Chapter 21.04
SURFACE MINING
21.04.030 Permit, Reclamation Plan, and Financial Assurances.
21.04.040 Operation in 100-Year Flood Plain and Near State Bridge.
21.04.050 Reclamation Plan Information and Documents.
21.04.060 Reclamation Plan Applicability, Basis, and Compliance.
21.04.070 Financial Assurances.
21.04.080 Inspections; State Review of Plan and Assurances.
21.04.110 Appeal of Denied Permits - Areas of Significance.
21.04.130 Reclamation Plan Amendments.
21.04.140 Reclamation Plan as Public Record.
21.04.150 Successor Bound by Reclamation Plan.
21.04.160 Recording of Permit.
21.04.170 Notification to Assessor.
21.04.190 Revocation and Modification of Permit, Reclamation Plan, and Financial Assurances.
21.04.200 Noticed Public Hearing, Action, and Findings.
21.04.010 General Provisions.
(a) Authority. This chapter is adopted under the provisions of the Surface Mining and Reclamation Act of 1975 (Chapter 9 (commencing with section 2710 of division 2 of the Public Resources Code) and the power of the City of Marysville to protect the public health, safety, and welfare of its residents.
(b) Findings. The City Council hereby finds and declares:
(1) The extraction of minerals is essential to the continued economic well-being of the City and to the needs of the society and that the reclamation of mined lands is necessary to prevent or minimize adverse effects on the environment and to protect the public health and safety.
(2) The reclamation of mined lands as provided in this chapter will permit the continued mining of minerals and will provide for the protection and subsequent beneficial use of the mined and reclaimed land.
(3) Surface mining takes place in diverse areas where the geologic topographic, climatic, biological, and social conditions are significantly different and that reclamation operations and the specifications therefore may vary accordingly.
(c) Intent.
(1) It is the intent of the City Council to create and maintain an effective and comprehensive surface mining and reclamation policy with regulation of surface mining operations so as to assure that:
(A) Adverse environmental effects are prevented or minimized and that mined lands are reclaimed to a usable condition which is readily adaptable for alternative land uses.
(B) The production and conservation of minerals are encouraged, while giving consideration to values relating to recreation, watershed, wildlife, range and forage, and aesthetic enjoyment.
(C) Residual hazards to the public health and safety are eliminated.
(d) Exceptions.
The provisions of this chapter shall not apply to any of the following activities:
(1) Excavation or grading for purposes of agricultural cultivation or irrigation.
(2) Cemetery graves.
(3) Excavations for basements, footings of a building, retaining wall or other structure authorized by valid building permit.
(4) Grading or removal incidental to the development of land and in accordance with plans which have been approved by the City.
(5) Excavation for purposes of installing underground utilities.
(6) Removal or excavation of earth materials which is clearly incidental to the lawful improvement of a public or private road, or development of a property, and where the material removed is not transported beyond the limits of the subject road right-of-way or property under development.
(7) Excavations or grading conducted for farming or on-site construction or for the purpose of restoring land following a flood or natural disaster.
(8) Prospecting for, or extraction of, minerals for commercial purposes and the removal of overburden in total amounts of less than 1,000 cubic yards in any one location of one acre or less.
(9) Surface mining operations that are required by federal law in order to protect a mining claim, if such operations are conducted solely for that purpose.
(10) Such other mining operations which the Council determines to be of an infrequent nature and which involve only minor surface disturbances and are categorically identified by the State Board pursuant to Public Resources Code Sections 2714 (d) and 2758 (c).
(e) Limitations. No provision of this chapter or any ruling, requirement, or policy of the Council is a limitation on any of the following:
(1) On the police power of the City or on the power of the City to declare, prohibit, and abate nuisances.
(2) On the power of the District Attorney, at the request of the Council, or upon the District Attorney’s motion, to bring an action in the name of the people of the State of California to enjoin any pollution or nuisance.
(3) On the power of the City in the enforcement or administration or any provision of law which it is specifically authorized or required to enforce or administer.
(4) On the right of any person to maintain at any time any appropriate action for relief against any private nuisance as defined in part 3 (commencing with section 3479) of division 4 of the Civil Code or for any other private relief.
(5) On the power of the City to adopt policies, standards, or regulations imposing additional requirements on any person if the requirements do not prevent the person from complying with the provisions of this chapter.
(6) On the power of the City to regulate the use of buildings, structures, and land as between industry, business, residents, open space (including agriculture, recreation, the enjoyment of scenic beauty, and the use of natural resources), and other purposes.
(f) Captions. Captions in this chapter are inserted for convenience of reference only and do not define, describe, or limit the scope of this chapter or any of its provisions. (Ord. 1218 § 1(part) 1998)
21.04.020 Definitions.
Unless the context otherwise requires, the following definitions shall govern the construction of this chapter:
(a) "Active Mine" means mined lands in which surface mining operations have a current annual production of at least ten (10) percent or more of the previous maximum annual production.
(b) "Area of Regional Significance" means an area designated by the Council pursuant to section 21.04.160 which is known to contain a deposit of minerals, the extraction of which is judged to be of prime importance in meeting future needs for minerals in a particular region of the state within which the minerals are located and which, if prematurely developed for alternate incompatible land uses, could result in the permanent loss of minerals that are of more than local significance.
(c) "Area of Statewide Significance" means an area designated by the State of California Reclamation Board which is known to contain a deposit of minerals, the extraction of which is judged to be of prime importance in meeting future needs for minerals in the State and which, if prematurely developed for alternate incompatible land uses, could result in the permanent loss of minerals that are of more than local or regional significance.
(d) "Council" means the City Council of the City of Marysville.
(e) "CEQA" means the California Environmental Quality Act (division 13 (commencing with section 21000) of the Public Resources Code).
(f) "Director" means the Director of the City of Marysville Public Works Department or such Director’s designee.
(g) "Department" means the City of Marysville Public Works Department.
(h) "Exploration" or "prospecting" means the search for minerals by geological, geophysical, geochemical or other techniques, including but not limited to, sampling, assays, drilling, or any surface or underground work needed to determine the type, extent, or quality of minerals present.
(i) "Idle mine" means mined lands in which surface mining operations have been curtailed for a period of one (1) year or more by more than ninety (90) percent of the operation’s previous maximum annual mineral production, with the intent to resume those surface mining operations at a future date.
(j) "Mined lands" includes the surface, subsurface, and ground water of an area in which surface mining operations will be, are being, or have been conducted, including private ways and roads appurtenant to any such area, land excavations, workings, mining waste, and areas in which structures, facilities, equipment, machines, tools, or other materials or property which result from, or are used in, surface mining operations are located.
(k) "Minerals" mean any naturally occurring chemical element or compound, or groups of elements and compounds, formed from inorganic processes and organic substances, including, but not limited to coal, peat, and bituminous rock, but excluding geothermal resources, natural gas, and petroleum.
(l) "Mining waste" includes the residual of soil, rock, mineral, liquid, vegetation, equipment, machines, tools, or other materials or property directly resulting from, or displaced by, surface mining operations.
(m) "Operator" means any person who is personally engaged in surface mining operations, or who contracts with others to conduct operations on his or her behalf, except a person who is engaged in surface mining operations as an employee with wages as his or her sole compensation.
(n) "Overburden" means soil, rock, or other materials that lie above a natural mineral deposit or in between mineral deposits, before or after their removal by surface mining operations.
(o) "Permit" means any authorization from, or approval by, the City, the absence of which would preclude surface mining operations.
(p) "Person" means any individual, firm, association, corporation, organization, or partnership, or any city, county, district, or the State or any department or agency thereof.
(q) "Public Works Department" means the City of Marysville Public Works Department.
(r) "Planning Commission" means City of Marysville Planning and Historic Preservation Commission.
(s) "Quarry" or "quarrying operation" means any activity in removing from the earth any rock, sand, gravel, earth, clay or other mineral.
(t) "Reclamation" means the combined process of land treatment that minimizes water degradation, air pollution, damage to aquatic or wildlife habitat, flooding erosion, and other adverse effects from surface mining operations, including adverse surface effects incidental to underground mines, so that mined lands are reclaimed to a usable condition which is really adaptable for alternate land uses and create no danger to public health or safety. The process may extend to affected lands surrounding mined lands, and may require backfilling, grading, resoiling, revegetation, soil compaction, stabilization, or other measures.
(u) "SMRA" means the Surface Mining and Reclamation Act of 1975 (Chapter 9 (commencing with section 2710) of division 2 of the Public Resources Code).
(v) "State Board" means the State Mining and Geology Board of the California Department of Conservation.
(w) "State Geologist" means the State Geologist provided by Public Resources Code section 677.
(x) "Surface mining operations" mean all, or any part of, the process involved in the mining of minerals on mined lands by removing overburden and mining directly from the mineral deposits, open-pit mining of minerals naturally exposed, mining by the auger method, dredging and quarrying, or surface work incident to an underground mine. Surface mining operations shall include but are not limited to:
(1) In place distillation or retorting or leaching.
(2) The production and disposal of mining waste.
(3) Prospecting and exploratory activities. (Ord. 1218 § 1(part) 1998)
21.04.030 Permit, Reclamation Plan, and Financial Assurances.
(a) Permit, Reclamation Plan, and Financial Assurances Required.
(1) Except as provided in this section, no person shall conduct surface mining operations in the City unless:
(A) an application for a permit, approval of a reclamation plan, and approval of financial assurances is filed with the Department on a form approved by the Director;
(B) a permit is obtained from a reclamation plan has been submitted to and approved by, and financial assurances for reclamation have been approved by, the Planning Commission pursuant to the requirements of this chapter;
(C) in addition to any other report required under this chapter and as a condition of approval of a permit or any type of reclamation plan or financial assurances, the operator is required to give at least fifteen (15) days before the conclusion of each stage of a reclamation plan written notice to the Department of the conclusion of such stage of the reclamation plan along with a written report specifying how the reclamation site conforms or deviates from the reclamation plan;
(D) as a further condition of such approval of a permit or any type of reclamation plan or financial assurances, the Department is required to inspect the reclamation site within thirty (30) days of receipt of the written report described above in this section and full payment by the operator to the Department for the cost of such inspection and that failure to inspect the site within such 30-day period shall be deemed acceptance of the report and compliance with the related stage of the reclamation plan; and
(E) all fees established by the Council to pay for the costs of processing and review of the application for the permit, the reclamation plan, and the financial assurances are paid.
(2) Within 60 days of filing the application, or such additional time as may be agreed to by the applicant, the Staff Development Committee shall review the application for compliance with the provisions of this chapter and either (A) refer an application in compliance to the Planning Commission with the recommendation of the Staff Development Committee or (B) return to the applicant by ordinary mail the application along with a written statement containing the reasons that the application does not comply with this chapter.
(b) Reclamation Plan Required for Vested Rights Operation. Any person with an existing surface mining operation who has vested rights pursuant to Section 21.04.120 and who does not have an approved reclamation plan shall submit a reclamation plan to the Department for approval by the Planning Commission not later than August 20, 1996. If a reclamation plan application is not on file by August 20, 1996, the continuation of the surface mining operation is prohibited until a reclamation plan is submitted to the Department. For purposes of this subdivision, reclamation plans may consist of all or the appropriate sections of any plans or written agreement previously approved by the Planning Commission, together with any additional documents needed to substantially meet the requirement of Sections 21.04.050 and 21.04.060, provided that all documents which together were proposed to serve as the reclamation plan are submitted to the Department for approval by the Planning Commission in accordance with this chapter.
(c) Review of Financial Assurances. If a person with an existing surface mining operation has received Public Works approval of its financial assurances for reclamation prior to August 20, 1996, the Public Works Director shall administratively review those existing financial assurances in accordance with subdivision (d) prior to October 5, 1996. The review of existing financial assurances shall not be considered a project within the meaning of CEQA
(d) Approval of Reclamation Plan and Financial Assurances. The Planning Commission’s review of reclamation plans submitted pursuant to subdivision (b) or of existing financial assurances pursuant to subdivision (c) is limited to whether the plan or the existing financial assurances substantially meet the applicable requirements of Section 21.04.050, 21.04.060, and 21.04.070, but in any event the Planning Commission shall require that existing financial assurances for reclamation be sufficient to perform reclamation of lands remaining disturbed. Reclamation plans or existing financial assurances judged to substantially meet these requirement shall be approved by the Planning Commission for purposes of this chapter. Reclamation plans or existing financial assurances judged as not substantially meeting these requirements shall be returned to the operator within sixty (60) days of submission of the reclamation plan to the Planning Commission. The operator has sixty (60) days from such return to revise the plan or existing financial assurances to address identified deficiencies, at which time the revised plan or financial assurances shall be returned to the Department for review and approval of the Planning Commission. Except as specified in subdivision (e) or (i), if the reclamation plan remains unapproved by October 5, 1996, or if the existing financial assurances remain unapproved by October 5, 1996, the continuation of the surface mining operation is prohibited until a reclamation plan and financial assurances for reclamation are approved by the Planning Commission.
(e) Due Process and Appeal. Any person, who based on the evidence of the record, can substantiate that the Planning Commission has either (1) failed to act according to due process or has relied on considerations not related to the specific applicable requirements of sections 21.04.050, 21.04.060 and 21.04.070, in reaching a decision to deny approval of a reclamation plan or financial assurances for reclamation, (2) failed to act within a reasonable time of its receipt from the Staff Development Committee of a completed application, or (3) failed to review and approve existing financial assurances as required by subdivisions (c) and (d), may appeal that action or inaction to the Council. The provisions of section 21.04.210 shall apply to such appeal.
(f) Appeal Raising No Substantial Issue. The Council may decline to hear an appeal if it determines that the appeal raises no substantial issues related to the Planning Commission’s review pursuant to this section.
(g) Hearing on Appeal. Appeals that the Council does not decline to hear shall be scheduled and heard at a public hearing within forty-five (45) days of the filing of the appeal, or any longer period as may be mutually agreed upon by the council and the person filing the appeal. In hearing an appeal, the council shall only determine whether the reclamation plan or the financial assurances substantially meet the applicable requirements of Sections 21.04.050, 21.04.060, and 21.04.070. A reclamation plan or financial assurances judged to meet these requirements shall be approved. A reclamation plan or financial assurances judged not to meet these requirements shall be returned to the person filing the appeal with a notice of deficiencies, who shall be granted, once only, a period of thirty (30) days, or a longer period mutually agreed upon by the operator and the Council, to correct the noted deficiencies and submit the revised reclamation plan or the revised financial assurances to the Planning Commission for review and approval.
(h) Idle Mine, Interim Management Plan and Appeal. Within ninety (90) days of a surface mining operation becoming an idle mine, the operator shall submit to the Department for Planning Commission review and approval, an interim management plan. The review and approval of an interim management plan shall not be considered a project within the meaning of CEQA. The approved interim management plan shall be considered an amendment to the surface mining operation’s approved reclamation plan, for purposes of this chapter. The interim management plan shall provide measures the operator will implement to maintain the site in compliance with this chapter, including, but not limited to, all permit conditions.
The interim management plan may remain in effect for a period not to exceed five years, at which time the Planning Commission shall do one of the following:
(1) Renew the interim management plan for another period not to exceed five years, if the Planning Commission finds that the surface mining operator has complied fully with the interim management plan.
(2) Require the surface mining operator to commence reclamation in accordance with its approved reclamation plan.
In any event, financial assurances required by Section 21.04.070 shall remain in effect during the period the surface mining operation in an idle mine. If the surface mining operation is still idle after expiration of its interim management plan, the surface mining operation shall commence reclamation in accordance with its approved reclamation plan.
Within sixty (60) days of the receipt by the Department of the interim management plan, or a longer period, not to exceed an additional sixty (60) days, mutually agreed upon by the Director and the operator, the Planning Commission shall review and approve the plan in accordance with this chapter, so long as the plan satisfied the above requirements, and so notify the operator in writing. Otherwise, the Planning Commission shall notify the operator in writing of any deficiencies in the plan. The operator shall have thirty (30) days, or a longer period mutually agreed upon by the operator and the Planning Commission, to submit a revised plan.
The Planning Commission shall approve or deny approval of the revised interim management plan within sixty (60) days of receipt by the Department. If the Planning Commission denies approval of the revised interim management plan, the operator may appeal that action to the Council, which shall schedule a public hearing within forty-five (45) days of the filing of the appeal with the Clerk of the Council, or any longer period mutually agreed upon by the operator and the Council. The provisions of Section 21.04.210 shall apply to such appeal.
Unless review of an interim management plan is pending before the Planning Commission, or an appeal is pending before the Council, a surface mining operator which remains idle for over one year after becoming idle as defined in Section 21.04.020(i) without obtaining approval of an interim management plan shall be considered abandoned and the operator shall commence and complete reclamation in accordance with the approved reclamation plan.
(i) Stay of Enforcement Action. Any enforcement action which may be brought against a person with an existing surface mining operation who has received Planning Commission approval of its financial assurances for reclamation prior to August 20, 1996, or a person who has filed an appeal with the Council pursuant to subdivision (e), or with the Planning Commission pursuant to subdivision (h), shall be held in abeyance pending review of existing financial assurances pursuant to subdivision (c), or the resolution of an appeal filed with the Council pursuant to subdivision (e), or with the Planning Commission pursuant to subdivision (h). (Ord. 1218 § 1(part) 1998)
21.04.040 Operation in 100-Year Flood Plain and Near State Bridge.
Whenever surface mining operations are proposed in the 100-year flood plain for any stream, as shown in Zone A of Flood Insurance Rate Maps issued by the Federal Emergency Management Agency, and within one mile, upstream or downstream, of any state highway bridge, within ten (10) days of the Department’s receipt of the application for the issuance or renewal of a permit to conduct the surface mining operations the Department shall notify the California Department of Transportation that the application has been received. The Planning Commission shall not issue or renew the permit until the Department of Transportation has submitted its comments or until 45 days from the date the application for the permit was submitted to the Department of Transportation, whichever occurs first. (Ord. 1218 § 1(part) 1998)
21.04.050 Reclamation Plan Information and Documents.
The reclamation plan shall be filed with the Department on a form provided by the Department, by any person who owns, leases, or otherwise controls or operates on all, or any portion of any, mined lands, and who plans to conduct surface mining operations thereon.
The reclamation plan shall include the following information and documents.
(a) The name and address of the operator and the names and addresses of any person designated by the operator as the operator’s agent for the service of process.
(b) The anticipated quantity and type of minerals for which the surface mining operation is to be conducted.
(c) The proposed dates for the initiation and termination of such operation.
(d) The maximum anticipated depth of the surface mining operation.
(e) The size and legal description of the lands that will be affected by such operation.
(f) A map that includes:
(1) The boundaries and topographic details of such lands.
(2) A description of the general geology and contours of the area.
(3) A detailed description of the geology and contours of the area in which surface mining is to be conducted.
(4) The location of all streams, roads, railroads, and utility facilities within, adjacent to, and above and below such lands.
(5) The location of all proposed access roads to be constructed in conducting such operation.
(6) The names and addresses of the owners of all surface and mineral interests of such lands.
(7) Vegetative cover.
(8) Water courses, levees, and drainage facilities.
(9) Depth to water table and identification of known sources of ground water.
(10) Structures.
(11) Description of transportation systems to be utilized on site, and from the site to the point of use or market.
(12) The location and description of the resource to be extracted together with the written report setting forth estimated volume and depth of the material and the overburden, and the estimated volume and ultimate disposition of nonusable waste materials to be excavated.
(13) Additional detailed maps and technical reports as may be required by the Planning Commission.
(f) A detailed description of and plan which provides for and describes the following:
(1) The type of surface mining to be employed, including a description of mining procedures, equipment, and facilities to be used.
(2) A time schedule that will provide for the completion of surface mining on each segment of the mined lands so that reclamation can be initiated at the earliest possible time on those portions of the mined lands that will not be subject to further disturbance by the surface mining operation.
(3) Plans and elevations of all proposed buildings, structures and facilities for the transportation, storage and processing of materials.
(4) Grading and erosion control plan for overburden and waste deposit sites.
(5) Location drainage and erosion control plans for stockpiles of mined and processed materials.
(6) Points of ingress and egress; driveways and parking areas.
(7) Where operations include the use of water for mining, washing or processing of materials, the estimated daily quantity of water required, its source, it suitability, and ultimate disposition shall be described.
(8) Plans showing the location, design, and program for continuing maintenance of proposed protection works, settling ponds and other bodies of water, including a description of provisions for the conservation and protection of quality and quantity of ground water and streams, and disposition of surface drainage and control of erosion.
(g) A detailed description of the proposed use or potential uses of the land before and after reclamation and evidence that all owners of a possessory interest in the land have been notified of the proposed use or potential uses.
(h) A detailed description of the manner in which reclamation, adequate for the proposed use or potential uses will be accomplished, and the cost relating thereto, including:
(1) A detailed description of the manner in which contaminants will be controlled, and mining waste will be disposed.
(2) A detailed description of the manner in which rehabilitation of affected streambed channels and streambanks to a condition minimizing erosion and sedimentation will occur.
(3) A landscape rehabilitation plan prepared by a qualified professional with expertise in preparing such a plan, designed to prevent erosion and protect natural appearance, and containing the following:
(A) Final contours.
(B) Soils report on program for soils to sustain plant material and carry out the intent of the landscape plan.
(C) Planting and rehabilitation time schedule demonstrating the progressive rehabilitation of the site concurrent with the quarry operations.
(D) List of plant materials to be used, including approximate size, spacing and quantity count.
(E) Description of methods for seeding, planting, irrigation and maintenance of landscaping during establishment period.
(i) A detailed assessment of the effect of implementation of the reclamation plan on future mining in the area.
(j) A statement that the person submitting the plan accepts responsibility for reclaiming the mined lands in accordance with the reclamation plan. (Ord. 1218 § 1(part) 1998)
21.04.060 Reclamation Plan Applicability, Basis, and Compliance.
(a) The reclamation plan shall be applicable to a specific piece of property or properties, shall be based upon the character of the surrounding area and such characteristics of the property as type of overburden, soil stability, topography, geology, climate, stream characteristics, and principal mineral commodities, and shall establish site-specific criteria for evaluating compliance with the approved reclamation plan, including topography, revegetation, and sediment and erosion control.
(b) The reclamation plan and the mining operation to which the reclamation plan applies shall comply as provided by law with all statewide reclamation standards, including, but not limited to, standards relating to the following:
(1) Wildlife habitat.
(2) Backfilling, regrading, slope stability, and recontouring.
(3) Revegetation.
(4) Drainage, diversion structures, waterways, and erosion control.
(5) Prime and other agricultural land reclamation.
(6) Building, structure, and equipment removal.
(7) Stream protection.
(8) Topsoil salvage, maintenance, and redistribution.
(9) Tailing and mine waste management. (Ord. 1218 § 1(part) 1998)
21.04.070 Financial Assurances.
(a) The Planning Commission shall require financial assurances of such mining operation to ensure reclamation is performed in accordance with the surface mining operation’s approved reclamation plan, as follows:
(1) Financial assurances may take the form of surety bonds, including performance bonds, labor and material bonds, and maintenance bonds, irrevocable letters of credit, trust funds, or other forms of financial assurances specified by the State Board, which the Planning Commission reasonably determines are adequate to perform reclamation in accordance with the surface mining operation’s approved reclamation plan.
(2) The financial assurances shall remain in effect for the duration of the surface mining operation and any additional period until reclamation is completed.
(3) The amount of financial assurances required of a surface mining operation for any one year shall be adjusted annually to account for new lands disturbed by surface mining operations, inflation, and reclamation of lands accomplished in accordance with the approved reclamation plan.
(4) The financial assurances shall be made payable to the City of Marysville. However, if a surface mining operation has received approval of its financial assurances from an authorized public agency other than the City of Marysville, the Planning Commission shall deem those financial assurances adequate for purposes of this section, or shall credit them toward fulfillment of the financial assurances required by this section, if they are made payable to the public agency and the City of Marysville and otherwise meet the requirements of this section. In any event, if the Planning Commission and one or more public agencies exercise jurisdiction over a surface mining operation, the total amount of financial assurances required by the Planning Commission and the public agencies for any one year shall not exceed that amount which is necessary to perform reclamation of lands remaining disturbed. For purposes of this paragraph, a "public agency" may include a federal agency.
(b) If the Planning Commission, following a public hearing, determines that the operator is financially incapable of performing reclamation in accordance with its approved reclamation plan, or has abandoned its surface mining operation without commencing reclamation, the Director shall do all of the following:
(1) Notify the operator by personal service or certified mail that the Planning Commission intends to take appropriate action to forfeit the financial assurances and specify the reasons for so doing.
(2) Allow the operator sixty (60) days to commence or cause the commencement of reclamation in accordance with its approved reclamation plan and require the reclamation be completed with the time limits specified in the approved reclamation plan or some other time period mutually agreed upon by the Planning Commission and the operator.
(3) Proceed to take appropriate action to require forfeiture of the financial assurances if the operator does not substantially comply with paragraph (2).
(4) Use the proceeds from the forfeiting financial assurances to conduct and complete reclamation in accordance with the approved reclamation plan. In no event shall the financial assurances be used for any other purpose. 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.
(c) Financial assurances shall no longer be required of a surface mining operation, and shall be released, upon written notification by the Director, which shall be forwarded to the operator and the State Geologist, that reclamation has been completed in accordance with the approved reclamation plan.
(d) The Council shall have primary responsibility to seek forfeiture of financial assurances and to reclaim mine sites under subdivision (b).
(e) The board may adopt regulations specifying financial assurance mechanisms other than surety bonds, irrevocable letters of credit, and trust funds, which the board determines are reasonably available and adequate to ensure reclamation pursuant to this chapter, but these mechanisms may not include financial tests. These mechanisms may include reclamation bond pool programs. (Ord. 1218 § 1(part) 1998)
21.04.080 Inspections; State Review of Plan and Assurances.
(a) Inspections. The Department shall conduct an inspection of a surface mining operation within six months of receipt by the Department of the surface mining operation’s report submitted pursuant to Public Resources Code Section 2207, solely to determine whether the surface mining operation is in compliance with this chapter and SMRA. In no event shall the Department inspect a surface mining operation less than once in any calendar year. The Department may cause such an inspection to be conducted by a state-registered geologist, state-registered civil engineer, state-licensed landscape architect, or state-registered forester, who is experienced in land reclamation and who has not been employed by the mining operation in any capacity during the previous twelve (12) months. The individual or entity conducting such annual inspection shall be under contract with City. The operator shall not contract for such inspection. The operator shall be solely responsible for the reasonable cost of the inspection and shall pay to the Department all such costs prior to inspection. All inspections shall be conducted using a form provided or approved by the State Geologist. The Director shall notify the State Geologist within thirty (30) days of completion of the inspection that the inspection has been conducted. The notice shall contain a statement regarding the surface mine’s compliance with this chapter and SMRA, shall include a copy of the completed inspection form, and shall specify which aspects of the surface mining operations, if any, are inconsistent with this chapter and SMRA. If the surface mining operation has an appeal pending in the case of a surface mining operator with vested rights under subdivision (b) of Section 21.04.030, a review of existing financial assurances pending pursuant to subdivision (c) of Section 21.04.030, or an appeal pending pursuant to subdivision (e) or (h) of Section 21.04.030, the notice shall so indicate. The Department shall forward to the operator a copy of the notice and any supporting documentation, including without limitation, any inspection report prepared by the geologist, civil engineer, landscape architect, or forester.
(b) State Review of Reclamation Plan and Financial Assurances. At least forty-five (45) days prior to the Planning Commission approving a surface mining operation’s reclamation plan, financial assurances, including existing financial assurances reviewed by the Planning Commission pursuant to subdivision (c) of section 21.04.030, or any amendments, the Director shall submit the plan, assurances, or amendments to the State Geologist for review. The Director shall certify to the State Geologist that the reclamation plan complies with the applicable requirements of article 1 (commencing with section 3500)of chapter 8 division 2 of title 14 of the California Code of Regulations, as in effect at the time the reclamation plan is submitted to the State Geologist for review.
(c) Response to State Review. Prior to the Planning Commission approving the reclamation plan, financial assurances and amendments as provided by section 21.04.080(b), the Planning Commission shall evaluate written comments received from the State Geologist during the 45-day comment period provided by the Public Resources Code Section 2774(d) and thereafter issue a written response describing the disposition by the Planning Commission of the major issues raised. In particular, when the Planning Commission’s position is at variance with the recommendations and objections raised in the State Geologist’s comments, the written response shall address, in detail, why specific comments and suggestions where not accepted. Copies of any written comments received and responses issued by the Planning Commission shall be forwarded to the operator.
(d) Notice to State of Applications and Permits. The Director shall notify the State Geologist of the filing of an application for a permit to conduct surface mining operations within 30 days of such an application being filed with the Department. By July 1 of each year, the Director shall submit to the State Geologist for each active or idle mine a copy of any permit or reclamation plan amendments, as applicable, or a statement that there have been no changes during the previous year. (Ord. 1218 § 1(part) 1998)
21.04.090 Violations.
(a) Notice of Violation and Orders. Except as provided in subdivision (i) of section 21.04.030, if the Director determines, based upon an annual inspection pursuant to this chapter, or otherwise confirmed by an inspection of the mining operation, that a surface mining operation is not in compliance with this chapter or SMRA, the Director shall notify the operator of that violation by personal service or certified mail. If the violation extends beyond 30 days after the date of the Director’s notification, the Director may issue an order by personal services or certified mail requiring the operator to comply with this chapter or, if the operator does not have an approved reclamation plan, cease all further mining activities.
(b) Hearing and Time to Comply with Orders.
An order issued under subdivision (a) shall not take effect until the operator has been provided a hearing before the Council for orders issued by the Director concerning the alleged violation. Any order issued under subdivision (a) shall specify which aspects of the surface mine’s activities or operations are inconsistent with this chapter, shall specify a time for compliance which the Director 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 that 30 days after the date of the order.
(c) Penalties. Any operator who violates or fails to comply with an order issued under subdivision (a) after the order’s effective date, as provided in subdivision (b), or who fails to submit a report to the Department as required by Public Resources Code Section 2207, shall be subject to an order by the Planning Commission imposing an administrative penalty of not more than five thousand dollars ($5,000) per day, assessed from the original date of noncompliance with this chapter or Public Resources Code section 2207. The penalty may be imposed administratively by the Public Works Director. In determining the amount of the administrative penalty, the Public Works 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. Orders setting administrative penalties shall become effective upon issuance thereof and payment shall be made to the City within 30 days, unless the operator petitions the Council, or after Council review, and the California Mining and Geology Board, and the superior court for review as provided in the section 21.04.100. Any order shall be served by personal service or certified mail upon the operator.
(d) Court Orders. If the Council determines that the surface mine is not in compliance with this chapter, so that the surface mine presents an imminent and substantial endangerment to the public health or the environment, the Council may seek an order from a court of competent jurisdiction enjoining that operation.
(e) Council Enforcement Responsibilities. The Council shall have primary responsibility for enforcing this chapter and Public Resources Code section 2207. (Ord. 1218 § 1(part) 1998)
21.04.100 Review of Orders.
(a) Petition for Review. Within 30 days of the issuance of an order setting administrative penalties under subdivision (c) of section 21.04.090, the operator may petition the Council for review of the order. If the operator does not petition for review within the time limits set by this subdivision, the order setting administrative penalties shall not be subject to review by any court or agency.
(b) Notice to Operator. The Director shall notify the operator by personal service or certified mail whether the Council will review the order setting administrative penalties. In reviewing an order pursuant to this section, the record shall consist of the record before the Council, and any other relevant evidence which, in the judgment of the Council, should be considered to effectuate and implement the policies of this chapter.
(c) Council Action. The Council may affirm, modify, or set aside, in the whole or in part, its order.
(d) Effective Date of Order. Any order of the Council issued under subdivision (c) shall become effective upon issuance thereof, unless the operator petitions the superior court for review as provided in subdivision (e). The Director shall serve this order by personal service or by certified mail upon the operator. Payment of any administrative penalty which is specified in an order issued under subdivision (c), shall be made to the City of Marysville within 30 days of service of the order; however, the payment shall be held in an interest bearing impound account pending the resolution of a petition for review filed pursuant to subdivision (e).
(e) Court Review of Order. Any operator aggrieved by an order of the Council issued under subdivision (c) 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 Council setting administrative penalties under subdivision (c) of section 21.04.090, for which the legislative body or Council denies 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 the denial of review. The provisions of Section 1094.5 of the Code of Civil Procedure shall govern judicial proceedings pursuant to this subdivision, 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 set by this subdivision, an order of the Council shall not be subject to review by any court or agency. (Ord. 1218 § 1(part) 1998)
21.04.110 Appeal of Denied Permits - Areas of Significance.
(a) Appeal Period. An applicant whose request for a permit to conduct surface mining operations in an area of statewide or regional significance has been denied by the Planning Commission, or any person who is aggrieved by the granting of a permit to conduct surface mining operations in an area of statewide or regional significance, may, within 15 days of such action by the Planning Commission appeal to the Council. The provisions of section 21.04.210 shall apply to such appeal.
(b) Appeal with No Substantial Issue. The Council may decline to hear appeals that it determines raise no substantial issues.
(c) Hearing on Appeal. Appeals that the Council does not decline to hear shall be scheduled and heard at a public hearing held within 30 days of the filing of the appeal, or such longer period as may be mutually agreed upon by the Council and the person filing the appeal. (Ord. 1218 § 1(part) 1998)
21.04.120 Vested Rights.
No person who has obtained a vested right to conduct surface mining operations prior to August 20, 1996, shall be required to secure a permit pursuant to this chapter as long as the vested right continues and as long as no substantial changes are made in the operation except in accordance with this chapter. A person shall be deemed to have vested rights if, prior to August 20, 1996, the person has, in good faith and in reliance upon a permit or other authorization, if the permit or other authorization was required, diligently commenced surface mining operations and incurred substantial liabilities for work and materials necessary therefor. Expenses incurred in obtaining the enactment of an ordinance in relation to particular operation or the issuance of a permit shall not be deemed liabilities for work or materials.
The reclamation plan required to be filed under subdivision (b) of section 21.04.030. shall apply to operations conducted after October 5, 1996, or to be conducted.
Nothing in this chapter shall be construed as requiring the filing of a reclamation plan for, or the reclamation of, mined lands on which surface mining operations were conducted prior to August 20, 1996. (Ord. 1218 § 1(part) 1998)
21.04.130 Reclamation Plan Amendments.
Amendments to an approved reclamation plan may be submitted detailing proposed changes from the original plan. Substantial deviations from the original plan shall not be undertaken until such amendment has been filed with, and approved by, the Planning Commission. (Ord. 1218 § 1(part) 1998)
21.04.140 Reclamation Plan as Public Record.
Reclamation plans, reports, applications, and other documents submitted pursuant to this chapter are public records, unless it can be demonstrated to the satisfaction of the Director that the release of such information, or part thereof, would reveal production, reserves, or rate of depletion entitled to protection as proprietary information. The Director shall identify such proprietary information as a separate part of the application. Proprietary information shall be made available only to the State Geologist and to persons authorized in writing by the operator and by the owner of the mined lands.
A copy of all reclamation plans, reports, applications, and other documents submitted pursuant to this chapter shall be furnished to the State Geologist by the Director on request. (Ord. 1218 § 1(part) 1998)
21.04.150 Successor Bound by Reclamation Plan.
Whenever one operator succeeds to the interest of another in any uncompleted surface mining operation by sale, assignment, transfer, conveyance, exchange, or other means, the successor shall be bound by the provisions of the approved reclamation plan and the provisions of this chapter. (Ord. 1218 § 1(part) 1998)
21.04.160 Recording of Permit.
No permit granted pursuant to this chapter has been effective until the same has been recorded by the City Recorder for all affected parcels and proof thereof given to the Director. (Ord. 1218 § 1(part) 1998)
21.04.170 Notification to Assessor.
Subsequent to August 20, 1996, the Director shall notify the Assessor of the County of Yuba of any permits pursuant to this chapter. (Ord. 1218 § 1(part) 1998)
21.04.180 Council File.
Subsequent to August 20, 1996, the Director shall forward a copy of any permits issued pursuant to this chapter to the Clerk of the City Council. The Clerk shall maintain a permanent file of such permits. (Ord. 1218 § 1(part) 1998)
21.04.190 Revocation and Modification of Permit, Reclamation Plan, and Financial Assurances.
Upon 15 days ordinary mail notice which provides the time and place of public hearing and the reason(s) for revoking or modifying a permit and after public hearing, a permit, reclamation plan, and/or financial assurances granted or approved under this chapter may be revoked or modified by the Planning Commission, in the event it finds a violation of the terms and conditions of the permit, reclamation plan, and/or financial assurances or for other good cause consistent with the purposes and objectives of this chapter. (Ord. 1218 § 1(part) 1998)
21.04.200 Noticed Public Hearing, Action, and Findings.
Any hearing before the Planning Commission or the Council on a matter arising under this chapter shall be after the giving of a public notice by ordinary mail no less that 15 days prior to the hearing to all residents and property owners within 500 feet of the parcel or parcels which are the subject of the hearing. The action and findings of the Planning Commission and the Council shall be set forth in writing. (Ord. 1218 § 1(part) 1998)
21.04.210 Appeal.
The action or inaction of the Planning Commission to approve, grant, deny, modify, or revoke or not to revoke or modify a permit, reclamation plan, and/or financial assurances may be appealed by the filing of a written notice of appeal with, and paying an appeal fee established by the Council to the Clerk of the Council within fifteen (15) days of such action or the last day for the Planning Commission to act in the case of inaction. The notice of appeal shall describe the action or inaction appealed and the date of such action or the last day for the Planning Commission to act in the case of inaction. The Council shall thereafter conduct a noticed public hearing in accordance with the procedures relating to the action or inaction under this chapter and may affirm, reverse, or modify, in whole or in part, the action of the Planning Commission. (Ord. 1218 § 1(part), 1998)