HomeMy WebLinkAbout041-080-027 (25)v
Site CountyD,epwimentofDevelopmentSeiTices
TIM SNELLINGS, DIRECTOR I PETE CALARCO, ASSISTANT DIRECTOR o�uTrFo
7 County Center Drive o 0
o c
Oroville, CA 95965
(530) 538-7601 Telephone
(530) 538-7785 Facsimile c�U Nty
www. b utte c o u nty. n etld d s
June 10, 2008
Butte County Board of Supervisors
25 County Center Drive
Oroville, CA 95965
Subject: Appeals of the April10, 2008 Planning Commission Resolution 08-24
Modifying and Adopting the Revised Order to Comply Regarding an
Amended Mining and Reclamation Permit for ttie New Era Mine, 4095 Dry
Creek Road, Oroville. (APN No. 041-080-027)
Recommendation
Staff recommends that the Board of Supervisors provide staff with a motion of intent to
uphold the Planning Commission's April 10, 2008 adoption of Resolution 08-24
modifying the Revised Order to, Comply Regarding • an Amended Mining, and
.Reclamation Permit for the New Era Mine and deny the appeals from the New Era Mine
operators, North Continent Land and • Timber, Inc., from Richard Meyers, from the
Residents of Butte Valley and Paradise (the "Residents"), and from Lucy Cooke.
Alternatively, your Board may choose to further modify the Revised Order to Comply, or
uphold all or a part of the New Era Mine operators' appeal, or uphold all or a partof the
- appeals from Richard Meyers, the Residents, or Lucy Cooke. Should your Board
choose any of these. or, other alternative actions,. staff- recommends that a 'Motion , of
Intent be adopted with- specific direction as to the desired resolution. Staff would then
prepare the requested resolution and return before your Board at a future hearing.
Summary
This hearing is being held to consider four, appeals of. an April, 10, ,200.8 adoption of.
Resolution 08-24 modifying the Revised Order to Comply Regarding an Amended
Mining and Reclamation -Permit for the New Era Mine (Attachment A). Four appeal
letters were filed with the Clerk of the Board regarding, the Planning Commission's
action: '
,o The New Era Mine operators,' North Continent Land and Timber fled an appeal
letter, dated April 23, 2008 (Attachment B);
,.
L: Butte County Department of Development Services
Planning Division _ Appeal of Resolution 08-24 i_ Page 1 of 8
t
•
F]
Richard Meyers, received on April 18, 2008 (Attachment C);
the Residents of Butte Valley and Paradise, 'received
(Attachment D); and
Lucy Cooke, received on May 19, 2008 (Attachment E).
on May 19, 2008
The operators maintain that Mining and Reclamation Permit 81-135, approved, by the
Planning Commission on May 20, 1982, remains a valid entitlement for their current
operation. In particular, the operators maintain that the current operation is consistent
with the Special Condition 21 Phase I limitation of, 20 cubic yards per day as it
represents an end concentrate and nota total volume. • Appeals from Mr. Meyers, the
Residents and Lucy Cooke have . raised several questions,+ including the Planning
Commission's action to allow the -operators to continue to operate at a level of 20 cubic
yards per day of processed output (as opposed to the total volume disturbed) while
,working,, towards a new mining permit and reclamation plan,. and whether such. an
operational rate was considered by the Mitigated Negative Declaration adopted in 1982.
Background
The modified Revised Order to Comply, which became • effective on April 21, 2008,
requires seven actions . of the New -Era Mine operators. These actions include a
performance schedule and requirements to take all appropriate actions necessary to
obtain approval of a permit, reclamation plan and a financial assurance mechanism in
accordance with an attached compliance schedule.
Action 7 of the Revised Order to ' Comply allows the operators to continue mining
operations in Pits 1 and 2 (see this report's Attachment G) while taking all appropriate
actions to obtain 'approval of an amended mining permit and reclamation plan over an
18 -month period from the effective date of the order.
Resolution 08-24 limits mining operations to Pits 1 and 2 while the operators obtain an
amended mining permit and reclamation plan, but it floes not. specify a daily operating
.limit.
This agenda report includes Attachments A through I..
material sent for your advance review on May 6, 2008.
Discussion
Attachment F summarizes the
Staff provides a discussion below of five basic issues raised in the appeal letters:
r
• Generally, the appeal letter from the New Era Mine operators indicates that the
Planning Commission's action was incorrect in that Mining and Reclamation
Permit 81-135 represent a valid entitlement for the cufrent'operation, that the
current operation does not..exceed the Condition 21 Phase I limit of 20 cubic
yards per day, and that there has been no substantial deviation from the
approved reclamation plan.
Butte Count} Department of Development Services
Planning Division t_. Appeal of Resolution 08-24 t_, Page.2 of 8 ,
• Mr. Meyer's appeal letter raises several -points, including that the Planning
Commission made no decision as to whether or not Mining and Reclamation
Permit 81-1.35 had lapsed..
• The appeals from Mr. Meyers and the Residents challenge the ' adoption of
Resolution 08-24 as it relates to the interim operating rate permitted while- the
operators seek approval of an amended •permit -and reclamation plan, and
whether the current and interim mine operation was considered by the Mitigated
Negative Declaration adopted for Mining and Reclamation Permit 81-135 in
1982. -
• The appeal from Lucy Cooke identifies "misstatements" in Resolution 08-24 in
regards to whether 20 cubic yards per day represents a gross or concentrated
volume and when -Development Services staff became aware of the current New
Era Mine operation.
The issues raised by the appellants and references in the staff reports and attachments
are summarized as follows:
Issue 1
Has Mining and Reclamation Permit 81-135 lapsed?
In his appeal, Richard Meyers states: 1. Planning Commission made no decision on
. the permit being 'lapsed'. "
Pages 25-30 of the March 13 Agenda Report (included in the May 6, 2008 material.
sent to you) discuss whether operations at the New Era Mine have been ongoing
between 1982 and 2007. On the basis of the affidavits, photographs, receipts and
other materials submitted by the operators to demonstrate ongoing operations. at the
New Era Mine between 1982 and. 2007 (Attachments BB through BBB),, staff
concluded that annually ongoing mining activity has occurred at the New Era Mine
and Mining Permit 81-135 has not expired, nor has the mine been. abandoned. or in
idle status.
Issue 2
Did Mining Permit 81-135 and its associated Reclamation Plan require that. mining at
the New.Era Mine be conducted as a phased operation?
Resolution 08-24 makes the following finding (Paragraph E):
"The Mining and Reclamation Permit and its record indicate that the New Era
Mine was to be conducted according to three phases, and that Planning
Commission approval to proceed from Phase I to Phase II was required."
In their appeal, the operators state: The phasing described in the Mining Permit
relates only to volumetric production thresholds, not time -based or mining -area
thresholds. Phase I allows up to 20 cubic yards of material to be removed offsite on
a daily basis."
. .3
D Butte County Department of Development Services D
0 Planning Division D Appeal of Resolution 08-24 0 Page 3 of 8
•
Phasing is discussed in both the March 13 (pages 12-15) and April 10 (pages 5— 9)
Agenda Reports:. Staff believes the "3 Phases ;Exhibit„ (page 20 of the March 13
Staff Report Attachments) and the 1982 mining_. operation exhibits submitted by
North Continent (Attachment D of the April 10 Agenda Report) show the approved
phasing was intended to limit the impacts associated with the operation according to
both time and place at the' New Era Mine. (The March 13 and April• 10 Agenda
Reports were sent to you on May 6, 2008 as summarized in Attachment F of this
report.) In particular, Special Condition 21 was intended to allow for -the interim
review of operations by the Planning Commission prior to expansion to Phase II. In
interpreting the 20 cubic yards per day limit as representing an output processed
from some unspecified largeramount amount of material (as opposed to a total volume of,
excavated material), the operators maintain that the existing operation does not
exceed the 20 cubic yards per day limit and, therefore, no Planning Commission
review is necessary in regards to the current operation.
Issue 3
Does Condition 21 of the 'Mining.Permit (see Attachment C of the'March 13 Staff Report
Attachments) refer to a gross total volume of disturbed on-site material or a
concentrated volume of -processed gold -bearing ore to be shipped offsite?
Condition 21 states: "Mining operation to be limited to a maximum of 20 cubic ,yards
• per day with subsequent review by the, Planning Commission for. proposed
expansion to Phase II." To staffs knowledge, there has been no such review.
The operators assert that 20 cubic yards per day refers to an end product volume, _
the concentrated result of the processing of an unspecified amount of total material .
and, further, refers to the amount of material that can daily be moved off the site. As
such, the operators state that the current operation has not exceeded the ' 20 cubic .
yards per day, limit.
The question of whether or not the 20 cubic yards. per day limit represents a total
volume of excavated material or an end -product (i.e. concentrate) to be. shipped
offsite is discussed in the March 13 (pages 12-15 and 31-33) and April 10 (pages 5-
9) Agenda Reports.
On page 6 of the April 10 Agenda Report, Staff concedes that terms such as "output"
and "production" may be interpreted as either . processed (and therefore
concentrated) end product or a total volume. Pages 5-9 of the April 10 Agenda
Report, discuss evidence in the. Mining Permit .81-135 record indicating concerns
about potential environmental impacts resulting fromthe proposed operation. As
Condition 21 states, Planning Commission review was required for the proposed
expansion to Phase II.
• By contrast, the operators have asserted that the Condition 21 limitation was in
regards to the. amount of material that could ,be trucked off*. the mine site. In
A
Butte County Department of Development Services
Planning Division;'_.: Appeal of Resolution 08-24 C. Page 4 of 8
particular, they note that the Notice of Determination for the Negative Declaration
(filed May 26, 1982) does not include Condition 21 as a mitigation to reduce the
impacts of the approved project (see bottom 'of Page 173 of the March 13
Attachments).
In regards to Special Condition 21, Paragraph G of Resolution 08-24 makes 'the
following finding:
"Condition 21 Phase I mining operation limitation of 20 cubic yards per -day
refers to a gross total volume, not a concentrated final volume, ofsome
unspecified larger volume of material excavated, processed and thereby
reduced to 20 cubic yards."
If the Phase I limit of 20 cubic ;yards per day is considered a gross total volume, then
the current operation — approximately 12 acres and 100,000 cubic yards of material
displaced between June and December, 2007 — is in violation 'of Special Condition
21. By contrast, if the Phase I limit is defined as a concentrate of some greater
volume of processed material, then the current operation is not in violation of Special
Condition 21 because there is no upper limit to the amount of material that. can be
disturbed in order to process 20 cubic yards of concentrate.
• Issue 4
Has the, current operation resulted in a
reclamation plan (Attachment F of the March
Permit 81-135?
substantial - deviation to the approved
13 Staff Report Attachments) for Mining
The March 13 (pages 15-18) and the April 10 (pages 9-15) Agenda Reports discuss
whether or not a substantial deviation from the approved reclamation plan'for Mining
and Reclamation Permit 81-135 has occurred.
If a change in a surface mining operation results in a substantial deviation from a
reclamation plan, that plan must be amended and is subject to discretionary and
CEQA review during the amendment process. If the ,amendments are deemed
minor, they may be processed administratively without additional- CEQA or
discretionary review.
In their appeal, North Continent states:
"The Commission's finding confuses the nature of a mining permit and a
reclamation plan. The question of substantial deviation is applicable ,only to
the Reclamation Plan under SMARA, not the Mining Permit. Accordingly, no
substantial deviation would exist even if the operation were to . exceed -a
limitation of the 'Mining Permit. The Reclamation Plan states an operational
• limit of 50,000-250,000 cubic yards per year, and the New Era Mine has
never exceeded that limit. Consequently there is no substantial deviation
from the Reclamation Plan."
❑ Butte County Department of Development Services D
0 Planning Division 0 Appeal of Resolution 08-24 0 Page 5 of 8
Pages 9-15 of the April 10 Agenda Report assert that the approved reclamation plan
is integrally related to the conditions of approval of the associated mining permit and
to the conduct of the mining operation itself. In its definition of reclamation, SMARA
Section 2733 links surface mining operations to their subsequent reclamation:
"'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..."
California Code of Regulations (CCR) Title 14, Section 3502(d) also relates
reclamation to the mine operationby defining a substantial deviation from a
reclamation plan as
"a change or expansion to a surface mining operation that substantially affects
the completion of the previously approved' reclamation plan, or that changes the
end use of the approved plan to the extent that the scope of the reclamation-
required
eclamationrequired for the surface mining operation is substantially changed"' -
Analysis of, whether or not the current operation' at the New ,Era Mine has resulted in
a substantial deviation from the approved reclamation plan is complicated 'by the
• lack of detail in the reclamation plan (see the bottom bullet, page 9 of the April 10
Agenda Report).
California Code of Regulations, (CCR) Title -14, Section 3502(d) provides five factors
a lead agency shall take into consideration in determining whether a change or
expansion of an operation would result in a substantial deviation from an approved
reclamation plan. Pages 12-15 of the April 10, 2008 Agenda Report discuss the
current New Era operation in regards to.these five factors with the conclusion that
the current operation will result in. a deviation from the approved reclamation plan.
In considering whether or not the current operation at the New Era Mine has resulted
in a substantial deviation from its approved reclamation plan (therefore requiring an
amended. plan), your Board may wish to ask two questions::
1. Is the current operation significantly different from the operation permitted by
Mining and Reclamation Permit 81-135?
If your Board concludes that the current operation is not significantly different in
scope or scale from that permitted by Mining and Reclamation Permit 81-135,
then you may conclude that no deviation from the reclamation plan will occur,
and no amended (or minor modification to the) plan is required.
0 2. If the current, operation is significantly different from that permitted in 1982, will
the difference(s) result in a minor or substantial deviation from the approved
reclamation plan?
0 Butte County Department of Development Services, 0
0 Planning Division 0 Appeal of Resolution 08-24 0 Page 6 of 8
•
If your Board determines that the current operation will result in a minor (e.g.,
non -substantial) deviation from the' reclamation plan, then you may, require a
minor modification (that may be administratively, approved). A minor modification
could involve supplementing the approved 1982 reclamation plan with the
Financial Assurance Estimate Report (Attachment X of the North .Continent
March 13 Attachments — CD#1).
If your Board determines that the current operation will result in a substantial
deviation from the reclamation plan, an amended plan is required. An -amended
plan requires discretionary approval and CEQA review. `
Issue 5
ting rate durin
What is the interim opera ting the permit and reclamation approval process?
Item 7 of the Revised Order permits interim operations in Pits 1 and 2 (see
Attachment G of this agenda report) during the 18 -month period allowed for approval
of an amended mining permit and reclamation plan. Item 7 does not specify an
operating rate (e.g., cubic yards per day).
• The appeals from Richard Meyers and the Residents asserts that 20 cubic yards per
day refers to total disturbance and that operations while the permit or reclamation
plan are being amended should be held to that amount. They also raise the
question of whether the, Mitigated..Negative Declaration • approved for Mining and
Reclamation Permit 81-135 provided analysis of the current level of disturbance and
the interim operating conditions allowed by the Planning Commission.
Again, the operators argue that the Permit allows processing of up to 20 cubic yards
per day of an end product. or concentrate. Further, the operators note that the
approved, reclamation plan — for an operation of 50,000 — 250,000 cubic yards/tons
per year and a total area of 18 acres — was considered by the'Mitigated Negative
Declaration adopted for Mining and Reclamation Permit 81-135 in 1.982.
If you have any questions, please do not hesitate to contact Planning Manager Chuck
Thistlethwaite at 530-538-6572.
Sincerely,
�Jnd4s-o,'Dirl�ct6r
,,.... ...,., n.—d..,Pnt of Develonment Services 0
1.
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Attachments:
A: Resolution 08-24
B: Appeal from North Continent Land and Timber, Inc.
C: Appeal from Richard Meyers
D: Appeal from Residents of Butte Valley and Paradise
E: Appeal from. Lucy Cooke
F: May 6, 2008 Memorandum to Board of Supervisors (Background Material Sent)
March 13 Planning Commission Agenda Report.
• March 13 Attachments (in binder)
• April 10 Planning Commission Agenda Report with Attachments A - D
• Resolution 08-24 Modifying and Adopting the Revised Order to Comply
• Compact Disk No. 1
o March 13 Planning Commission Materials
o North Continent March 13 Attachments
o April 10 Planning, Commission Material
• Compact Disk No. 2
•o Digital Photographs
G: Site Development Plan Exhibit, Holdrege and Kull, February 21, 2008
H: March 13, 2008 Planning Commission Minutes
I: Draft April 10, 2008 Planning Commission Minutes
❑ Butte County Department of Development Services ❑
0 Planning Division 0 Appeal of Resolution 08-24 0 Page 8 of 8