(A) Financial assurances.
(1) Any person conducting a surface mining operation, or who has conducted a surface mining operation subsequent to January 1, 1976, shall provide to the County's Planning Division of the Resource Management Agency financial assurances to ensure that reclamation is performed in accordance with the surface mining operation's approved reclamation plan. The amount of the financial assurance shall be adequate to ensure that the County or state can reclaim the site pursuant to that approved plan. The mine operator shall enter into a written agreement and post accompanying security for financial assurances to insure that the County or state can cause the reclamation of the disturbed portion of the site in accordance with the approved plan.
(2) To ensure that reclamation will proceed in accordance with the approved reclamation plan, the County shall require, as a condition of approval, security which will be released upon satisfactory performance. The applicant may post security in the form of cash, a surety bond, trust fund, irrevocable letter of credit from an accredited financial institution or other method acceptable to the County and the State Mining and Geology Board as specified in state regulations, and which the County reasonably determines are adequate to perform reclamation in accordance with the surface mining operation's approved reclamation plan. Financial assurances shall be made payable to the County and the state's Division of Mine Reclamation. To ensure liquidity and availability of the assurance, the first $25,000 of security shall be posted in cash.
(3) Financial assurances shall ensure compliance with elements of the reclamation plan, including, but not limited to, revegetation and landscaping requirements, restoration of aquatic or wildlife habitat, restoration of water bodies and water quality, slope stability and erosion and drainage control, disposal of hazardous materials and other measures, if necessary.
(4) The operator shall base the amount of the financial assurances upon the estimated costs of reclamation for the years or phases stipulated in the approved reclamation plan, including any maintenance of reclaimed areas as may be required, subject to adjustment for the actual amount required to reclaim lands disturbed by surface mining activities occurring since January 1, 1976, and the actual amount required to reclaim new lands to be disturbed by surface mining activities in the upcoming year. A California registered professional engineer and/or other similarly licensed and qualified professionals retained by the operator and approved by the Planning Director shall prepare the cost estimates 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 guarantee 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 a reasonable profit by a commercial operator other than the mine operator or landowner. A contingency factor of 10% shall be added to the cost of financial assurances.
(5) The mineral owner and owner of the surface estate, if legally entitled to do so, shall allow access to the property on which the mining operation is located to any governmental agency or the agency of any company providing financial assurances in connection with the reclamation plan and expending those financial assurances for reclamation, in order that reclamation may be carried out by the governmental agency or company, in accordance with the reclamation plan.
(B) Initial financial assurance cost estimates. Following approval of a new or amended reclamation plan, the initial FACE shall be reviewed and approved pursuant to PRC § 2773.4.
(1) Prior to approving the financial assurance cost estimate for a new reclamation plan or adjustments to the financial assurance cost estimate based on an amendment to a reclamation plan, the County shall submit the financial assurance cost estimate to the Supervisor for review.
(2) The lead agency shall provide the Supervisor with a determination that the financial assurance cost estimate submitted pursuant to division (B)(1) is adequate, complete, and consistent with PRC § 2773.1.
(3) All documentation submitted to the Supervisor pursuant to this subdivision shall be submitted at one time.
(4) No later than 15 days after receiving a financial assurance cost estimate, the Supervisor shall notify the County and the operator if the submission is incomplete. An incomplete submissions is one that does not meet the content requirement of PRC § 2773.1, and the Board's financial assurance guidelines adopted pursuant to PRC § 2773.1(f). The Supervisor's notice shall specifically identify all aspects of the submission that are incomplete. The Supervisor's time to review the FACE shall commence upon the receipt of a submission that contains the aspects identified in the Supervisor's notice to the County.
(5) (a) The Supervisor shall have 45 days from the date of receipt of a complete FACE to prepare written comments if the Supervisor chooses.
(b) The County shall evaluate written comments received from the Supervisor relating to the FACE within a reasonable amount of time. The County shall prepare a written response to the Supervisor's comments describing the disposition of the major issues raised by the Supervisor's comment.
(6) The County shall submit its proposed response to the Supervisor at least 30 days prior to approval of the FACE. The County's response shall include either of the following:
(a) A description of how the County proposes to adopt the Supervisor's comments to the FACE.
(b) A detailed description of the reasons why the County proposes to not adopt the Supervisor's comments.
(7) Copies of any written comments received, and responses prepared by the County shall be forwarded to the operator.
(8) (a) If the County, in its written response to the Supervisor's comments, proposes to not adopt the Supervisor's comments relating to the FACE, the Supervisor, within 15 days of receipt of the lead agency's written response, may request in writing a consultation with the County to discuss the Supervisor's comments and the County's response. The request shall include an invitation to the operator to participate in the consultation. The consultation may be conducted in person, electronically, telephonically, or by any means convenient to the parties.
(b) If the Supervisor requests a consultation pursuant to this division, the County shall not approve the FACE until after consulting with the Supervisor. The consultation shall occur not later than 30 days after the Supervisor's request unless an alternate timeframe is mutually agreed upon by the Supervisor, County, and operator.
(9) (a) The County shall give the Supervisor at least 30 days' notice of the time, place, and date of the hearing at which the FACE is scheduled to be approved by the County. If no hearing is required by this Chapter, local ordinance, or other state law, then the County shall provide 30 days' notice to the Supervisor that it intends to approve the FACE.
(b) The County shall send to the Supervisor its final response to the Supervisor's comments within 30 days following its approval of the financial assurance cost estimate, during which time the Division of Mine Reclamation retains all of its powers, duties, and authority pursuant to this chapter.
(C) Annual financial assurance cost estimates.
(1) The Planning Director shall adjust annually the amount of financial assurances required of a surface mining operation to account for new lands disturbed by surface mining operations, inflation and any final reclamation of lands accomplished in accordance with the approved reclamation plan. The financial assurances shall include estimates regarding the cost of reclamation for existing conditions and anticipated activities during the upcoming year, except that the operator may not claim credit for reclamation scheduled for completion during the coming year.
(2) The operator shall submit an annual financial assurance cost estimate (FACE) to the Planning Director each year for review and approval within 30 days of completion of an annual inspection under § 19.13.019 herein. The financial assurance shall cover the cost of reclaiming existing disturbed areas and the cost of activities anticipated for the next calendar year, including any required interim reclamation. If revisions to the financial assurances are not required, the operator shall explain, in writing, why revisions are not required.
(3) 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, requiring the County or state's Division of Mine Reclamation to contract with a third-party commercial company for reclamation of the site. Accordingly, the cost estimate shall reflect fees charged by commercial operator, other than the mine operator, to perform reclamation activities in the locality.
(4) Within 60 days of receiving an annual financial assurance cost estimate, the Planning Director shall deny the financial assurance cost estimate or shall submit the financial assurance cost estimate, together with any documentation received supporting the amount of the cost estimate, to the Supervisor for review.
(5) The Planning Director may deny the financial assurance cost estimate on the basis that the financial assurance cost estimate is inadequate. The Planning Director shall specify the reasons for that determination.
(6) An operator whose financial assurance cost estimate is denied shall have 15 days to appeal that denial to the State Mining and Geology Board pursuant to PRC § 2770(e) and 14 CCR § 3681 or to provide the Planning Director with a revised financial assurance cost estimate incorporating the suggested changes for approval by the Planning Director.
(7) When the financial assurance cost estimate is submitted to the Supervisor for review, the Planning Director shall also provide the Supervisor with a determination that the annual financial assurance cost estimate is adequate, complete, and consistent with SMARA and state regulations. The Planning Director shall submit all required documentation to the Supervisor at one time. Within 30 days of receiving any written comments on the annual financial assurance cost estimate from the Supervisor, the Planning Director shall evaluate those comments and provide the Supervisor and the operator with a proposed response. The proposed response shall be submitted to the Supervisor at least 30 days prior to the County's approval of the annual financial assurance cost estimate and shall either provide a description of how the County proposes to adopt the Supervisor's comments, or a detailed description of the reasons why the County proposes not to adopt the Supervisor's comments.
(8) If the County proposes not to adopt the Supervisor's comments concerning the financial assurance cost estimate, within 15 days of receipt of the County's written response, the Supervisor may request in writing consultation with the County. If the Supervisor timely requests such consultation, the County shall not approve the annual financial assurance cost estimate until after consulting with the Supervisor. Such consultation shall occur not later than 30 days after the Supervisor's request, unless an alternative timeframe is mutually agreed upon by the Supervisor, Planning Director, and operator.
(9) Within 60 days of receiving the Supervisor's written comments, or of consultation pursuant to the preceding division, whichever is later, or the due date of the Supervisor's written comments if none are received, the County shall approve or deny the operator's financial assurance cost estimate.
(10) The County shall give the Supervisor at least 30 days notice of the time, place, and date of the hearing at which the annual financial assurance cost estimate is scheduled to be approved by the County. If no hearing is requested, the County shall provide 30 days notice to the Supervisor that it intends to approve the annual financial assurance cost estimate.
(11) Within 30 days of the County's approval of the annual financial assurance cost estimate, the County shall send to the Supervisor the County's final response to the Supervisor's comments.
(12) The Supervisor may appeal the County's approval of a financial assurance cost estimate to the State Mining and Geology Board if the Supervisor has commented pursuant to PRC § 2773.4 that the financial assurance cost estimate is inadequate.
(13) The Planning Director shall send to the operator copies of any written comments received and all responses prepared by the County relating to the annual financial assurance cost estimate.
(14) Within 30 days of the County's approval of the financial assurance cost estimate, the operator shall provide the Planning Director and the Supervisor with an appropriate financial assurance mechanism.
(a) Within 15 days of receiving a financial assurance mechanism, the Planning Director and the Supervisor shall review the financial assurance mechanism to determine if the type of mechanism, including the release instructions, meets the requirements of SMARA and this chapter.
(b) The Planning Director shall return to the operator any financial assurance mechanism determined to be noncompliant with SMARA or this chapter, with instructions on how to correct the type of financial assurance mechanism or the financial assurance mechanism's release instructions.
(15) If the Planning Commission, following a public hearing, determines that the operator is financially incapable of completing reclamation in accordance with its approved reclamation plan or has abandoned its surface mining operation without completing reclamation, the Planning Director shall:
(a) Notify the operator, within ten days of making the determination, by personal service or certified mail that the County intends to take appropriate action to forfeit the financial assurance and specify the reasons for so doing.
(b) Proceed to take appropriate action to require forfeiture of the financial assurance.
(c) Use the proceeds from the forfeited financial assurance to conduct and complete reclamation in accordance with the approved reclamation plan. If the surface mining operation cannot be reclaimed in accordance with its approved reclamation plan, or the financial assurances are inadequate to reclaim it in accordance with its approved reclamation plan, the County may use forfeited financial assurances to reclaim or remediate mining disturbances as appropriate for the site conditions as determined by the County and the Supervisor. The operator shall be responsible for the costs of conducting and completing reclamation in accordance with the approved reclamation plan, or an approved remediation plan developed pursuant to this subsection, that are in excess of the proceeds from the forfeited financial assurance.
(16) Beginning on the date of determination of financial incapacity or abandonment, the County shall provide annual status reports on the progress of reclamation to the Supervisor and the State Mining and Geology Board pursuant to PRC § 2773.1, until reclamation is complete in accordance with the approved reclamation plan.
(17) The financial assurances shall remain in effect for the duration of the surface mining operation and any additional period until reclamation is completed (including any maintenance required). Written concurrence of the Resource Management Agency and the Department of Conservation that reclamation has been completed in accordance with the approved reclamation plan shall be forwarded to the operator and the institution(s) providing or holding the financial assurance mechanism(s).
(D) Transfer of ownership. If a surface mining operation is sold or ownership is transferred to another person, the existing financial assurance mechanism shall remain ln force and shall not be released by the County and Department of Conservation until new financial assurance mechanisms are secured from the new owner and have been approved by the Resource Management Agency. Within 90 days of the sale or transfer of a surface mining operation, the new operator shall submit an appropriate financial assurance mechanism.
(Ord. 1057, § 3 (part), 2023)