California State Codes governing reclamation plans,
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CA Surface Mining and Reclamation Act
These code sections are provided to clarify some of the issues that have been raised on the lower Mad River.
When the Mad River PEIR was approved it contained a draft reclamation plan which was to have been reviewed by the local County as lead agency. That review never occurred when the County withdrew its staff and financial commitments several years ago.
New evidence, collected by the mining operators and the Army Corps indicates that the Mad River was not severly degraded, whether by mining or any other activity over the last 30 or more years. As a result, while rec plans must be in confomance with SMARA [see the sections below] the scientific data and analyses necessary to determining what is or is not adeqaute reclamation and the goals of reclamation under these specific laws is not finalized.
If the Mad River is not degraded, or severly degraded, as stated in the Humboldt County PEIR for the Lower Mad River, then the reclamation process will be very different from what was considered at a time when there was no hard physical or scientific evidence of the rivers' condition during the last half a century -- other than the oral statements, photographs and other evidence produced by the mining companies during the PEIR and LOP review and approval processes. The Mad River operators and local residents have alleged for years that the river is not degraded as stated by the Scientific Committee hired by the County and some of the agency staff.
Before the County or any other agency takes action requiring that new or modified reclamation plans be drafted and circulated for review and approval by the mining companies those agencies have an obligation under the court cases and state laws [more on this later] to act in a reasonable manner and to not act in an "arbitrary, capricious or unreasonable" manner. The only reasonable course of action, at this time, given the new evidence and the data collected over the last 7 - 10 years by the mining companies is for the agencies to make a review and assessment of the evidence and provide the operators with their official assessments of the new information. [Under CEQA and the CEQA Guidelines, when new information is produced then a new review and assessment of a previous environmental document, EIR, PEIR, etc. must be undertaken.]
The following statutes are the most immediately relevant sections of the State Surface Mining and Reclamation Act [SMARA] to the issue of reclamation activities and the production, review and approval of Reclamation Plans pursuant to the Act.
From -- WEST'S ANNOTATED CALIFORNIA CODES -
PUBLIC RESOURCES CODE
DIVISION 2. GEOLOGY, MINES AND MINING
CHAPTER 9. SURFACE MINING AND RECLAMATION
ACT OF 1975
ARTICLE 5. RECLAMATION PLANS AND
THE CONDUCT OF SURFACE MINING OPERATIONS
§ 2770. Permit; prohibition of continued mining without
reclamation plan; review of plan and financial assurances; appeals; interim management
plan; submission on surface mining operation becoming idle; duration; review and approval
(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).
§ 2771. Evaluation by lead agency
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. Filing of plan; form; content
(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).
§ 2773. Application and basis of and site-specific criteria for evaluation of compliance
with plan; regulations specifying minimum, verifiable statewide reclamation standards
(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.
§ 2774. Review and approval of plans; procedures
(a) Every lead agency shall adopt ordinances in accordance with state policy which
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 such an
inspection to be conducted by a state-registered geologist, state-registered civil
engineer, state-licensed landscape architect, or state-registered forester, who is
experienced in land reclamation and who has not been employed by the surface mining
operation 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. 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.
(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 Article 1 (commencing with Section 3500) of Chapter 8 of
Division 2 of Title 14 of the California Code of Regulations 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. In particular, if the lead agency's position
is at variance with any of the recommendations made, or objections raised, in the
director's comments, the written response shall address, in detail, why specific comments
and suggestions were not accepted. Copies of any written comments received and responses
prepared by the lead agency shall be forwarded to the operator.
(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 such 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.
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