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(d) Topsoil and suitable growth media shall be used to phase reclamation as soon as can be accommodated by the mining schedule presented in the approved reclamation plan following the mining of an area. Topsoil and suitable growth media that cannot be utilized immediately for reclamation shall be stockpiled in an area where it will not be disturbed until needed for reclamation. Topsoil and suitable growth media stockpiles shall be clearly identified to distinguish them from mine waste dumps. Topsoil and suitable growth media stockpiles shall be planted with a vegetative cover or shall be protected by other equally effective measures to prevent water and wind erosion and to discourage weeds. Relocation of topsoil or suitable growth media stockpiles for purposes other than reclamation shall require prior written approval from the lead agency.
(e) Topsoil and suitable growth media shall be redistributed in a manner that results in a stable, uniform thickness consistent with the approved end use, site configuration, and drainage patterns.
Note: Authority cited: Sections 2755, 2756 and 2773, Public Resources Code. Reference: Section 2773, Public Resources Code.
s 3712. Performance Standards for Tailing and Mine Waste Management.
State Water Resources Control Board mine waste disposal regulations in Article 1, Subchapter 1, Chapter 7 of Title 27, California Code of Regulations, shall govern mine waste and tailings, and mine waste disposal units shall be reclaimed in conformance with this article.
Note: Authority cited: Sections 2755, 2756 and 2773, Public Resources Code. Reference: Section 2773, Public Resources Code.
s 3713. Performance Standards for Closure of Surface Openings.
(a) Except those used solely for blasting or those that will be mined through within one year, all drill holes, water wells, and monitoring wells shall be completed or abandoned in accordance with each of the following:
(1) Water Code sections 13700, et seq. and 13800, et seq.;
(2) the applicable local ordinance adopted pursuant to Water Code section 13803;
(3) the applicable Department of Water Resources report issued pursuant to Water Code section 13800; and
(4) Subdivisions (1) and (2) of section 2511(g) of Chapter 15 of Title 23 regarding discharge of waste to land.
(b) Prior to closure, all portals, shafts, tunnels, or other surface openings to underground workings shall be gated or otherwise protected from public entry in order to eliminate any threat to public safety and to preserve access for wildlife habitat.
Note: Authority cited: Sections 2755, 2756 and 2773, Public Resources Code. Reference: Section 2773, Public Resources Code.
s 3720. Purpose.
These regulations shall govern the exercise of city, county and state agency responsibilities to identify and map seismic hazard zones and to mitigate seismic hazards to protect public health and safety in accordance with the provisions of the Public Resources Code, section 2690 et seq. (Seismic Hazards Mapping Act).
Note: Authority cited: Sec tion 2695, Public Resources Code. Reference: Section 2695(a)(1) and (3)-(5), Public Resources Code.
s 3721. Definitions.
(a) " Acceptable Level" means that level that provides reasonable protection of the public safety, though it does not necessarily ensure continued structural integrity and functionality of the project.
(b) "Lead Agency" means the city, county or state agency with the authority to approve projects.
(c) "Registered civil engineer" or "certified engineering geologist" means a civil engineer or engineering geologist who is registered or certified in the State of California.
Note: Authority cited: Sec tion 2695, Public Resources Code. Reference: Sections 2690-2696.6, Public Resources Code.
s 3722. Requirements for Mapping Seismic Hazard Zones.
(a) The Department of Conservation, Division of Mines and Geology, shall prepare one of more State-wide probabilistic ground shaking maps for a suitably defined reference soil column. One of the maps shall show ground shaking levels which have a 10% probability of being exceeded in 50 years. These maps shall be used with the following criteria to define seismic hazard zones:
(1) Amplified shaking hazard zones shall be delineated as areas where historic occurrence of amplified ground shaking, or local geological and geotechnical conditions indicate a potential for ground shaking to be amplified to a level such that mitigation as defined in Public Resources Code Section 2693(c) would be required.
(2) Liquefaction hazard zones shall be delineated as areas where historic occurrence of liquefaction, or local geological, geotechnical and ground water conditions indicate a potential for permanent ground displacements such that mitigation as defined in Public Resources Code Section 2693(c) would be required.
(3) Earthquake-induced landslide hazard zones shall be delineated as areas where Holocene occurrence of landslide movement, or local slope of terrain, and geological, geotechnical and ground moisture conditions indicate a potential for permanent ground displacements such that mitigation as defined in Public Resources Code Section 2693(c) would be required.
(b) Highest priority for mapping seismic hazard zones shall be given to areas facing urbanization or redevelopment in conjunction with the factors listed in section 2695(a)(2)(A), (B), (C) and (D) of the Public Resources Code.
Note: Authority cited: Sec tion 2695, Public Resources Code. Reference: Section 2695(a)(1), Public Resources Code.
s 3723. Review of Preliminary Seismic Hazard Zones Maps.
(a) The Mining and Geology Board shall provide an opportunity for receipt of public comments and recommendations during the 90-day period for review of preliminary seismic hazard zone maps provided by the Public Resources Code Section 2696. At least one public hearing shall be scheduled for that purpose.
(b) Following the end of the review period, the Board shall forward its comments and recommendations, with supporting data received, to the State Geologist for consideration prior to revision and official issuance of the maps.
Note: Authority cited: Sec tion 2696, Public Resources Code. Reference: Section 2696, Public Resources Code.
s 3724. Specific Criteria for Project Approval.
The following specific criteria for project approval shall apply within seismic hazard zones and shall be used by affected lead agencies in complying with the provisions of the Act:
(a) A project shall be approved only when the nature and severity of the seismic hazards at the site have been evaluated in a geotechnical report and appropriate mitigation measures have been proposed.
(b) The geotechnical report shall be prepared by a registered civil engineer or certified engineering geologist, having competence in the field of seismic hazard evaluation and mitigation. The geotechnical report shall contain site-specific evaluations of the seismic hazard affecting the project, and shall identify portions of the project site containing seismic hazards. The report shall also identify off-site seismic hazards that could adversely affect the site in the event of an earthquake. The contents of the geotechnical report shall include, but shall not be limited, the following:
(1) Project description.
(2) A description of the geologic and geotechnical conditions at the site, including an appropriate site location map.
(3) Evaluation of site-specific seismic hazards based on geological and geotechnical conditions, in accordance with current standards of practice.
(4) Recommendations for appropriate mitigation measures as required in section 3724 (a), above
(5) Name of report preparer(s), and signature(s) of a certified engineering geologist and/or registered civil engineer, having competence in the field of seismic hazard evaluation and mitigation.
(c) Prior to approving the project, the lead agency shall independently review the geotechnical report to determine the adequacy of the hazard evaluation and proposed mitigation measures and to determine that the requirements of section 3724 (a), above, are satisfied. Such reviews shall be conducted by a certified engineering geologist or registered civil engineer, having competence in the field of seismic hazard evaluation and mitigation.
Note: Authority cited: Sec tion 2695, Public Resources Code. Reference: Section 2695(a)(3)(A), (B), and (C), Public Resources Code.
s 3725. Waivers of Geotechnical Report Requirements.
For a specific project, the lead agency may determine that the geological and geotechnical conditions at the site are such that public safety is adequately protected and no mitigation is required. This finding shall be based on a report presenting evaluations of sites in the immediate vicinity having similar geologic and geotechnical characteristics. The report shall be prepared by a certified engineering geologist or registered civil engineer, having competence in the field of seismic hazard evaluation and mitigation. The lead agency shall review submitted reports in the same manner as in section 3724(c) of this article. The lead agency shall also provide a written commentary that addresses the report conclusions and the justification for applying the conclusions contained in the report to the project site. When the lead agency makes such a finding, it may waive the requirement of a geotechnical report for the project. All such waivers shall be recorded with the county recorder and a separate copy, together with the report and the commentary, filed with the State Geologist within 30 days of the waiver.
Note: Authority cited: Sec tion 2695, Public Resources Code. Reference: Section 2697(a)(5), Public Resources Code.
s 3726. Selection of Professional Service Firms.
(a) The purpose of these regulations is to establish those procedures authorized and required by Chapter 10 (commencing with Section 4525) of Division 5 of Title 1 of the Government Code. These regulations are specific to the Seismic Hazards Mapping Act (PRC Section 2690 et. seq.).
(b) Selection by the department for professional services of private architectural, landscape architectural, engineering, environmental, land surveying, or construction project management firms shall be on the basis of demonstrated competence and on the professional qualifications necessary for the satisfactory performance of the services required.
Note: Authority cited: Section 2695, Public Resources Code; and Section 4526, Government Code. Reference: Sections 4525-4529.5, Government Code.
s 3727. Definitions, As Used in These Regulations.
(a) "Small business" shall mean a small business firm as defined by the Director of General Services (section 1896 of Title 2 of the California Code of Regulations) pursuant to section 14837 of the Government Code.
(b) "Architectural, landscape architectural, engineering, environmental, land surveying, and construction project management services" are those services to be procured outside State of California Civil Service procedures and of a character necessarily rendered by an architect, landscape architect, engineer, environmental specialist, land surveyor, or construction project management contractor but may include ancillary services logically or justifiably performed in connection therewith.
(c) "Project" means a project as defined in Section 10105 of the Public Contract Code, or as defined in the Public Resources Code Section 21065.
Note: Authority cited: Section 4526, Government Code. Reference: Sections 4525 and 14837, Government Code; Section 10105, Public Contract Code; and Section 21065, Public Resources Code.
s 3728. Establishment of Criteria.
(a) The department shall establish criteria, on a case by case instance, which will comprise the basis for selection for each project. The criteria shall include such factors as professional excellence, demonstrated competence, specialized experience of the firm, education and experience of key personnel to be assigned, staff capability, workload, ability to meet schedules, nature and quality of completed work, reliability and continuity of the firm, location, and other considerations deemed relevant. Such factors shall be weighted by the department according to the nature of the project, the needs of the State and complexity and special requirements of the specific project.
(b) In no event shall the criteria include practices which might result in unlawful activity including, but not limited to, rebates, kickbacks, or other unlawful consideration. Department employees with a relationship to a person or business entity seeking a contract under this section are prohibited from participating in the selection process if the employees would be subject to the prohibition of Section 87100 of the Government Code.
Note: Authority cited: Section 4526, Government Code. Reference: Sections 4526 and 87100, Government Code.
s 3729. Estimate of Value of Services.
Before any discussion with any firm concerning fees, the department may cause an estimate of the value of such services to be prepared. This estimate shall serve as a guide in determining fair and reasonable compensation for the services rendered. Such estimate shall be, and remain, confidential until award of contract or abandonment of any further procedure for the services to which it relates. At any time the department determines the estimates to be unrealistic because of rising costs, special conditions, or for other relevant considerations, the estimate may be reevaluated and modified if necessary.
Note: Authority cited: Section 4526, Government Code. Reference: Section 4528, Government Code.
s 3730. Request for Proposals.
(a) Where a project requires architectural, landscape architectural, engineering, environmental, land surveying, or construction project management services, the department shall make an announcement through a publication of the respective professional society, if any exist, in a construction trade journal or, if none exist, in other appropriate publications that are published within a reasonable time frame such that a lengthy publication delay does not adversely affect the project.
(b) The announcement shall contain the following information: The nature of the work, the criteria upon which the award shall be made, and the time within which statements of interest, qualification and performance data will be received.
(c) The department shall endeavor to provide to all small business firms who have indicated an interest in receiving such, a copy of each announcement for projects for which the department concludes that small business firms could be especially qualified. A failure of the department to send a copy of an announcement to any firm shall not operate to preclude any contract.
Note: Authority cited: Section 4526, Government Code. Reference: Section 4527, Government Code.
s 3731. Selection of Firm.
After expiration of the period stated in the publications or other public announcements, the department shall evaluate statements of qualifications and performance data which have been submitted to the department. Discussions shall be conducted with no less than three firms regarding the required service. Where three firms cannot be found which could provide the required service, a full explanation including names and addresses of firms and individuals requested to submit proposals must be entered in the files. From the firms with which discussions are held, the department shall select no less than three, provided at least three firms submit proposals, in order of preference, based upon the established criteria, which are deemed to be the most highly qualified to provide the services required.
Note: Authority cited: Section 4526, Government Code. Reference: Sections 4526-4527, Government Code.
s 3732. Negotiation.
The department shall attempt to negotiate a contract with the most highly qualified firm. When the department is unable to negotiate a satisfactory contract with this firm with fair and reasonable compensation provisions, as determined by the procedure set forth in Section 3729 if those procedures were used, negotiations shall be terminated. The department shall then undertake negotiations with the second most qualified firm on the same basis. Failing accord, negotiations shall be terminated. The department shall then undertake negotiations with the third most qualified firm on the same basis. Failing accord, negotiations shall be terminated. Should the department be unable to negotiate a satisfactory contract at fair and reasonable compensation with any of the selected firms, additional firms may be selected in the manner prescribed in this article and the negotiation procedure continued.
Note: Authority cited: Section 4526, Government Code. Reference: Section 4528, Government Code.
s 3733. Amendments.
In instances where the department effects a necessary change in the project during the course of performance of the contract, the firm's compensation may be adjusted by negotiation of a mutual written agreement in a fair and reasonable amount where the amount of work to be performed by the firm is changed from that which existed previously in the contemplation of the parties.
Note: Authority cited: Section 4526, Government Code. Reference: Section 4526, Government Code.
s 3734. Contracting in Phases.
Should the department determine that it is necessary or desirable to have a given project performed in phases, it will not be necessary to negotiate the total contract price or compensation provisions in the initial instance, provided that the department shall have determined that the firm is best qualified to perform the whole project at a fair and reasonable cost, and the contract contains provisions that the department, at its option, may utilize the firm for other phases and that the firm will accept a fair and reasonable price for subsequent phases to be later negotiated and reflected in a subsequent written instrument. The procedure with regard to estimates and negotiation shall otherwise be applicable.
Note: Authority cited: Section 4526, Government Code. Reference: Section 4526, Government Code.
s 3735. Department's Power to Require Bids.
Where the department determines that the services needed are technical in nature and involve little professional judgment and that requiring bids would be in the public interest, a contract shall be awarded on the basis of bids rather than by following the foregoing procedures for requesting proposals and negotiation.
Note: Authority cited: Section 4526, Government Code. Reference: Section 4529, Government Code.
s 3736. Exclusions.
The provisions of this article shall not apply to service agreements for an architect, landscape architect, engineer, environmental specialist, land surveyor, or construction project management contractor, engaged to provide consulting services on specific problems on projects where the architectural, landscape architectural, engineering, environmental, land surveying, or construction project management work is being performed by State of California Civil Service employees.
Note: Authority cited: Section 4526, Government Code. Reference: Section 4526, Government Code.
s 3800. Purpose.
It is the purpose of this article to specify additional financial assurance mechanisms to assure reclamation pursuant to Public Resources Code Section 2710 et seq. (Surface Mining and Reclamation Act, as amended).
Note: Authority cited: Section 2773.1, Public Resources Code. Reference: Section 2773.1(e), Public Resources Code.
s 3801. Authority.
Review, approval, adjustment, enforcement, notification, forfeiture and all other responsibilities of the lead agency, operator and Department of Conservation with respect to financial assurances shall be conducted as prescribed in Public Resources Code Section 2710 et seq. unless expressly outlined in this article.
Note: Authority cited: Section 2773.1, Public Resources Code. Reference: Section 2773.1(e), Public Resources Code.
s 3802. Definitions.
The following definitions shall govern the interpretation of this article:
(a) "Budget Set Aside" means a financial assurance mechanism, meeting the requirements of Section 3806.2 of this article, by which a government entity proposes to make specific identified monies within the entity's budget available to perform reclamation pursuant to the approved reclamation plan.
(b) "Financial Assurance Amount" means that amount of money necessary to conduct and complete reclamation on the mined lands in accordance with the approved reclamation plan, plus a reasonable estimate of the administrative costs and expenses which would be incurred by the lead agency or the Department of Conservation, the total of which shall be calculated in accordance with section 3804, and shall constitute an obligation to pay by the operator.
(c) "Financial Assurance" means an instrument, fund or other form of Financial Assurance as provided in Section 2773.1(a) and (e) of the Public Resources Code and this Article.
(d) "Pledge of Revenue" means a financial assurance mechanism meeting the requirements of Section 3806.1, of this Article, by which a governmental entity proposes to make specific, identified future revenue available to perform reclamation pursuant to the approved reclamation plan.
Note: Authority cited: Section 2755, Public Resources Code. Reference: Sections 2726-2734, Public Resources Code.
s 3803. Financial Assurance Mechanisms.
As outlined by this article, financial assurances may take the form of any one or a combination of the following, which the lead agency, upon review by the Department of Conservation, reasonably determines are adequate to perform reclamation in accordance with the approved reclamation plan.
(a) For non-governmental entity operators:
(1) Surety bonds;
(2) Irrevocable letters of credit; and
(3) Trust funds;
(b) For governmental entity operators:
(1) Surety bonds;
(2) Irrevocable letters of credit;
(3) Trust funds;
(4) Pledges of Revenue; or
(5) Budget Set Aside.
Note: Authority cited: Section 2773.1, Public Resources Code. Reference: Section 2773.1(e), Public Resources Code.
s 3804. Calculation of Financial Assurance Amount.
(a) The Financial Assurance Amount shall be calculated as prescribed in Public Resources Code Section 2773.1 and based on:
(1) an analysis of the physical activities and materials necessary to implement the approved reclamation plan;
(2) the lead agency's unit costs, or costs for third party contracting, for each of these activities, if applicable;
(3) the number of units of each of these activities, if applicable;
(4) a contingency amount not to exceed 10% of the reclamation costs.
(b) The calculated amount should not include the cost of completing mining of the site.
(c) In order for the lead agency or the Department of Conservation to determine what annual adjustments, if any, are appropriate to the Financial Assurance Amount, the operator shall annually submit to the lead agency a revision of the written calculation required under Section 3804(a).
Note: Authority cited: Section 2773.1, Public Resources Code. Reference: Section 2773.1(e), Public Resources Code.
s 3805. Review by the Department of Conservation.
Pursuant to Section 2774(c), Public Resources Code, the lead agency shall submit a copy of the proposed Financial Assurance and the Calculation of Financial Assurance Amount submitted by the operator pursuant to Section 3804 to the Director of the Department of Conservation for review. With this submittal the lead agency shall include the information and documentation relied upon in calculating the amount of the proposed Financial Assurance and indicate to the Director that the Financial Assurance Amount is adequate for the lead agency or the Department of Conservation to conduct and complete reclamation on the mined lands in accordance with the approved reclamation plan. The Director shall have 45 days, upon receipt, to prepare written comments regarding the proposed Financial Assurance, if he/she so chooses.
Note: Authority cited: Section 2774, Public Resources Code. Reference: Section 2774(c), (d), Public Resources Code.
s 3805.5. Modification or Release of Financial Assurance.
(a) Prior to the modification of a financial assurance amount, or to the release of the financial assurance instrument to which both the lead agency and the Department of Conservation are co-beneficiaries under Public Resources Code section 2773.1, the lead agency shall provide to the director of the department the following documents at one time:
(1) An inspection report, prepared by a qualified person as provided for in Public Resources Code section 2774, indicating that there are aspects of the surface mining operation that require modification of the existing financial assurance amount, or stating that the mined land has been reclaimed in accordance with the approved reclamation plan, and that there are no aspects of the reclaimed surface mining operation that are inconsistent with the meaning of reclamation as defined in Public Resources Code section 2733, and the Surface Mining and Reclamation Act of 1975, Chapter 9, commencing with section 2710.
(2) A revised financial assurance cost estimate prepared by the operator and accepted by the lead agency, or prepared by the lead agency, in accordance with Public Resources Code section 2773.1, with supporting documentation, indicating the specific cost changes to the existing financial assurance amount, or indicating that there are no further outstanding reclamation liabilities to be included in the financial assurance.
(3) A statement by the lead agency, with supporting documentation that may include the most recent inspection report and any geological and engineering reports prepared as part of the inspection report, that the mined land remains subject to a financial assurance as modified, or that the mined land has been reclaimed in accordance with the approved reclamation plan, that there are no outstanding reclamation liabilities, and recommending to the director that the financial assurance be released.
(b) The director shall have 45 days from the date of receipt of the documents to review and comment on them as provided for in Public Resources Code section 2774, and to conduct the director's own inspection of the surface mining operation if the director determines it necessary under Public Resources Code section 2774.1, and do one of the following:
(1) Notify the lead agency of the director's concurrence that the modified financial assurance amount is adequate, or that there are no outstanding reclamation liabilities on the mined land and that the original financial assurance should be released pursuant to Public Resources Code section 2773.1, at which time the financial assurance shall be released; or,
(2) Notify the lead agency that the director has found, based upon an inspection, aspects of the surface mining operation that require additional modifications to the financial assurance amount, or aspects that are not in compliance with the approved reclamation plan and the Surface Mining and Reclamation Act of 1975; or,
(3) Commence the financial assurance forfeiture process under Public Resources Code section 2773.1.
(c) If a violation by the surface mining operation is confirmed by an inspection either by the lead agency or by the director, then the lead agency, or the director, may take actions under Public Resources Code section 2774.1 to ensure that the violation is corrected. In any event, the financial assurance shall not be released until the violation is corrected.
(d) Prior to sending written notification and release of financial assurances as provided under Public Resources Code section 2773.1, the lead agency shall obtain written concurrence of the director that the completion of reclamation of the mined land disturbed by the surface mining operation is in accordance with the requirements of the lead agency-approved reclamation plan.
(e) If a violation of the Surface Mining and Reclamation Act of 1975 or of the approved reclamation plan is confirmed by the inspection, and the lead agency does not take action under Public Resources Code section 2774.1 to ensure that the violation is corrected or take action under Public Resources Code section 2773.1 for forfeiture of the financial assurance, then the director may refer the matter to the board for further action under Public Resources Code section 2774.4.
Note: Authority cited: Section 2755, Public Resources Code. Reference: Sections 2729, 2731, 2733, 2735, 2773.1, 2774 and 2774.1, Public Resources Code.Authority cited: Section 2755, Public Resources Code. Reference: Sections 2729, 2731, 2733, 2735, 2773.1, 2774 and 2774.1, Public Resources Code.
s 3806. Surface Mining Operations Owned and Operated by State or Local Governmental Entities.
In addition to the mechanisms provided in Public Resources Section 2773.1 and this article, a financial assurance mechanism for reclamation for a surface mining operation owned and operated by the state, county, city, district, or other political subdivision may be in the form of a:
(a) Pledge of Revenue; or
(b) Budget Set Aside.
These financial assurance mechanisms may only be used by the state, county, city, district, or other political subdivision.
Note: Authority cited: Section 2773.1, Public Resources Code. Reference: Section 2773.1(e), Public Resources Code.
s 3806.1. Pledge of Revenue.
(a) A pledge of revenue shall consist of a resolution or other appropriate document from the governing body of the state, county, city, district, or other political subdivision responsible for reclamation of the mined lands pursuant to the approved reclamation plans. The resolution or document shall remain effective continuously throughout the period in which the pledge of revenue is used to satisfy the requirements of Section 2773.1, Public Resources Code.
(b) The pledge of revenue shall contain the following items:
(1) The resolution or document establishing the pledge of revenue;
(2) The types and sources of pledged revenue;
(3) The period of time that each source of revenue is pledged to be available;
(4) The calculation amount of the financial assurance prepared pursuant to Section 3804; and
(5) The authorization for the lead agency or the Department of Conservation to use the proceeds of the pledge to conduct and complete reclamation if the lead agency or the Department of Conservation determines that the operator is incapable of performing the reclamation covered by the pledge pursuant to Section 2773.1(b).
(c) The state, county, city, district, or other political subdivision may pledge any following types of revenue that it controls and that will be available in a timely manner to conduct and complete reclamation:
(1) Fees, rents, or other charges;
(2) Tax revenues within statutory limitations; and/or
(3) Other guaranteed revenues that are acceptable to the lead agency and the Board.
(d) If the governmental entity ceases at any time to retain control of its ability to allocate any pledged revenue to conduct and complete reclamation, the entity shall notify the lead agency and the Department of Conservation and shall obtain alternative coverage within 60 days after control lapses.
Note: Authority cited: Section 2773.1, Public Resources Code. Reference: Section 2773.1(e), Public Resources Code.
s 3806.2. Budget Set Aside.
(a) A Budget Set Aside shall consist of a specific fund or line item set aside by the state, county, city, district or other political subdivision responsible for reclamation of the mined lands. The Budget Set Aside shall remain effective continuously throughout the period in which the Budget Set Aside is used to satisfy the requirements of Section 2773.1, Public Resources Code.
(b) The set aside shall contain the following items:
(1) A resolution or other appropriate document establishing the set aside or line item including proof of approval by the governing body or appropriate official of the state, county, city, district, or other political subdivision;
(2) The types and sources of specific funds;
(3) The period of time that each funding source is to be available:
(4) The calculation amount of the financial assurance prepared pursuant to Section 3804; and
(5) The authorization for the lead agency or the Department of Conservation to use the funds to conduct and complete reclamation if the lead agency or the Department of Conservation determines that the operator is incapable of performing the reclamation covered by the set aside pursuant to Section 2773.1(b).
Note: Authority cited: Section 2773.1, Public Resources Code. Reference: Section 2773.1(e), Public Resources Code.
s 3806.3. Acceptance of Liability.
(a) An Acceptance of Liability shall consist of a specific written statement by a Federal entity responsible for performing reclamation that obligates that Federal entity for all costs associated with the full reclamation of mined lands in accordance with the requirements of an approved reclamation plan.
(b) The Acceptance of Liability shall contain the following items:
(1) a duly authorized resolution, statement, or other appropriate document that guarantees liability and obligates the Federal entity to reclaim the mine site; and,
(2) a statement that if the Federal entity ceases at any time to retain control of the mine operation, that the Federal entity's Acceptance of Liability shall remain in effect until the succeeding mine operator provides a financial assurance mechanism provided for in Public Resources Code Section 2773.1 and this Article 11. In no event shall any succeeding mine operator commence surface mining operations until a financial assurance mechanism is accepted by the lead agency.
Note: Authority cited: Sections 2755 and 2773.1, Public Resources Code. Reference: Section 2773.1, Public Resources Code.
s 3806.5. Surface Mining Operations Owned and Operated by a Federal Entity on State Owned Land.
In addition to the financial assurance mechanisms provided in Public Resources Code Section 2773.1 and this Article 11, a financial assurance mechanism for reclamation for a surface mining operation owned and operated on State lands by a Federal entity may be in the form of a:
(a) Pledge of Revenue
(b) Budget Set Aside
(c) Acceptance of Liability
Note: Authority cited: Sections 2755 and 2773.1, Public Resources Code. Reference: Section 2773.1, Public Resources Code.
s 3810. Purpose.
The purpose of this article is to define the procedures to be followed by the lead agency, or the board acting at the request of the director, or when the board is acting as lead agency pursuant to Public Resources Code Section 2774.4 or Section 2774.5, in determining whether a surface mine operator is financially incapable of performing reclamation in accordance with its approved reclamation plan, or has abandoned its surface mining operation without commencing reclamation, and should therefore forfeit its financial assurance pursuant to Public Resources Code Section 2773.1(b).
Note: Authority cited: Section 2755, Public Resources Code. Reference: Sections 2773.1, 2774.4 and 2774.5, Public Resources Code.
s 3811. Circumstances Leading to a Hearing.
A lead agency or the board may conduct a hearing to determine the forfeiture of financial assurances when any of the following circumstances has occurred:
(a) Unless an appeal of a financial assurance amount is pending before the board pursuant to Public Resources Code Section 2770, an operator has failed to provide an acceptable financial assurance mechanism within 30 days of notification by the lead agency of its approval of an adequate financial assurance amount. Acceptable financial assurance mechanisms are described in Title 14, California Code of Regulations Section 3803.
(b) The operator has failed to provide the lead agency with a revised financial assurance cost estimate as required by Public Resources Code Section 2773.1 that adequately addresses the criteria contained in Title 14, California Code of Regulations Section 3804 within 30 days of receipt of notification to provide a revised cost estimate.
(c) An acceptable financial assurance mechanism has lapsed and has not been renewed or replaced by another acceptable mechanism within 30 days and any remaining financial assurance coverage is not, according to the lead agency, adequate by itself to ensure the reclamation of the mine site according to the approved reclamation plan.
(d) The lead agency is unable to contact the mine operator or the mine's agent of record after 90 days of the mine's becoming idle as defined in Public Resources Code Section 2727.1.
(e) The surface mining operation meets the criteria stated under Public Resources Code Section 2770(h)(6). Submitting of an interim management plan after the operator has been notified that his or her mine meets the criteria in Section 2770(h)(6) shall not prevent the lead agency or the board from proceeding with its hearing.
Note: Authority cited: Section 2755, Public Resources Code. Reference: Sections 2727.1, 2770 and 2773.1, Public Resources Code.
s 3812. Public Hearing.
The determination by the lead agency or the board that a surface mine operator is financially incapable of reclaiming according to an approved reclamation plan, or that an operator has abandoned a mine site without commencing reclamation, shall be made during a public hearing. The hearing may be conducted as part of a regularly scheduled business meeting of the lead agency, or may be held during a special meeting. Where the board is the lead agency, the board may delegate the hearing to a committee composed of not less than two board members selected by the board Chairman or the Chairman's designee. The determination of the board committee shall be reported to the full board for its action at its next meeting.
Note: Authority cited: Section 2755, Public Resources Code. Reference: Section 2773.1, Public Resources Code.
s 3813. Hearing Procedure - Notice.
(a) The local lead agency shall give prior notice of the public hearing in accordance with the provisions of its local ordinances.
(b) Where the board is the lead agency, at least 10 days prior to the hearing date, public notice shall be given as follows:
(1) Mailing the notice to the operator and to the director.
(2) Mailing the notice to any person who requests notice of the hearing;
(3) Mailing the notice to the board's regular mailing list; and,
(4) Mailing the notice to the city or county jurisdiction within which the surface mining operation is located.
(c) The notice of hearing shall include the following:
(1) The name of the surface mine operator or agent of record;
(2) Identification of the surface mining operation, and a brief description of the location of the operation by reference to any commonly known landmarks in the area;
(3) A statement that the purpose of the hearing is to determine the financial capability of the operator to reclaim his or her mining operation in accordance with the approved reclamation plan;
(4) A statement inviting the operator, public agencies, and other interested persons to make statements at the hearing regarding the decision of the lead agency; and,
(5) The time, date, and location of the public hearing.
Note: Authority cited: Section 2755, Public Resources Code. Reference: Section 2773.1, Public Resources Code.
s 3814. Administrative Record.
The administrative record shall consist of, but not be limited to, the following:
(a) The approved reclamation plan for the mining operation;
(b) The currently approved financial assurance mechanism in an amount certain;
(c) The name and address of the surface mining operator and the name and address of any person designated by the operator as an agent for the service of process;
(d) A detailed cost estimate provided by the operator and supporting a financial assurance amount prepared by a qualified individual, such as a licensed grading contractor, licensed civil engineer, or a licensed geologist, who must be licensed in the state of California, and prepared not more than six months from the last annual inspection of the mine conducted by the lead agency;
(e) A copy of the last annual inspection report conducted by the lead agency pursuant to Public Resources Code Section 2774, or any other more recent inspection report conducted by the lead agency or the Department of Conservation.
Note: Authority cited: Section 2755, Public Resources Code. Reference: Sections 2773.1 and 2774, Public Resources Code.
s 3815. Criteria for Determining Financial Capability.
The lead agency or the board shall use, but not be limited to, the following criteria when determining the financial capability of a mine operator to perform reclamation. It is the sole responsibility of the surface mine operator to provide the lead agency or the board with sufficient information to reasonably demonstrate his or her financial capability. An operator shall be found financially incapable if the lead agency or the board makes any of the following findings:
(a) The operator is incapable of providing, or refuses to provide, a financial assurance in an amount deemed adequate by the lead agency or the board; or,
(b) The operator is incapable of providing, or refuses to provide, a financial assurance mechanism approved by the board in Section 3803 of this subchapter; or,
(c) The lead agency, the board, or the director, is unable to contact the mine operator or the mine's agent of record after 90 days of the mine's becoming idle as defined in Public Resources Code Section 2727.1; or,
(d) The mine operation meets the criteria stated in Public Resources Code Section 2770(h)(6).
Note: Authority cited: Section 2755, Public Resources Code. Reference: Sections 2727.1, 2770 and 2773.1, Public Resources Code.
s 3816. Hearing Procedures - Sequence.
(a) The public hearing conducted before the board shall normally proceed in the following manner; a local lead agency may conduct the hearing sequence according to its locally adopted procedures:
(1) Identification of the record;
(2) Statements on behalf of the lead agency;
(3) Statements on behalf of the operator;
(4) Statements on behalf of the public;
(5) Rebuttal on behalf of the lead agency
(6) Rebuttal on behalf of the operator; and
(7) Motion to close the public hearing.
(b) Notwithstanding the above, the Chairman of the board or the Chairman's designee for purposes of conducting the hearing may, in the exercise of discretion, determine the order of the proceedings.
(c) The Chairman or the Chairman's designee shall have the authority to impose time limits upon statements and presentations and accept written statements in lieu of oral statements. Written statements (12 copies) must be submitted to the board at least five days prior to the hearing.
(d) The public hearing conducted before the board or a lead agency shall be recorded.
Note: Authority cited: Section 2755, Public Resources Code. Reference: Section 2773.1, Public Resources Code.
s 3817. Hearing Procedures - Determination.
Following the public hearing, the lead agency or the board shall determine whether, based on the record before it and the criteria described in Section 3815 of this Article, 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. If the operator is determined to be financially incapable of performing reclamation or to have abandoned the operation, then the following shall occur:
(a) The lead agency, or the director in cases where the Board is the lead agency, shall notify the operator within 10 days of the date of determination of its intent to take appropriate actions to cause forfeiture of the operator's financial assurances. Notification shall be made by personal service or certified mail.
(b) The lead agency, or the director, or the board in cases where the board is the lead agency, shall follow the procedures described in Public Resources Code Section 2773.1(b).
Note: Authority cited: Section 2755, Public Resources Code. Reference: Section 2773.1, Public Resources Code.
s 3900. Purpose of Regulations.
The regulations contained in this article govern procedures for petitions to the State Mining and Geology Board pursuant to Public Resources Code Section 2774.2 concerning the issuance of an Administrative Penalty by the Director of the Department of Conservation.
Note: Authority cited: Sections 2755 and 2774.2, Public Resources Code. Reference: Section 2774.2, Public Resources Code.
s 3901. Filing of Petition/Notice of Defense.
Any person filing a petition to the Board pursuant to Public Resources Code Section 2774.2 concerning the issuance of an administrative penalty by the Director of the Department of Conservation shall, within 30 days of the date of issuance of the order setting an administrative penalty, file a petition/notice of defense with the Board requesting a hearing. The petition/notice of defense shall be on the form set forth in Section 3911 of this article, or shall supply the following information to the Board. Failure to submit all the following documents within the 30 days filing period will result in an incomplete filing and an automatic rejection of the appeal.
(1) Written statements, with supporting documentation, indicating specifically the basis for the petitioner's challenge of the Director's order of administrative penalty;
(2) A written statement advising the Board of the name, address and telephone number of the petitioner's representative, if any;
Note: Authority cited: Sections 2755 and 2774.2, Public Resources Code. Reference: Section 2774.2, Public Resources Code.
s 3902. Determination of Jurisdiction.
The Chairman of the Board, or the Chairman's designee who is a Board member, shall determine within 15 days of receipt of the information required by Section 3901 of this article, whether the petition is within the jurisdiction of the Board for the purpose of hearing the petition, and determine whether the petition's challenge raises substantial issues related to the validity of the allegations supporting the Director's order. If the Chairman finds, based upon the criteria stated in (a), (b), and (c) below, that the petition raises no substantial issues with respect to the Director's allegations contained in the order of administrative penalty, or has not been filed within statutory time limits, then the Chairman shall refuse to grant a hearing on the petition. In making these determinations, the Chairman shall consider the following:
(a) Whether the filing of the petition/notice of defense with the Board is within the time limits stipulated in Public Resources Code Section 2774.2;
(b) Whether the petition specifically relates to the allegations contained in the Director's notice and order of administrative penalty;
(c) Whether prima facie documentation supporting the petition's position is reasonably sufficient to substantiate the petition's challenge.
Note: Authority cited: Sections 2755 and 2774.2, Public Resources Code. Reference: Section 2774.2, Public Resources Code.
s 3903. Administrative Record.
The Administrative Record shall consist of the record before the Director, evidence submitted on behalf of the petitioner, any other relevant evidence which, in the judgment of the Board, should be considered applicable, and evidence presented during the hearing on the petition.
Note: Authority cited: Sections 2755 and 2774.2, Public Resources Code. Reference: Section 2774.2, Public Resources Code.
s 3904. Hearing Procedures -Scheduling.
The Board shall schedule and hold a public hearing on a petition no later than 60 days from the Chairman's acceptance of the petition, or at such time as may be mutually agreed upon by the Board and the petitioner. The hearing may be conducted as part of a regular business meeting of the Board, or may be conducted by a committee of the Board. The Board shall endeavor to schedule such public hearings in or near the jurisdiction from which the petition originated, but may otherwise schedule such petitions to be heard in Sacramento.
Note: Authority cited: Sections 2755 and 2774.2, Public Resources Code. Reference: Section 2774.2, Public Resources Code.
s 3905. Hearing Procedures -Authority for Delegation.
The Board may delegate conduct of the hearing to a committee composed of three members of the Board, who shall consist of either the Chairman or Vice Chairman of the Board, and two other members of the Board selected by the Chairman. The Chairman or Vice Chairman shall conduct the hearing. The record of the hearing and the recommendations of the committee shall be presented to a quorum of the Board at its next regular business meeting for a decision of the full Board consistent with the procedures set forth in Section 3910 of this article. (continued)