Code Section

2774.1.  

(a) (1) Except as provided in subdivision (i) of Section 2770, if the lead agency or the supervisor determines, based upon an annual inspection pursuant to Section 2774, or otherwise confirmed by an inspection of the surface mining operation, that a surface mining operation is not in compliance with this chapter, the lead agency or the supervisor may issue a notice of that violation to the operator by personal service or certified mail. If the lead agency issues the notice, the lead agency shall send a copy of the notice to the supervisor. The notice shall include both of the following:

(A) A description of the violation.

(B) Actions the operator shall take to correct the violation.

(2) (A) If a lead agency or the supervisor determines that the time to correct the noticed violation will exceed 30 days, the lead agency and the operator may enter into a stipulated order to comply, with notice sent to the supervisor. If the supervisor initiated the enforcement action, the supervisor, after consulting with the lead agency, may enter into a stipulated order to comply with the operator. The lead agency may, but need not, join the stipulated order with the supervisor.

(B) A stipulated order to comply shall include a schedule and time for compliance that the lead agency or the supervisor, as applicable, determines is reasonable after taking into account the actions and legal processes required to correct the violation.

(3) (A) If the operator does not comply with a notice issued pursuant to paragraph (1) within 30 days of being served the notice or commit to enter into a stipulated order to comply pursuant to paragraph (2) within 30 days of being served the notice, the lead agency or the supervisor may issue an order to comply by personal service or certified mail requiring the operator to comply with this chapter or, if the operator does not have an approved reclamation plan or financial assurances, cease all further surface mining activities. A lead agency shall, at the time of issuing an order to comply, provide a copy to the supervisor.

(B) An order to comply issued pursuant to this paragraph 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 lead agency, if the lead agency issued the order, or the board, if the supervisor issued the order. An order to comply issued pursuant to this paragraph shall specify all of the following:

(i) Which aspects of the surface mining operation are inconsistent with this chapter.

(ii) A time for compliance that the lead agency or supervisor determines is reasonable, taking into account the seriousness of the alleged violation and any good faith efforts to comply with applicable requirements.

(iii) The actions and legal processes required to correct the alleged violation.

(C) An appeal filed pursuant to subparagraph (B) 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 lead agency, if the lead agency issued the order, or the operator and the supervisor, if the supervisor issued the order.

(b) [Reserved]

(c) An operator who violates or fails to comply with an order to comply issued under subdivision (a) after the order’s effective date or who fails to submit a report or pay annual fees to the supervisor or lead agency as required by Section 2207, shall be subject to an order by the lead agency or the supervisor 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, including Section 2207, or from the date of the inspection when the violation was identified, at the discretion of the issuer of the notice of that violation. The penalty may be imposed administratively by the lead agency or the supervisor. In determining the amount of the administrative penalty, the lead agency or the supervisor 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 of the assessment and payment shall be made to the lead agency or the supervisor within 30 days, unless the operator petitions the legislative body of the lead agency, the board, or the superior court for review as provided in Section 2774.2. An order shall be served by personal service or by certified mail upon the operator. Penalties collected by the supervisor shall not be used for purposes other than to cover the reasonable costs incurred by the department in implementing this chapter or Section 2207.

(d) (1) An operator who violates or fails to comply with an order to comply issued pursuant to paragraph (3) of subdivision (a) or a stipulated order to comply entered into pursuant to paragraph (2) of subdivision (a) after the order’s effective date shall be removed from the list published by the Division of Mine Reclamation pursuant to subdivision (b) of Section 2717.

(2) If after a public hearing the board or lead agency denies an appeal by the operator pursuant to subparagraph (C) of paragraph (3) of subdivision (a), the operator shall be removed 10 working days following the denial of the appeal from the list published by the Division of Mine Reclamation pursuant to subdivision (b) of Section 2717.

(3) If the operator enters into a stipulated order to comply between the operator and the lead agency, if the lead agency issued the order, or the operator and the supervisor, if the supervisor issued the order, within 10 working days of the denial of the appeal and the stipulated order to comply is consistent with the order to comply upheld by the board or lead agency and includes a stipulated schedule for compliance, the operator shall remain on the list published by the Division of Mine Reclamation pursuant to subdivision (b) of Section 2717.

(4) Issuance of a notice pursuant to paragraph (1) of subdivision (a) or an order to comply or stipulated order to comply pursuant to paragraph (2) or (3) of subdivision (a) shall not disqualify an operator from eligibility for placement on the list published by the Division of Mine Reclamation pursuant to subdivision (b) of Section 2717, except in cases where an operator has failed to submit a financial assurance cost estimate to the lead agency or a financial assurance mechanism to the lead agency and supervisor, in accordance with Section 2773.4.

(e) If the lead agency or the supervisor 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 lead agency or the Attorney General, on behalf of the supervisor, may seek an order from a court of competent jurisdiction enjoining that operation.

(f) Upon a complaint by the supervisor, the department, or the board, the Attorney General may bring an action to recover administrative penalties under this section, and penalties under Section 2207, in any court of competent jurisdiction in this state against any person violating any provision of this chapter or Section 2207, or any regulation adopted pursuant to this chapter or Section 2207. The Attorney General may bring this action on his or her own initiative if, after examining the complaint and the evidence, he or she believes a violation has occurred. The Attorney General may also seek an order from a court of competent jurisdiction compelling the operator to comply with this chapter and Section 2207.

(g) (1) The lead agency has primary responsibility for enforcing this chapter and Section 2207. In cases where the board is not the lead agency pursuant to Section 2774.4, enforcement actions may be initiated by the supervisor pursuant to this section only after the violation has come to the attention of the supervisor and either of the following occurs:

(A) The lead agency has been notified by the supervisor in writing of the violation for at least 30 days, and has not taken appropriate enforcement action, which may include failing to issue an order to comply within a reasonable time after issuing a notice of violation.

(B) The supervisor determines that there is a violation that amounts to an imminent and substantial endangerment to the public health or safety, or to the environment.

(2) The supervisor shall comply with this section in initiating enforcement actions.

(h) Remedies under this section are in addition to, and do not supersede or limit, any and all other remedies, civil or criminal.