Purpose

A proposition 108 measure requiring new or major modifications to aggregate mining operations within an aggregate mining operations zoning district to file a community notice with the State Mine Inspector and notify residential property owners within one-half mile of the operation. Establishes a fee to be paid by the mining operation, and allows the State Mine Inspector to enforce zoning district standards and the provisions of community notices.

Background

Currently, counties may not restrict or regulate land use for certain purposes, including mining, if the land tract is five or more commercial acres. This exempts sand and gravel mining from county planning and zoning ordinances, including the public hearing requirements required for changes in land use. However, a county may regulate sand and gravel operations located within a sand and gravel operations zoning district. The county board of supervisors may establish the zoning district pursuant to the recommendations of a sand and gravel operations recommendation committee, which is also established by the board of supervisors and consists of land owners and sand and gravel operators. In 1989, Maricopa County appointed a sand and gravel operations recommendation committee; however, this committee disbanded in 1996 without forwarding any recommendations to the county. As a result, no county has established a sand and gravel operations zoning district.

Although mining is exempt from zoning regulations, Maricopa County requires special use zoning permits for batch plants and other aggregate processing equipment. Batch plants process sand and gravel into concrete or asphalt by heating and mixing sand and gravel with water, cement or oil. A motion for summary judgment is currently pending in the Superior Court in Maricopa County claiming that batch plants are part of mining and exempt from zoning and special use permit requirements. The strike everything amendment may affect the motion for summary judgment by specifically including the mixing of aggregate with water, cement or asphalt in the definition of aggregate mining.

This strike everything amendment establishes a community notice process for the siting or major modification of an aggregate mining operation located within an aggregate mining operations zoning district. The process is coordinated by the State Mine Inspector, who is authorized to enforce the provisions outlined in an approved community notice and zoning district regulations. The amendment also establishes a $1,000 fee for filing a community notice application and allows the State Mine Inspector to use the monies to process community notice applications and conduct public meetings. According to the State Mine Inspector, this amendment has no fiscal impact on the state general fund.

Provisions

Aggregate Mining Operations Zoning District

1. Changes the name of the sand and gravel operations zoning district to the aggregate mining operations zoning district. Changes the name of the sand and gravel operations recommendation committee to the aggregate mining operations recommendation committee.

2. Requires, upon petition by at least 100 residents, counties with a population of more than two million persons to establish an aggregate mining zoning district. Clarifies that any county board of supervisors may establish one or more aggregate mining zoning districts.

3. Limits the location of aggregate mining zoning districts to areas inventoried and mapped as areas of known reserves or in areas with existing aggregate mining operations.

4. Limits the type of zoning district standards that may be adopted to those that are not addressed by federal, state or local regulation or a governmental contractual obligation.

5. Requires the county board of supervisors to appoint an aggregate mining operations recommendation committee for each aggregate mining zoning district established.

6. Allows a designated representative of an aggregate mining operation to serve on the aggregate mining operation recommendation committee, rather than an operator. Allows the designated representative or the operator of an aggregate mining operation to serve on more than one committee.

7. Requires the aggregate mining operations recommendation committee to comply with open meeting laws.

8. Declares that members of the committee who no longer qualify for membership are subject to removal and replacement by the county board of supervisors.

9. Requires an aggregate mining operations recommendation committee to notify within 90 days of its establishment all existing aggregate mining operators located in the district that they are subject to the zoning district regulations and the community notice requirements.

10. Expands the role of the aggregate mining operations recommendation committee to include mediating disputes between members of the public and aggregate mining operators and hearing written complaints forwarded by the Mine Inspector. Requires the committee to forward unresolved disputes to the Mine Inspector for further action.

11. Requires joint approval by the county board of supervisors and the State Mine Inspector in order for zoning district regulations to be effective.

12. Allows the Mine Inspector to disapprove recommended zoning district regulations only if they duplicate, conflict with or are more stringent than applicable federal, state or local laws or regulations. Requires the Mine Inspector to provide written reasons if the regulations are disapproved. Allows the Mine Inspector to modify the regulations only upon approval by a majority of the board of supervisors.

Definitions

13. Defines “aggregate” as crushed rock or stone, pumice, pumicite, cinders, gravel, sand or decomposed granite.

14. Defines “aggregate mining” as clearing or moving land using mechanized earth-moving equipment on privately owned property for aggregate production purposes, including ancillary aggregate finished product activities and the mixing and recycling of aggregate materials with water, cement or asphalt.

15. Defines “aggregate mining operation” as property in an aggregate mining operations zoning district that is owned, operated or managed by the same person for mining aggregate. Includes property that is not contiguous.

16. Provides definitions for existing mining operation, major modification, minor modification and new aggregate mining operation.

Community Notice

17. Prohibits aggregate mining in an aggregate mining operation zoning district unless the operation obtains an approved community notice. Prohibits a major modification of a community notice until a major modification application is approved by the Mine Inspector.

18. Requires the community notice to include:

a) Names and mailing addresses of the aggregate mining operation, the owner or operator and the designated community representative.

b) Description of the mining activities to be conducted.

c) The acreage of the operation and a map showing the location of the major process facilities.

d) Types of major equipment to be used.

e) Date that the operation will begin.

f) Access routes to and from the operation during normal hours and nonemergency conditions.

g) The operating hours of the operation during normal, nonemergency conditions.

h) A description of measures that will be used to moderate, to the extent economically practicable, any adverse impacts on residential property owners within a one-half mile radius of the operation.

i) A statement that property owners may request that a public meeting be held and may submit written comments before the meeting if they are unable to attend.

19. Allows the submittal of a joint application for a community notice by an owner or operator and property lessees.

20. Allows 90 days after the district is established for existing aggregate mining operations to file the community notice. Declares the community notice application complete upon submittal if it includes the required information. Excludes existing aggregate mining operations from the application fee.

Public Meeting and Approval of Community Notice Application

21. Provides 14 days for the Mine Inspector to determine if an application for community notice is administratively complete. Declares the application to be complete if the Mine Inspector fails to notify the applicant within 14 days.

22. Allows an owner or operator to modify an approved community notice by filing an application with the Mine Inspector. Major modifications require public notice and payment of the application fee.

23. Requires the Mine Inspector to approve a community notice within 60 days of the application if:

a) The application is administratively complete.

b) The application fee is paid.

c) Residential property owners within one-half mile of the operation are properly notified.

d) The designated community representative attends and responds to questions if a public meeting is held.

24. Requires the Mine Inspector, if denying an application, to include an explanation of the reasons for denial and recommendations for correcting the community notice.

25. Requires an operator to send the community notice to the aggregate mining operations recommendation committee and to each residential property owner within a one-half mile radius of the operation within 21 days after the notice is determined to be complete. Requires an operator to notify the multicounty water conservation district, if applicable.

26. Requires the Mine Inspector to conduct a public meeting within 45 days of submittal of the application if there is sufficient public interest by landowners within a one-half mile radius of the operation. Requires at least 15 days notice to residential property owners before the public meeting is held.

27. Requires the designated representative of the surface mining operation to attend the public meeting and respond to questions relating to information in the community notice.

Aggregate Community Notice Fund

28. Establishes an application fee of $1,000 for filing a community notice application for a new aggregate mining operation or a major modification to an approved community notice.

29. Establishes the aggregate community notice fund made up of community notice application fees. Continuously appropriates monies in the fund to the Mine Inspector for processing community notice applications and conducting public meetings. Exempts fund monies from lapsing of appropriation.

30. Requires the Mine Inspector to administer the fund. Allows the State Treasurer, upon notice from the Mine Inspector, to invest and divest monies in the fund and credit earnings to the fund.

Enforcement and Deviation from Community Notice

31. Allows a residential property owner within one-half mile of the operation to submit a written complaint to the operation’s designated community representative that the operation materially deviated from the approved community notice. If the mining operation does not adequately address the complaint within 30 days, the property owner may file the same complaint with the Mine Inspector.

32. Requires the Mine Inspector to request the aggregate mining operations recommendation committee to hear the complaint in counties that have established the committee. The committee must advise the Mine Inspector within 30 days whether the mining operation has substantially deviated from the approved community notice. Allows the Inspector 30 days after receiving recommendations from the committee to render a decision on the complaint.

33. Requires the Mine Inspector to render a decision on the complaint within 30 days in counties that do not have an aggregate mining operations recommendation committee.

34. Allows the Mine Inspector to inspect any surface mining operation to determine compliance with an approved community notice.

35. Allows the Mine Inspector to suspend, withdraw or revoke a community notice approval if the mining operation is in violation of the notice. These actions are subject to the administrative review process.

36. Allows the Mine Inspector to issue a compliance order if an operator is violating an approved community notice or aggregate mining operations zoning district regulations.

37. Allows the Attorney General, on request of the Mine Inspector, to file an action to enforce a compliance order after it becomes final, or request a temporary restraining order, preliminary injunction or any other relief necessary to protect public safety. Actions must be filed in the county in which the alleged violation occurred or in which the Mine Inspector maintains an office.

Miscellaneous

38. Makes technical, clarifying and conforming changes.

39. Becomes effective on signature of the Governor.

Amendments Adopted by Committee

· The strike everything amendment was adopted.

Senate Action

NRAE 3/14/02 DPA/SE 6-2-0-0

KM/jas