2770. (a) Except as provided in this section, no person shall
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 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
person with an existing surface mining operation which 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 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 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 period not to
exceed five years, 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 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.
(i) Any enforcement action which 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).
2770.5. Whenever surface mining operations are proposed in the
100-year flood plain for any stream, as shown in Zone A of Flood
Insurance Rate Maps issued by the Federal Emergency Management
Agency, and within one mile, upstream or downstream, of any state
highway bridge, the lead agency receiving the application for the
issuance or renewal of a permit to conduct the surface mining
operations shall notify the Department of Transportation that the
application has been received. The Department of Transportation shall
have a period of not more than 45 days to review and comment on the
proposed surface mining operations with respect to any potential
damage to the state highway bridge from the proposed surface mining
operations. The lead agency shall not issue or renew the permit until
the Department of Transportation has submitted its comments or until
45 days from the date the application for the permit was submitted,
whichever occurs first.
2770.6. (a) Whenever surface mining operations are proposed within
the boundaries of the San Gabriel Basin Water Quality Authority that
may penetrate the groundwater, and whenever proposed reclamation
activities may impact groundwater quality, the lead agency reviewing
an application to conduct surface mining operations, or reviewing an
application for the approval of a reclamation plan, shall notify and
provide copies of the subject application to the appropriate
California regional water quality control board, and any watermaster
for the groundwater recharge basin. Notwithstanding any other
provision of law, the appropriate California regional water quality
control board may impose an administrative fee on the applicant to
cover its costs associated with the review of, and preparation of,
comments on the subject application, as required pursuant to this
section.
(b) Each agency shall have 60 days to review and comment on the
proposed surface mining operation described in subdivision (a) and
the adoption of any reclamation plan therefor. Each agency shall
comment on the existing groundwater quality and the potential impacts
to water quality that may result from the mining operations and the
proposed reclamation plan, and shall recommend methods and procedures
to protect groundwater quality and prevent groundwater degradation.
Each agency shall also comment on the proposed mining activities,
including the conduct of excavation and backfilling operations in
contact with groundwater, and the impact of any proposed alternative
land uses on groundwater quality. When the proposed surface mining
operations or reclamation plan will impact the groundwater, the lead
agency shall not approve the reclamation plan without requiring
actions to ensure the reasonable protection of the beneficial uses of
groundwater and the prevention of nuisance. Each agency shall have
60 days to review and comment or until 60 days from the date of
application, whichever occurs first.
(c) This section applies to activities otherwise subject to this
chapter conducted within the boundaries of the San Gabriel Basin
Water Quality Authority. To the extent of any conflict between this
section and any other provision of this chapter, this section shall
prevail.
2771. Whenever a proposed or existing surface mining operation is
within the jurisdiction of two or more public agencies, is a
permitted use within the agencies, and is not separated by a natural
or manmade barrier coinciding with the boundary of the agencies, the
evaluation of the proposed or existing operation shall be made by the
lead agency in accordance with the procedures adopted by the lead
agency pursuant to Section 2774. If a question arises as to which
public agency is the lead agency, any affected public agency, or the
affected operator, may submit the matter to the board. The board
shall notify in writing all affected public agencies and operators
that the matter has been submitted, specifying a date for a public
hearing. The board shall designate the public agency which shall
serve as the lead agency, giving due consideration to the capability
of the agency to fulfill adequately the requirements of this chapter
and to an examination of which of the public agencies has principal
permit responsibility.
2772. (a) The reclamation plan shall be filed with the lead agency,
on a form provided by the lead agency, by any person who owns,
leases, or otherwise controls or operates on all, or any portion of
any, mined lands, and who plans to conduct surface mining operations
on the lands.
(b) All documentation for the reclamation plan shall be submitted
by the lead agency to the department at one time.
(c) The reclamation plan shall include all of the following
information and documents:
(1) The name and address of the surface mining operator and the
names and addresses of any persons designated by the operator as an
agent for the service of process.
(2) The anticipated quantity and type of minerals for which the
surface mining operation is to be conducted.
(3) The proposed dates for the initiation and termination of
surface mining operation.
(4) The maximum anticipated depth of the surface mining operation.
(5) The size and legal description of the lands that will be
affected by the surface mining operation, a map that includes the
boundaries and topographic details of the lands, a description of the
general geology of the area, a detailed description of the geology
of the area in which surface mining is to be conducted, the location
of all streams, roads, railroads, and utility facilities within, or
adjacent to, the lands, the location of all proposed access roads to
be constructed in conducting the surface mining operation, and the
names and addresses of the owners of all surface interests and
mineral interests in the lands.
(6) A description of, and a plan for, the type of surface mining
to be employed, and a time schedule that will provide for the
completion of surface mining on each segment of the mined lands so
that reclamation can be initiated at the earliest possible time on
those portions of the mined lands that will not be subject to further
disturbance by the surface mining operation.
(7) A description of the proposed use or potential uses of the
mined lands after reclamation and evidence that all owners of a
possessory interest in the land have been notified of the proposed
use or potential uses.
(8) A description of the manner in which reclamation, adequate for
the proposed use or potential uses will be accomplished, including
both of the following:
(A) A description of the manner in which contaminants will be
controlled, and mining waste will be disposed.
(B) A description of the manner in which affected streambed
channels and streambanks will be rehabilitated to a condition
minimizing erosion and sedimentation will occur.
(9) An assessment of the effect of implementation of the
reclamation plan on future mining in the area.
(10) A statement that the person submitting the reclamation plan
accepts responsibility for reclaiming the mined lands in accordance
with the reclamation plan.
(11) Any other information which the lead agency may require by
ordinance.
(d) An item of information or a document required pursuant to
subdivision (c) that has already been prepared as part of a permit
application for the surface mining operation, or as part of an
environmental document prepared for the project pursuant to Division
13 (commencing with Section 21000), may be included in the
reclamation plan by reference, if that item of information or that
document is attached to the reclamation plan when the lead agency
submits the reclamation plan to the director for review. To the
extent that the information or document referenced in the reclamation
plan is used to meet the requirements of subdivision (c), the
information or document shall become part of the reclamation plan and
shall be subject to all other requirements of this article.
(e) Nothing in this section is intended to limit or expand the
department's authority or responsibility to review a document in
accordance with Division 13 (commencing with Section 21000).
2772.5. (a) A reclamation plan by any person who owns, leases, or
otherwise controls or operates on all, or any portion of any, mined
lands within the boundaries of the San Gabriel Basin Water Quality
Authority, and who plans to conduct surface mining operations on
those lands, in addition to the information required pursuant to
subdivision (c) of Section 2772, shall include a description of any
programs necessary to monitor the effects of mining and reclamation
operations on air, water, and soil quality, on the surrounding area,
backfill characteristics, geologic conditions, and slope stability,
similar to the California Environmental Quality Act document for the
reclamation project.
(b) This section applies to activities otherwise subject to this
chapter conducted within the boundaries of the San Gabriel Basin
Water Quality Authority. To the extent of any conflict between this
section and any other provision of this chapter, this section shall
prevail.
2772.6. (a) In addition to meeting the requirements of Section
2773.1, the amount of financial assurances required of a surface
mining operation within the boundaries of the San Gabriel/Basin Water
Quality Authority for any one year shall be in an amount not less
than that required to ensure reclamation of the disturbed areas is
completed in accordance with the approved reclamation plan.
(b) This section applies to activities otherwise subject to this
chapter conducted within the boundaries of the San Gabriel Basin
Water Quality Authority. To the extent of any conflict between this
section and any other provision of this chapter, this section shall
prevail.
2772.7. (a) A lead agency, upon approval of a reclamation plan or
an amendment to a reclamation plan, shall record a "Notice of
Reclamation Plan Approval" with the county recorder. The notice shall
read: "Mining operations conducted on the hereinafter described real
property are subject to a reclamation plan approved by the ____
(lead agency), a copy of which is on file with the ____."
(b) In addition to the information required by subdivision (a),
the notice shall also include the name of the owner of record of the
mine operation, the name of the lead agency, and the acknowledged
signature of the lead agency representative.
2773. (a) The reclamation plan shall be applicable to a specific
piece of property or properties, shall be based upon the character of
the surrounding area and such characteristics of the property as
type of overburden, soil stability, topography, geology, climate,
stream characteristics, and principal mineral commodities, and shall
establish site-specific criteria for evaluating compliance with the
approved reclamation plan, including topography, revegetation and
sediment, and erosion control.
(b) By January 1, 1992, the board shall adopt regulations
specifying minimum, verifiable statewide reclamation standards.
Subjects for which standards shall be set include, but shall not be
limited to, the following:
(1) Wildlife habitat.
(2) Backfilling, regrading, slope stability, and recontouring.
(3) Revegetation.
(4) Drainage, diversion structures, waterways, and erosion
control.
(5) Prime and other agricultural land reclamation.
(6) Building, structure, and equipment removal.
(7) Stream protection.
(8) Topsoil salvage, maintenance, and redistribution.
(9) Tailing and mine waste management.
These standards shall apply to each mining operation, but only to
the extent that they are consistent with the planned or actual
subsequent use or uses of the mining site.
2773.1. (a) Lead agencies shall require financial assurances of
each surface mining operation to ensure reclamation is performed in
accordance with the surface mining operation's approved reclamation
plan, as follows:
(1) Financial assurances may take the form of surety bonds
executed by an admitted surety insurer, as defined in subdivision (a)
of Section 995.120 of the Code of Civil Procedure, irrevocable
letters of credit, trust funds, or other forms of financial
assurances specified by the board pursuant to subdivision (e), which
the lead agency reasonably determines are adequate to perform
reclamation in accordance with the surface mining operation's
approved reclamation plan.
(2) The financial assurances shall remain in effect for the
duration of the surface mining operation and any additional period
until reclamation is completed.
(3) The amount of financial assurances required of a surface
mining operation for any one year shall be adjusted annually to
account for new lands disturbed by surface mining operations,
inflation, and reclamation of lands accomplished in accordance with
the approved reclamation plan.
(4) The financial assurances shall be made payable to the lead
agency and the department. Financial assurances that were approved by
the lead agency prior to January 1, 1993, and were made payable to
the State Geologist shall be considered payable to the department for
purposes of this chapter. However, if a surface mining operation has
received approval of its financial assurances from a public agency
other than the lead agency, the lead agency shall deem those
financial assurances adequate for purposes of this section, or shall
credit them toward fulfillment of the financial assurances required
by this section, if they are made payable to the public agency, the
lead agency, and the department and otherwise meet the requirements
of this section. In any event, if a lead agency and one or more
public agencies exercise jurisdiction over a surface mining
operation, the total amount of financial assurances required by the
lead agency and the public agencies for any one year shall not exceed
that amount which is necessary to perform reclamation of lands
remaining disturbed. For purposes of this paragraph, a "public agency"
may include a federal agency.
(b) If the lead agency or the board, following a public hearing,
determines that the operator is financially incapable of performing
reclamation in accordance with its approved reclamation plan, or has
abandoned its surface mining operation without commencing
reclamation, either the lead agency or the director shall do all of
the following:
(1) Notify the operator by personal service or certified mail that
the lead agency or the director intends to take appropriate action
to forfeit the financial assurances and specify the reasons for so
doing.
(2) Allow the operator 60 days to commence or cause the
commencement of reclamation in accordance with its approved
reclamation plan and require that reclamation be completed within the
time limits specified in the approved reclamation plan or some other
time period mutually agreed upon by the lead agency or the director
and the operator.
(3) Proceed to take appropriate action to require forfeiture of
the financial assurances if the operator does not substantially
comply with paragraph (2).
(4) Use the proceeds from the forfeited financial assurances to
conduct and complete reclamation in accordance with the approved
reclamation plan. In no event shall the financial assurances be used
for any other purpose. The operator is responsible for the costs of
conducting and completing reclamation in accordance with the approved
reclamation plan which are in excess of the proceeds from the
forfeited financial assurances.
(c) Financial assurances shall no longer be required of a surface
mining operation, and shall be released, upon written notification by
the lead agency, which shall be forwarded to the operator and the
director, that reclamation has been completed in accordance with the
approved reclamation plan. If a mining operation is sold or ownership
is transferred to another person, the existing financial assurances
shall remain in force and shall not be released by the lead agency
until new financial assurances are secured from the new owner and
have been approved by the lead agency in accordance with Section
2770.
(d) The lead agency shall have primary responsibility to seek
forfeiture of financial assurances and to reclaim mine sites under
subdivision (b). However, in cases where the board is not the lead
agency pursuant to Section 2774.4, the director may act to seek
forfeiture of financial assurances and reclaim mine sites pursuant to
subdivision (b) only if both of the following occurs:
(1) The financial incapability of the operator or the abandonment
of the mining operation has come to the attention of the director.
(2) The lead agency has been notified in writing by the director
of the financial incapability of the operator or the abandonment of
the mining operation for at least 15 days, and has not taken
appropriate measures to seek forfeiture of the financial assurances
and reclaim the mine site; and one of the following has occurred:
(A) The lead agency has been notified in writing by the director
that failure to take appropriate measures to seek forfeiture of the
financial assurances or to reclaim the mine site shall result in
actions being taken against the lead agency under Section 2774.4.
(B) The director determines that there is a violation that amounts
to an imminent and substantial endangerment to the public health,
safety, or to the environment.
(C) The lead agency notifies the director in writing that its good
faith attempts to seek forfeiture of the financial assurances have
not been successful.
The director shall comply with subdivision (b) in seeking
forfeiture of financial assurances and reclaiming mine sites.
(e) The board may adopt regulations specifying financial assurance
mechanisms other than surety bonds, irrevocable letters of credit,
and trust funds, which the board determines are reasonably available
and adequate to ensure reclamation pursuant to this chapter, but
these mechanisms may not include financial tests, or surety bonds
executed by one or more personal sureties. These mechanisms may
include reclamation bond pool programs.
(f) On or before March 1, 1993, the board shall adopt guidelines
to implement this section. The guidelines are exempt from the
requirements of Chapter 3.5 (commencing with Section 11340) of Part 1
of Division 3 of Title 2 of the Government Code, and are not subject
to review by the Office of Administrative Law.
2773.15. Notwithstanding Section 2773.1, a surety bond that was
executed by any personal surety that was approved by the lead agency
prior to February 13, 1998, to ensure that reclamation is performed
in accordance with a reclamation plan approved by a lead agency prior
to that date, may be utilized to satisfy the requirements of this
chapter, if the amount of the financial assurance required to perform
the approved reclamation plan, as amended or updated from time to
time, does not change from the amount approved prior to February 13,
1998.
2773.2. The mineral owner and owner of the surface estate, if
legally entitled to do so, shall allow access to the property on
which the mining operation is located to any governmental agency or
the agent of any company providing financial assurances in connection
with the reclamation plan and expending those financial assurances
for reclamation, in order that reclamation may be carried out by the
governmental agency or company, in accordance with the reclamation
plan.
2773.3. (a) In addition to other reclamation plan requirements of
this chapter and regulations adopted by the board pursuant to this
chapter, a lead agency may not approve a reclamation plan for a
surface mining operation for gold, silver, copper, or other metallic
minerals or financial assurances for the operation, if the operation
is located on, or within one mile of, any Native American sacred site
and is located in an area of special concern, unless both of the
following criteria are met:
(1) The reclamation plan requires that all excavations be
backfilled and graded to do both of the following:
(A) Achieve the approximate original contours of the mined lands
prior to mining.
(B) Grade all mined materials that are in excess of the materials
that can be placed back into excavated areas, including, but not
limited to, all overburden, spoil piles, and heap leach piles, over
the project site to achieve the approximate original contours of the
mined lands prior to mining.
(2) The financial assurances are sufficient in amount to provide
for the backfilling and grading required by paragraph (1).
(b) For purposes of this section, the following terms have the
following meaning:
(1) "Native American sacred site" means a specific area that is
identified by a federally recognized Indian Tribe, Rancheria or
Mission Band of Indians, or by the Native American Heritage
Commission, as sacred by virtue of its established historical or
cultural significance to, or ceremonial use by, a Native American
group, including, but not limited to, any area containing a prayer
circle, shrine, petroglyph, or spirit break, or a path or area
linking the circle, shrine, petroglyph, or spirit break with another
circle, shrine, petroglyph, or spirit break.
(2) "Area of special concern" means any area in the California
desert that is designated as Class C or Class L lands or as an Area
of Critical Environmental Concern under the California Desert
Conservation Area Plan of 1980, as amended, by the United States
Department of the Interior, Bureau of Land Management, pursuant to
Section 1781 of Title 43 of the United States Code.
2773.5. Section 2773.3 does not apply to either of the following:
(a) Any surface mining operation in existence on January 1, 2003,
for which the lead agency has issued final approval of a reclamation
plan and the financial assurances prior to September 1, 2002.
(b) Any amended reclamation plan or financial assurances that are
necessary for the continued operation or expansion of a surface
mining operation in existence on January 1, 2003, that otherwise
satisfies the requirements of subdivision (a).
2774. (a) Every lead agency shall adopt ordinances in accordance
with state policy that establish procedures for the review and
approval of reclamation plans and financial assurances and the
issuance of a permit to conduct surface mining operations, except
that any lead agency without an active surface mining operation in
its jurisdiction may defer adopting an implementing ordinance until
the filing of a permit application. The ordinances shall establish
procedures requiring at least one public hearing and shall be
periodically reviewed by the lead agency and revised, as necessary,
to ensure that the ordinances continue to be in accordance with state
policy.
(b) The lead agency shall conduct an inspection of a surface
mining operation within six months of receipt by the lead agency of
the surface mining operation's report submitted pursuant to Section
2207, solely to determine whether the surface mining operation is in
compliance with this chapter. In no event shall a lead agency inspect
a surface mining operation less than once in any calendar year. The
lead agency may cause an inspection to be conducted by a state
licensed geologist, state licensed civil engineer, state licensed
landscape architect, or state licensed forester, who is experienced
in land reclamation and who has not been employed by a surface mining
operation within the jurisdiction of the lead agency in any capacity
during the previous 12 months. All inspections shall be conducted
using a form developed by the department and approved by the board
that shall include the professional licensing and disciplinary
information of the person who conducted the inspection. The operator
shall be solely responsible for the reasonable cost of the
inspection. The lead agency shall notify the director within 30 days
of the date of completion of the inspection that the inspection has
been conducted. The notice shall contain a statement regarding the
surface mining operation's compliance with this chapter, shall
include a copy of the completed inspection form, and shall specify
which aspects of the surface mining operations, if any, are
inconsistent with this chapter. If the surface mining operation has a
review of its reclamation plan, financial assurances, or an interim
management plan pending under subdivision (b), (c), (d), or (h) of
Section 2770, or an appeal pending before the board or lead agency
governing body under subdivision (e) or (h) of Section 2770, the
notice shall so indicate. The lead agency shall forward to the
operator a copy of the notice, a copy of the completed inspection
form, and any supporting documentation, including, but not limited
to, any inspection report prepared by the geologist, civil engineer,
landscape architect, or forester, who conducted the inspection.
(c) Prior to approving a surface mining operation's reclamation
plan, financial assurances, including existing financial assurances
reviewed by the lead agency pursuant to subdivision (c) of Section
2770, or any amendments, the lead agency shall submit the plan,
assurances, or amendments to the director for review. All
documentation for that submission shall be submitted to the director
at one time. When the lead agency submits a reclamation plan or plan
amendments to the director for review, the lead agency shall also
submit to the director, for use in reviewing the reclamation plan or
plan amendments, information from any related document prepared,
adopted, or certified pursuant to Division 13 (commencing with
Section 21000), and shall submit any other pertinent information. The
lead agency shall certify to the director that the reclamation plan
is in compliance with the applicable requirements of this chapter and
Article 9 (commencing with Section 3500) of Chapter 8 of Division 2
of Title 14 of the California Code of Regulations and the lead agency'
s mining ordinance in effect at the time that the reclamation plan is
submitted to the director for review.
(d) (1) The director shall have 30 days from the date of receipt
of a reclamation plan or plan amendments submitted pursuant to
subdivision (c), and 45 days from the date of receipt of financial
assurances submitted pursuant to subdivision (c), to prepare written
comments, if the director so chooses. The lead agency shall evaluate
any written comments received from the director relating to the
reclamation plan, plan amendments, or financial assurances within a
reasonable amount of time.
(2) The lead agency shall prepare a written response to the
director's comments describing the disposition of the major issues
raised by the director's comments, and submit the lead agency's
proposed response to the director at least 30 days prior to approval
of the reclamation plan, plan amendment, or financial assurance. The
lead agency's response to the director's comments shall describe
whether the lead agency proposes to adopt the director's comments to
the reclamation plan, plan amendment, or financial assurance. If the
lead agency does not propose to adopt the director's comments, the
lead agency shall specify, in detail, why the lead agency proposes
not to adopt the comments. Copies of any written comments received
and responses prepared by the lead agency shall be forwarded to the
operator. The lead agency shall also give the director at least 30
days' notice of the time, place, and date of the hearing before the
lead agency at which time the reclamation plan, plan amendment, or
financial assurance is scheduled to be approved by the lead agency.
If no hearing is required by this chapter, or by the local ordinance,
of other state law, then the lead agency shall provide 30 days'
notice to the director that it intends to approve the reclamation
plan, plan amendment, or financial assurance. The lead agency shall
send to the director its final response to the director's comments
within 30 days following its approval of the reclamation plan, plan
amendment, or financial assurance during which period the department
retains all powers, duties, and authorities of this chapter.
(3) To the extent that there is a conflict between the comments of
a trustee agency or a responsible agency that are based on the
agency's statutory or regulatory authority and the comments of other
commenting agencies which are received by the lead agency pursuant to
Division 13 (commencing with Section 21000) regarding a reclamation
plan or plan amendments, the lead agency shall consider only the
comments of the trustee agency or responsible agency.
(e) Lead agencies shall notify the director of the filing of an
application for a permit to conduct surface mining operations within
30 days of an application being filed with the lead agency. By July
1, 1991, each lead agency shall submit to the director for every
active or idle mining operation within its jurisdiction, a copy of
the mining permit required pursuant to Section 2774, and any
conditions or amendments to those permits. By July 1 of each
subsequent year, the lead agency shall submit to the director for
each active or idle mining operation a copy of any permit or
reclamation plan amendments, as applicable, or a statement that there
have been no changes during the previous year. Failure to file with
the director the information required under this section shall be
cause for action under Section 2774.4.
2774.1. (a) Except as provided in subdivision (i) of Section 2770,
if the lead agency or the director determines, based upon an annual
inspection pursuant to Section 2774, or otherwise confirmed by an
inspection of the mining operation, that a surface mining operation
is not in compliance with this chapter, the lead agency or the
director may notify the operator of that violation by personal
service or certified mail. If the violation extends beyond 30 days
after the date of the lead agency's or the director's notification,
the lead agency or the director may issue an order by personal
service or certified mail requiring the operator to comply with this
chapter or, if the operator does not have an approved reclamation
plan or financial assurances, cease all further mining activities.
(b) An order issued under subdivision (a) shall not take effect
until the operator has been provided a hearing before the lead agency
for orders issued by the lead agency, or board for orders issued by
the director, concerning the alleged violation. Any order issued
under subdivision (a) shall specify which aspects of the surface mine'
s activities or operations are inconsistent with this chapter, shall
specify a time for compliance which the lead agency or director
determines is reasonable, taking into account the seriousness of the
violation and any good faith efforts to comply with applicable
requirements, and shall set a date for the hearing, which shall not
be sooner than 30 days after the date of the order.
(c) Any operator who violates or fails to comply with an order
issued under subdivision (a) after the order's effective date, as
provided in subdivision (b), or who fails to submit a report to the
director or lead agency as required by Section 2207, shall be subject
to an order by the lead agency or the director imposing an
administrative penalty of not more than five thousand dollars
($5,000) per day, assessed from the original date of noncompliance
with this chapter or Section 2207. The penalty may be imposed
administratively by the lead agency or the director. In determining
the amount of the administrative penalty, the lead agency or the
director shall take into consideration the nature, circumstances,
extent, and gravity of the violation or violations, any prior history
of violations, the degree of culpability, economic savings, if any,
resulting from the violation, and any other matters justice may
require. Orders setting administrative penalties shall become
effective upon issuance thereof and payment shall be made to the lead
agency or the director within 30 days, unless the operator petitions
the legislative body of the lead agency, the board, or the superior
court for review as provided in Section 2774.2. Any order shall be
served by personal service or by certified mail upon the operator.
Penalties collected by the director shall be used for no purpose
other than to cover the reasonable costs incurred by the director in
implementing this chapter or Section 2207.
(d) If the lead agency or the director determines that the surface
mine is not in compliance with this chapter, so that the surface
mine presents an imminent and substantial endangerment to the public
health or the environment, the lead agency or the Attorney General,
on behalf of the director, may seek an order from a court of
competent jurisdiction enjoining that operation.
(e) Upon a complaint by the director, the department, or the
board, the Attorney General may bring an action to recover
administrative penalties under this section, and penalties under
Section 2207, in any court of competent jurisdiction in this state
against any person violating any provision of this chapter or Section
2207, or any regulation adopted pursuant to this chapter or Section
2207. The Attorney General may bring such an action on his or her own
initiative if, after examining the complaint and the evidence, he or
she believes a violation has occurred. The Attorney General may also
seek an order from a court of competent jurisdiction compelling the
operator to comply with this chapter and Section 2207.
(f) The lead agency has primary responsibility for enforcing this
chapter and Section 2207. In cases where the board is not the lead
agency pursuant to Section 2774.4, enforcement actions may be
initiated by the director pursuant to this section only after the
violation has come to the attention of the director and either of the
following occurs:
(1) The lead agency has been notified by the director in writing
of the violation for at least 15 days, and has not taken appropriate
enforcement action.
(2) The director determines that there is a violation which
amounts to an imminent and substantial endangerment to the public
health or safety, or to the environment.
The director shall comply with this section in initiating
enforcement actions.
(g) Remedies under this section are in addition to, and do not
supersede or limit, any and all other remedies, civil or criminal.
2774.2. (a) Within 30 days of the issuance of an order setting
administrative penalties under subdivision (c) of Section 2774.1, the
operator may petition that legislative body of the lead agency, if
the lead agency has issued the order, or the board for orders issued
by the director, for review of the order. If the operator does not
petition for review within the time limits set by this subdivision,
the order setting administrative penalties shall not be subject to
review by any court or agency.
(b) The legislative body of the lead agency or the board shall
notify the operator by personal service or certified mail whether it
will review the order setting administrative penalties. In reviewing
an order pursuant to this section, the record shall consist of the
record before the lead agency or the director, and any other relevant
evidence which, in the judgment of the legislative body or the
board, should be considered to effectuate and implement the policies
of this chapter.
(c) The legislative body or the board may affirm, modify, or set
aside, in whole or in part, by its own order, any order of the lead
agency or the director setting administrative penalties reviewed by
the legislative body or the board pursuant to this section.
(d) Any order of the legislative body or the board issued under
subdivision (c) shall become effective upon issuance thereof, unless
the operator petitions the superior court for review as provided in
subdivision (e). Any order shall be served by personal service or by
certified mail upon the operator. Payment of any administrative
penalty which is specified in an order issued under subdivision (c),
shall be made to the lead agency or the director within 30 days of
service of the order; however, the payment shall be held in an
interest bearing impound account pending the resolution of a petition
for review filed pursuant to subdivision (e).
(e) Any operator aggrieved by an order of the legislative body or
the board issued under subdivision (c) may obtain review of the order
by filing in the superior court a petition for writ of mandate
within 30 days following the issuance of the order. Any operator
aggrieved by an order of a lead agency or the director setting
administrative penalties under subdivision (c) of Section 2774.1, for
which the legislative body or board denies review, may obtain review
of the order in the superior court by filing in the court a petition
for writ of mandate within 30 days following the denial of review.
The provisions of Section 1094.5 of the Code of Civil Procedure shall
govern judicial proceedings pursuant to this subdivision, except
that in every case the court shall exercise its independent judgment.
If the operator does not petition for a writ of mandate within the
time limits set by this subdivision, an order of the board or the
legislative body shall not be subject to review by any court or
agency.
2774.3. The board shall review lead agency ordinances which
establish permit and reclamation procedures to determine whether each
ordinance is in accordance with state policy, and shall certify the
ordinance as being in accordance with state policy if it adequately
meets, or imposes requirements more stringent than, the California
surface mining and reclamation policies and procedures established by
the board pursuant to this chapter.
2774.4. (a) If the board finds that a lead agency either has (1)
approved reclamation plans or financial assurances which are not
consistent with this chapter, (2) failed to inspect or cause the
inspection of surface mining operations as required by this chapter,
(3) failed to seek forfeiture of financial assurances and to carry
out reclamation of surface mining operations as required by this
chapter, (4) failed to take appropriate enforcement actions as
required by this chapter, (5) intentionally misrepresented the
results of inspections required under this chapter, or (6) failed to
submit information to the department as required by this chapter, the
board shall exercise any of the powers of that lead agency under
this chapter, except for permitting authority.
(b) If, no sooner than three years after the board has taken
action pursuant to subdivision (a), the board finds, after a public
hearing, that a lead agency has corrected its deficiencies in
implementing and enforcing this chapter, and the rules and
regulations adopted pursuant to this chapter, the board shall restore
to the lead agency the powers assumed by the board pursuant to
subdivision (a).
(c) Before taking any action pursuant to subdivision (a), the
board shall first notify the lead agency of the identified
deficiencies, and allow the lead agency 45 days to correct the
deficiencies to the satisfaction of the board. If the lead agency has
not corrected the deficiencies to the satisfaction of the board
within the 45-day period, the board shall hold a public hearing
within the lead agency's area of jurisdiction, upon a 45-day written
notice given to the public in at least one newspaper of general
circulation within the city or county, and directly mailed to the
lead agency and to all surface mining operators within the lead
agency's jurisdiction who have submitted reports as required by
Section 2207.
(d) Affected surface mining operators and interested persons have
the right, at the public hearing, to present oral and written
evidence on the matter being considered. The board may, at the public
hearing, place reasonable limits on the right of affected surface
mining operators and interested persons to question and solicit
testimony.
(e) If, after conducting the public hearing required by
subdivision (c), the board decides to take action pursuant to
subdivision (a), the board shall, based on the record of the public
hearing, adopt written findings which explain all of the following:
(1) The action to be taken by the board.
(2) Why the board decided to take the action.
(3) Why the action is authorized by, and meets the requirements
of, subdivision (a).
In addition, the findings shall address the significant issues
raised, or written evidence presented, by affected surface mining
operators, interested persons, or the lead agency. The transcript of
testimony and exhibits, together with all papers and requests filed
in the proceedings, shall constitute the exclusive record for
decision by the board.
(f) The lead agency, any affected surface mining operator, or any
interested person who has presented oral or written evidence at the
public hearing before the board pursuant to subdivision (d) may
obtain review of the board's action taken pursuant to subdivision (a)
by filing in the superior court a petition for writ of mandate
within 30 days following the issuance of the board's decision.
Section 1094.5 of the Code of Civil Procedure governs judicial
proceedings pursuant to this subdivision, except that in every case
the court shall exercise its independent judgment. If a petition for
a writ of mandate is not filed within the time limits set by this
subdivision, the board's action under subdivision (a) shall not be
subject to review by any court or agency.
2774.5. (a) If, upon review of an ordinance, the board finds that
it is not in accordance with state policy, the board shall
communicate the ordinance's deficiencies in writing to the lead
agency. Upon receipt of the written communication, the lead agency
shall have 90 days to submit a revised ordinance to the board for
certification as being in accordance with state policy. The board
shall review the lead agency's revised ordinance for certification
within 60 days of its receipt. If the lead agency does not submit a
revised ordinance within 90 days, the board shall assume full
authority for reviewing and approving reclamation plans submitted to
the lead agency until the time the lead agency's ordinances are
revised in accordance with state policy.
(b) If, upon review of a lead agency's revised ordinance, the
board finds the ordinance is still not in accordance with state
policy, the board shall again communicate the ordinance's
deficiencies in writing to the lead agency. The lead agency shall
have a second 90-day period in which to revise the ordinance and
submit it to the board for review. If the board again finds that the
revised ordinance is not in accordance with state policy or if no
revision is submitted, the board shall assume full authority for
reviewing and approving reclamation plans submitted to the lead
agency until the time the lead agency's ordinances are revised in
accordance with state policy.
(c) In any jurisdiction in which the lead agency does not have a
certified ordinance, no person shall initiate a surface mining
operation unless a reclamation plan has been submitted to, and
approved by, the board. Any reclamation plan, approved by a lead
agency under the lead agency's ordinance which was not in accordance
with state policy at the time of approval, shall be subject to
amendment by the board or under the ordinance certified by the board
as being in accordance with state policy.
(d) Reclamation plans approved by the board pursuant to this
section shall not be subject to modification by the lead agency at a
future date but may be amended by the board. Reclamation plans
approved by the board shall be remanded to the lead agency upon
certification of the lead agency's ordinance, and the lead agency
shall approve the reclamation plan as approved by the board, except
that a subsequent amendment as may be agreed upon between the
operator and the lead agency may be made according to this chapter.
No additional public hearing shall be required prior to the lead
agency's approval. Nothing in this section shall be construed as
authorizing the board to issue a permit for the conduct of mining
operations.
2775. (a) An applicant whose request for a permit to conduct
surface mining operations in an area of statewide or regional
significance has been denied by a lead agency, or any person who is
aggrieved by the granting of a permit to conduct surface mining
operations in an area of statewide or regional significance, may,
within 15 days of exhausting his rights to appeal in accordance with
the procedures of the lead agency, appeal to the board.
(b) The board may, by regulation, establish procedures for
declining to hear appeals that it determines raise no substantial
issues.
(c) Appeals that the board does not decline to hear shall be
scheduled and heard at a public hearing held within the jurisdiction
of the lead agency which processed the original application within 30
days of the filing of the appeal, or such longer period as may be
mutually agreed upon by the board and the person filing the appeal.
In any such action, the board shall not exercise its independent
judgment on the evidence but shall only determine whether the
decision of the lead agency is supported by substantial evidence in
the light of the whole record. If the board determines the decision
of the lead agency is not supported by substantial evidence in the
light of the whole record it shall remand the appeal to the lead
agency and the lead agency shall schedule a public hearing to
reconsider its action.
2776. (a) No person who has obtained a vested right to conduct
surface mining operations prior to January 1, 1976, shall be required
to secure a permit pursuant to this chapter as long as the vested
right continues and as long as no substantial changes are made in the
operation except in accordance with this chapter. A person shall be
deemed to have vested rights if, prior to January 1, 1976, the person
has, in good faith and in reliance upon a permit or other
authorization, if the permit or other authorization was required,
diligently commenced surface mining operations and incurred
substantial liabilities for work and materials necessary for the
surface mining operations. Expenses incurred in obtaining the
enactment of an ordinance in relation to a particular operation or
the issuance of a permit shall not be deemed liabilities for work or
materials.
(b) The reclamation plan required to be filed under subdivision
(b) of Section 2770, shall apply to operations conducted after
January 1, 1976, or to be conducted.
(c) Nothing in this chapter shall be construed as requiring the
filing of a reclamation plan for, or the reclamation of, mined lands
on which surface mining operations were conducted prior to January 1,
1976.
2777. Amendments to an approved reclamation plan may be submitted
detailing proposed changes from the original plan. Substantial
deviations from the original plan shall not be undertaken until such
amendment has been filed with, and approved by, the lead agency.
2778. (a) Reclamation plans, reports, applications, and other
documents submitted pursuant to this chapter are public records,
unless it can be demonstrated to the satisfaction of the lead agency
that the release of that information, or part thereof, would reveal
production, reserves, or rate of depletion entitled to protection as
proprietary information. The lead agency shall identify such
proprietary information as a separate part of the application.
Proprietary information shall be made available only to the director
and to persons authorized in writing by the operator and by the
owner.
(b) A copy of all reclamation plans, reports, applications, and
other documents submitted pursuant to this chapter shall be furnished
to the director by lead agencies on request.
2779. Whenever one operator succeeds to the interest of another in
any incompleted surface mining operation by sale, assignment,
transfer, conveyance, exchange, or other means, the successor shall
be bound by the provisions of the approved reclamation plan and the
provisions of this chapter.
2770. (a) Except as provided in this section, no person shall
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 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
person with an existing surface mining operation which 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 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 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 period not to
exceed five years, 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 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.
(i) Any enforcement action which 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).
2770.5. Whenever surface mining operations are proposed in the
100-year flood plain for any stream, as shown in Zone A of Flood
Insurance Rate Maps issued by the Federal Emergency Management
Agency, and within one mile, upstream or downstream, of any state
highway bridge, the lead agency receiving the application for the
issuance or renewal of a permit to conduct the surface mining
operations shall notify the Department of Transportation that the
application has been received. The Department of Transportation shall
have a period of not more than 45 days to review and comment on the
proposed surface mining operations with respect to any potential
damage to the state highway bridge from the proposed surface mining
operations. The lead agency shall not issue or renew the permit until
the Department of Transportation has submitted its comments or until
45 days from the date the application for the permit was submitted,
whichever occurs first.
2770.6. (a) Whenever surface mining operations are proposed within
the boundaries of the San Gabriel Basin Water Quality Authority that
may penetrate the groundwater, and whenever proposed reclamation
activities may impact groundwater quality, the lead agency reviewing
an application to conduct surface mining operations, or reviewing an
application for the approval of a reclamation plan, shall notify and
provide copies of the subject application to the appropriate
California regional water quality control board, and any watermaster
for the groundwater recharge basin. Notwithstanding any other
provision of law, the appropriate California regional water quality
control board may impose an administrative fee on the applicant to
cover its costs associated with the review of, and preparation of,
comments on the subject application, as required pursuant to this
section.
(b) Each agency shall have 60 days to review and comment on the
proposed surface mining operation described in subdivision (a) and
the adoption of any reclamation plan therefor. Each agency shall
comment on the existing groundwater quality and the potential impacts
to water quality that may result from the mining operations and the
proposed reclamation plan, and shall recommend methods and procedures
to protect groundwater quality and prevent groundwater degradation.
Each agency shall also comment on the proposed mining activities,
including the conduct of excavation and backfilling operations in
contact with groundwater, and the impact of any proposed alternative
land uses on groundwater quality. When the proposed surface mining
operations or reclamation plan will impact the groundwater, the lead
agency shall not approve the reclamation plan without requiring
actions to ensure the reasonable protection of the beneficial uses of
groundwater and the prevention of nuisance. Each agency shall have
60 days to review and comment or until 60 days from the date of
application, whichever occurs first.
(c) This section applies to activities otherwise subject to this
chapter conducted within the boundaries of the San Gabriel Basin
Water Quality Authority. To the extent of any conflict between this
section and any other provision of this chapter, this section shall
prevail.
2771. Whenever a proposed or existing surface mining operation is
within the jurisdiction of two or more public agencies, is a
permitted use within the agencies, and is not separated by a natural
or manmade barrier coinciding with the boundary of the agencies, the
evaluation of the proposed or existing operation shall be made by the
lead agency in accordance with the procedures adopted by the lead
agency pursuant to Section 2774. If a question arises as to which
public agency is the lead agency, any affected public agency, or the
affected operator, may submit the matter to the board. The board
shall notify in writing all affected public agencies and operators
that the matter has been submitted, specifying a date for a public
hearing. The board shall designate the public agency which shall
serve as the lead agency, giving due consideration to the capability
of the agency to fulfill adequately the requirements of this chapter
and to an examination of which of the public agencies has principal
permit responsibility.
2772. (a) The reclamation plan shall be filed with the lead agency,
on a form provided by the lead agency, by any person who owns,
leases, or otherwise controls or operates on all, or any portion of
any, mined lands, and who plans to conduct surface mining operations
on the lands.
(b) All documentation for the reclamation plan shall be submitted
by the lead agency to the department at one time.
(c) The reclamation plan shall include all of the following
information and documents:
(1) The name and address of the surface mining operator and the
names and addresses of any persons designated by the operator as an
agent for the service of process.
(2) The anticipated quantity and type of minerals for which the
surface mining operation is to be conducted.
(3) The proposed dates for the initiation and termination of
surface mining operation.
(4) The maximum anticipated depth of the surface mining operation.
(5) The size and legal description of the lands that will be
affected by the surface mining operation, a map that includes the
boundaries and topographic details of the lands, a description of the
general geology of the area, a detailed description of the geology
of the area in which surface mining is to be conducted, the location
of all streams, roads, railroads, and utility facilities within, or
adjacent to, the lands, the location of all proposed access roads to
be constructed in conducting the surface mining operation, and the
names and addresses of the owners of all surface interests and
mineral interests in the lands.
(6) A description of, and a plan for, the type of surface mining
to be employed, and a time schedule that will provide for the
completion of surface mining on each segment of the mined lands so
that reclamation can be initiated at the earliest possible time on
those portions of the mined lands that will not be subject to further
disturbance by the surface mining operation.
(7) A description of the proposed use or potential uses of the
mined lands after reclamation and evidence that all owners of a
possessory interest in the land have been notified of the proposed
use or potential uses.
(8) A description of the manner in which reclamation, adequate for
the proposed use or potential uses will be accomplished, including
both of the following:
(A) A description of the manner in which contaminants will be
controlled, and mining waste will be disposed.
(B) A description of the manner in which affected streambed
channels and streambanks will be rehabilitated to a condition
minimizing erosion and sedimentation will occur.
(9) An assessment of the effect of implementation of the
reclamation plan on future mining in the area.
(10) A statement that the person submitting the reclamation plan
accepts responsibility for reclaiming the mined lands in accordance
with the reclamation plan.
(11) Any other information which the lead agency may require by
ordinance.
(d) An item of information or a document required pursuant to
subdivision (c) that has already been prepared as part of a permit
application for the surface mining operation, or as part of an
environmental document prepared for the project pursuant to Division
13 (commencing with Section 21000), may be included in the
reclamation plan by reference, if that item of information or that
document is attached to the reclamation plan when the lead agency
submits the reclamation plan to the director for review. To the
extent that the information or document referenced in the reclamation
plan is used to meet the requirements of subdivision (c), the
information or document shall become part of the reclamation plan and
shall be subject to all other requirements of this article.
(e) Nothing in this section is intended to limit or expand the
department's authority or responsibility to review a document in
accordance with Division 13 (commencing with Section 21000).
2772.5. (a) A reclamation plan by any person who owns, leases, or
otherwise controls or operates on all, or any portion of any, mined
lands within the boundaries of the San Gabriel Basin Water Quality
Authority, and who plans to conduct surface mining operations on
those lands, in addition to the information required pursuant to
subdivision (c) of Section 2772, shall include a description of any
programs necessary to monitor the effects of mining and reclamation
operations on air, water, and soil quality, on the surrounding area,
backfill characteristics, geologic conditions, and slope stability,
similar to the California Environmental Quality Act document for the
reclamation project.
(b) This section applies to activities otherwise subject to this
chapter conducted within the boundaries of the San Gabriel Basin
Water Quality Authority. To the extent of any conflict between this
section and any other provision of this chapter, this section shall
prevail.
2772.6. (a) In addition to meeting the requirements of Section
2773.1, the amount of financial assurances required of a surface
mining operation within the boundaries of the San Gabriel/Basin Water
Quality Authority for any one year shall be in an amount not less
than that required to ensure reclamation of the disturbed areas is
completed in accordance with the approved reclamation plan.
(b) This section applies to activities otherwise subject to this
chapter conducted within the boundaries of the San Gabriel Basin
Water Quality Authority. To the extent of any conflict between this
section and any other provision of this chapter, this section shall
prevail.
2772.7. (a) A lead agency, upon approval of a reclamation plan or
an amendment to a reclamation plan, shall record a "Notice of
Reclamation Plan Approval" with the county recorder. The notice shall
read: "Mining operations conducted on the hereinafter described real
property are subject to a reclamation plan approved by the ____
(lead agency), a copy of which is on file with the ____."
(b) In addition to the information required by subdivision (a),
the notice shall also include the name of the owner of record of the
mine operation, the name of the lead agency, and the acknowledged
signature of the lead agency representative.
2773. (a) The reclamation plan shall be applicable to a specific
piece of property or properties, shall be based upon the character of
the surrounding area and such characteristics of the property as
type of overburden, soil stability, topography, geology, climate,
stream characteristics, and principal mineral commodities, and shall
establish site-specific criteria for evaluating compliance with the
approved reclamation plan, including topography, revegetation and
sediment, and erosion control.
(b) By January 1, 1992, the board shall adopt regulations
specifying minimum, verifiable statewide reclamation standards.
Subjects for which standards shall be set include, but shall not be
limited to, the following:
(1) Wildlife habitat.
(2) Backfilling, regrading, slope stability, and recontouring.
(3) Revegetation.
(4) Drainage, diversion structures, waterways, and erosion
control.
(5) Prime and other agricultural land reclamation.
(6) Building, structure, and equipment removal.
(7) Stream protection.
(8) Topsoil salvage, maintenance, and redistribution.
(9) Tailing and mine waste management.
These standards shall apply to each mining operation, but only to
the extent that they are consistent with the planned or actual
subsequent use or uses of the mining site.
2773.1. (a) Lead agencies shall require financial assurances of
each surface mining operation to ensure reclamation is performed in
accordance with the surface mining operation's approved reclamation
plan, as follows:
(1) Financial assurances may take the form of surety bonds
executed by an admitted surety insurer, as defined in subdivision (a)
of Section 995.120 of the Code of Civil Procedure, irrevocable
letters of credit, trust funds, or other forms of financial
assurances specified by the board pursuant to subdivision (e), which
the lead agency reasonably determines are adequate to perform
reclamation in accordance with the surface mining operation's
approved reclamation plan.
(2) The financial assurances shall remain in effect for the
duration of the surface mining operation and any additional period
until reclamation is completed.
(3) The amount of financial assurances required of a surface
mining operation for any one year shall be adjusted annually to
account for new lands disturbed by surface mining operations,
inflation, and reclamation of lands accomplished in accordance with
the approved reclamation plan.
(4) The financial assurances shall be made payable to the lead
agency and the department. Financial assurances that were approved by
the lead agency prior to January 1, 1993, and were made payable to
the State Geologist shall be considered payable to the department for
purposes of this chapter. However, if a surface mining operation has
received approval of its financial assurances from a public agency
other than the lead agency, the lead agency shall deem those
financial assurances adequate for purposes of this section, or shall
credit them toward fulfillment of the financial assurances required
by this section, if they are made payable to the public agency, the
lead agency, and the department and otherwise meet the requirements
of this section. In any event, if a lead agency and one or more
public agencies exercise jurisdiction over a surface mining
operation, the total amount of financial assurances required by the
lead agency and the public agencies for any one year shall not exceed
that amount which is necessary to perform reclamation of lands
remaining disturbed. For purposes of this paragraph, a "public agency"
may include a federal agency.
(b) If the lead agency or the board, following a public hearing,
determines that the operator is financially incapable of performing
reclamation in accordance with its approved reclamation plan, or has
abandoned its surface mining operation without commencing
reclamation, either the lead agency or the director shall do all of
the following:
(1) Notify the operator by personal service or certified mail that
the lead agency or the director intends to take appropriate action
to forfeit the financial assurances and specify the reasons for so
doing.
(2) Allow the operator 60 days to commence or cause the
commencement of reclamation in accordance with its approved
reclamation plan and require that reclamation be completed within the
time limits specified in the approved reclamation plan or some other
time period mutually agreed upon by the lead agency or the director
and the operator.
(3) Proceed to take appropriate action to require forfeiture of
the financial assurances if the operator does not substantially
comply with paragraph (2).
(4) Use the proceeds from the forfeited financial assurances to
conduct and complete reclamation in accordance with the approved
reclamation plan. In no event shall the financial assurances be used
for any other purpose. The operator is responsible for the costs of
conducting and completing reclamation in accordance with the approved
reclamation plan which are in excess of the proceeds from the
forfeited financial assurances.
(c) Financial assurances shall no longer be required of a surface
mining operation, and shall be released, upon written notification by
the lead agency, which shall be forwarded to the operator and the
director, that reclamation has been completed in accordance with the
approved reclamation plan. If a mining operation is sold or ownership
is transferred to another person, the existing financial assurances
shall remain in force and shall not be released by the lead agency
until new financial assurances are secured from the new owner and
have been approved by the lead agency in accordance with Section
2770.
(d) The lead agency shall have primary responsibility to seek
forfeiture of financial assurances and to reclaim mine sites under
subdivision (b). However, in cases where the board is not the lead
agency pursuant to Section 2774.4, the director may act to seek
forfeiture of financial assurances and reclaim mine sites pursuant to
subdivision (b) only if both of the following occurs:
(1) The financial incapability of the operator or the abandonment
of the mining operation has come to the attention of the director.
(2) The lead agency has been notified in writing by the director
of the financial incapability of the operator or the abandonment of
the mining operation for at least 15 days, and has not taken
appropriate measures to seek forfeiture of the financial assurances
and reclaim the mine site; and one of the following has occurred:
(A) The lead agency has been notified in writing by the director
that failure to take appropriate measures to seek forfeiture of the
financial assurances or to reclaim the mine site shall result in
actions being taken against the lead agency under Section 2774.4.
(B) The director determines that there is a violation that amounts
to an imminent and substantial endangerment to the public health,
safety, or to the environment.
(C) The lead agency notifies the director in writing that its good
faith attempts to seek forfeiture of the financial assurances have
not been successful.
The director shall comply with subdivision (b) in seeking
forfeiture of financial assurances and reclaiming mine sites.
(e) The board may adopt regulations specifying financial assurance
mechanisms other than surety bonds, irrevocable letters of credit,
and trust funds, which the board determines are reasonably available
and adequate to ensure reclamation pursuant to this chapter, but
these mechanisms may not include financial tests, or surety bonds
executed by one or more personal sureties. These mechanisms may
include reclamation bond pool programs.
(f) On or before March 1, 1993, the board shall adopt guidelines
to implement this section. The guidelines are exempt from the
requirements of Chapter 3.5 (commencing with Section 11340) of Part 1
of Division 3 of Title 2 of the Government Code, and are not subject
to review by the Office of Administrative Law.
2773.15. Notwithstanding Section 2773.1, a surety bond that was
executed by any personal surety that was approved by the lead agency
prior to February 13, 1998, to ensure that reclamation is performed
in accordance with a reclamation plan approved by a lead agency prior
to that date, may be utilized to satisfy the requirements of this
chapter, if the amount of the financial assurance required to perform
the approved reclamation plan, as amended or updated from time to
time, does not change from the amount approved prior to February 13,
1998.
2773.2. The mineral owner and owner of the surface estate, if
legally entitled to do so, shall allow access to the property on
which the mining operation is located to any governmental agency or
the agent of any company providing financial assurances in connection
with the reclamation plan and expending those financial assurances
for reclamation, in order that reclamation may be carried out by the
governmental agency or company, in accordance with the reclamation
plan.
2773.3. (a) In addition to other reclamation plan requirements of
this chapter and regulations adopted by the board pursuant to this
chapter, a lead agency may not approve a reclamation plan for a
surface mining operation for gold, silver, copper, or other metallic
minerals or financial assurances for the operation, if the operation
is located on, or within one mile of, any Native American sacred site
and is located in an area of special concern, unless both of the
following criteria are met:
(1) The reclamation plan requires that all excavations be
backfilled and graded to do both of the following:
(A) Achieve the approximate original contours of the mined lands
prior to mining.
(B) Grade all mined materials that are in excess of the materials
that can be placed back into excavated areas, including, but not
limited to, all overburden, spoil piles, and heap leach piles, over
the project site to achieve the approximate original contours of the
mined lands prior to mining.
(2) The financial assurances are sufficient in amount to provide
for the backfilling and grading required by paragraph (1).
(b) For purposes of this section, the following terms have the
following meaning:
(1) "Native American sacred site" means a specific area that is
identified by a federally recognized Indian Tribe, Rancheria or
Mission Band of Indians, or by the Native American Heritage
Commission, as sacred by virtue of its established historical or
cultural significance to, or ceremonial use by, a Native American
group, including, but not limited to, any area containing a prayer
circle, shrine, petroglyph, or spirit break, or a path or area
linking the circle, shrine, petroglyph, or spirit break with another
circle, shrine, petroglyph, or spirit break.
(2) "Area of special concern" means any area in the California
desert that is designated as Class C or Class L lands or as an Area
of Critical Environmental Concern under the California Desert
Conservation Area Plan of 1980, as amended, by the United States
Department of the Interior, Bureau of Land Management, pursuant to
Section 1781 of Title 43 of the United States Code.
2773.5. Section 2773.3 does not apply to either of the following:
(a) Any surface mining operation in existence on January 1, 2003,
for which the lead agency has issued final approval of a reclamation
plan and the financial assurances prior to September 1, 2002.
(b) Any amended reclamation plan or financial assurances that are
necessary for the continued operation or expansion of a surface
mining operation in existence on January 1, 2003, that otherwise
satisfies the requirements of subdivision (a).
2774. (a) Every lead agency shall adopt ordinances in accordance
with state policy that establish procedures for the review and
approval of reclamation plans and financial assurances and the
issuance of a permit to conduct surface mining operations, except
that any lead agency without an active surface mining operation in
its jurisdiction may defer adopting an implementing ordinance until
the filing of a permit application. The ordinances shall establish
procedures requiring at least one public hearing and shall be
periodically reviewed by the lead agency and revised, as necessary,
to ensure that the ordinances continue to be in accordance with state
policy.
(b) The lead agency shall conduct an inspection of a surface
mining operation within six months of receipt by the lead agency of
the surface mining operation's report submitted pursuant to Section
2207, solely to determine whether the surface mining operation is in
compliance with this chapter. In no event shall a lead agency inspect
a surface mining operation less than once in any calendar year. The
lead agency may cause an inspection to be conducted by a state
licensed geologist, state licensed civil engineer, state licensed
landscape architect, or state licensed forester, who is experienced
in land reclamation and who has not been employed by a surface mining
operation within the jurisdiction of the lead agency in any capacity
during the previous 12 months. All inspections shall be conducted
using a form developed by the department and approved by the board
that shall include the professional licensing and disciplinary
information of the person who conducted the inspection. The operator
shall be solely responsible for the reasonable cost of the
inspection. The lead agency shall notify the director within 30 days
of the date of completion of the inspection that the inspection has
been conducted. The notice shall contain a statement regarding the
surface mining operation's compliance with this chapter, shall
include a copy of the completed inspection form, and shall specify
which aspects of the surface mining operations, if any, are
inconsistent with this chapter. If the surface mining operation has a
review of its reclamation plan, financial assurances, or an interim
management plan pending under subdivision (b), (c), (d), or (h) of
Section 2770, or an appeal pending before the board or lead agency
governing body under subdivision (e) or (h) of Section 2770, the
notice shall so indicate. The lead agency shall forward to the
operator a copy of the notice, a copy of the completed inspection
form, and any supporting documentation, including, but not limited
to, any inspection report prepared by the geologist, civil engineer,
landscape architect, or forester, who conducted the inspection.
(c) Prior to approving a surface mining operation's reclamation
plan, financial assurances, including existing financial assurances
reviewed by the lead agency pursuant to subdivision (c) of Section
2770, or any amendments, the lead agency shall submit the plan,
assurances, or amendments to the director for review. All
documentation for that submission shall be submitted to the director
at one time. When the lead agency submits a reclamation plan or plan
amendments to the director for review, the lead agency shall also
submit to the director, for use in reviewing the reclamation plan or
plan amendments, information from any related document prepared,
adopted, or certified pursuant to Division 13 (commencing with
Section 21000), and shall submit any other pertinent information. The
lead agency shall certify to the director that the reclamation plan
is in compliance with the applicable requirements of this chapter and
Article 9 (commencing with Section 3500) of Chapter 8 of Division 2
of Title 14 of the California Code of Regulations and the lead agency'
s mining ordinance in effect at the time that the reclamation plan is
submitted to the director for review.
(d) (1) The director shall have 30 days from the date of receipt
of a reclamation plan or plan amendments submitted pursuant to
subdivision (c), and 45 days from the date of receipt of financial
assurances submitted pursuant to subdivision (c), to prepare written
comments, if the director so chooses. The lead agency shall evaluate
any written comments received from the director relating to the
reclamation plan, plan amendments, or financial assurances within a
reasonable amount of time.
(2) The lead agency shall prepare a written response to the
director's comments describing the disposition of the major issues
raised by the director's comments, and submit the lead agency's
proposed response to the director at least 30 days prior to approval
of the reclamation plan, plan amendment, or financial assurance. The
lead agency's response to the director's comments shall describe
whether the lead agency proposes to adopt the director's comments to
the reclamation plan, plan amendment, or financial assurance. If the
lead agency does not propose to adopt the director's comments, the
lead agency shall specify, in detail, why the lead agency proposes
not to adopt the comments. Copies of any written comments received
and responses prepared by the lead agency shall be forwarded to the
operator. The lead agency shall also give the director at least 30
days' notice of the time, place, and date of the hearing before the
lead agency at which time the reclamation plan, plan amendment, or
financial assurance is scheduled to be approved by the lead agency.
If no hearing is required by this chapter, or by the local ordinance,
of other state law, then the lead agency shall provide 30 days'
notice to the director that it intends to approve the reclamation
plan, plan amendment, or financial assurance. The lead agency shall
send to the director its final response to the director's comments
within 30 days following its approval of the reclamation plan, plan
amendment, or financial assurance during which period the department
retains all powers, duties, and authorities of this chapter.
(3) To the extent that there is a conflict between the comments of
a trustee agency or a responsible agency that are based on the
agency's statutory or regulatory authority and the comments of other
commenting agencies which are received by the lead agency pursuant to
Division 13 (commencing with Section 21000) regarding a reclamation
plan or plan amendments, the lead agency shall consider only the
comments of the trustee agency or responsible agency.
(e) Lead agencies shall notify the director of the filing of an
application for a permit to conduct surface mining operations within
30 days of an application being filed with the lead agency. By July
1, 1991, each lead agency shall submit to the director for every
active or idle mining operation within its jurisdiction, a copy of
the mining permit required pursuant to Section 2774, and any
conditions or amendments to those permits. By July 1 of each
subsequent year, the lead agency shall submit to the director for
each active or idle mining operation a copy of any permit or
reclamation plan amendments, as applicable, or a statement that there
have been no changes during the previous year. Failure to file with
the director the information required under this section shall be
cause for action under Section 2774.4.
2774.1. (a) Except as provided in subdivision (i) of Section 2770,
if the lead agency or the director determines, based upon an annual
inspection pursuant to Section 2774, or otherwise confirmed by an
inspection of the mining operation, that a surface mining operation
is not in compliance with this chapter, the lead agency or the
director may notify the operator of that violation by personal
service or certified mail. If the violation extends beyond 30 days
after the date of the lead agency's or the director's notification,
the lead agency or the director may issue an order by personal
service or certified mail requiring the operator to comply with this
chapter or, if the operator does not have an approved reclamation
plan or financial assurances, cease all further mining activities.
(b) An order issued under subdivision (a) shall not take effect
until the operator has been provided a hearing before the lead agency
for orders issued by the lead agency, or board for orders issued by
the director, concerning the alleged violation. Any order issued
under subdivision (a) shall specify which aspects of the surface mine'
s activities or operations are inconsistent with this chapter, shall
specify a time for compliance which the lead agency or director
determines is reasonable, taking into account the seriousness of the
violation and any good faith efforts to comply with applicable
requirements, and shall set a date for the hearing, which shall not
be sooner than 30 days after the date of the order.
(c) Any operator who violates or fails to comply with an order
issued under subdivision (a) after the order's effective date, as
provided in subdivision (b), or who fails to submit a report to the
director or lead agency as required by Section 2207, shall be subject
to an order by the lead agency or the director imposing an
administrative penalty of not more than five thousand dollars
($5,000) per day, assessed from the original date of noncompliance
with this chapter or Section 2207. The penalty may be imposed
administratively by the lead agency or the director. In determining
the amount of the administrative penalty, the lead agency or the
director shall take into consideration the nature, circumstances,
extent, and gravity of the violation or violations, any prior history
of violations, the degree of culpability, economic savings, if any,
resulting from the violation, and any other matters justice may
require. Orders setting administrative penalties shall become
effective upon issuance thereof and payment shall be made to the lead
agency or the director within 30 days, unless the operator petitions
the legislative body of the lead agency, the board, or the superior
court for review as provided in Section 2774.2. Any order shall be
served by personal service or by certified mail upon the operator.
Penalties collected by the director shall be used for no purpose
other than to cover the reasonable costs incurred by the director in
implementing this chapter or Section 2207.
(d) If the lead agency or the director determines that the surface
mine is not in compliance with this chapter, so that the surface
mine presents an imminent and substantial endangerment to the public
health or the environment, the lead agency or the Attorney General,
on behalf of the director, may seek an order from a court of
competent jurisdiction enjoining that operation.
(e) Upon a complaint by the director, the department, or the
board, the Attorney General may bring an action to recover
administrative penalties under this section, and penalties under
Section 2207, in any court of competent jurisdiction in this state
against any person violating any provision of this chapter or Section
2207, or any regulation adopted pursuant to this chapter or Section
2207. The Attorney General may bring such an action on his or her own
initiative if, after examining the complaint and the evidence, he or
she believes a violation has occurred. The Attorney General may also
seek an order from a court of competent jurisdiction compelling the
operator to comply with this chapter and Section 2207.
(f) The lead agency has primary responsibility for enforcing this
chapter and Section 2207. In cases where the board is not the lead
agency pursuant to Section 2774.4, enforcement actions may be
initiated by the director pursuant to this section only after the
violation has come to the attention of the director and either of the
following occurs:
(1) The lead agency has been notified by the director in writing
of the violation for at least 15 days, and has not taken appropriate
enforcement action.
(2) The director determines that there is a violation which
amounts to an imminent and substantial endangerment to the public
health or safety, or to the environment.
The director shall comply with this section in initiating
enforcement actions.
(g) Remedies under this section are in addition to, and do not
supersede or limit, any and all other remedies, civil or criminal.
2774.2. (a) Within 30 days of the issuance of an order setting
administrative penalties under subdivision (c) of Section 2774.1, the
operator may petition that legislative body of the lead agency, if
the lead agency has issued the order, or the board for orders issued
by the director, for review of the order. If the operator does not
petition for review within the time limits set by this subdivision,
the order setting administrative penalties shall not be subject to
review by any court or agency.
(b) The legislative body of the lead agency or the board shall
notify the operator by personal service or certified mail whether it
will review the order setting administrative penalties. In reviewing
an order pursuant to this section, the record shall consist of the
record before the lead agency or the director, and any other relevant
evidence which, in the judgment of the legislative body or the
board, should be considered to effectuate and implement the policies
of this chapter.
(c) The legislative body or the board may affirm, modify, or set
aside, in whole or in part, by its own order, any order of the lead
agency or the director setting administrative penalties reviewed by
the legislative body or the board pursuant to this section.
(d) Any order of the legislative body or the board issued under
subdivision (c) shall become effective upon issuance thereof, unless
the operator petitions the superior court for review as provided in
subdivision (e). Any order shall be served by personal service or by
certified mail upon the operator. Payment of any administrative
penalty which is specified in an order issued under subdivision (c),
shall be made to the lead agency or the director within 30 days of
service of the order; however, the payment shall be held in an
interest bearing impound account pending the resolution of a petition
for review filed pursuant to subdivision (e).
(e) Any operator aggrieved by an order of the legislative body or
the board issued under subdivision (c) may obtain review of the order
by filing in the superior court a petition for writ of mandate
within 30 days following the issuance of the order. Any operator
aggrieved by an order of a lead agency or the director setting
administrative penalties under subdivision (c) of Section 2774.1, for
which the legislative body or board denies review, may obtain review
of the order in the superior court by filing in the court a petition
for writ of mandate within 30 days following the denial of review.
The provisions of Section 1094.5 of the Code of Civil Procedure shall
govern judicial proceedings pursuant to this subdivision, except
that in every case the court shall exercise its independent judgment.
If the operator does not petition for a writ of mandate within the
time limits set by this subdivision, an order of the board or the
legislative body shall not be subject to review by any court or
agency.
2774.3. The board shall review lead agency ordinances which
establish permit and reclamation procedures to determine whether each
ordinance is in accordance with state policy, and shall certify the
ordinance as being in accordance with state policy if it adequately
meets, or imposes requirements more stringent than, the California
surface mining and reclamation policies and procedures established by
the board pursuant to this chapter.
2774.4. (a) If the board finds that a lead agency either has (1)
approved reclamation plans or financial assurances which are not
consistent with this chapter, (2) failed to inspect or cause the
inspection of surface mining operations as required by this chapter,
(3) failed to seek forfeiture of financial assurances and to carry
out reclamation of surface mining operations as required by this
chapter, (4) failed to take appropriate enforcement actions as
required by this chapter, (5) intentionally misrepresented the
results of inspections required under this chapter, or (6) failed to
submit information to the department as required by this chapter, the
board shall exercise any of the powers of that lead agency under
this chapter, except for permitting authority.
(b) If, no sooner than three years after the board has taken
action pursuant to subdivision (a), the board finds, after a public
hearing, that a lead agency has corrected its deficiencies in
implementing and enforcing this chapter, and the rules and
regulations adopted pursuant to this chapter, the board shall restore
to the lead agency the powers assumed by the board pursuant to
subdivision (a).
(c) Before taking any action pursuant to subdivision (a), the
board shall first notify the lead agency of the identified
deficiencies, and allow the lead agency 45 days to correct the
deficiencies to the satisfaction of the board. If the lead agency has
not corrected the deficiencies to the satisfaction of the board
within the 45-day period, the board shall hold a public hearing
within the lead agency's area of jurisdiction, upon a 45-day written
notice given to the public in at least one newspaper of general
circulation within the city or county, and directly mailed to the
lead agency and to all surface mining operators within the lead
agency's jurisdiction who have submitted reports as required by
Section 2207.
(d) Affected surface mining operators and interested persons have
the right, at the public hearing, to present oral and written
evidence on the matter being considered. The board may, at the public
hearing, place reasonable limits on the right of affected surface
mining operators and interested persons to question and solicit
testimony.
(e) If, after conducting the public hearing required by
subdivision (c), the board decides to take action pursuant to
subdivision (a), the board shall, based on the record of the public
hearing, adopt written findings which explain all of the following:
(1) The action to be taken by the board.
(2) Why the board decided to take the action.
(3) Why the action is authorized by, and meets the requirements
of, subdivision (a).
In addition, the findings shall address the significant issues
raised, or written evidence presented, by affected surface mining
operators, interested persons, or the lead agency. The transcript of
testimony and exhibits, together with all papers and requests filed
in the proceedings, shall constitute the exclusive record for
decision by the board.
(f) The lead agency, any affected surface mining operator, or any
interested person who has presented oral or written evidence at the
public hearing before the board pursuant to subdivision (d) may
obtain review of the board's action taken pursuant to subdivision (a)
by filing in the superior court a petition for writ of mandate
within 30 days following the issuance of the board's decision.
Section 1094.5 of the Code of Civil Procedure governs judicial
proceedings pursuant to this subdivision, except that in every case
the court shall exercise its independent judgment. If a petition for
a writ of mandate is not filed within the time limits set by this
subdivision, the board's action under subdivision (a) shall not be
subject to review by any court or agency.
2774.5. (a) If, upon review of an ordinance, the board finds that
it is not in accordance with state policy, the board shall
communicate the ordinance's deficiencies in writing to the lead
agency. Upon receipt of the written communication, the lead agency
shall have 90 days to submit a revised ordinance to the board for
certification as being in accordance with state policy. The board
shall review the lead agency's revised ordinance for certification
within 60 days of its receipt. If the lead agency does not submit a
revised ordinance within 90 days, the board shall assume full
authority for reviewing and approving reclamation plans submitted to
the lead agency until the time the lead agency's ordinances are
revised in accordance with state policy.
(b) If, upon review of a lead agency's revised ordinance, the
board finds the ordinance is still not in accordance with state
policy, the board shall again communicate the ordinance's
deficiencies in writing to the lead agency. The lead agency shall
have a second 90-day period in which to revise the ordinance and
submit it to the board for review. If the board again finds that the
revised ordinance is not in accordance with state policy or if no
revision is submitted, the board shall assume full authority for
reviewing and approving reclamation plans submitted to the lead
agency until the time the lead agency's ordinances are revised in
accordance with state policy.
(c) In any jurisdiction in which the lead agency does not have a
certified ordinance, no person shall initiate a surface mining
operation unless a reclamation plan has been submitted to, and
approved by, the board. Any reclamation plan, approved by a lead
agency under the lead agency's ordinance which was not in accordance
with state policy at the time of approval, shall be subject to
amendment by the board or under the ordinance certified by the board
as being in accordance with state policy.
(d) Reclamation plans approved by the board pursuant to this
section shall not be subject to modification by the lead agency at a
future date but may be amended by the board. Reclamation plans
approved by the board shall be remanded to the lead agency upon
certification of the lead agency's ordinance, and the lead agency
shall approve the reclamation plan as approved by the board, except
that a subsequent amendment as may be agreed upon between the
operator and the lead agency may be made according to this chapter.
No additional public hearing shall be required prior to the lead
agency's approval. Nothing in this section shall be construed as
authorizing the board to issue a permit for the conduct of mining
operations.
2775. (a) An applicant whose request for a permit to conduct
surface mining operations in an area of statewide or regional
significance has been denied by a lead agency, or any person who is
aggrieved by the granting of a permit to conduct surface mining
operations in an area of statewide or regional significance, may,
within 15 days of exhausting his rights to appeal in accordance with
the procedures of the lead agency, appeal to the board.
(b) The board may, by regulation, establish procedures for
declining to hear appeals that it determines raise no substantial
issues.
(c) Appeals that the board does not decline to hear shall be
scheduled and heard at a public hearing held within the jurisdiction
of the lead agency which processed the original application within 30
days of the filing of the appeal, or such longer period as may be
mutually agreed upon by the board and the person filing the appeal.
In any such action, the board shall not exercise its independent
judgment on the evidence but shall only determine whether the
decision of the lead agency is supported by substantial evidence in
the light of the whole record. If the board determines the decision
of the lead agency is not supported by substantial evidence in the
light of the whole record it shall remand the appeal to the lead
agency and the lead agency shall schedule a public hearing to
reconsider its action.
2776. (a) No person who has obtained a vested right to conduct
surface mining operations prior to January 1, 1976, shall be required
to secure a permit pursuant to this chapter as long as the vested
right continues and as long as no substantial changes are made in the
operation except in accordance with this chapter. A person shall be
deemed to have vested rights if, prior to January 1, 1976, the person
has, in good faith and in reliance upon a permit or other
authorization, if the permit or other authorization was required,
diligently commenced surface mining operations and incurred
substantial liabilities for work and materials necessary for the
surface mining operations. Expenses incurred in obtaining the
enactment of an ordinance in relation to a particular operation or
the issuance of a permit shall not be deemed liabilities for work or
materials.
(b) The reclamation plan required to be filed under subdivision
(b) of Section 2770, shall apply to operations conducted after
January 1, 1976, or to be conducted.
(c) Nothing in this chapter shall be construed as requiring the
filing of a reclamation plan for, or the reclamation of, mined lands
on which surface mining operations were conducted prior to January 1,
1976.
2777. Amendments to an approved reclamation plan may be submitted
detailing proposed changes from the original plan. Substantial
deviations from the original plan shall not be undertaken until such
amendment has been filed with, and approved by, the lead agency.
2778. (a) Reclamation plans, reports, applications, and other
documents submitted pursuant to this chapter are public records,
unless it can be demonstrated to the satisfaction of the lead agency
that the release of that information, or part thereof, would reveal
production, reserves, or rate of depletion entitled to protection as
proprietary information. The lead agency shall identify such
proprietary information as a separate part of the application.
Proprietary information shall be made available only to the director
and to persons authorized in writing by the operator and by the
owner.
(b) A copy of all reclamation plans, reports, applications, and
other documents submitted pursuant to this chapter shall be furnished
to the director by lead agencies on request.
2779. Whenever one operator succeeds to the interest of another in
any incompleted surface mining operation by sale, assignment,
transfer, conveyance, exchange, or other means, the successor shall
be bound by the provisions of the approved reclamation plan and the
provisions of this chapter.
2770. (a) Except as provided in this section, no person shall
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 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
person with an existing surface mining operation which 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 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 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 period not to
exceed five years, 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 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.
(i) Any enforcement action which 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).
2770.5. Whenever surface mining operations are proposed in the
100-year flood plain for any stream, as shown in Zone A of Flood
Insurance Rate Maps issued by the Federal Emergency Management
Agency, and within one mile, upstream or downstream, of any state
highway bridge, the lead agency receiving the application for the
issuance or renewal of a permit to conduct the surface mining
operations shall notify the Department of Transportation that the
application has been received. The Department of Transportation shall
have a period of not more than 45 days to review and comment on the
proposed surface mining operations with respect to any potential
damage to the state highway bridge from the proposed surface mining
operations. The lead agency shall not issue or renew the permit until
the Department of Transportation has submitted its comments or until
45 days from the date the application for the permit was submitted,
whichever occurs first.
2770.6. (a) Whenever surface mining operations are proposed within
the boundaries of the San Gabriel Basin Water Quality Authority that
may penetrate the groundwater, and whenever proposed reclamation
activities may impact groundwater quality, the lead agency reviewing
an application to conduct surface mining operations, or reviewing an
application for the approval of a reclamation plan, shall notify and
provide copies of the subject application to the appropriate
California regional water quality control board, and any watermaster
for the groundwater recharge basin. Notwithstanding any other
provision of law, the appropriate California regional water quality
control board may impose an administrative fee on the applicant to
cover its costs associated with the review of, and preparation of,
comments on the subject application, as required pursuant to this
section.
(b) Each agency shall have 60 days to review and comment on the
proposed surface mining operation described in subdivision (a) and
the adoption of any reclamation plan therefor. Each agency shall
comment on the existing groundwater quality and the potential impacts
to water quality that may result from the mining operations and the
proposed reclamation plan, and shall recommend methods and procedures
to protect groundwater quality and prevent groundwater degradation.
Each agency shall also comment on the proposed mining activities,
including the conduct of excavation and backfilling operations in
contact with groundwater, and the impact of any proposed alternative
land uses on groundwater quality. When the proposed surface mining
operations or reclamation plan will impact the groundwater, the lead
agency shall not approve the reclamation plan without requiring
actions to ensure the reasonable protection of the beneficial uses of
groundwater and the prevention of nuisance. Each agency shall have
60 days to review and comment or until 60 days from the date of
application, whichever occurs first.
(c) This section applies to activities otherwise subject to this
chapter conducted within the boundaries of the San Gabriel Basin
Water Quality Authority. To the extent of any conflict between this
section and any other provision of this chapter, this section shall
prevail.
2771. Whenever a proposed or existing surface mining operation is
within the jurisdiction of two or more public agencies, is a
permitted use within the agencies, and is not separated by a natural
or manmade barrier coinciding with the boundary of the agencies, the
evaluation of the proposed or existing operation shall be made by the
lead agency in accordance with the procedures adopted by the lead
agency pursuant to Section 2774. If a question arises as to which
public agency is the lead agency, any affected public agency, or the
affected operator, may submit the matter to the board. The board
shall notify in writing all affected public agencies and operators
that the matter has been submitted, specifying a date for a public
hearing. The board shall designate the public agency which shall
serve as the lead agency, giving due consideration to the capability
of the agency to fulfill adequately the requirements of this chapter
and to an examination of which of the public agencies has principal
permit responsibility.
2772. (a) The reclamation plan shall be filed with the lead agency,
on a form provided by the lead agency, by any person who owns,
leases, or otherwise controls or operates on all, or any portion of
any, mined lands, and who plans to conduct surface mining operations
on the lands.
(b) All documentation for the reclamation plan shall be submitted
by the lead agency to the department at one time.
(c) The reclamation plan shall include all of the following
information and documents:
(1) The name and address of the surface mining operator and the
names and addresses of any persons designated by the operator as an
agent for the service of process.
(2) The anticipated quantity and type of minerals for which the
surface mining operation is to be conducted.
(3) The proposed dates for the initiation and termination of
surface mining operation.
(4) The maximum anticipated depth of the surface mining operation.
(5) The size and legal description of the lands that will be
affected by the surface mining operation, a map that includes the
boundaries and topographic details of the lands, a description of the
general geology of the area, a detailed description of the geology
of the area in which surface mining is to be conducted, the location
of all streams, roads, railroads, and utility facilities within, or
adjacent to, the lands, the location of all proposed access roads to
be constructed in conducting the surface mining operation, and the
names and addresses of the owners of all surface interests and
mineral interests in the lands.
(6) A description of, and a plan for, the type of surface mining
to be employed, and a time schedule that will provide for the
completion of surface mining on each segment of the mined lands so
that reclamation can be initiated at the earliest possible time on
those portions of the mined lands that will not be subject to further
disturbance by the surface mining operation.
(7) A description of the proposed use or potential uses of the
mined lands after reclamation and evidence that all owners of a
possessory interest in the land have been notified of the proposed
use or potential uses.
(8) A description of the manner in which reclamation, adequate for
the proposed use or potential uses will be accomplished, including
both of the following:
(A) A description of the manner in which contaminants will be
controlled, and mining waste will be disposed.
(B) A description of the manner in which affected streambed
channels and streambanks will be rehabilitated to a condition
minimizing erosion and sedimentation will occur.
(9) An assessment of the effect of implementation of the
reclamation plan on future mining in the area.
(10) A statement that the person submitting the reclamation plan
accepts responsibility for reclaiming the mined lands in accordance
with the reclamation plan.
(11) Any other information which the lead agency may require by
ordinance.
(d) An item of information or a document required pursuant to
subdivision (c) that has already been prepared as part of a permit
application for the surface mining operation, or as part of an
environmental document prepared for the project pursuant to Division
13 (commencing with Section 21000), may be included in the
reclamation plan by reference, if that item of information or that
document is attached to the reclamation plan when the lead agency
submits the reclamation plan to the director for review. To the
extent that the information or document referenced in the reclamation
plan is used to meet the requirements of subdivision (c), the
information or document shall become part of the reclamation plan and
shall be subject to all other requirements of this article.
(e) Nothing in this section is intended to limit or expand the
department's authority or responsibility to review a document in
accordance with Division 13 (commencing with Section 21000).
2772.5. (a) A reclamation plan by any person who owns, leases, or
otherwise controls or operates on all, or any portion of any, mined
lands within the boundaries of the San Gabriel Basin Water Quality
Authority, and who plans to conduct surface mining operations on
those lands, in addition to the information required pursuant to
subdivision (c) of Section 2772, shall include a description of any
programs necessary to monitor the effects of mining and reclamation
operations on air, water, and soil quality, on the surrounding area,
backfill characteristics, geologic conditions, and slope stability,
similar to the California Environmental Quality Act document for the
reclamation project.
(b) This section applies to activities otherwise subject to this
chapter conducted within the boundaries of the San Gabriel Basin
Water Quality Authority. To the extent of any conflict between this
section and any other provision of this chapter, this section shall
prevail.
2772.6. (a) In addition to meeting the requirements of Section
2773.1, the amount of financial assurances required of a surface
mining operation within the boundaries of the San Gabriel/Basin Water
Quality Authority for any one year shall be in an amount not less
than that required to ensure reclamation of the disturbed areas is
completed in accordance with the approved reclamation plan.
(b) This section applies to activities otherwise subject to this
chapter conducted within the boundaries of the San Gabriel Basin
Water Quality Authority. To the extent of any conflict between this
section and any other provision of this chapter, this section shall
prevail.
2772.7. (a) A lead agency, upon approval of a reclamation plan or
an amendment to a reclamation plan, shall record a "Notice of
Reclamation Plan Approval" with the county recorder. The notice shall
read: "Mining operations conducted on the hereinafter described real
property are subject to a reclamation plan approved by the ____
(lead agency), a copy of which is on file with the ____."
(b) In addition to the information required by subdivision (a),
the notice shall also include the name of the owner of record of the
mine operation, the name of the lead agency, and the acknowledged
signature of the lead agency representative.
2773. (a) The reclamation plan shall be applicable to a specific
piece of property or properties, shall be based upon the character of
the surrounding area and such characteristics of the property as
type of overburden, soil stability, topography, geology, climate,
stream characteristics, and principal mineral commodities, and shall
establish site-specific criteria for evaluating compliance with the
approved reclamation plan, including topography, revegetation and
sediment, and erosion control.
(b) By January 1, 1992, the board shall adopt regulations
specifying minimum, verifiable statewide reclamation standards.
Subjects for which standards shall be set include, but shall not be
limited to, the following:
(1) Wildlife habitat.
(2) Backfilling, regrading, slope stability, and recontouring.
(3) Revegetation.
(4) Drainage, diversion structures, waterways, and erosion
control.
(5) Prime and other agricultural land reclamation.
(6) Building, structure, and equipment removal.
(7) Stream protection.
(8) Topsoil salvage, maintenance, and redistribution.
(9) Tailing and mine waste management.
These standards shall apply to each mining operation, but only to
the extent that they are consistent with the planned or actual
subsequent use or uses of the mining site.
2773.1. (a) Lead agencies shall require financial assurances of
each surface mining operation to ensure reclamation is performed in
accordance with the surface mining operation's approved reclamation
plan, as follows:
(1) Financial assurances may take the form of surety bonds
executed by an admitted surety insurer, as defined in subdivision (a)
of Section 995.120 of the Code of Civil Procedure, irrevocable
letters of credit, trust funds, or other forms of financial
assurances specified by the board pursuant to subdivision (e), which
the lead agency reasonably determines are adequate to perform
reclamation in accordance with the surface mining operation's
approved reclamation plan.
(2) The financial assurances shall remain in effect for the
duration of the surface mining operation and any additional period
until reclamation is completed.
(3) The amount of financial assurances required of a surface
mining operation for any one year shall be adjusted annually to
account for new lands disturbed by surface mining operations,
inflation, and reclamation of lands accomplished in accordance with
the approved reclamation plan.
(4) The financial assurances shall be made payable to the lead
agency and the department. Financial assurances that were approved by
the lead agency prior to January 1, 1993, and were made payable to
the State Geologist shall be considered payable to the department for
purposes of this chapter. However, if a surface mining operation has
received approval of its financial assurances from a public agency
other than the lead agency, the lead agency shall deem those
financial assurances adequate for purposes of this section, or shall
credit them toward fulfillment of the financial assurances required
by this section, if they are made payable to the public agency, the
lead agency, and the department and otherwise meet the requirements
of this section. In any event, if a lead agency and one or more
public agencies exercise jurisdiction over a surface mining
operation, the total amount of financial assurances required by the
lead agency and the public agencies for any one year shall not exceed
that amount which is necessary to perform reclamation of lands
remaining disturbed. For purposes of this paragraph, a "public agency"
may include a federal agency.
(b) If the lead agency or the board, following a public hearing,
determines that the operator is financially incapable of performing
reclamation in accordance with its approved reclamation plan, or has
abandoned its surface mining operation without commencing
reclamation, either the lead agency or the director shall do all of
the following:
(1) Notify the operator by personal service or certified mail that
the lead agency or the director intends to take appropriate action
to forfeit the financial assurances and specify the reasons for so
doing.
(2) Allow the operator 60 days to commence or cause the
commencement of reclamation in accordance with its approved
reclamation plan and require that reclamation be completed within the
time limits specified in the approved reclamation plan or some other
time period mutually agreed upon by the lead agency or the director
and the operator.
(3) Proceed to take appropriate action to require forfeiture of
the financial assurances if the operator does not substantially
comply with paragraph (2).
(4) Use the proceeds from the forfeited financial assurances to
conduct and complete reclamation in accordance with the approved
reclamation plan. In no event shall the financial assurances be used
for any other purpose. The operator is responsible for the costs of
conducting and completing reclamation in accordance with the approved
reclamation plan which are in excess of the proceeds from the
forfeited financial assurances.
(c) Financial assurances shall no longer be required of a surface
mining operation, and shall be released, upon written notification by
the lead agency, which shall be forwarded to the operator and the
director, that reclamation has been completed in accordance with the
approved reclamation plan. If a mining operation is sold or ownership
is transferred to another person, the existing financial assurances
shall remain in force and shall not be released by the lead agency
until new financial assurances are secured from the new owner and
have been approved by the lead agency in accordance with Section
2770.
(d) The lead agency shall have primary responsibility to seek
forfeiture of financial assurances and to reclaim mine sites under
subdivision (b). However, in cases where the board is not the lead
agency pursuant to Section 2774.4, the director may act to seek
forfeiture of financial assurances and reclaim mine sites pursuant to
subdivision (b) only if both of the following occurs:
(1) The financial incapability of the operator or the abandonment
of the mining operation has come to the attention of the director.
(2) The lead agency has been notified in writing by the director
of the financial incapability of the operator or the abandonment of
the mining operation for at least 15 days, and has not taken
appropriate measures to seek forfeiture of the financial assurances
and reclaim the mine site; and one of the following has occurred:
(A) The lead agency has been notified in writing by the director
that failure to take appropriate measures to seek forfeiture of the
financial assurances or to reclaim the mine site shall result in
actions being taken against the lead agency under Section 2774.4.
(B) The director determines that there is a violation that amounts
to an imminent and substantial endangerment to the public health,
safety, or to the environment.
(C) The lead agency notifies the director in writing that its good
faith attempts to seek forfeiture of the financial assurances have
not been successful.
The director shall comply with subdivision (b) in seeking
forfeiture of financial assurances and reclaiming mine sites.
(e) The board may adopt regulations specifying financial assurance
mechanisms other than surety bonds, irrevocable letters of credit,
and trust funds, which the board determines are reasonably available
and adequate to ensure reclamation pursuant to this chapter, but
these mechanisms may not include financial tests, or surety bonds
executed by one or more personal sureties. These mechanisms may
include reclamation bond pool programs.
(f) On or before March 1, 1993, the board shall adopt guidelines
to implement this section. The guidelines are exempt from the
requirements of Chapter 3.5 (commencing with Section 11340) of Part 1
of Division 3 of Title 2 of the Government Code, and are not subject
to review by the Office of Administrative Law.
2773.15. Notwithstanding Section 2773.1, a surety bond that was
executed by any personal surety that was approved by the lead agency
prior to February 13, 1998, to ensure that reclamation is performed
in accordance with a reclamation plan approved by a lead agency prior
to that date, may be utilized to satisfy the requirements of this
chapter, if the amount of the financial assurance required to perform
the approved reclamation plan, as amended or updated from time to
time, does not change from the amount approved prior to February 13,
1998.
2773.2. The mineral owner and owner of the surface estate, if
legally entitled to do so, shall allow access to the property on
which the mining operation is located to any governmental agency or
the agent of any company providing financial assurances in connection
with the reclamation plan and expending those financial assurances
for reclamation, in order that reclamation may be carried out by the
governmental agency or company, in accordance with the reclamation
plan.
2773.3. (a) In addition to other reclamation plan requirements of
this chapter and regulations adopted by the board pursuant to this
chapter, a lead agency may not approve a reclamation plan for a
surface mining operation for gold, silver, copper, or other metallic
minerals or financial assurances for the operation, if the operation
is located on, or within one mile of, any Native American sacred site
and is located in an area of special concern, unless both of the
following criteria are met:
(1) The reclamation plan requires that all excavations be
backfilled and graded to do both of the following:
(A) Achieve the approximate original contours of the mined lands
prior to mining.
(B) Grade all mined materials that are in excess of the materials
that can be placed back into excavated areas, including, but not
limited to, all overburden, spoil piles, and heap leach piles, over
the project site to achieve the approximate original contours of the
mined lands prior to mining.
(2) The financial assurances are sufficient in amount to provide
for the backfilling and grading required by paragraph (1).
(b) For purposes of this section, the following terms have the
following meaning:
(1) "Native American sacred site" means a specific area that is
identified by a federally recognized Indian Tribe, Rancheria or
Mission Band of Indians, or by the Native American Heritage
Commission, as sacred by virtue of its established historical or
cultural significance to, or ceremonial use by, a Native American
group, including, but not limited to, any area containing a prayer
circle, shrine, petroglyph, or spirit break, or a path or area
linking the circle, shrine, petroglyph, or spirit break with another
circle, shrine, petroglyph, or spirit break.
(2) "Area of special concern" means any area in the California
desert that is designated as Class C or Class L lands or as an Area
of Critical Environmental Concern under the California Desert
Conservation Area Plan of 1980, as amended, by the United States
Department of the Interior, Bureau of Land Management, pursuant to
Section 1781 of Title 43 of the United States Code.
2773.5. Section 2773.3 does not apply to either of the following:
(a) Any surface mining operation in existence on January 1, 2003,
for which the lead agency has issued final approval of a reclamation
plan and the financial assurances prior to September 1, 2002.
(b) Any amended reclamation plan or financial assurances that are
necessary for the continued operation or expansion of a surface
mining operation in existence on January 1, 2003, that otherwise
satisfies the requirements of subdivision (a).
2774. (a) Every lead agency shall adopt ordinances in accordance
with state policy that establish procedures for the review and
approval of reclamation plans and financial assurances and the
issuance of a permit to conduct surface mining operations, except
that any lead agency without an active surface mining operation in
its jurisdiction may defer adopting an implementing ordinance until
the filing of a permit application. The ordinances shall establish
procedures requiring at least one public hearing and shall be
periodically reviewed by the lead agency and revised, as necessary,
to ensure that the ordinances continue to be in accordance with state
policy.
(b) The lead agency shall conduct an inspection of a surface
mining operation within six months of receipt by the lead agency of
the surface mining operation's report submitted pursuant to Section
2207, solely to determine whether the surface mining operation is in
compliance with this chapter. In no event shall a lead agency inspect
a surface mining operation less than once in any calendar year. The
lead agency may cause an inspection to be conducted by a state
licensed geologist, state licensed civil engineer, state licensed
landscape architect, or state licensed forester, who is experienced
in land reclamation and who has not been employed by a surface mining
operation within the jurisdiction of the lead agency in any capacity
during the previous 12 months. All inspections shall be conducted
using a form developed by the department and approved by the board
that shall include the professional licensing and disciplinary
information of the person who conducted the inspection. The operator
shall be solely responsible for the reasonable cost of the
inspection. The lead agency shall notify the director within 30 days
of the date of completion of the inspection that the inspection has
been conducted. The notice shall contain a statement regarding the
surface mining operation's compliance with this chapter, shall
include a copy of the completed inspection form, and shall specify
which aspects of the surface mining operations, if any, are
inconsistent with this chapter. If the surface mining operation has a
review of its reclamation plan, financial assurances, or an interim
management plan pending under subdivision (b), (c), (d), or (h) of
Section 2770, or an appeal pending before the board or lead agency
governing body under subdivision (e) or (h) of Section 2770, the
notice shall so indicate. The lead agency shall forward to the
operator a copy of the notice, a copy of the completed inspection
form, and any supporting documentation, including, but not limited
to, any inspection report prepared by the geologist, civil engineer,
landscape architect, or forester, who conducted the inspection.
(c) Prior to approving a surface mining operation's reclamation
plan, financial assurances, including existing financial assurances
reviewed by the lead agency pursuant to subdivision (c) of Section
2770, or any amendments, the lead agency shall submit the plan,
assurances, or amendments to the director for review. All
documentation for that submission shall be submitted to the director
at one time. When the lead agency submits a reclamation plan or plan
amendments to the director for review, the lead agency shall also
submit to the director, for use in reviewing the reclamation plan or
plan amendments, information from any related document prepared,
adopted, or certified pursuant to Division 13 (commencing with
Section 21000), and shall submit any other pertinent information. The
lead agency shall certify to the director that the reclamation plan
is in compliance with the applicable requirements of this chapter and
Article 9 (commencing with Section 3500) of Chapter 8 of Division 2
of Title 14 of the California Code of Regulations and the lead agency'
s mining ordinance in effect at the time that the reclamation plan is
submitted to the director for review.
(d) (1) The director shall have 30 days from the date of receipt
of a reclamation plan or plan amendments submitted pursuant to
subdivision (c), and 45 days from the date of receipt of financial
assurances submitted pursuant to subdivision (c), to prepare written
comments, if the director so chooses. The lead agency shall evaluate
any written comments received from the director relating to the
reclamation plan, plan amendments, or financial assurances within a
reasonable amount of time.
(2) The lead agency shall prepare a written response to the
director's comments describing the disposition of the major issues
raised by the director's comments, and submit the lead agency's
proposed response to the director at least 30 days prior to approval
of the reclamation plan, plan amendment, or financial assurance. The
lead agency's response to the director's comments shall describe
whether the lead agency proposes to adopt the director's comments to
the reclamation plan, plan amendment, or financial assurance. If the
lead agency does not propose to adopt the director's comments, the
lead agency shall specify, in detail, why the lead agency proposes
not to adopt the comments. Copies of any written comments received
and responses prepared by the lead agency shall be forwarded to the
operator. The lead agency shall also give the director at least 30
days' notice of the time, place, and date of the hearing before the
lead agency at which time the reclamation plan, plan amendment, or
financial assurance is scheduled to be approved by the lead agency.
If no hearing is required by this chapter, or by the local ordinance,
of other state law, then the lead agency shall provide 30 days'
notice to the director that it intends to approve the reclamation
plan, plan amendment, or financial assurance. The lead agency shall
send to the director its final response to the director's comments
within 30 days following its approval of the reclamation plan, plan
amendment, or financial assurance during which period the department
retains all powers, duties, and authorities of this chapter.
(3) To the extent that there is a conflict between the comments of
a trustee agency or a responsible agency that are based on the
agency's statutory or regulatory authority and the comments of other
commenting agencies which are received by the lead agency pursuant to
Division 13 (commencing with Section 21000) regarding a reclamation
plan or plan amendments, the lead agency shall consider only the
comments of the trustee agency or responsible agency.
(e) Lead agencies shall notify the director of the filing of an
application for a permit to conduct surface mining operations within
30 days of an application being filed with the lead agency. By July
1, 1991, each lead agency shall submit to the director for every
active or idle mining operation within its jurisdiction, a copy of
the mining permit required pursuant to Section 2774, and any
conditions or amendments to those permits. By July 1 of each
subsequent year, the lead agency shall submit to the director for
each active or idle mining operation a copy of any permit or
reclamation plan amendments, as applicable, or a statement that there
have been no changes during the previous year. Failure to file with
the director the information required under this section shall be
cause for action under Section 2774.4.
2774.1. (a) Except as provided in subdivision (i) of Section 2770,
if the lead agency or the director determines, based upon an annual
inspection pursuant to Section 2774, or otherwise confirmed by an
inspection of the mining operation, that a surface mining operation
is not in compliance with this chapter, the lead agency or the
director may notify the operator of that violation by personal
service or certified mail. If the violation extends beyond 30 days
after the date of the lead agency's or the director's notification,
the lead agency or the director may issue an order by personal
service or certified mail requiring the operator to comply with this
chapter or, if the operator does not have an approved reclamation
plan or financial assurances, cease all further mining activities.
(b) An order issued under subdivision (a) shall not take effect
until the operator has been provided a hearing before the lead agency
for orders issued by the lead agency, or board for orders issued by
the director, concerning the alleged violation. Any order issued
under subdivision (a) shall specify which aspects of the surface mine'
s activities or operations are inconsistent with this chapter, shall
specify a time for compliance which the lead agency or director
determines is reasonable, taking into account the seriousness of the
violation and any good faith efforts to comply with applicable
requirements, and shall set a date for the hearing, which shall not
be sooner than 30 days after the date of the order.
(c) Any operator who violates or fails to comply with an order
issued under subdivision (a) after the order's effective date, as
provided in subdivision (b), or who fails to submit a report to the
director or lead agency as required by Section 2207, shall be subject
to an order by the lead agency or the director imposing an
administrative penalty of not more than five thousand dollars
($5,000) per day, assessed from the original date of noncompliance
with this chapter or Section 2207. The penalty may be imposed
administratively by the lead agency or the director. In determining
the amount of the administrative penalty, the lead agency or the
director shall take into consideration the nature, circumstances,
extent, and gravity of the violation or violations, any prior history
of violations, the degree of culpability, economic savings, if any,
resulting from the violation, and any other matters justice may
require. Orders setting administrative penalties shall become
effective upon issuance thereof and payment shall be made to the lead
agency or the director within 30 days, unless the operator petitions
the legislative body of the lead agency, the board, or the superior
court for review as provided in Section 2774.2. Any order shall be
served by personal service or by certified mail upon the operator.
Penalties collected by the director shall be used for no purpose
other than to cover the reasonable costs incurred by the director in
implementing this chapter or Section 2207.
(d) If the lead agency or the director determines that the surface
mine is not in compliance with this chapter, so that the surface
mine presents an imminent and substantial endangerment to the public
health or the environment, the lead agency or the Attorney General,
on behalf of the director, may seek an order from a court of
competent jurisdiction enjoining that operation.
(e) Upon a complaint by the director, the department, or the
board, the Attorney General may bring an action to recover
administrative penalties under this section, and penalties under
Section 2207, in any court of competent jurisdiction in this state
against any person violating any provision of this chapter or Section
2207, or any regulation adopted pursuant to this chapter or Section
2207. The Attorney General may bring such an action on his or her own
initiative if, after examining the complaint and the evidence, he or
she believes a violation has occurred. The Attorney General may also
seek an order from a court of competent jurisdiction compelling the
operator to comply with this chapter and Section 2207.
(f) The lead agency has primary responsibility for enforcing this
chapter and Section 2207. In cases where the board is not the lead
agency pursuant to Section 2774.4, enforcement actions may be
initiated by the director pursuant to this section only after the
violation has come to the attention of the director and either of the
following occurs:
(1) The lead agency has been notified by the director in writing
of the violation for at least 15 days, and has not taken appropriate
enforcement action.
(2) The director determines that there is a violation which
amounts to an imminent and substantial endangerment to the public
health or safety, or to the environment.
The director shall comply with this section in initiating
enforcement actions.
(g) Remedies under this section are in addition to, and do not
supersede or limit, any and all other remedies, civil or criminal.
2774.2. (a) Within 30 days of the issuance of an order setting
administrative penalties under subdivision (c) of Section 2774.1, the
operator may petition that legislative body of the lead agency, if
the lead agency has issued the order, or the board for orders issued
by the director, for review of the order. If the operator does not
petition for review within the time limits set by this subdivision,
the order setting administrative penalties shall not be subject to
review by any court or agency.
(b) The legislative body of the lead agency or the board shall
notify the operator by personal service or certified mail whether it
will review the order setting administrative penalties. In reviewing
an order pursuant to this section, the record shall consist of the
record before the lead agency or the director, and any other relevant
evidence which, in the judgment of the legislative body or the
board, should be considered to effectuate and implement the policies
of this chapter.
(c) The legislative body or the board may affirm, modify, or set
aside, in whole or in part, by its own order, any order of the lead
agency or the director setting administrative penalties reviewed by
the legislative body or the board pursuant to this section.
(d) Any order of the legislative body or the board issued under
subdivision (c) shall become effective upon issuance thereof, unless
the operator petitions the superior court for review as provided in
subdivision (e). Any order shall be served by personal service or by
certified mail upon the operator. Payment of any administrative
penalty which is specified in an order issued under subdivision (c),
shall be made to the lead agency or the director within 30 days of
service of the order; however, the payment shall be held in an
interest bearing impound account pending the resolution of a petition
for review filed pursuant to subdivision (e).
(e) Any operator aggrieved by an order of the legislative body or
the board issued under subdivision (c) may obtain review of the order
by filing in the superior court a petition for writ of mandate
within 30 days following the issuance of the order. Any operator
aggrieved by an order of a lead agency or the director setting
administrative penalties under subdivision (c) of Section 2774.1, for
which the legislative body or board denies review, may obtain review
of the order in the superior court by filing in the court a petition
for writ of mandate within 30 days following the denial of review.
The provisions of Section 1094.5 of the Code of Civil Procedure shall
govern judicial proceedings pursuant to this subdivision, except
that in every case the court shall exercise its independent judgment.
If the operator does not petition for a writ of mandate within the
time limits set by this subdivision, an order of the board or the
legislative body shall not be subject to review by any court or
agency.
2774.3. The board shall review lead agency ordinances which
establish permit and reclamation procedures to determine whether each
ordinance is in accordance with state policy, and shall certify the
ordinance as being in accordance with state policy if it adequately
meets, or imposes requirements more stringent than, the California
surface mining and reclamation policies and procedures established by
the board pursuant to this chapter.
2774.4. (a) If the board finds that a lead agency either has (1)
approved reclamation plans or financial assurances which are not
consistent with this chapter, (2) failed to inspect or cause the
inspection of surface mining operations as required by this chapter,
(3) failed to seek forfeiture of financial assurances and to carry
out reclamation of surface mining operations as required by this
chapter, (4) failed to take appropriate enforcement actions as
required by this chapter, (5) intentionally misrepresented the
results of inspections required under this chapter, or (6) failed to
submit information to the department as required by this chapter, the
board shall exercise any of the powers of that lead agency under
this chapter, except for permitting authority.
(b) If, no sooner than three years after the board has taken
action pursuant to subdivision (a), the board finds, after a public
hearing, that a lead agency has corrected its deficiencies in
implementing and enforcing this chapter, and the rules and
regulations adopted pursuant to this chapter, the board shall restore
to the lead agency the powers assumed by the board pursuant to
subdivision (a).
(c) Before taking any action pursuant to subdivision (a), the
board shall first notify the lead agency of the identified
deficiencies, and allow the lead agency 45 days to correct the
deficiencies to the satisfaction of the board. If the lead agency has
not corrected the deficiencies to the satisfaction of the board
within the 45-day period, the board shall hold a public hearing
within the lead agency's area of jurisdiction, upon a 45-day written
notice given to the public in at least one newspaper of general
circulation within the city or county, and directly mailed to the
lead agency and to all surface mining operators within the lead
agency's jurisdiction who have submitted reports as required by
Section 2207.
(d) Affected surface mining operators and interested persons have
the right, at the public hearing, to present oral and written
evidence on the matter being considered. The board may, at the public
hearing, place reasonable limits on the right of affected surface
mining operators and interested persons to question and solicit
testimony.
(e) If, after conducting the public hearing required by
subdivision (c), the board decides to take action pursuant to
subdivision (a), the board shall, based on the record of the public
hearing, adopt written findings which explain all of the following:
(1) The action to be taken by the board.
(2) Why the board decided to take the action.
(3) Why the action is authorized by, and meets the requirements
of, subdivision (a).
In addition, the findings shall address the significant issues
raised, or written evidence presented, by affected surface mining
operators, interested persons, or the lead agency. The transcript of
testimony and exhibits, together with all papers and requests filed
in the proceedings, shall constitute the exclusive record for
decision by the board.
(f) The lead agency, any affected surface mining operator, or any
interested person who has presented oral or written evidence at the
public hearing before the board pursuant to subdivision (d) may
obtain review of the board's action taken pursuant to subdivision (a)
by filing in the superior court a petition for writ of mandate
within 30 days following the issuance of the board's decision.
Section 1094.5 of the Code of Civil Procedure governs judicial
proceedings pursuant to this subdivision, except that in every case
the court shall exercise its independent judgment. If a petition for
a writ of mandate is not filed within the time limits set by this
subdivision, the board's action under subdivision (a) shall not be
subject to review by any court or agency.
2774.5. (a) If, upon review of an ordinance, the board finds that
it is not in accordance with state policy, the board shall
communicate the ordinance's deficiencies in writing to the lead
agency. Upon receipt of the written communication, the lead agency
shall have 90 days to submit a revised ordinance to the board for
certification as being in accordance with state policy. The board
shall review the lead agency's revised ordinance for certification
within 60 days of its receipt. If the lead agency does not submit a
revised ordinance within 90 days, the board shall assume full
authority for reviewing and approving reclamation plans submitted to
the lead agency until the time the lead agency's ordinances are
revised in accordance with state policy.
(b) If, upon review of a lead agency's revised ordinance, the
board finds the ordinance is still not in accordance with state
policy, the board shall again communicate the ordinance's
deficiencies in writing to the lead agency. The lead agency shall
have a second 90-day period in which to revise the ordinance and
submit it to the board for review. If the board again finds that the
revised ordinance is not in accordance with state policy or if no
revision is submitted, the board shall assume full authority for
reviewing and approving reclamation plans submitted to the lead
agency until the time the lead agency's ordinances are revised in
accordance with state policy.
(c) In any jurisdiction in which the lead agency does not have a
certified ordinance, no person shall initiate a surface mining
operation unless a reclamation plan has been submitted to, and
approved by, the board. Any reclamation plan, approved by a lead
agency under the lead agency's ordinance which was not in accordance
with state policy at the time of approval, shall be subject to
amendment by the board or under the ordinance certified by the board
as being in accordance with state policy.
(d) Reclamation plans approved by the board pursuant to this
section shall not be subject to modification by the lead agency at a
future date but may be amended by the board. Reclamation plans
approved by the board shall be remanded to the lead agency upon
certification of the lead agency's ordinance, and the lead agency
shall approve the reclamation plan as approved by the board, except
that a subsequent amendment as may be agreed upon between the
operator and the lead agency may be made according to this chapter.
No additional public hearing shall be required prior to the lead
agency's approval. Nothing in this section shall be construed as
authorizing the board to issue a permit for the conduct of mining
operations.
2775. (a) An applicant whose request for a permit to conduct
surface mining operations in an area of statewide or regional
significance has been denied by a lead agency, or any person who is
aggrieved by the granting of a permit to conduct surface mining
operations in an area of statewide or regional significance, may,
within 15 days of exhausting his rights to appeal in accordance with
the procedures of the lead agency, appeal to the board.
(b) The board may, by regulation, establish procedures for
declining to hear appeals that it determines raise no substantial
issues.
(c) Appeals that the board does not decline to hear shall be
scheduled and heard at a public hearing held within the jurisdiction
of the lead agency which processed the original application within 30
days of the filing of the appeal, or such longer period as may be
mutually agreed upon by the board and the person filing the appeal.
In any such action, the board shall not exercise its independent
judgment on the evidence but shall only determine whether the
decision of the lead agency is supported by substantial evidence in
the light of the whole record. If the board determines the decision
of the lead agency is not supported by substantial evidence in the
light of the whole record it shall remand the appeal to the lead
agency and the lead agency shall schedule a public hearing to
reconsider its action.
2776. (a) No person who has obtained a vested right to conduct
surface mining operations prior to January 1, 1976, shall be required
to secure a permit pursuant to this chapter as long as the vested
right continues and as long as no substantial changes are made in the
operation except in accordance with this chapter. A person shall be
deemed to have vested rights if, prior to January 1, 1976, the person
has, in good faith and in reliance upon a permit or other
authorization, if the permit or other authorization was required,
diligently commenced surface mining operations and incurred
substantial liabilities for work and materials necessary for the
surface mining operations. Expenses incurred in obtaining the
enactment of an ordinance in relation to a particular operation or
the issuance of a permit shall not be deemed liabilities for work or
materials.
(b) The reclamation plan required to be filed under subdivision
(b) of Section 2770, shall apply to operations conducted after
January 1, 1976, or to be conducted.
(c) Nothing in this chapter shall be construed as requiring the
filing of a reclamation plan for, or the reclamation of, mined lands
on which surface mining operations were conducted prior to January 1,
1976.
2777. Amendments to an approved reclamation plan may be submitted
detailing proposed changes from the original plan. Substantial
deviations from the original plan shall not be undertaken until such
amendment has been filed with, and approved by, the lead agency.
2778. (a) Reclamation plans, reports, applications, and other
documents submitted pursuant to this chapter are public records,
unless it can be demonstrated to the satisfaction of the lead agency
that the release of that information, or part thereof, would reveal
production, reserves, or rate of depletion entitled to protection as
proprietary information. The lead agency shall identify such
proprietary information as a separate part of the application.
Proprietary information shall be made available only to the director
and to persons authorized in writing by the operator and by the
owner.
(b) A copy of all reclamation plans, reports, applications, and
other documents submitted pursuant to this chapter shall be furnished
to the director by lead agencies on request.
2779. Whenever one operator succeeds to the interest of another in
any incompleted surface mining operation by sale, assignment,
transfer, conveyance, exchange, or other means, the successor shall
be bound by the provisions of the approved reclamation plan and the
provisions of this chapter.
