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Substantial Rewriting of SMARA Proposed Bill Would Decrease Local Agencies’ Role

25 Mar 2014 00:00:00 -0800

Under proposed Senate Bill 1270 (Pavley), the Surface Mining and Reclamation Act (SMARA) would be substantially revised, reducing the role of local agencies in regulating mines in their jurisdictions. Because SB 1270 would also place tighter and more expensive restrictions on the mining industry, the bill may adversely affect local economies that rely on revenues and economic activity created by mining operations. The bill is currently before the Senate Natural Resources and Water Committee. In response to SB 1270, several local agencies have submitted or are in the process of submitting letters of opposition to Senator Pavley’s office.

SB 1270 would directly affect local agencies by transferring some of their key responsibilities under the SMARA to the Office of Mine Reclamation (which would be renamed the “Division of Mines”). Specifically, local agencies would no longer be responsible for inspecting mines, as this would be done by the newly-created post of State Mine Inspector. Also, local agencies would no longer set the amount of the financial assurance required for a mine’s reclamation, as this would be handled by the Director of the Department of Conservation. Furthermore, the bill would allow third parties to challenge (via the State Mining and Geology Board) the actions of a local agency in approving a reclamation plan, and would remove local agency discretion in issuing notices of violation to mines in their jurisdiction.

Local mining operations could also be adversely affected by SB 1270. For instance, the bill would substantially increase annual reporting fees to $1,000 per acre, with no maximum. More importantly, a mine’s listing on the AB 3098 list (which is a requirement in order to be able to sell materials to the state, such as concrete or asphalt to CalTrans) can be challenged by the public, which could give opponents of mining a means to economically injure a mine and, indirectly, a local economy.

It is early in the legislative year and further amendments may limit the bill’s effect on local agencies. BB&K will continue to monitor this bill, and can offer assistance in preparing comment letters to the Legislature regarding SB 1270. For further information, please contact the attorney author of this legal alert listed at right in the Environmental Law & Natural Resources practice group, or your BB&K attorney.

Disclaimer: BB&K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

Senate Bill 4 to Provide for Additional Regulation of Fracking Activities in California

25 Sep 2013 00:00:00 -0800

Last Friday, the governor signed Senate Bill 4, which addresses the controversial practice of hydraulic fracturing (fracking) in California. Under existing California law, the state Division of Oil, Gas and Geothermal Resources (DOGGR) is responsible for issuing permits for the drilling and operation of oil and gas wells. Senate Bill 4 would expand the regulation of fracking in California and would require DOGGR, in conjunction with the other state and local agencies in charge of water and air resources, to develop regulations that address fracking by January of 2015. Depending on the extensiveness of the regulations enacted, oil and gas companies may soon be pressing forward to mine the Monterey Shale Formation and other oil bearing formations, which are estimated to hold more than 15 billion barrels of oil, most of which is only accessible through fracking extraction.

Under SB 4, DOGGR’s regulations will implement a fracking permit system in an attempt to ensure that geologic and hydrologic formations are isolated during fracking operations. The regulations will require the construction of wells and well casings to meet state standards and will require operators to disclosure the composition and disposition of well stimulation fluids used in fracking. Operators will be able to prevent the public disclosure of certain components of their well stimulation formulas through a trade secret protection provision in the Bill, however the protected information must be disclosed to DOGGR. As part of the permit application process, operators will be required to develop and submit water management plans that estimate and identify the amount and source of water and recycled water to be used in the fracking operation and specify how the water will be disposed of after the fracking operation is complete. Permits will expire after one year and will be available for public review.

The fracking regulations will include a public notice procedure that requires operators to notify area property owners and tenants at least 30 days prior to the start of fracking operations. Operators will be required to notify DOGGR at least 72 hours prior to the actual start of fracking a well and the regulations will provide area property owners and tenants with a right to water quality sampling at the expense of the fracking operator. These public noticing and permitting requirements should enhance the level of transparency available on fracking operations in California, which are currently below that required by other states.

For further information on the effects of Senate Bill 4, please contact one of the attorney authors of this legal alert listed at right in the Environmental Law & Natural Resources practice group, or your BB&K attorney.

Proposed Revisions to Mining Inspection Form Could Decrease Local Control

08 Mar 2013 00:00:00 -0800

On March 14, the State Mining and Geology Board’s Policy and Legislation Committee will consider an expanded version of the Surface Mining Inspection Report that is required to be completed annually by cities and counties overseeing surface mines. The Inspection Report’s scope is proposed to be expanded to such an extent that concerns have been raised that it will increase State oversight of these mines, to the detriment of local control. All interested public agencies should submit comments on this proposal to smgb@conservation.ca.gov prior to the Committee's March 14 public hearing in Fresno. Comments may also be submitted prior to the full Board's future action on the revisions.

The Surface Mining and Reclamation Act (SMARA) is based upon local entities, such as cities and counties, having primary responsibility for overseeing surface mines. This includes the local entity approving their land use entitlements and reclamation plans, as well as inspecting mines to verify that requirements are being met. The Office of Mine Reclamation (OMR) also has a duty to verify that reclamation plan requirements are being met, and to this extent requires the annual submission of a Surface Mining Inspection Report. Currently, this form requires general information on the adequacy of the required financial assurances for the completion of reclamation, as well as statements of compliance with various general categories of reclamation plan conditions (i.e., revegetation, backfilling, etc.).

The new form expands the scope of OMR’s jurisdiction beyond reclamation plan compliance by requiring compliance information for land use permits and CEQA mitigation measures. This would allow OMR to seek enforcement of matters that are the exclusive jurisdiction of the local lead agency, and could form the basis for the State to potentially take jurisdiction away from the local city or county. Furthermore, the form increases burdens on inspectors by requiring a significantly higher level of detail and determinations as to the status of mines (e.g., “idle mine status” or the presence of vested rights) that present complex legal issues with serious ramifications. This increased detail would also likely increase the cost of conducting inspections.

For further information on the proposed Inspection Report changes and their potential effect on your agency, please contact mining law attorney Fernando Avila or your BB&K attorney.

Disclaimer: BB&K e-Bulletins are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.