(A) Upon determining that a surface mining operation is not in compliance with SMARA, the SMARA Regulations, this chapter or other applicable law, the director may notify the operator of the violation by personal service or certified mail.
(B) If the violation extends beyond 30 days after the notification given pursuant to subsection (A), the director may issue an order by personal service or certified mail requiring compliance; provided, however, that such order may require cessation of further mining activities if the operator does not have an approved reclamation plan or financial assurances. The order shall specify the violations, a time for compliance and shall set a date for a hearing before the commission. In setting a compliance date, the director shall take into account the seriousness of the violation and any good faith efforts to comply made by the operator. The date of the commission hearing shall not be sooner than 30 days after the date of the order. The order shall not take effect until the operator has been provided a hearing before the commission.
(C) (1) The director may impose an administrative penalty of not more than $5,000 per day on any operator that violates or fails to comply with an order issued under subsection (B) after the order's effective date. Such penalty shall be imposed by means of an order to the operator that is served by personal service or certified mail. The penalty shall be assessed from the original date of noncompliance. In determining the amount of the administrative penalty, the director shall consider the following factors:
(a) The nature, circumstances, extent and gravity of the violation;
(b) Any prior history of violations;
(c) The degree of culpability;
(d) Any economic savings resulting from the violation; and
(e) Any other matters justice may require.
(2) Administrative penalty orders shall be effective upon issuance. The operator shall make payment for an administrative penalty within 30 days unless a petition for review has been filed pursuant to subsection (D).
(D) Within 30 days of the issuance an administrative penalty order pursuant to subsection (C), the operator may petition the city council for review of the order. The operator shall be notified by personal service or certified mail whether the city council will review the order setting administrative penalties. The city council may affirm, modify, or set aside, in whole or in part, any order setting administrative penalties. The decision of the city council shall be by resolution, shall be effective upon issuance and shall be served on the operator by personal service or certified mail. The operator shall make payment for the administrative penalty ordered by the city council within 30 days of service of the order.
(E) Any operator aggrieved by decision of the city council pursuant to subsection (D) may obtain judicial review in accordance with Cal. Pub. Res. Code, Section 2774.2(e). Payment of the administrative penalty shall be held in an interest bearing impound account pending the resolution of a duly filed petition for judicial review.
(Ord. No. 2579)