The Ojai Post

The notations, numbers and pages cited refer to the original C.U.P. #5170 on the approval document dated, July 19, 2001.

(1) There's a requirement that prior to any renewal application that the Planning Director must authorize, in writing, that all prior permit conditions have been reviewed and have met conditions set-forth in the original CUP. Our first point of concern, therefore, is whether or not – according to the guidelines in Item #2-b-2 on Page 2 - there was ever the appropriate determination, in writing, by then Planning Director Chris Stephens, prior to July 19, 2006.

So far, in the Coalition's review of all the Public Records obtained from the Ozena file, we have found no such written determination and are therefore concerned as to whether such a review was ever undertaken in the first place, or whether or not such a document was ever even written. Indeed, given the extremely high percentages of daily violations of the permit schedule that were found in a two month sampling of data from 2007, one has to wonder if such a review had ever been done prior to the 2006 authorization. If the review had been done, what were the results? And if no review had been done, how was the agency able to determine that the mine operators had been in continuous compliance?

(2) Item 2-c on the same page begins to look at the "Final Reclamation." We note that the Planning Agency should be assessing annually whether or not a current final reclamation plan (and not a proposed Aquaculture solution that may or may not be approved in the future) is in existence; whether or not there is any sort of confirmed financial assurance guarantee; and whether or not such a guarantee had been properly adjusted for possible past inflation, etc., on an annual basis.

Additionally -- has there been an annual survey to determine if the site, as originally approved and/or modified, is still properly staked and marked? Or have the boundaries been improperly modified as has been alleged by several unconfirmed sources?

(3) On Page 3 - item 3-b reiterates the need for proof of insurance; to delineate the boundaries of the excavation pit; and also the concept of "truck trip record keeping" in condition 27. Elsewhere in the permit the maximum number of daily trips, annual trips and the average number of daily trips are delineated. We remain particularly concerned about this last item as there seems to have been no attempt whatsoever by the Planning Division to calculate any of these actual numbers of trips.

Given that the Planning Director is required to determine that all conditions have been continuously met prior to granting an extension, how is it possible to then conclude that conditions have been met without an actual count of trips and a review of the weigh tickets?

Was there ever any count at all -- either prior to the approval, or since -- that has actually determined either the average or maximum number of total trips for the year?

Further, how is it possible to establish any of the required Environmental baselines for an adequate EIR review required of any CUP renewal without any documentation of the actual number of truck trips in any one year?

It should be noted here that both the original application and the subsequent 2003 modification were accomplished by means of Minimum Negative Declarations (MND's) and that there was never any independent review of the applicant's EIR. Given the well documented inability – in court documents and otherwise - of the Planning Division staff to handle matters even as basic as communicating and enforcing hours of operation, or to read, decipher and properly interpret data obtained from the weigh tickets, how can anyone claim that any planning staff ever conducted either a proper or adequate environmental review that thoroughly and diligently meets all CEQA standards?

(4) Continuing onto Page 4 - Condition 48 requires hazardous Materials Permits; Condition 58 requires Storm water Quality Conditions and Condition 62 requires Annual Financial Assurances for site reclamation. Have all of these permits been reviewed annually for compliance? Have the conditions actually been met? For example, the Coalition read Carol Aragon's recent report that old concrete and road wastes are being stored on site. Has anyone from the planning staff asked why these materials ended up on site? Is the mine illegally processing road waste or dumping it on site?

Given that the site may be partially leased to another firm - Alliance Trucking - what knowledge, if any, does the County have that all guarantees, permits and assurances are being met by Alliance?

Furthermore, does the storm water run-off plan meet current 2009 State and Federal standards that have quite possibly changed since 2001? Please keep in mind that the Ozena mine sits right in the middle of a flood plain.

(5) Section c, on Page 4 - lists a number of annual requirements, specifically conditions 24 through 65. Is there any documentation that these annual requirements have actually been met? These would have to include all the necessary updating, such as increasing financial assurances to keep pace with inflation; proof of insurance; and annual SMARA reviews. Is there evidence to present that all of these were in fact conducted at the legally mandated time and are now in existence for review?

Has each and every annual review included reviews of weigh tickets to determine compliance both as to numbers of trips and time compliance? And if so, where is the documentation of those reviews? Further -- given the complete failure of the Head of the Industrial sector to correctly interpret this data in 2007 -- what proof is there that if such reviews and counts were undertaken, that they were handled with even a modicum of competence by the staff assigned to these tasks?

(5) On Page 4, item 5 requires consultation with other agencies if there have been any modifications to the permit. Given that substantial changes were implemented in the spring of 2008, it is appropriate for us to ask for written proof of all the legally mandated agencies that were consulted and for the written responses from those agencies. Can this verification be forthcoming?

(6) On Page 5, item 7, everyone involved in the operation of this permit must be informed of the permit conditions. What proof exists -- in writing -- that this was ever done? Or, done correctly? For example, since August of 2008, the Stop The Trucks! Coalition has twice requested documentation that would confirm whether or not such notice was ever made. Through another Coalition PRR that same month, we learned that flyers being distributed by Ozena to rock and gravel transport drivers were supposed to be turned-over for review and inspection. Apparently these flyers – which remain in the hands of the Planning Department and referred to regularly in emails – were completely incorrect when listing hours of operation - including driving through the restricted zone in the Ojai Valley. And if the hours of operation were consistently interpreted incorrectly, how is it possible that the Planning Division, at any time in the past, could attest that the operator has been in continuous compliance with the C.U.P.? To date, the Planning Department has yet to turn any of these flyers over as required by law.

(7) In item 8, on the same page, the owner must sign off on any Notice of Land Use Entitlement etc. Was such a document ever filed? Was a new one filed when Alliance took over the lease?

(8) In item 9, also on Page 5 and 6, all costs for SMARA, etc., are to be charged to the permit holder to insure Condition Compliance for CEQA. How is it then possible for the applicant to turn down a review of their application for a continuance by an outside firm selected by the County, in a bid process, because the Applicant has determined that the cost is too great? CEQA requires an adequate review, not the cheapest review. In fact, CEQA does not allow the applicant to determine costs. How is it that Planning Staff has allowed the applicant and/or the agent representing the applicant to apparently manipulate and/or significantly control the review process? Again, it's clear that CEQA does not allow the applicant or his agent to determine costs, but does require an adequate review and not the least costly one. How is it that Staff has allowed the applicant's opinion regarding costs to apparently control the review process?

(9) Page 6, item 2 at the top, refers to the annual SMARA inspections. Can the work of the SMARA coordinator be documented beyond a shadow of doubt? Has this compliance work been done regularly, completely and properly each and every year? These are documents the Coalition would like to see and if we have not yet been given access to them via prior PRR, they will be certainly included in future requests.

(10) Further down on Page 6, item 6, (2), requires a signed reimbursement agreement. Is such an agreement current? And if it is, is the agreement with Ozena or with Alliance?

(11) Further down on page 6, item c - regarding Monitoring and enforcement costs, see references to County Code 8114-3.4.

The county is in the midst of a budget crisis, yet the Planning Director made an arbitrary decision in December of 2007 that Ozena would not be responsible for "past" violations. Her justification was that there was a misunderstanding of the conditions of the permit. Was there in fact a "misunderstanding" or was it staff incompetence and a failure of supervision? Wasn't the mine was allowed to engage in extensive violations – as proven in the two month review as well as having been extensively commented upon in the recently concluded *Virgilo vs. County of Ventura Court Case? Additionally, and also apparently due to this alleged negligence and incompetence of the Planning Division staff -- the Planning Director's actions here may not only have been an abuse of her discretion as noted by the judge on that case, but may have also cost the county – and, ultimately the citizens of this county for whom the Planning Director works -- hundreds of thousands of dollars in potential and/or actual penalties.

*County government attorneys acknowledged that a number of Planning Division staffers had made numerous errors with regard to improperly understanding, interpreting and enforcing the Ozena CUP, and that "planners have no power to change the terms (of the CUP) approved by the Planning Commission." County lawyers further noted that "staff's misapplication of the Condition passively allowing truck travel during prohibited times does not and cannot effectuate a change to the Condition approved and adopted by the Commission." Additionally, County council went on to argue that "….to the contrary, Planning staff has a ministerial duty to apply and enforce all Truck Travel conditions as they are approved by the Planning Commission." Furthermore, that the County Planning Division has "the clear and present duty" to apply and enforce the Condition as written and approved by the Planning Division and re-adopted in Modification #1."

Finally – County lawyers made such a good case noting that with regard to both Ozena's apparent CUP violations as well as Planning Division's failure to enforce the CUP guidelines, that Judge Reiser expressed the following in a footnote attached to his findings: "The initial permit allows for a five-year extension if the Planning Director, assuming 'all conditions have been continuously complied with' by petitioners, authorizes such continued use. Since the County has already found permit violations, it might well be an abuse of discretion for the Planning Director to authorize such an extension."

(12) Pages 7 & 8 - items e & f - These require the operator to indemnify the County. Given that the facility has now been leased, have all of these financial indemnities been met at an adequate degree, including any past or future inflation? Is there written proof of such? Has the new operator, Alliance, also satisfactorily participated in such indemnification?

(13) Section 13 on Page 9 deals with the resolution of complaints. Isn't the Planning Division clearly delinquent here on several levels? For example, there's still an open complaint from February of 2008 filed by the Coalition and Bob Walker of Ojai that was dropped in the middle of processing by the SMARA coordinator and the head of the industrial section.

And just last week, didn't the Planning Director attempt to invalidate a number of complaints filed in November and December of 2008 without even so much as providing the Coalition with a single weigh ticket to back her claims of Ozena's innocence? And given the fact the Coalition has filed multiple public record requests asking the Planning Division turn over such weigh tickets, shouldn't this latest failure to cooperate also be considered a possible abuse of her discretion?.

However, the issue of complaint response goes beyond the division's narrow interpretation that complaints are just about trucks. The C.U.P does not differentiate between types of complaints. And while the Stop the Trucks! Coalition has, on numerous occasions, mailed and/or e-mailed complaints about the lack of compliance monitoring -- to date, these complaints have yet to be addressed by the Planning Division. According to CEQA standards, monitoring with regard to compliance must be reasonable and feasible. However, the failure of the Planning Division to take responsibility in assuring that such monitoring takes places with regard to the Ozena rock and gravel mine operation, was amply presented at a meeting of the Ventura County Board of Supervisors as far back as Spring / 2008. It appears as if the Planning Division continues to ignore many of these complaints as if they did not exist. Tragically, they do.

(14) Item 16, also on Page 9, requires that prior to granting of any CUP, the Ozena operation must also be in compliance with all other Federal, State and Local authorities and agencies. Is there any written proof that such consultation has been accomplished by the various agencies in question and Ozena?

Where is the paperwork from SMARA, APCD, Cal water agencies, Fish & Game, etc. that indicates that the mine has meet all conditions for operation?

And why have trucks coming from the mine been regularly allowed to flaunt requirements that their loads be covered to protect other drivers, etc., on the highways? Even one of the Ojai City Council members has been among the many citizens whose windshield has been smashed by rock and gravel falling off uncovered loads. Did any compliance monitoring even assess something as basic as this?

(15) Item 19 on Page 10 allows the county to request aerial photographs to determine whether the mine's boundaries, etc. have been altered or modified. Do these exist? Have any aerial photos ever been taken? And if they have, when were they taken and how many exist? And if they exist, where are these photos?

(16) Item 23 on Page 11 - regarding changes of ownership of lessee also appears to have been violated. Our PRR in August of 2008 did not turn up any such required documents, i.e., such as any ten-day notice prior to any change of operators together with a letter acknowledging that the new operator will comply with all conditions of the existing CUP. Either the Planning Division failed to turn over these documents or such documents do not exist. In either case, someone is at fault here. And if it is the latter, then once again could not the Planning Director rightfully be accused of exceeding her discretion in allowing such a lapse of regulations to take place?

(17) Item 24 follows right on the heels of the above in requiring Insurance: Has the operator and/or lessee provided the necessary proof of insurance that is fully up-to-date and covers for inflation, etc., or has this also been neglected an/or ignored?

(18) Item 25 - The days and hours of operation brings us to one of the greater points of contention, with the first being the issue of hours: When has the division demonstrated any ability under CEQA requirements to monitor hours, especially of truck traffic?

There exists a well documented public record that indicates that staff has never known or understood the C.U.P. requirements; that they have in fact publicly mis-stated the requirements; that they either don't know or understand how to apply the only tools – weigh tickets – that may be used to determine compliance or prove non-compliance. Indeed - aren't these tools fundamental to the job requirements of a Planning staffer or supervisors? If Planning staff and supervisors can't correctly handle some of the basic functions of their job and use some of the basic tools at their disposal, how can they be trusted with responsibilities of making decisions which may impact the health, welfare and safety of an entire County?

Following the question of hours there appears to be yet a new twist on the English language as evidenced by the Planning Director's January 2009 letter. This letter was also accompanied by what appears to be a "revisionist" map sent to the Coalition. The Planning Director contradicts prior wording used by Planning staff and administrators in their 2003 C.U.P. modification approval letter, and, in doing so, provide additional evidence of a possible abuse of discretion.

The Planning Director created a new map on November 17, 2008, indicating her determination of what constituted the restricted zone along Route 33 in the Ojai Valley. Her statement accompanying the "Day and Hours of Operation" Chart in condition 25, and reads as follows: "Trucks Traveling on Highway 33 between Casitas Spring and City of Ojai." Astonishingly, are we to believe that the Planning Director actually believes the word "between" allows her to exclude both Casitas Springs and the City of Ojai from the restricted zone?

Such an interpretation would mean, for example, that the American Civil War -- also known as "The War between the States" -- did not actually involve any states, just the people standing on the Mason-Dixon line! Or that a Conditional Use Permit "between" the County of Ventura and the Ozena Valley Ranch does not actually involve either party, just the space "between" them.

The current interpretation by the Planning Director eight years after the approval of the C.U.P. as to the actual area of restricted truck transport travel is unacceptable. When one adds to the above "interpretation" the additional documentation that Ozena and their agent have been consistently and forcefully demanding a need for additional hours; Ozena's demands for a stay of the 12/07 ruling on hours; and Ozena's filing suit against the County (and losing) to overturn these conditions; and finally – factoring-in a Planning Division that has avoided any pro-active attempts at monitoring despite numerous red flags, then what do we end up with? Are we to believe that we have a Planning Director who appears to be going out of her way to appear predisposed to insuring that no violations be recorded against Ozena that will in any way impact their current or proposed new C.U.P. request? Shouldn't such blatant and obvious bias in favor of an applicant and against the public interest, be considered patently outrageous and thoroughly unacceptable? Should this be tolerated by any public, tax-payer funded agency?

(19) Again, right on the heels of the chart in item 25, we have items 26 & 27 - regarding the number of truck trips and record keeping. Has the Planning Division ever made annual and daily counts of truck volume? Where is the documentation of these truck trips? And if the department has such records on hand for any portion of 2008, why have they still not been turned over to the Coalition as part of our August or December PRR's?

(20) Item 29 on Page 12 refers to the staking of permit boundaries. Have these actually been checked each year? Has mapping been undertaken to insure compliance? We understand - again through unconfirmed sources - that these markers may have been moved or possibly removed altogether. And if so, how would the county know?

(21) We have already noted the requirement in item 30 on the next page about the covering of trucks, etc. -- an area of concern that seems to have been completely neglected in eight years of operation.

(22) Occasionally, trucks with excessive king pins have been spotted going up Route 33. What abilities has the County demonstrated under CEQA to insure that oversized vehicles are not traveling up this dangerous road?

(23) Item 37 on Page 14 requires annual SMARA compliance and documentation. Has this ever been done?

(24) Item 41 on the same page reiterates the need to obey state vehicle codes to avoid spillage, etc. Again, what documented steps has the county taken to insure compliance?

(25) Now that there is a new lessee on site, what assurances relative to item 58 on Page 17 have been made, met, or documented?

(26) Item 60 deals with road maintenance fees. If the department has not monitored the actual number of trucks, how can the department determine whether or not they have been short changed in fees? Have fees been properly calculated and documented?

(27) Section f, 62 – 65: SMARA related conditions beginning on Page 17 deals with a number of critical issues, such as annual financial assurances for reclamation. Have these been met – or is the Division simply allowing Ozena to skate on this one until their Aquaculture proposal is passed?

- Is there genuine, official documentation of financial security in place? Or, if the new proposals are defeated, will the public be stuck with the costs of reclamation?

- Have all the conditions of SMARA been met annually?

- Has the surety been adjusted annually to match current reclamation costs? This requires the actual determination of current costs along with a needs assessment. The bond protects the public.

- Has there been an independent review to determine the value and cost of such a guarantee?

- Have all of these conditions been met and documented on an annual basis, including maps?