| SB 18 (Burton) Fails Passage on Assembly Floor!
Industry Impact: SB 18 (Burton) was killed on the Assembly floor. The bill would have created broad CEQA authority for a Federal Native American Heritage Commission and redesigned the Commission to be dominated by tribal special interests.
CMA Action: The Association, as part of a coalition led by the California Chamber of Commerce, actively opposed the measure in an attempt to reform its overreaching proposals and create a bill which recognized the more ephemeral Traditional Cultural Sites targeted for increased scrutiny while not throwing out decades of land use law. The bill will likely be reconsidered in January when it will perhaps no longer be embroiled in recall politics. CMA will be contacting members with updates.
The measure, which received the unprecedented support of the governor in late July (in what most political experts believed was an attempt to win over tribal support for the recall) stalled in the Assembly despite considerable efforts of tribal special interests to force its passage.
Although the bill’s author worked feverishly into the last night of session to move the bill off the Assembly floor, the bill was killed with Republicans voting "No," and Democrats abstaining after an agressive lobbying effort by the large number of interests opposed.
CMA's lobbyist worked actively to make industry opposition known. Special thanks must be given to Assemblymembers Greg Aghazarian, Rick Keene, Doug LaMalfa, Tim Leslie, Bill Maze, and Sharon Runner, for not voting for this onerous bill.
Despite last-minute inclusion of an amendment secured by CMA's lobbyist to remove "veto" authority for a Federal Advisory Council over 8 million acres of BLM-managed lands in the California Desert, and other amendments designed to clarify that the bill would not impact activities such as pipeline maintenance, the bill remained an unprecedented power grab by tribal special interests.
Under this bill, the Commission would have been allowed to dictate mitigation to local lead agencies for projects under their jurisdiction. CMA analysts were particularly concerned about creating a commission of quasi-sovereign nations capable of operating in secrecy outside the norms of public access.
The Los Angeles Times described it as "a fuzzily written bill to protect Native American sacred sites by preventing development for miles around..." The CMA agreed and apparently so did many others. Opposition to the measure ranged from cities and counties to a First Amendment Media group. The only supporters were the Tribal Special Interests. Fortunately for industry and California, the Assembly recognized the bill's fatal flaws and prevented it from reaching the Governor's desk where it would have likely been signed.
Precious Metals Fee Opposed
Industry Impact: SB 649 proposes a $5 per ounce precious metal fee on mining operations that should not be held responsible for the past environmental impacts of historic miners. The fee imposes a burden on a narrow segment of industry to pay for a program of statewide interest.
CMA Action: The Association and individual member companies opposed this measure in an attempt to dispute the presumption that today’s industry should pay for the environmental damage caused by miners in the past. Despite CMA’s efforts the measure narrowly passed the Assembly and is awaiting the Governor’s signature.
The bill imposes a fee on a small segment of industry for statewide cleanup of abandoned mines has shaky underpinnings, according to a CMA commentary on SB 649 (Kuehl).
“What is fair and equitable about imposing a financial burden on technically and legally operated mines of today for the correction of damage from historic mining practices?” asks the CMA in a critique prepared by Adam Harper, Association Manager.
"They simply engage in a similar business activity,” Harper says. “Taken in this context, there is no connection between the miners that once created the problem and the source of revenue proposed to solve the problem today.”
Harper emphasizes that the life of the average gold mine is about 10 years, and the burden of the fee will fall on a minimal number of companies and generate little revenue as other legislation and regulation in California has stymied the development of new gold mines.
A chart prepared by CMA indicates that cleanup revenue will be generated by only four major gold mines. Unless one of the four decides on expansion, the chart shows but a single mine producing fee revenue in 2005 and none in 2006.
The bill also increases the annual SMARA fee operators will pay to the state which the Association was supportive of to ensure the adequate oversight of modern industry.
Flaws in West Mojave Plan
Industry Impact: The plan’s presently proposed Area of Critical Environmental Concern (ACEC) for the Pisgah Crater does not appear to protect target species and threatens a series of development restrictions and high costs on existing mines.
CMA Action: While the CMA supports plan goals, it has prepared a response reflecting serious concerns about economic impacts, loss of jobs and resource potential within the ACEC’s boundaries.
The Boundaries of the ACEC as drawn in the BLM Draft Environmental Impact Report and Statement on the West Mojave Plan could encourage mining to relocate because of increased restrictions. As now designed, the ACEC would not only limit mining expansion but increase mitigation requirements to five to one.
The plan implies the likely effect is to relocate existing mines outside the ACEC,” the CMA response points out. “This would be a shame, because within the area is a world class resource of hectorite clay currently mined by Elementis Specialties."
The CMA comments directed to BLM call the proposed ACEC boundaries “unjustified” and blame design flaws on the use of a 1990s map instead of a revised 2002 map which shows targeted plants occurring mostly outside boundary lines. Harper notes, “It seems clear that, in the rush to finalize a plan under the pressure of the Center for Biological Diversity CDCA settlement agreement, an old ACEC map was used without first verifying that that proposal would have had the desired impact.”
The CMA also questions the ACEC designation on private lands and cites the US Code definition of ACEC as “areas within the public lands where special management attention is required…”
MAC Environment Committee a Winner
Industry Impact: A joint Mineral Association Coalition Environment Committee meeting in August rang the applause meter as a successful combined effort to provide industrywide perspective on issues of concern to all members.
CMA Action: The CMA was host to the second MAC Environment Committee meeting of the year attended by representatives of Construction Materials Association of California (CMAC) and Southern California Rock Products Association (SCRPA). Ben Licari, CMA Environment Committee chair, conducted the business session.
An issue-packed agenda for the second MAC Environment Committee ranged from “A” for air quality to “W” for water and waste matters.
Among air issues exp lored was the Air Resources Board’s (ARB) diesel Air Toxic Control Measure (ATCM) for stationary and portable equipment. Operators should be watching and expect changes in the near future. On the other hand, the stationary generator ATCM is close to completion and is likely to be adopted by the ARB in the fall with only minor changes.
Another presentation revealed that in response to legal victories challenging the US Fish and Wildlife Service analysis of economic impacts, the agency has re-designed its method of determination. As a result in one case, the service cut proposed acres of critical habitat from an original 1.7 million acres to 740,000.
On the water issue front, a brief overview of a Fifth Circuit Co urt decision in a “waters of the US” case revealed that the court found disruption of a drainage ditch was an activity requiring a 404 permit, because the ditch eventually drained into a navigable water.
The business meeting was preceded a day earlier by a joint mine tour of Gladding McBean facilities in Lincoln. The company celebrated its 128th anniversary in May at the “Feats of Clay” house which attracts hundreds of visitors from the Sacramento region.
Seminar Tackles Air, Water Issues
Industry Impact: The co-hosted seminar in September provided a one-stop quality program aimed at supplying information on critical air and water regulations on a single agenda.
CMA Action: CMA sponsored the event with Construction Materials Association of California (CMAC) in a collective effort to update members on issues with industry-wide impacts.
The recent fact-heavy, all-day Educational Seminar in Sacramento put the spotlight on what’s new—and what’s ahead—in the ever-changing state air and water regulatory picture.
Presentations on water topics pinpointed streambed alteration agreements and how that process is changing, an update on construction and demolition regulations and tips on how to get through the waste discharge regulatory process.
The afternoon air session at the Holiday Inn Capitol Plaza launched a series of updates from representatives of regional air quality control districts and then got down to cases with Air Resources Board (ARB) diesel Risk Reduction Rules and updates.
Among the latter was a presentation by Stacie Heaton of California Trucking Association on industry perspectives on ARB diesel rules.
In a discussion of “New Fuel Standards,” Heaton emphasized that California-based Truck registrations are declining, that ARB adopted a standard that is “expensive and unnecessary”. Heaton’s information demonstrated that the impacts of declining registrations was already costing the state $3 billion annually. Now if we could only account for the other $35 billion.
Supreme Court to Hear El Dorado County Case
The California Supreme Court has granted the Department of Conservation petition for review in the El Dorado County litigation.
The state is appealing a 2-1 ruling of the Third District California Court of Appeal confirming a trial court ruling that the DOC lacks standing to sue El Dorado County.
At this point, the Court wants briefing only on substantive issues in the case and has deferred briefing on the attorney fees pending action on another case with nearly identical issues, according to David Moser, CMA Environment Committee counsel.
In finding for the county in the SMARA-related decision, the appellate court reversed award of attorney fees. The county and the CMA have petitioned the Supreme Court for review of the fee ruling.
This was the first such suit by DOC against a SMARA lead agency. The California Mining Association has joined the litigation as intervenor.
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