Written by: Travis Jokerst
Another year is upon us and with it comes major changes to the California Surface Mining and Reclamation Act (SMARA). This is the first substantial revision to the statutes or regulations since 1993. The SMARA reform legislation (AB 1142 and SB 209) is geared toward increasing annual fees paid by mine operators, ensuring adequate Financial Assurances, strengthening enforcement authority, and improving the “quality and consistency” of annual inspections. All mine operators should become very familiar with these changes, especially those that relate to annual compliance. This article will focus specifically on Financial Assurance Cost Estimates (FACE) that must be updated annually. Here are 3 tips to ensure compliance with the new FACE Requirements:
1. Submit an updated FACE within 30 days of your annual SMARA inspection.
Under the new SMARA statutes, the operator now has the ability to request a date when they would like the lead agency to conduct the annual compliance inspection of their site (PRC § 2207(a)(8)). This request will be identified on the operator’s annual report (Form MRRC-2). Within 30 days of this inspection date, the operator must submit an updated FACE to the Lead Agency (PRC § 2773.4(d)(1)(A)). The previous statute did not specify when the FACE needed to be updated, except that it was required annually. Therefore, it would be wise for operators to update their FACE prior to the inspection.
2. Get to know the new FACE form being developed by the State Mining and Geology Board (SMGB).
The SMGB will soon be adopting a new FACE form. The latest draft can be found on their SMARA Reform Rulemaking website: http://www.conservation.ca.gov/smgb/Pages/SMARAReform/index.aspx
The new form requires substantially more information than the previous form. The operator will now need to provide more detail about current site conditions, reclamation requirements, and the methods to be used for achieving reclamation performance standards. Also, there is an entire section devoted to Supporting Documents, where the operator will need to provide the source of wage/equipment rates as well as productivity for equipment. The days of simply inserting a few pieces of equipment and a random number of hours, without providing any justification for how each task will be completed, appear to be over.
3. Educate your lead agency staff about the new review process and timing.
The new SMARA statutes include more deadlines, for the FACE review process, than the old statutes. Most of these new deadlines apply to the lead agency and Department of Conservation; not the operator. Within 60 days of receiving an operator’s annual FACE, the lead agency shall deny the FACE or submit it to the DOC (PRC § 2773.4(d)(2)). The previous statutes did not specify a time frame for the lead agency’s review. Once received by the DOC, there is a new 15-day completeness review followed by the regular 45-day review period. There are also specified timelines for lead agencies if the DOC requests a consultation or if the Financial Assurance is appealed. It will be extremely important for operators (or their consultants) to help lead agencies stay on task with the overwhelming number of new deadlines. If not, and the lead agency does not comply with these deadlines, it may cause problems for the operator in the future.
These three tips will help keep your site in compliance with one of SMARA's most misunderstood annual requirements. Feel free to contact us if you have any questions about the new FACE content or timelines. EnviroMINE typically prepares more than 40 estimates per year and we receive very few (if any) comments from the lead agencies/DOC.