Article V

Noncompliance, Enforcement And Appeal

• (A) It shall be unlawful for any person whether as owner, operator, applicant, principal, agent, employee, or otherwise to perform an action or allow a situation to continue in violation of the provisions of this chapter, the Surface Mining and Reclamation Act, or any approval condition. Each violation shall be subject to enforcement action in accordance with the provisions of this chapter, Chapters 1.12 and 18.10 SCCC and all other applicable provisions of law.

• (B) If the Planning Director or the Director of the Department of Conservation, determines, based upon annual inspection pursuant to SCCC § 16.54.071, quarterly inspection pursuant to SCCC § 16.54.070 or any other inspection, that a mining operation is not in compliance with this chapter, the Planning Director or Director of the Department of Conservation, may notify the operator of that violation by certified mail. If the violation extends beyond 30 days after the date of the Planning Director or the Director of the Department of Conservation, notification, the Planning Director or Director of the Department of Conservation, may issue an order by certified mail requiring the operator to comply with this chapter. If the Planning Director or the Director of the Department of Conservation determines for any reason that the operator does not have an approved reclamation plan, then the Planning Director or the Director of the Department of Conservation may issue an order requiring the operator to cease all mining activities on the mining site.

• (C) An order pursuant to subsection (B) of this section shall not take effect until the operator has been provided a hearing before the Planning Commission for orders issued by the Planning Director or the State Board for orders issued by the Director of the Department of Conservation, concerning the alleged violation. Any order issued under subsection (B) of this section shall specify which aspects of the mining operation are inconsistent with this chapter, shall specify a time for compliance which the Planning Director or Director of the Department of Conservation, determines is reasonable taking into account the seriousness of the violation, and any good faith efforts to comply with applicable requirements, and shall set a date for the hearing, which shall not be sooner than 30 days after the date of the order.

are inconsistent with this chapter, shall specify a time for compliance which the Planning Director or Director of the Department of Conservation, determines is reasonable taking into account the seriousness of the violation, and any good faith efforts to comply with applicable requirements, and shall set a date for the hearing, which shall not be sooner than 30 days after the date of the order.

• (D) An operator who violates or fails to comply with an order issued under subsection (B) of this section after the order's effective date, as provided in subsection (C) of this section, or who fails to submit an annual report pursuant to SCCC § 16.54.072 and § 16.54.073 to the Director of the Department of Conservation, or Planning Director, or knowingly provides incorrect or false information in the annual report, shall be subject to an order by the Planning Director or the Director of the Department of Conservation, imposing an administrative penalty of not more than $5,000 per day, assessed from the original date of noncompliance with this chapter. The penalty may be imposed administratively by the Planning Director or Director of the Department of Conservation. In determining the amount of administrative penalty, the Planning Director or Director of the Department of Conservation, shall take into consideration the nature, the circumstances, extent and gravity of the violation or violations, any prior history of violations, the degree of culpability, economic saving, if any, resulting from the violation and other matters justice may require. Orders setting administrative penalties shall become effective upon issuance thereof, and payment shall be made to the Planning Director or the Director of the Department of

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County of Santa Cruz, CA

ENVIRONMENTAL AND RESOURCE PROTECTION

16.54.090

16.54.090

Conservation, within 30 days, unless the operator petitions the Board of Supervisors, the State Board or the Superior Court for review. Any order shall be served by certified mail upon the operator.

• (E) If the Planning Director or the Director of the Department of Conservation, determines that the mining operation is not in compliance with this chapter, so that the mining operation presents an imminent and substantial endangerment to the public health or environment, the County or the Attorney General, on behalf of the Director of the Department of Conservation, shall seek an order from a court of competent jurisdiction enjoining the mining operation.

• (F) The Planning Director shall have the primary responsibility for enforcing this chapter. In cases where the State Board is not the lead agency, enforcement actions may be initiated by the Director of the Department of Conservation, only after the violation has come to the attention of the Director of the Department of Conservation, and either of the following occurs:

  • (1) The Planning Director has been notified by the Director of the Department of Conservation, in writing of the violation for at least 15 days, and has not taken appropriate enforcement action; or

• (2) The Director of the Department of Conservation, determines that there is a violation which amounts to an imminent and substantial endangerment to the public health or safety, or to the environment.

• (G) In addition to other liabilities and remedies provided by this chapter, failure to commence action to rectify each and every deficiency or failure to complete reclamation satisfactorily and in a timely manner on any segment of the mining site area in conformance with the approved reclamation plan within 30 days after written specification of such deficiency(ies) or reclamation failure(s) by the Planning Director, shall constitute sufficient grounds for revocation of a mining approval, certificate of compliance, or reclamation plan approval. No mining approval, certificate of compliance, or reclamation plan approval shall be issued to allow mining or other development or use of any property as to which any deficiency or reclamation failure exists, unless such mining approval, certificate of compliance, or reclamation plan approval requires correction of such deficiency or reclamation failure by a time and in a manner satisfactory to the County and the Director of the Department of Conservation.

• (H) Any failure to comply with the required conditions of any mining approval, certificate of compliance or reclamation plan approval only or failure to carry out mining operations and reclamation in accordance with approved plans shall be unlawful and a public nuisance endangering the health, safety, and general welfare of the public and a detriment to the surrounding community.

• (I) In addition to any other remedy provided by this chapter for the abatement, removal and enjoinment of a public nuisance caused by any mining operation, the nuisance may be abated in conformance with Chapter 1.14 SCCC.

• (J) The operator shall be responsible for any and all failures of the drainage or detention systems at the mining site. If a failure should occur, immediate corrective actions shall be taken by the operator as required by the Planning Director and the State Department of Fish and Game. Corrective action shall include all cleanup, repair and restoration of the mining

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County of Santa Cruz, CA 16.54.090

SANTA CRUZ COUNTY CODE

16.54.094

site and all other affected property(ies) and resources to the maximum extent feasible, the expenses of which shall be paid by the operator. (Ord. 4421 § 1, 1996)

• (A) It shall be unlawful for any person to knowingly do, cause, permit, aid, abet, suffer or furnish equipment or labor for any new mining operation unless the land is zoned "M-3" Mineral Extraction or "TP" Timber Production or other zoning consistent with mining operations; and the required approvals have been obtained and are in effect which authorize the mining operation.

• (B) It shall be unlawful for any person to exercise a mining approval, certificate of compliance, or reclamation plan approval which authorizes a mining operation without complying with all of the conditions of such approval.

• (C) It shall be unlawful for any person to knowingly do, cause, permit, aid, abet or furnish equipment or labor for any work in violation of a stop work notice from and after the date it is posted on the site until the stop work notice is authorized to be released by the Planning Director.

• (Ord. 4421 § 1, 1996)

In addition to any order pursuant to SCCC § 16.54.090, if the Planning Director determines that any mining operation does not comply with a mining approval, certificate of compliance or reclamation plan approval only, SMARA or this chapter, the Planning Director may issue an order to stop such noncompliance (including, if necessary, obtaining a court order to stop all work at the mining site) until corrective measures have been completed. The mining site shall be posted with a "stop work" notice. (Ord. 4421 § 1, 1996)

In addition to any penalties pursuant to SCCC § 16.54.090, each violation of this chapter shall be a misdemeanor punishable as provided in SCCC § 1.08.010 through § 1.08.050. Any person convicted of a misdemeanor, the penalty for which is not otherwise prescribed, shall be punishable by a fine of not more than $1,000 per day or by imprisonment for not more than six months, or by both such fine and imprisonment. It shall be a separate offense for each and every day during any portion of which any violation of or failure to comply with any condition of a mining approval, certificate of compliance or reclamation plan approval only or with any provision of this chapter, the County Code or SMARA is committed, continued or permitted. (Ord. 4421 § 1, 1996)

If the Planning Commission or the State Board, following a public hearing, determines that an operator is financially incapable of performing reclamation in accordance with the approved reclamation plan or has abandoned the mining operation without commencing reclamation, either the Planning Director or the Director of the Department of Conservation, shall do all the following:

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County of Santa Cruz, CA

ENVIRONMENTAL AND RESOURCE PROTECTION

16.54.094

16.54.096

• (A) Notify the operator by personal service or certified mail that the Planning Director or the Director of the Department of Conservation, intends to take the appropriate action to forfeit the financial assurances and specify the reasons for this action.

• (B) Allow the operator 60 days to commence or cause the commencement of reclamation in accordance with the approved reclamation plan and require that reclamation be completed within the time limits specified in the approved reclamation plan or some other time period mutually agreed by the Planning Director or Director of the Department of Conservation, and the operator.

• (C) Proceed to take appropriate action to require forfeiture of the financial assurances if the operator does not substantially comply with the reclamation requirements.

• (D) Use the proceeds from the forfeited financial assurances to conduct and complete reclamation in accordance with the approved reclamation plan. In no event shall the financial assurance be used for any other purpose except such use may include off-site mitigation of any loss of sensitive habitat or other losses. The operator is responsible for the costs of conducting and completing reclamation in accordance with the approved reclamation plan which are in excess of the proceeds from the forfeited financial assurances.

• (Ord. 4421 § 1, 1996)

The lead agency shall have the primary responsibility to seek forfeiture of financial assurances and to reclaim mining sites. Where the County is the lead agency, this responsibility is hereby delegated to the Planning Director. However, even in cases where the State Board is not the lead agency, the Director of the Department of Conservation, may act to seek forfeiture of financial assurances, and reclaim mining sites only if both of the following occurs:

• (A) The financial incapability of the operator or the abandonment of the mining operation has come to the attention of the Director of the Department of Conservation.

• (B) The Planning Director has been notified in writing by the Director of the Department of Conservation, of the financial incapability of the operator or the abandonment of the mining operation for at least 15 days, and has not taken appropriate measures to seek forfeiture of the financial assurances and reclaim the mine site; and one of the following has occurred:

  • (1) The Planning Director has been notified in writing by the Director of the Department of Conservation, that failure to take appropriate measures to seek forfeiture of the financial assurances or to reclaim the mining site shall result in actions being taken against the County.

  • (2) The Director of the Department of Conservation, determines that there is a violation which amounts to an imminent and substantial endangerment to the public health or safety or to the environment.

  • (3) The Planning Director notifies the Director of the Department of Conservation, in writing that its good faith attempts to seek forfeiture of the financial assurances have not been successful.

• (Ord. 4421 § 1, 1996)

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County of Santa Cruz, CA 16.54.096

SANTA CRUZ COUNTY CODE

16.54.098

Except as otherwise expressly provided by the procedures set forth in this chapter an appeal of an action taken under this chapter may be made in conformance with the appeal procedures set forth at SCCC § 18.10.310 through § 18.10.360.

• (Ord. 4421 § 1, 1996; Amended during 9/07 supplement)

• (A) Any person may appeal to the State Board after exhausting all applicable remedies before the County in order to substantiate that the County has either:

  • (1) Failed to act according to due process or has relied on consideration not related to specific requirements of the Surface Mining and Reclamation Act and this chapter in reaching a decision to deny approval of a reclamation plan submitted to the Planning Director for approval after July 1, 1990 (and, for which no mining had begun on the site before that date) or financial assurances submitted to the Planning Director after January 1, 1994; or

  • (2) Failed to act within a reasonable time of receipt of a completed application, for a reclamation plan approval or submittal of financial assurances; or

  • (3) Failed to review and approve financial assurances originally submitted to the Planning Director after January 1, 1994.

• (B) An applicant whose request for mining approval in an area of Statewide or regional significance has been finally denied by the County, or any person who is aggrieved by the issuance of a mining approval in an area of designated Statewide or regional significance may appeal the action of the County to the State Board within 15 days from the County's final decision.

• (Ord. 4421 § 1, 1996)

• (A) Within 30 days of the issuance of an order setting an administrative penalty pursuant to SCCC § 16.54.090, the operator may appeal to the Board of Supervisors, if the Planning Director has issued that order for review of the order. If the operator does not file an appeal within the time limits set by this subsection, the order setting administrative penalty shall not be subject to review by any court or agency.

• (B) The appeal to the Planning Commission and any further appeals to the County Board of Supervisors shall be governed by SCCC § 18.10.310 through § 18.10.360.

• (C) The Board of Supervisors or the State Board may affirm, modify, or set aside, in whole or in part, by its own order, any order of the Planning Director or the Director of the Department of Conservation, respectively, setting administrative penalties reviewed by the Board of Supervisors or the State Board.

• (D) Any operator aggrieved by an order of the Board of Supervisors or the State Board may obtain review of the order by filing in the Superior Court a petition for writ of mandate within 30 days following the issuance of the order. Any operator aggrieved by an order of the Planning Director or Director of the Department of Conservation, setting an

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County of Santa Cruz, CA

ENVIRONMENTAL AND RESOURCE PROTECTION

16.54.098

16.54.098

administrative penalty for which the Board of Supervisors or State Board denies a review may obtain review of the order in the Superior Court by filing in the court a petition for writ of mandate within 30 days following denial of review. The provisions of Section 1094.5 of the Code of Civil Procedure govern these judicial proceedings, except that in every case the court shall exercise its independent judgment. If the operator does not petition for a writ of mandate within the time limits, an order of the Board of Supervisors or State Board shall not be subject to review by any court or agency.

(Ord. 4421 § 1, 1996; Amended during 9/07 supplement)

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County of Santa Cruz, CA

ENVIRONMENTAL AND RESOURCE PROTECTION

16.54.100

16.54.102