Chapter 16.54
SURFACE MINING AND RECLAMATION
Sections:
16.54.020 Incorporation by reference.
16.54.050 Applications and reviews.
16.54.060 Standards for reclamation.
16.54.070 Financial assurances.
16.54.080 Findings for approval.
16.54.100 Agreements with City required – Borrow pits and quarries.
16.54.120 Interim management plans.
16.54.140 Successors in interest.
16.54.150 Liability and responsibilities of permittee.
16.54.160 Violation – Misdemeanor.
16.54.170 Enforcement of provisions.
16.54.180 Arrests and citations.
16.54.010 Purpose and intent.
A. This chapter is provided pursuant to the California Surface Mining and Reclamation Act of 1975, Chapter 9, of the Public Resources Code and amendments thereto.
B. The City recognizes that the extraction of minerals is essential to the continued economic well being of the City and to the needs of society, and that the reclamation of mined lands is necessary to prevent or minimize adverse effects on the environment and to protect the public health and safety.
C. The City also recognizes that surface mining takes place in diverse areas where the geologic, topographic, biological, and social conditions are significantly different, and that reclamation operations and the specifications therefor may vary accordingly.
D. The purpose and intent of this chapter is to ensure the continued availability of important mineral resources, while regulating surface mining operations as required by California’s Surface Mining and Reclamation Act of 1975 (Public Resources Code Sections 2710 et seq.), as amended, hereinafter referred to as “SMARA,” Public Resources Code (PRC) Section 2207 (relating to annual reporting requirements), and State Mining and Geology Board regulations (hereinafter referred to as “State regulations”) for surface mining and reclamation practice (California Code of Regulations [CCR], Title 14, Division 2, Chapter 8, Subchapter 1, Sections 3500 and 3700 et seq.), to ensure that:
1. Adverse environmental effects are prevented or minimized and that mined lands are reclaimed to a usable condition, which is readily adaptable for alternative land uses.
2. The production and conservation of minerals are encouraged, while giving consideration to values relating to recreation, watershed, wildlife, range and forage, and aesthetic enjoyment.
3. Residual hazards to the public health and safety are eliminated. (Ord. 609 § 3, 2004)
16.54.020 Incorporation by reference.
The provisions of SMARA (PRC Sections 2710 et seq.), PRC Section 2207, and State regulations CCR Sections 3500 and 3700 et seq., as those provisions and regulations may be amended from time to time, are made a part of this chapter by reference with the same force and effect as if the provisions therein were specifically and fully set out herein, excepting that when the provisions of this chapter are more restrictive than correlative State provisions, this chapter shall prevail. (Ord. 609 § 3, 2004)
16.54.030 Scope.
A. The provisions of this chapter shall apply to all lands within the City, public and private.
B. Except as provided in this chapter, no person shall conduct surface mining operations unless a conditional use permit, reclamation plan, and financial assurances for reclamation have first been approved by the City.
C. This chapter shall not apply to the following activities, subject to the above-referenced exceptions:
1. Minor excavations or grading conducted for farming or on-site construction, or for the purpose of restoring land following a flood or natural disaster;
2. On-site excavation and on-site earthmoving activities which are an integral and necessary part of a construction project that are undertaken to prepare a site for construction of structures, landscaping or other land improvements, including the related excavation, grading, compaction, or the creation of fills, road cuts and embankments, whether or not surplus materials are exported from the site, subject to all of the following conditions:
a. All required permits for the construction, grading, landscaping, or related land improvements have been approved by the City in accordance with applicable provisions of State law and locally adopted plans and ordinances, including, but not limited to, the California Environmental Quality Act (“CEQA,” Public Resources Code, Division 13, Sections 21000 et seq.);
b. The City’s approval of the construction project included consideration of the on-site excavation and on-site earthmoving activities pursuant to CEQA;
c. The approved construction project is consistent with the general plan, applicable specific plan or zoning of the site; and
d. Surplus materials shall not be exported from the site unless and until actual construction work has commenced, and shall cease if it is determined that construction activities have terminated, have been indefinitely suspended, or are no longer being actively pursued.
3. Operation of a plant site used for mineral processing, including associated on-site structures, equipment, machines, tools, or other materials, including the on-site stockpiling and on-site recovery of mined materials, subject to all of the following conditions:
a. The plant site is located on lands within a zoning category intended for the specific use and all other required City permits and approvals have been obtained;
b. None of the minerals being processed are being extracted on site; and
c. All reclamation work has been completed pursuant to the approved reclamation plan for any mineral extraction activities that occurred on site after January 1, 1976.
4. Prospecting for, or the extraction of, minerals for commercial purposes and the removal of overburden in total amounts of less than 1,000 cubic yards in any one location of one acre or less.
5. Surface mining operations that are required by Federal law in order to protect a mining claim, if those operations are conducted solely for that purpose.
6. Emergency excavations or grading conducted by the Department of Water Resources or the Reclamation Board for the purpose of averting, alleviating, repairing, or restoring damage to property due to imminent or recent floods, disasters or other emergencies.
D. Any applicable exemption from this requirement does not automatically exempt a project or activity from the application of other regulations, ordinances or policies of the City, including, but not limited to, the application of CEQA, the requirement of conditional use permit approvals or other permits, the payment of development impact fees, or the imposition of other dedications and exactions as may be permitted under the law. (Ord. 775 § 10, 2015)
16.54.040 Vested rights.
No person or corporation who obtained a vested right to conduct surface mining operations prior to January 1, 1976, shall be required to secure a conditional use permit so long as the vested right continues in accordance with Chapter 17.02 PMC and as long as no substantial changes have been made in the operation except in accordance with SMARA, State regulations, and this chapter. However, where a person or corporation with vested rights has continued surface mining in the same area subsequent to January 1, 1976, they shall obtain City approval of a reclamation plan covering the mined lands disturbed by such subsequent surface mining. In those cases where an overlap exists (in the horizontal and/or vertical sense) between pre- and post-Act mining, the reclamation plan shall call for reclamation proportional to that disturbance caused by the mining after the effective date of the Act (January 1, 1976). (Ord. 609 § 3, 2004)
16.54.050 Applications and reviews.
A. Any person who proposes to engage in surface mining operations as defined in this chapter shall, prior to the commencement of such operations, obtain:
1. Approval of a conditional use permit, if required.
2. Approval of a reclamation plan.
3. Approval of financial assurances in accordance with the provisions set forth in this chapter and as further provided in the California Surface Mining and Reclamation Act of 1975.
A fee, as established by City Council resolution from time to time for the permitted uses in the consolidated fee schedule, shall be paid to the City at the time of filing.
B. Applications for a conditional use permit or reclamation plan for surface mining or land reclamation projects shall be made on forms provided by the Department of Development Services. Said application shall be filed in accord with this chapter and procedures as established by the Director of Development Services. The forms for reclamation plan applications shall require, at a minimum, each of the elements required by SMARA (Sections 2772 through 2773) and State regulations, and any other requirements deemed necessary to facilitate an expeditious and fair evaluation of the proposed reclamation plan, as established at the discretion of the Director of Development Services. All applications for a conditional use permit for surface mining shall be made, considered, and granted or denied pursuant to Chapter 17.48 PMC. Such applications shall be accompanied by other data or information required by the Director of Development Services. All plans and specifications for the grading of the property shall be prepared by a registered civil engineer, sealed and signed in accordance with the Business and Professions Code.
C. Application shall include all required environmental review forms and information prescribed by the Director of Development Services.
D. Within 30 days of acceptance of an application for a conditional use permit for surface mining operations and/or a reclamation plan as complete, the Department of Development Services shall notify the State Department of Conservation of the filing of the application. Whenever mining operations are proposed in the 100-year floodplain of any stream, as shown in zone A of the Flood Insurance Rate Maps issued by the Federal Emergency Management Agency, and within one mile, upstream or downstream, of any State highway bridge, the Department of Development Services shall also notify the State Department of Transportation that the application has been received.
E. The Department of Development Services shall process the application(s) through environmental review pursuant to the California Environmental Quality Act (Public Resources Code Sections 21000 et seq.) and the City’s environmental review guidelines.
F. Upon completion of the environmental review procedure and filing of all documents required by the Director of Development Services, consideration of the conditional use permit approval and reclamation plan for the proposed surface mining shall be scheduled for public hearing before the City Council, and pursuant to Section 2774 of the Public Resources Code.
G. Prior to final approval of a reclamation plan, financial assurances (as provided in this chapter), or any amendments to the reclamation plan or existing financial assurances, the Department of Development Services shall submit the plan, financial assurance, or amendments to the State Department of Conservation for review. City Council may conceptually approve the reclamation plan and financial assurance before submittal to the State Department of Conservation. If a conditional use permit is being processed concurrently with the reclamation plan, City Council may also conceptually approve the conditional use permit. However, City Council may defer action on the conditional use permit until taking final action on the reclamation plan and financial assurances. If necessary to comply with permit processing deadlines, the City Council may approve the conditional use permit with the condition that the conditional use permit shall not be issued until cost estimates for financial assurances have been reviewed by the State Department of Conservation and final action has been taken on the reclamation plan and financial assurances. Pursuant to PRC Section 2774(d), the State Department of Conservation shall be given 30 days to review and comment on the reclamation plan and 45 days to review and comment on the financial assurance. The Department of Development Services shall evaluate written comments received, if any, from the State Department of Conservation during the comment periods. Staff shall prepare a written response describing the disposition of the major issues raised by the State for City Council’s approval. In particular, when the City’s position is at variance with the recommendations and objections raised in the State’s comments, the written response shall address why specific comments and suggestions were not accepted. Copies of any written comments received and responses prepared for the City Council shall be forwarded to the applicant.
H. The City Council shall then take action to approve, conditionally approve, or deny the conditional use permit and/or reclamation plan, and to approve the financial assurances pursuant to PRC Section 2770(d).
I. By July 1st of each year, the Department of Development Services shall forward to the State Department of Conservation a copy of each newly approved conditional use permit approved during the previous fiscal year for mining operations and/or a copy of the approved reclamation plan and approved financial assurances. The Department shall also include a copy of any conditional use permit or reclamation plan amendments, as applicable.
J. Where any requirement of the reclamation plan conflicts with any requirement of the approved conditional use permit, the Director of Development Services and the City Engineer shall determine which requirement shall apply. In making this determination, the requirements of SMARA shall not be superseded by any requirements of the conditional use permit. (Ord. 683 § 66, 2008; Ord. 609 § 3, 2004)
16.54.060 Standards for reclamation.
A. All reclamation plans shall comply with the provisions of SMARA (Sections 2772 and 2773) and State regulations (CCR Sections 3500 through 3505). Reclamation plans approved after January 15, 1993, reclamation plans for proposed new mining operations, and any substantial amendments (as determined by the Director of Development Services) to a previously approved reclamation plan shall also comply with the requirements for reclamation performance standards (CCR Sections 3700 through 3713).
B. The City may impose additional performance standards as developed either in review of individual projects, as warranted, or through the formulation and adoption of City performance standards.
C. Reclamation activities shall be initiated at the earliest possible time on those portions of the mined lands that will not be subject to further disturbance. Interim reclamation may also be required for mined lands that have been disturbed and that may be disturbed again in future operations. Reclamation may be done on an annual basis, in stages compatible with continuing operations, or on completion of all excavation, removal, or fill, as approved by the City. Each phase of reclamation shall be specifically described in the reclamation plan and shall include (a) the expected sequencing for each phase; (b) all reclamation activities required; (c) performance standards and criteria for measuring completion of specific reclamation activities; and (d) estimated costs for completion of each phase of reclamation. (Ord. 609 § 3, 2004)
16.54.070 Financial assurances.
A. To ensure reclamation will proceed in accordance with the approved reclamation plan, the City requires, as a condition of approval, security for the faithful performance of the reclamation. The applicant may post security in the form of a surety bond, cash deposit, irrevocable letter of credit from an accredited financial institution, or other method acceptable to the City Attorney and the State Mining and Geology Board as specified in State regulations, and which the City reasonably determines is adequate to perform reclamation in accordance with the surface mining operation’s approved reclamation plan. Financial assurances shall be made payable to the City of Poway, the State Department of Conservation, and such other regulatory agencies the City deems necessary.
B. Financial assurances will be required to ensure compliance with the performance standards of the reclamation plan, which may include, but are not limited to, revegetation and landscaping requirements, restoration of aquatic or wildlife habitat, restoration of water bodies and water quality, slope stability, erosion and drainage control, disposal of hazardous materials, and other measures, if necessary.
C. Cost estimates for the financial assurance shall be submitted to the Department of Development Services for review and approval prior to the operator securing financial assurances. The Department of Development Services shall forward a copy of the cost estimates, together with any documentation received supporting the amount of the cost estimates, to the State Department of Conservation for review. If the State Department of Conservation does not comment within 45 days of receipt of these estimates, it shall be assumed that the cost estimates are adequate. The City has the discretion to approve the financial assurance if it meets the requirements of this chapter, SMARA, and State regulations.
D. The amount of the financial assurance shall be based upon 100 percent of the estimated cost of reclamation, plus a 10 percent contingency for the actual amount required to reclaim lands disturbed by surface mining activities since January 1, 1976, all new lands to be disturbed by surface mining activities in the upcoming year and areas not meeting the performance standards for reclaimed areas pursuant to the approved reclamation plan. The estimate shall also include any maintenance of reclaimed areas as may be required. Cost estimates shall be prepared by a California registered professional engineer and/or other similarly licensed and qualified professionals retained by the operator and approved by the Director of Development Services. The estimated amount of the financial assurance shall be based on an analysis of physical activities necessary to implement the approved reclamation plan, the unit costs for each of these activities, the number of units of each of these activities, and the actual administrative costs. Financial assurances to ensure compliance with the performance standards, which may include establishing revegetation, restoration of water bodies, restoration of aquatic or wildlife habitat, and any other applicable element of the approved reclamation plan, shall be based upon cost estimates that include, but may not be limited to, labor, equipment, materials, mobilization of equipment, administration, and reasonable profit by a commercial operator other than the mine operator.
E. In projecting the costs of financial assurances, it shall be assumed without prejudice or insinuation that the surface mining operation could be abandoned by the operator and, consequently, the City or State Department of Conservation may need to contract with a third party commercial company for reclamation of the site.
F. The financial assurances shall remain in effect for the duration of the surface mining operation, and any additional period, until reclamation pursuant to the performance standards in the reclamation plan is completed, including any required maintenance and establishment period as may be identified in the reclamation plan. Upon completion of the surface mining and reclamation of mined lands in accordance with the approved reclamation plan, including maintenance and establishment periods, all financial assurances shall be released; otherwise, they shall remain in full force and effect.
G. The amount of financial assurances required of a surface mining operation for any one year shall be reviewed annually by the City to account for new lands disturbed by surface mining operations, inflation, and reclamation of lands accomplished in accordance with the approved reclamation plan. The financial assurances shall include estimates to cover reclamation for existing conditions and anticipated activities during the upcoming year, excepting that the mine operator may not claim credit for reclamation scheduled for completion during the coming year.
H. Revised estimates for the financial assurances, prepared in accordance with CCR Section 3804, shall be submitted annually to the Director of Development Services at the time of filing of the mine operator’s annual mining operation report.
The estimate shall cover the cost of existing disturbance and anticipated activities for the next calendar year, including any required interim reclamation. (Ord. 609 § 3, 2004)
16.54.080 Findings for approval.
A. Conditional Use Permit Approvals. In addition to any other findings required by the City Code, conditional use permit approvals for surface mining operations shall include a finding that the project complies with the provisions of SMARA and State regulations.
B. Reclamation Plans. For reclamation plans, the following findings shall be required:
1. That the reclamation plan complies with SMARA Sections 2772 and 2773, and any other applicable provisions.
2. That the reclamation plan complies with applicable requirements of State regulations (CCR Sections 3500 through 3505, and Sections 3700 through 3713).
3. That the reclamation plan and potential use of reclaimed land pursuant to the plan are consistent with the City’s General Plan and any applicable specific plans, resource plan, or element.
4. That the reclamation plan has been reviewed pursuant to CEQA and the City’s environmental review guidelines, and all significant adverse impacts from reclamation of the surface mining operations are mitigated to the maximum extent feasible.
5. That the reclamation plan will restore the mined lands to a usable condition which is readily adaptable for alternative land uses consistent with the General Plan and applicable specific plan or resource plan. (Ord. 609 § 3, 2004)
16.54.090 Modifications.
A. An approved reclamation plan, or any conditions thereof, may be revised or modified in the same manner provided for a new conditional use permit, including the requirement for environmental impact review. All proposed modifications of an approved reclamation plan shall be consistent with Chapter 17.48 PMC.
B. Minor amendments to the reclamation plan may be approved by the Director of Development Services pursuant to Chapter 17.48 PMC where the Director determines that such approval will not result in a substantial change in the finished appearance of the mining site land form, will not increase the impacts on adjacent property, and is otherwise consistent with the intent of this chapter and the State Surface Mining and Reclamation Act.
C. Notwithstanding the provisions of Chapter 17.48 PMC relative to any modification or revocation of a conditional use permit, the City Engineer may modify or add conditions relative to the conduct of grading for the same reasons as specified for grading permits in Division III of this chapter. (Ord. 609 § 3, 2004)
16.54.100 Agreements with City required – Borrow pits and quarries.
A. No surface mining shall be conducted pursuant to a conditional use permit or pursuant to vested nonconforming rights unless prior to commencement of grading an agreement has been entered into allowing City employees to enter the property to correct any landscaping or irrigation system deficiencies, any unsafe conditions or breach of provisions of the conditional use permit and/or reclamation plan. The agreement shall specifically authorize the City employees, or any person authorized by the agreement, to enter the property at any reasonable time for inspection or for the purpose of correcting any unsafe conditions resulting from the breach of any provision of the conditional use permit or reclamation plan. As a safety measure, the agreement may provide for a requirement that City employees check in at the facility office, wear appropriate safety gear, and be escorted for the inspection. Said agreement shall be executed by the permittee, the owner of the property, and by holders, except government entities, of any lien upon the property which could ripen into a fee. The permittee shall provide acceptable evidence of title showing all existing legal and equitable interests in the property. The City engineer is authorized to execute and accept the agreement on behalf of the City. The agreement shall be recorded prior to the commencement of grading pursuant to a conditional use permit or reclamation plan.
B. The agreement required by this section shall be secured pursuant to PMC 16.54.070 to assure compliance with the agreement. (Ord. 609 § 3, 2004)
16.54.110 Public records.
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 City that the release of such information, or part thereof, would reveal production, reserves, or rate of depletion entitled to protection as proprietary information. The City shall identify such proprietary information as a separate part for each application. A copy of all permits, reclamation plans, reports, applications, and other documents submitted pursuant to this chapter, including proprietary information, shall be furnished to the Director of the Department of Conservation by the City Department of Development Services. Proprietary information shall be made available to persons only when authorized by the mine operator and by the mine owner in accordance with Section 2778 of the California Surface Mining and Reclamation Act of 1975. (Ord. 609 § 3, 2004)
16.54.120 Interim management plans.
A. Within 90 days of a surface mining operation becoming idle, the operator shall submit to the Department of Development Services a proposed Interim Management Plan (IMP). The proposed IMP shall fully comply with the requirements of SMARA, including, but not limited to, all conditional use permit conditions, and shall provide measures the operator will implement to maintain the site in a stable condition, taking into consideration public health and safety. The proposed IMP shall be submitted on forms prescribed by the Department of Development Services, and shall be processed as an amendment to the reclamation plan. IMPs shall not be considered a project for the purposes of environmental review.
B. Financial assurances for idle operations shall be maintained as though the operations were active, or as otherwise approved through the idle mine’s IMP. All financial assurances shall conform to PMC 16.54.070.
C. Upon receipt of a complete proposed IMP, the City shall forward the IMP to the State Department of Conservation for review. The IMP shall be submitted to the State Department of Conservation at least 30 days prior to approval by the City.
D. Within 60 days of receipt of the proposed IMP, or a longer period mutually agreed upon by the Director of Development Services and the operator, the City shall review and approve or deny the IMP in accordance with this chapter. The operator shall have 30 days, or a longer period mutually agreed upon by the operator and the Director of Development Services, to submit a revised IMP. The City shall approve or deny the revised IMP within 60 days of receipt.
E. The IMP may remain in effect for a period not to exceed five years, at which time the City may renew the IMP for another period not to exceed five years, or require the surface mining operator to commence reclamation in accordance with its approved reclamation plan. (Ord. 609 § 3, 2004)
16.54.130 Inspections.
A. As a condition of each conditional use permit or reclamation plan, an inspection of the surface mining operation and reclamation activities shall be conducted by the Department of Development Services within six months of receipt of the mine operator’s annual report. Inspection shall be made not less than once in each calendar year 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 mining operation in any capacity during the previous 12 months, or other qualified specialists, as may be determined by the Director of Development Services. All inspections shall be conducted using a form approved and provided by the State Mining and Geology Board. The Development Services Department shall notify the State Department of Conservation within 30 days of completion of the inspection that said inspection has been conducted, and shall forward a copy of said inspection notice and any supporting documentation to the mining operator. The operator shall be solely responsible for the reasonable cost of such inspection.
B. If, after conducting the annual inspection or otherwise confirmed by an inspection, the Department of Development Services finds the conditional use permit or reclamation plan is not being followed as approved, the mining operator shall be so notified and be given a reasonable time to comply. Reasonable time to comply shall be no sooner than 30 days and not exceeding 90 days. If, at the end of this period of time, the conditional use permit or reclamation plan is still not being followed as approved, the Director of Development Services shall notify the mining operator involved and set the matter for public hearing in accordance with the procedures set out in Chapter 17.48 PMC for modification or revocation of a zoning permit. Failure to correctly comply with the terms or conditions of a reclamation plan shall be considered a violation of the conditional use permit and an unlawful public nuisance.
C. At the hearing, it shall be determined whether or not the mining operator is complying with the conditional use permit or reclamation plan. If it is found that the operator is not in compliance, the City Council shall determine if the permit shall be revoked or merely suspended until the operator either complies or obtains approval of a revised conditional use permit or reclamation plan. If the City Council determines that the mining operator is making a reasonable effort to comply with the reclamation plan, an additional period of time, no shorter than 30 days and not exceeding 180, may be allowed for full compliance. (Ord. 609 § 3, 2004)
16.54.140 Successors in interest.
The applicant submitting the reclamation plan and financial assurances shall execute an agreement in a form acceptable to the City Attorney accepting responsibility for reclaiming the mined lands in accordance with the reclamation plan and conditions of their conditional use permit. Said agreement shall be recorded in the Office of the County Recorder and kept on file in the Office of the City Clerk.
Whenever any surface mining operation or portion of an operation subject to this chapter is sold, assigned, conveyed, exchanged, or otherwise transferred, the applicant shall not be relieved of their obligations under the agreement until such time as their successor in interest shall execute a replacement agreement and post substitute securities agreeing to be bound by the provisions of the reclamation plan and conditions of their conditional use permit. (Ord. 609 § 3, 2004)
16.54.150 Liability and responsibilities of permittee.
Neither the issuance of a conditional use permit or reclamation plan under the provisions of this chapter, nor the compliance with any provisions or conditions thereof, shall relieve any person from any liability or responsibility resulting from grading operations as specified elsewhere in this chapter. (Ord. 609 § 3, 2004)
16.54.160 Violation – Misdemeanor.
Any person violating any provision of this chapter shall be deemed guilty of a misdemeanor and upon conviction shall be fined an amount not to exceed $1,000 or by imprisonment for a period not to exceed more than six months in the County Jail or by both such fine and imprisonment. (Ord. 609 § 3, 2004)
16.54.170 Enforcement of provisions.
The provisions of this chapter shall be enforced by any authorized member of the Department of Development Services of the City or such other persons as may be designated by the City Council. (Ord. 609 § 3, 2004)
16.54.180 Arrests and citations.
The Director of Development Services and the City Engineer, each agent or deputy thereof who is assigned to duties which include the enforcement of this chapter and any peace officer shall have the power to make arrests for violations of those provisions of this chapter and State law which he/she has duty to enforce and to issue citations for such violations. Any person so arrested who does not demand to be taken before a magistrate may instead be cited in the manner prescribed in Chapter 5C (commencing with Section 853.5) of Title 3 Part 2 of the Penal Code. (Ord. 609 § 3, 2004)
16.54.190 Appeals.
Any person aggrieved by an act or determination of the City administrators in the exercise of the authority granted in this chapter shall have the right to appeal to the City Council. Any appeal must be filed in accordance with Chapter 2.20 PMC. (Ord. 609 § 3, 2004)