2774.4. (a) The board shall exercise some or all of a lead agency’s powers under this chapter pursuant to subdivision (c), except for permitting authority and vested rights determinations, if the board finds that a lead agency has done any of the following:
(1) Approved reclamation plans or financial assurance mechanisms that are not consistent with this chapter.
(2) Failed to inspect or cause the inspection of surface mining operations as required by this chapter.
(3) Failed to seek forfeiture of financial assurances and to carry out reclamation of surface mining operations as required by this chapter.
(4) Failed to take appropriate enforcement actions as required by this chapter.
(5) Intentionally misrepresented the results of inspections required under this chapter.
(6) Failed to submit information to the Division of Mine Reclamation as required by this chapter.
(b) The board shall conduct a public hearing no sooner than three years after the board has taken action pursuant to subdivision (a) to determine if a lead agency has corrected its deficiencies in implementing and enforcing this chapter and the rules and regulations adopted pursuant to this chapter. If the board finds the lead agency has corrected some or all of its deficiencies in implementing and enforcing this chapter, the board shall restore to the lead agency some or all of the powers assumed by the board pursuant to subdivision (a).
(c) (1) Before taking any action pursuant to subdivision (a), the board shall first notify the lead agency of the identified deficiencies and allow the lead agency 45 days to provide a response to the board on the identified deficiencies. The board may review the lead agency’s response at a regularly scheduled meeting.
(2) (A) If the board is not satisfied with the lead agency’s response, the board shall hold a public hearing within the lead agency’s area of jurisdiction, upon a 45-day written notice given to the public in at least one newspaper of general circulation within the city or county and directly mailed to the lead agency and to all operators within the lead agency’s jurisdiction who have submitted reports as required by Section 2207.
(B) At the hearing, the board shall determine if the lead agency has engaged in the conduct described in subdivision (a). If the board finds that the lead agency has engaged in conduct described in subdivision (a), the board shall do either of the following:
(i) Require the lead agency to develop a remedial plan to correct the noted deficiencies. The remedial plan shall describe specific objectives and corresponding processes designed to address, at a minimum, the noted deficiencies and a time that the remedial plan will be fully implemented. The board shall set a hearing to review the completion of the remedial plan consistent with paragraph (2) and subdivisions (d) and (e).
(ii) Take immediate action pursuant to subdivision (a).
(d) Affected operators and interested persons have the right at the public hearing to present oral and written evidence on the matter being considered. At the public hearing, the board may place reasonable limits on the right of affected operators and interested persons to question and solicit testimony.
(e) (1) If the board decides to take action pursuant to subdivision (a) and exercise some or all of a lead agency’s powers under this chapter, except for permitting authority and vested rights determinations, the board, based on the record of the public hearing, shall adopt written findings that explain all of the following:
(A) The action to be taken by the board.
(B) Why the board decided to take the action.
(C) Why the action is authorized by and meets the requirements of subdivision (a).
(2) In addition, the board’s findings shall address the significant issues raised, or written evidence presented, by affected operators, interested persons, the lead agency, or the Division of Mine Reclamation. The transcript of testimony and exhibits, together with all papers and requests filed in the proceedings, shall constitute the exclusive record for decision by the board.
(f) If the board finds at the hearing held pursuant to paragraph (2) of subdivision (c) that the lead agency has not completed the remedial plan prepared pursuant to clause (i) of subparagraph (B) of paragraph (2) of subdivision (c) to the board’s satisfaction, the board shall follow the procedures set forth in paragraph (2) of subdivision (c) and subdivisions (d) and (e). If the board finds at the hearing held pursuant to paragraph (2) of subdivision (c) that the lead agency has completed the remedial plan prepared pursuant to clause (i) of subparagraph (B) of paragraph (2) of subdivision (c) to the board’s satisfaction, the board shall conclude the action it has taken pursuant to this section.
(g) The lead agency, any affected operator, or any interested person who has presented oral or written evidence at the public hearing before the board pursuant to subdivision (d) may obtain review of the board’s action taken pursuant to subdivision (a) by filing in the superior court a petition for writ of mandate within 30 days following the issuance of the board’s decision. Section 1094.5 of the Code of Civil Procedure governs judicial proceedings pursuant to this subdivision, except that in every case the court shall exercise its independent judgment. If a petition for a writ of mandate is not filed within the time limits set by this subdivision, the board’s action under subdivision (a) shall not be subject to review by any court or agency.
(Amended by Stats. 2017, Ch. 521, Sec. 45. (SB 809) Effective January 1, 2018.)