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(continued) ess meeting for a decision of the full Board consistent with the procedures set forth in Section 3910 of this article.
Note: Authority cited: Sections 2755 and 2774.2, Public Resources Code. Reference: Section 2774.2, Public Resources Code.
s 3906. Hearing Procedures -Notice.
(a) At least 10 days prior to the hearing, the Board shall give public notice as follows:
(1) Mailing or delivering by personal service the notice to the petitioner and to the petitioner's lead agency;
(2) Mailing or delivering by personal service the notice to the Director of the Department of Conservation.
(3) Mailing the notice to any person who requests notice of the petition or hearing; and,
(4) Mailing the notice to the Board's regular mailing list.
(b) The notice of hearing shall include the following:
(1) The name of the petitioner;
(2) A statement describing the basis for the action;
(3) The amount of the administrative penalty petitioned;
(4) The time, date, and location of the public hearing.
Note: Authority cited: Sections 2755 and 2774.2, Public Resources Code. Reference: Section 2774.2, Public Resources Code.
s 3907. Hearing Procedures -Record.
The record before the Board at the public hearing shall be the administrative record submitted pursuant to Sections 3901, 3902, and 3903 of this article.
Note: Authority cited: Sections 2755 and 2774.2, Public Resources Code. Reference: Section 2774.2, Public Resources Code.
s 3908. Hearing Procedures -Recording and Transcription.
Hearings conducted under the procedures of this article shall be electronically recorded by the Board. Cost of transcription or reproduction of the electronic recording, if requested, shall be borne by the party making such request.
Note: Authority cited: Section 2755, Public Resources Code. Reference: Section 2755, Public Resources Code.
s 3909. Hearing Procedures -Use of Informal Hearing Procedure and Sequence.
(a) The Board may conduct the petition hearing under this article pursuant to the informal hearing adjudicative proceedings described in the California Administrative Procedure Act. The informal hearing procedure is intended to satisfy due process and public policy requirements in a manner that is simpler and more expeditious than hearing procedures otherwise required by statute, for use in appropriate circumstances.
(b) The public hearing shall normally proceed in the following manner:
(1) Identification of the record;
(2) Statements on behalf of the petitioner;
(3) Statements on behalf of the Director;
(4) Statements on behalf of the lead agency;
(5) Statements on behalf of the public;
(6) Rebuttal on behalf of the petitioner;
(7) Rebuttal on behalf of the Director;
(8) Motion to close the public hearing.
(c) Not withstanding the above, the Chairman or the Chairman's designee (Board member) for the purposes of conducting the hearing may, in the exercise of discretion, determine the order of the proceedings.
(d) The Chairman or the Chairman's designee (Board member) shall have the authority to impose time limits upon statements and presentations and to accept written statements in lieu of oral statements. Four copies of any written statements shall be submitted to the Board at least ten days prior to the hearing.
(e) Should the appellant, or his or her representative, fail to appear at the scheduled hearing, the board may make a determination upon the record otherwise before it, or, in the alternative, the board may consider the petition for hearing withdrawn.
(f) If the board determines that the petition for hearing has been withdrawn and more than 30 days has passed since the date of issuance of the order setting an administrative penalty, the order setting the administrative penalty shall not be subject to review by any court or agency.
(g) The actions of the Chairman or the Chairman's designee (Board member) under this section are not subject to judicial review.
Note: Authority cited: Sections 2755 and 2774.2, Public Resources Code; and Article 10, Administrative Procedure Act. Reference: Section 2774.2, Public Resources Code; and Article 10, Administrative Procedure Act.
s 3910. Hearing Procedures -Determination.
(a) Following the public hearing, the Board shall determine: (1) whether the alleged violations cited in the Director's order are supported by substantial evidence in light of the whole record before it; and, (2) the action the Board should take to affirm, modify, or set aside, in whole or in part, the administrative penalty issued by the Director. The Board shall issue its own order upholding its determination.
(b) Modify means to change the administrative penalty from its original construction by the director. The board may modify the administrative penalty, in whole or in part, by such measures as it deems appropriate which include, but are not limited to, increasing or decreasing the penalty amount, establishing compliance deadlines, and structuring a method for payment of the penalty.
(c) Notification of the Board's determination shall be made by certified mail or personal service to the petitioner, the lead agency, and the Director within 15 days following the regular business meeting of the Board at which the decision is made.
Note: Authority cited: Sections 2755 and 2774.2, Public Resources Code. Reference: Section 2774.2, Public Resources Code.
s 3911. Petition/Notice of Defense Form.
STATE OF CALIFORNIA
DEPARTMENT OF CONSERVATION
STATE MINING AND GEOLOGY BOARD
IN THE MATTER OF THE ) Case No.
ADMINISTRATIVE PENALTY )
ASSESSED AGAINST: )
) PETITION/
) NOTICE OF DEFENSE
an individual, )
)
d.b.a. )
)
PETITIONER(S) )
______________________ )
( ) I acknowledge receipt of this action assessing an administrative penalty under Public Resources Code Section 2774.1(c) against me or the company for which I am the agent.
( ) I request a hearing before the State Mining and Geology Board.
( ) I object to the action on the ground that it does not state acts or omissions upon which the Department of Conservation may proceed.
( ) I object to the form of the action on the ground that it is so indefinite or uncertain that I cannot identify the transaction or prepare a defense.
( ) I admit the action in whole or in part. (Indicate which parts you admit by paragraph number or list on a separate page facts or allegations admitted.)
( ) I deny the action in whole or in part. (Indicate which parts you deny by paragraph number or list on a separate page facts or allegations denied.)
( ) I have no personal knowledge of the facts or allegations. (Indicate which parts by paragraph number or on a separate page.)
( ) I present the following new matter by way of defense: (On a separate page, list other facts which may exonerate or mitigate your possible responsibility or otherwise explain your relationship to the alleged violation. Be as specific as you can. If you have or know of any document(s), photograph(s), map(s), letter(s), or other evidence that you believe is/are relevant, please identify it/them by name, date, type, and any other identifying information and provide the original(s) or (a) cop(y/ies) if you can):
( ) I wish to present the following information, statement, etc. in addition: (Use a separate page, if needed.)
( ) I have documents, exhibits, declarations under penalty of perjury and/or other materials that I am attaching to this form or that I want to be made a part of the administrative record for this administrative penalty. (Please list in chronological order by date, author and title and enclose a copy with this completed form.)
( ) I object to the action on the ground that, under the circumstances, compliance with the requirement of a regulation would result in a material violation of another regulation enacted by another department affecting substantive rights. (List the other regulation(s).)
( ) I will pay the full assessed amount and waive a hearing.
DO NOT SEND CASH. Please note your case number on your remittance, made payable to: State of California, Department of Conservation, to ensure proper credit and mail it to this address: Department of Conservation, Office of Mine Reclamation, 801 K Street, MS 09-06, Sacramento, California 95814.
If you intend to be represented by an attorney, please state his/her name, address, and telephone number. Otherwise, state the address and phone number where you want legal documents sent. Mail this Notice of Defense to: Executive Officer, State Mining and Geology Board, 801 K Street, MS 24-05, Sacramento, California 95814.
DATED: ____________________ _____________________________________
Petitioner's Signature
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Name of Counsel/Petitioner (circle one) Phone Number
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Address City State Zip
s 3920. Selection of Professional Service Firms.
(a) The purpose of these regulations is to establish those procedures authorized and required by Chapter 10 (commencing with Section 4525) of Division 5 of Title 1 of the Government Code. These regulations are specific to the Surface Mining and Reclamation Act of 1975 (Public Resources Code Sections 2710, et seq.
(b) Selection by the board for professional services of private architectural, landscape architectural, engineering, environmental, land surveying, or construction project management, firms shall be on the basis of demonstrated competence and on the professional qualifications necessary for the satisfactory performance of the services required.
Note: Authority cited: Sections 2755-2759, Public Resources Code; and Section 4526, Government Code. Reference: Sections 4525-4529.5, Government Code.
s 3921. Definitions, as Used in These Regulations.
(a) "Small business" shall mean a small business firm as defined by the Director of General Services (section 1896 of Title 2 of the California Code of Regulations) pursuant to section 14837 of the Government Code.
(b) "Architectural, landscape architectural, engineering, environmental, land surveying, and construction project management services" are those services to be procured outside State of California Civil Service procedures and of a character necessarily rendered by an architect, landscape architect, engineer, environmental specialist, land surveyor, or construction project management contractor but may include ancillary services logically or justifiably performed in connection therewith.
(c) "Project" means a project as defined in Section 10105 of the Public Contract Code, or as defined in the Public Resources Code Section 21065.
Note: Authority cited: Section 4526, Government Code. Reference: Sections 4525 and 14837, Government Code; Section 10105, Public Contract Code; and Section 21065, Public Resources Code.
s 3922. Establishment of Criteria.
(a) The board shall establish criteria, on a case by case instance, which will comprise the basis for selection for each project. The criteria shall include such factors as professional excellence, demonstrated competence, specialized experience of the firm, education and experience of key personnel to be assigned, staff capability, workload ability to meet schedules, nature and quality of completed work, reliability and continuity of the firm, location, and other considerations deemed relevant. Such factors shall be weighted by the board according to the nature of the project, the needs of the State and complexity and special requirements of the specific project.
(b) In no event shall the criteria include practices which might result in unlawful activity including, but not limited to, rebates, kickbacks, or other unlawful consideration. Board members with a relationship to a person or business entity seeking a contract under this section are prohibited from participating in the selection process if the board member would be subject to the prohibition of Section 87100 of the Government Code.
Note: Authority cited: Section 4526, Government Code. Reference: Sections 4526 and 87100, Government Code.
s 3923. Estimate of Value of Services.
Before any discussion with any firm concerning fees, the board may cause an estimate of the value of such services to be prepared. This estimate shall serve as a guide in determining fair and reasonable compensation for the services rendered. Such estimate shall be, and remain, confidential until award of contract or abandonment of any further procedure for the services to which it relates. At any time the board determines the estimates to be unrealistic because of rising costs, special conditions, or for other relevant considerations, the estimate may be reevaluated and modified if necessary.
Note: Authority cited: Section 4526, Government Code. Reference: Section 4528, Government Code.
s 3924. Request for Proposals.
(a) Where a project requires architectural, landscape architectural, engineering, environmental, land surveying, or construction project management services, the board shall make an announcement through a publication of the respective professional society, if any exist, in a construction trade journal or, if none exist, in other appropriate publications that are published within a reasonable time frame such that a lengthy publication delay does not adversely affect the project.
(b) The announcement shall contain the following information: The nature of the work, the criteria upon which the award shall be made, and the time within which statements of interest, qualification and performance data will be received.
(c) The board shall endeavor to provide to all small business firms who have indicated an interest in receiving such, a copy of each announcement for projects for which the board concludes that small business firms could be especially qualified. A failure of the board to send a copy of an announcement to any firm shall not operate to preclude any contract.
Note: Authority cited: Section 4526, Government Code. Reference: Section 4527, Government Code.
s 3925. Selection of Firm.
After expiration of the period stated in the publications or other public announcements, the board shall evaluate statements of qualifications and performance data which have been submitted to the board. Discussions shall be conducted with no less than three firms regarding the required service. Where three firms cannot be found which could provide the required service, a full explanation including names and addresses of firms and individuals requested to submit proposals must be entered in the files. From the firms with which discussions are held, the board shall select no less than three, provided at least three firms submit proposals, in order of preference, based upon the established criteria, which are deemed to be the most highly qualified to provide the services required.
Note: Authority cited: Section 4526, Government Code. Reference: Sections 4526-4527, Government Code.
s 3926. Negotiation.
The board shall attempt to negotiate a contract with the most highly qualified firm. When the board is unable to negotiate a satisfactory contract with this firm with fair and reasonable compensation provisions, as determined by the procedure set forth in Section 3923 if those procedures were used, negotiations shall be terminated. The board shall then undertake negotiations with the second most qualified firm on the same basis. Failing accord, negotiations shall be terminated. The board shall then undertake negotiations with the third most qualified firm on the same basis. Failing accord, negotiations shall be terminated. Should the board be unable to negotiate a satisfactory contract at fair and reasonable compensation with any of the selected firms, additional firms may be selected in the manner prescribed in this article and the negotiation procedure continued.
Note: Authority cited: Section 4526, Government Code. Reference: Section 4528, Government Code.
s 3927. Amendments.
In instances where the board effects a necessary change in the project during the course of performance of the contract, the firm's compensation may be adjusted by negotiation of a mutual written agreement in a fair and reasonable amount where the amount of work to be performed by the firm is changed from that which existed previously in the contemplation of the parties.
Note: Authority cited: Section 4526, Government Code. Reference: Section 4526, Government Code.
s 3928. Contracting in Phases.
Should the board determine that it is necessary or desirable to have a given project performed in phases, it will not be necessary to negotiate the total contract price or compensation provisions in the initial instance, provided that the board shall have determined that the firm is best qualified to perform the whole project at a fair and reasonable cost, and the contract contains provisions that the board, at its option, may utilize the firm for other phases and that the firm will accept a fair and reasonable price for subsequent phases to be later negotiated and reflected in a subsequent written instrument. The procedure with regard to estimates and negotiation shall otherwise be applicable.
Note: Authority cited: Section 4526, Government Code. Reference: Section 4526, Government Code.
s 3929. Board's Power to Require Bids.
Where the board determines that the services needed are technical in nature and involve little professional judgment and that requiring bids would be in the public interest, a contract shall be awarded on the basis of bids rather than by following the foregoing procedures for requesting proposals and negotiation.
Note: Authority cited: Section 4526, Government Code. Reference: Section 4529, Government Code.
s 3930. Exclusions.
The provisions of this article shall not apply to service agreements for an architect, landscape architect, engineer, environmental specialist, land surveyor, or construction project management contractor, engaged to provide consulting services on specific problems on projects where the architectural, landscape architectural, engineering, environmental, land surveying, or construction project management work is being performed by State of California Civil Service employees.
Note: Authority cited: Section 4526, Government Code. Reference: Section 4526, Government Code.
s 3940. Purpose of Regulations.
The regulations contained in this article govern procedures affecting the review of orders to comply with the Surface Mining and Reclamation Act of 1975 (Act) issued by the director of the department, or by the board when acting in the capacity of lead agency pursuant to Public Resources Code Section 2774.4.
Note: Authority cited: Section 2755, Public Resources Code. Reference: Sections 2774.1 and 2774.4, Public Resources Code.
s 3941. Determination of Jurisdiction.
(a) The Chairman of the board, or the Chairman's designee, shall determine whether the review of the order is within the jurisdiction of the board for the purposes of hearing the alleged violation. If the Chairman or the designee finds that the criteria listed in (1) and (2) below have been satisfied, then he or she shall schedule a hearing of the order before the board, otherwise he or she shall refuse to grant a hearing. In making this determination, the Chairman, or the Chairman's designee, shall consider the following:
(1) Whether the order addresses violations related to the Act which have been confirmed by findings during an annual inspection or as the result of another physical site inspection of the mine;
(2) Whether the alleged violation has extended beyond 30 days from the date of receipt by the operator of notification from the director or the board.
(b) The Chairman of the board or designee shall make such a determination within 15 days of receipt of an order issued by the director. Where the board issues the order to comply pursuant to its lead agency authority under Public Resources Code Section 2774.4, no independent determination by the Chairman or the designee is required. The board shall notify the appellant and the director of its determination by certified mail or personal service.
Note: Authority cited: Section 2755, Public Resources Code. Reference: Section 2774.1, Public Resources Code.
s 3942. Administrative Record.
The administrative record shall consist of the information that was before the director for an order issued by the director, or before the board for an order issued by the board, at the time the order was issued and which comprised the basis for the order. The information before the director, or the board, shall consist of but may not be limited to the following:
(a) The name and address of the surface mining operator and the name and address of any person designated by the operator as an agent for the service of process;
(b) A general description of the surface mining operation;
(c) A description of the alleged violation specifying which aspects of the surface mine's activities or operations are inconsistent with the Act;
(d) A time for achieving compliance that the director, or the board, has determined to be reasonable.
Note: Authority cited: Section 2755, Public Resources Code. Reference: Section 2774.1, Public Resources Code.
s 3943. Hearing Procedures - Scheduling.
The board shall schedule and hold a public hearing on an order no sooner than 30 days from the date of issuance of the order. In no case shall the hearing be scheduled beyond 60 days after the issuance of the order. The hearing may be scheduled as part of a regular business meeting of the board or may be conducted by a committee of the board.
Note: Authority cited: Section 2755, Public Resources Code. Reference: Section 2774.1, Public Resources Code.
s 3944. Hearing Procedures - Authority for Delegation.
The board may delegate conduct of the hearing to a committee of at least two members of the board to be appointed for that hearing by the Chairman of the board. The Chairman of the board or the Chairman's designee shall conduct the hearing; the recommendations of the hearing committee shall be presented to a quorum of the board at its next regular business meeting for a decision of the full board consistent with the procedures set forth in Section 3948 of these regulations.
Note: Authority cited: Section 2755, Public Resources Code. Reference: Section 2774.1, Public Resources Code.
s 3945. Hearing Procedures - Notice.
(a) At least 10 days prior to the hearing, the board shall give public notice as follows:
(1) Mailing the notice to the lead agency (if the board is not the lead agency), the operator subject to the order to comply, and the director;
(2) Mailing the notice to any person who requests notice of the hearing;
(b) The notice of hearing shall include the following:
(1) The name of the operator subject to the order to comply;
(2) Identification of the proposed surface mining operation and a brief description of the location of the operation by reference to any commonly known landmarks in the area;
(3) A statement that the operator has been issued an order to comply with specific aspects of the Act;
(4) A statement inviting the operator, the lead agency, and the public to make statements at the hearing regarding the decision of board; and,
(5) The time, date, and location of the public hearing.
Note: Authority cited: Section 2755, Public Resources Code. Reference: Section 2774.1, Public Resources Code.
s 3946. Hearing Procedures - Record.
The record before the board at the public hearing shall be the administrative record submitted pursuant to Section 3942 of this article.
Note: Authority cited: Section 2755, Public Resources Code. Reference: Section 2774.1, Public Resources Code.
s 3947. Hearing Procedures - Sequence.
(a) The public hearing should normally proceed in the following manner:
(1) Identification of the record;
(2) Statements on behalf of the operator subject to the order;
(3) Statements on behalf of the director, or the board if acting as the lead agency;
(4) Statements on behalf of the public;
(5) Rebuttal on behalf of the operator; and
(6) Rebuttal on behalf of the director, or the board if acting as the lead agency;
(7) Motion to close the public hearing.
(b) Notwithstanding the above, the Chairman or the Chairman's designee for purposes of conducting the hearing may in the exercise of discretion, determine the order of the proceedings.
(c) The Chairman or the Chairman's designee may impose reasonable time limits upon statements and presentations and may accept written statements in lieu of oral statements. Written statements (12 copies) must be submitted to the board at least five days prior to the hearing.
(d) The public hearing shall be recorded.
Note: Authority cited: Section 2755, Public Resources Code. Reference: Section 2774.1, Public Resources Code.
s 3948. Hearing Procedures - Determination.
Following the public hearing, the board shall determine whether, based on the record before it, the evidence before the director for orders issued by the director, or the board for orders issued by the board, substantially supports the basis for the order at the time the order was issued. If the board finds that the evidence in the record supports the issuance of the order, the board shall uphold the order and any effective date contained in the order. If no effective date is contained in the order, then the board shall set a date upon which the order takes effect. If the board finds that the evidence in the record does not substantially support the order, then the board shall not uphold the order and shall notify the director of the specific reasons for not upholding the director's order. Notification of the board's determination shall be made by certified mail or personal service to the operator and the director within 15 days following the regular business meeting of the board at which the determination is made.
Note: Authority cited: Section 2755, Public Resources Code. Reference: Section 2774.1, Public Resources Code.