, the Division now also has a 30-day period to review reclamation plans and a 15-day period to review financial assurances for completeness, as well as an opportunity for an informal consultation. The clock for providing comments does not start until the Division makes its completeness determination (and will not start if the Division makes an incomplete determination).
In addition to these reforms, the new laws also allow operators to use corporate financial tests (after the Board adopts regulations) for financial assurance mechanisms. Further, the reforms clarify the process for notices of violation under SMARA.
Overall, the reforms touch on nearly all of the major elements of SMARA — reclamation plan requirements, financial assurances, inspections and state review. While the reforms do not radically change SMARA, the new laws still require a close reading to ensure compliance. The new laws go into effect on January 1, 2017.