(A) Violations.
(1) If, after conducting the periodic inspection required by § 19.13.019 or otherwise confirmed by an inspection of the mining operation, the Planning Director finds that the surface mining operation is not in compliance with the approved use permit, the approved reclamation plan, any conditions of approval imposed by the County, the provisions of this chapter, or SMARA, the Planning Director may issue a notice of that violation to the operator. The notice of violation shall be sent to the operator by personal service or certified mail. If the violation pertains to the approved reclamation plan, a copy of the notice shall also be sent to the Supervisor, if issued by the County. Any such notice of violation shall include both of the following: (a) A description of the violation. (b) Actions the operator shall take to correct the violation.
(2) If the Planning Director determines that the time to correct the noticed violation will exceed 30 days, the County and the operator may enter into a stipulated order to comply, with notice sent to the Supervisor for violations that pertain to the approved reclamation plan. Such a stipulated order shall include a schedule and time for compliance that the Planning Director has determined is reasonable after taking into account the actions and legal processes required to correct the violation.
(B) Orders to comply.
(1) If, within 30 days of being served with a notice of violation, the operator does not comply with it or commit to enter into a stipulated order, the Planning Director may issue an order to comply. Any such order shall be sent by personal service or certified mail. The County shall, at the time of issuing the order, provide a copy of the notice to the Supervisor if the order involves a violation related to the approved reclamation plan. An order to comply shall specify all of the following: (a) Which aspects of the surface mine's activities or operations are inconsistent with the approved use permit, approved reclamation plan, permit conditions, the provisions of this chapter, or SMARA. (b) The actions and legal processes required to correct the alleged violation. (c) A time for compliance that the Planning Director determines is reasonable, given the seriousness of the alleged violation and any good faith efforts to comply with applicable requirements. If the operator does not have an approved reclamation plan, the order to comply may order the operator to immediately cease all further mining activities.
(2) An order to comply shall take effect 30 days following the service of the order to comply unless within those 30 days the operator appeals the order to comply and requests a hearing before the Planning Commission.
(a) Such appeal shall be noticed and heard at a public hearing within 45 days of the filing of the appeal or a longer period as may be mutually agreed upon by the operator and the Planning Director. At such hearing, the Planning Commission shall hear all relevant testimony from interested persons and, after closing the public hearing, shall affirm, modify or set aside the order to comply issued by the Planning Director.
(b) If the surface mining operation fails to comply with the order affirmed or modified by the Planning Commission, the Planning Commission may revoke or suspend the operator's permit after a public hearing, and all of the procedural requirements and rights of appeal as set forth therein shall govern the hearing.
(C) Penalties.
(1) For an operator who violates or fails to comply with the order to comply, who fails to submit an annual report, or who fails to pay annual fees, the Planning Director shall impose an administrative penalty of not more than $5,000 per day, assessed from the original date of noncompliance or from the date of the inspection when the violation was identified, at the discretion of the Planning Director.
(a) In determining the amount of the administrative penalty, the Planning Director shall take into consideration the nature, circumstances, extent, and gravity of the violation or violations, any prior history of violations, the degree of culpability, economic savings, if any, resulting from the violation, and any other matters justice may require.
(b) The Planning Director's order setting administrative penalties shall become effective upon issuance of the order, and payment shall be made to the County within 30 days, unless the operator petitions the Board of Supervisors as provided in division (C)(2)(d), below. An order shall be served by personal service or by certified mail upon the operator.
(2) An operator may file a petition with the Board of Supervisors for review of the Planning Director's order imposing an administrative penalty. If no such petition is filed within 30 days of the order, the order is final and is not subject to review by any court of agency.
(a) A petition for review can only be accepted for filing if it is timely and is accompanied by the required petition fee in accordance with the current fee schedule adopted by the Board of Supervisors.
(b) If the petition for review meets the standards set forth in this subsection, the Clerk of the Board shall set the matter for a public hearing before the Board of Supervisors to review the Planning Director's order imposing an administrative penalty. The operator shall be notified by either personal service or certified mail of the time, date, and place for the public hearing at which the Board of Supervisors shall review the Planning Director's order imposing an administrative penalty. In reviewing said order, the record shall consist of the record before the Planning Director and any other relevant evidence which, in the judgement of the Board of Supervisors, should be considered to effectuate and implement the policies of SMARA and this chapter.
(c) The Board of Supervisors may affirm, modify, or set aside, in whole or in part, by its own order, any order of the Planning Director imposing an administrative penalty. Any order of the Board of Supervisors shall be served by personal service or certified mail upon the operator.
(d) The Board of Supervisor's order shall become effective upon its issuance unless the operator files a timely petition for writ of mandate in the superior court. Such a petition shall be timely only if filed within 30 days of the Board's issuance of the order. Payment of any administrative penalty that is specified in the Board of Supervisor's order shall be made to the County within 30 days of service of the order whether or not a petition has been filed; however, the payment shall be held in an interest-bearing impound account pending resolution of a petition for writ of mandate if one has been flied. If no timely petition is filed, the Board of Supervisor’s order shall not be subject to review by any court or agency.
(3) Whether or not administrative penalties have been imposed, the Planning Commission may revoke or suspend the operator's permit following a public hearing. The operator may appeal the decision to revoke or suspend the permit to the Board of Supervisors. Such an appeal shall be noticed and heard at a public hearing within 45 days of the filing of the appeal or a longer period as may be mutually agreed upon by the operator and the Planning Director. At such hearing, the Board of Supervisors shall hear all relevant testimony from interested persons and, after closing the public hearing, shall affirm, modify, or set aside the decision to revoke or suspend the permit made by the Planning Commission.
(4) If the Planning Director determines that a surface mining operation is not in compliance with SMARA such that the surface mining operation presents an imminent and substantial endangerment to the public health or the environment, the Planning Director may seek an order from the Superior Court of the County of San Benito or other court of competent jurisdiction enjoining that operation.
(Ord. 1057, § 3 (part), 2023)