HomeMy WebLinkAbout81-135 (2)•
C. Brian Haddix
Clerk of the Board,
Board of Supervisors,
County of Butte'
25 County Center Drive
Oroville, Ca 95965
p.DR., JIS'i ;a.i rbc ir;rCE
OROVILLE, CALIFORNIA
NOTICE OF APPEAL
RE: Mining Permit No. 81=135, and Reclamation Plan New Era Mine
Dear Mr. Haddix: .
This letter constitutes a formal notice of appeal to the Butte County Board .of
Supervisors ("Board") by Residents of Butte Valley and Paradise ("Residents")
�
regarding the Butte County Planning Commission's "Commission") findings and
determinations as stated in Commission's Resolution NO. 08-24 regarding New Era
Mine ('Project' located at 4095 Dry_ Creek Road, Oroville, Butte County, California.
1. Allowing the Project`operators to move more than 20 cu. yds. of native soil
per day fails to complywith CEQA, because:
a. The limitation, as set forth in Condition 21 of Permit 81-135, to
removal of 20: cu. yds. of native soil per day, precisely defined the authorized scope
of mining activity. Upon approval by the Commission on May 20, 1982, of the
Mitigated Negative Declaration, which by its own terms set forth 24 mitigation
measures, the authorized Project description became the removal and processing of
20 cu. yds. of native soiUday. The record of the 1982 proceedings is replete with .
references to a "small scale" mining operation, references to 20 cubic yards as the.
size of the "operation" and references to the "processing" of 20 tons/20 cu. yds. of
material per day, (i.e., Excerpts, Pages: 124, 138, 140,142, 146 & 147 of New Era
Mine File, Butte County, DDS)
The 2008 Commission is not empowered by CEQA to allow removal and processing,
of a significantly greater amount of material, native soil, etc, than the 1982
Commission..authorized, without conducting another CEQA review, as such an
d.
authorization"would constitute a significant increase in the scope of the Project,..
which essentially renders it a completely different Project than the one authorized by
the 1982 Commission. With no precise quantification of how much soil it would be
necessary to remove/process, in order'to end up with 20 cu. yds. of' product," the
2008 Commission has authorized a significantly different, hopelessly vague Project,
encompassing a 'significantly different, hopelessly vague, scope of operation.
The Project proponents' assertion that the project authorized in 1982 was the removal
of 50,000-250,000 cu., yds. of soil per year is simply not credible. There are -to be n `t O
approximately 250 no holiday week days per year. if the Project proponents are
1
• believed, this means that the 1982 Commission would have authorized removal of
200-1,000 cubic yards of native soil/day on an 18 -acre parcel, pursuant to a Negative
Declaration. Such an operation could certainly not have been described as a "small
scale" operation. Further, such an operation would have required an EIR. Former
planner Steve Streeter informed Mr. Logan in 1982 that the Project Mr. Logan had
first requested the Commission authorize: the removal of 80 cu. yds. /day of native
soil/day, would require an EIR. It was only after Mr. Logan agreed to three phases,
characterized by a removal of maximum amounts of 20, 40 and then 80 cu. yds. of
native soil/day respectively (punctuated by environmental reviews), that the
Commission finally agreed to approve Phase 1, pursuant to a Mitigated Negative
Declaration.
b. Condition 21 of Permit 81-135 was the single most important/definite
mitigation measure in the permit, because it precisely defined the authorized scope of
mining activity, and formed the basis upon which the reclamation plan was
guaranteed by the performance bond. It must be remembered that reclamation bonds
are imposed solely for the purpose of guaranteeing the replacement of 100% of the
soil removed during a mining operation. In 1982, the County agreed to require a very
small performance bond, based solely upon the applicant's agreement that the total
amount of soil removed per day during Phase 1 would be 20 cubic yards/day.
(Reference attached memorandum, Bettye Kircher to Bill Chef, P. 162 of New Era
• Mine File, Butte County, DDS.) Mr. Logan objected to the size of the performance
bond during the Commission's hearing on May 20, 1982, and commented that "the
entire 20 cubic yards/day could be replaced for $500-$1,000." (See minutes of the
Commission's hearing of May 20, 1982.)
Removing Condition 21 as a mitigation measure renders the Commission's 2008
action noncompliant with CEQA, because it removes the mitigation measure that is
essential to guaranteeing the replacement of 100% of the soil removed during the
mining operation. The maximum limit upon the quantity of s il that can be moved
d
per day constitutes a definite standard by which the success of the reclamation P
an
can be guaranteed. Without knowing the maximum amount of material the
Commission has authorized to be removed per day, there is no way to guarantee the
success of the reclamation. The fact that the Commission has approved the
authorization of a performance bond of a greater amount than was originally required
in 1982 does not render the Commission's action compliant with CEQA. As stated
above, the Commission's only option under the circumstances was to conduct a
CEQA review, prior to approving a project at a level of mining significantly greater
than the removal of 20 cu. yds. of native soil/day.
Further, without knowing the maximum amount of material the Commission has
authorized to be removed per day, there is no method with which to quantify the
maximum amount of water per day which will be required/used to process the soil
removed per day, nor one to quantify the size of the settling pond(s) necessary to
• prevent muddy soil from running into the Creek. This means the Commission has not
lawfully limited/mitigated potential impacts to Dry Creek. The fact that the
Commission has delegated their responsibility, as the lead agency in charge of
establishing definite and measurable mitigation measures, to the Regional Water,
2
• b apparently depending upon that agency's future issuance,
Quality Control Board, y pp . Y p
of a waste discharge permit to the Project operators, does not render the
Commission's action lawful, pursuant to CEQA. In fact, the opposite is true.
A lead agency isnot permitted by CEQA'to delegate its responsibilities to another
agency. Planning & Conservation League v. Dept of Water Res. (2000).83 Cal. App.
4th 892.
C. The Commission failed to impose a domestic water impact mitigation
measure with a definite standard with which a water impact mitigation measure's
success can be determined. Increasing the scope of Project activity has the potential
to impact springs and wells downstream from the Project area. These springs and
wells are the sole source available for domestic water for the residents. (There are
approximately 18 wells and 11 springs supplying potable water downstream from
Project.)
As set ,forth above, a lead agency is not permitted by CEQA to delegate its
responsibilities to another agency. It must be remembered that Anthony J. Landis.-
the
andis;the Regional Water Quality Control Board representative who inspected the mine on
March 13,,'l 982, wrote an inspection report indicating that Mr. Logan had agreed to
"only process up to 20 cubic yards/day (Phase I operation) until he can solve the
mine's muddy water'containment problems," Excerpt, Page 138 of Butte County Staff
findings, 4/8/82. Allowing new operations significantly above the scope of
operations previously agreed upon could cause any number of significant impacts to
the domestic water supplies of the canyon residents downstream from the Project,
including but not limited to impacts stemming from depletion of water, available for
domestic uses downstream and potential contamination of domestic. water sources.
This is just one excellent example of why CEQA requires that Butte County conduct
another environmental review, prior to allowing an increase in the scope of the
mining operation/removing mitigation measures imposed in 1982.
d. The mere fact that the New Era Mine is back on the agendas of Butte County
policy-making bodies should alert the Board to the importance of their decision on
this matter. Although it may appear that mining operation would cease after efforts.
recently undertaken at the site are completed, it should be noted that, once Butte
County has authorized a defined scope of operations at the Project, it will be lawful
for the mine to be reopened an unlimited number of times, even after reclamation of
the mine site has been completed. California Office of Mining Reclamation policy
reads: once a valid mining permit is obtained,' it will be lawful for the mine to be
reopened an unlimited number of times. (Reference attached e-mailfrom OMR to
Dry Creek Canyon Residents dated March 17, 2008.) Mine reopenings are common
due to the difficulty of initially obtaining a mining permit. It is therefore critical that
a CEQA review be conducted if the mine proponents seek to operate at. a level greater
than the removal of a maximum of 20 cu. yds.. of native soil/day.
42
2. Residents of Butte Valley and Paradise who attended the 2008 Commission
hearings regarding the Project set forth a number of fair arguments, verbal and,
written, concerning potential significant impacts- that mine. operations at a level of'
activity greater than the removal of 20 cu. _yds. of native soil/day would impose on the
natural and man-made environment of the Dry Creek Canyon area, i.e., streambed
alteration, etc. There was no response to said fair arguments. Hence, the
Commission's implied determination'that an-EIR is not necessary to address the said
fair arguments violated CEQA.
3. Resolution 08-24 does not accurately reflect the action taken by the
Commission on April 10, 2008.
Please thank the Board of Supervisors in advance, on our behalf, for their
consideration of this appeal. This notice of appeal, and /or its contents, is not intended
to, and does not, limit in any way Residents right to provide evidence to the Board or
to raise in this appeal, any issue relevant to the Commissions determinations,
findings, Resolution or Order.
Signatures of Residents (Attached Sheets)
Attachments:
• 1. Excerpts from New Era File, DDS, Butte County
2. Kircher/Cheff Memorandum, May 17, 1982
3. OMR e-mail to Residents of Dry: Creek Canyon
•
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•
iv07ICE OF"P�
I nnen
Permit No. 81-135 and Reclamation Plan New Era Mine
RESIDENT'S SIGNA TURES
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NOTICE ®'APPEAL
Mining Permit lei®. 81-135 and Reclamation Plan New. Era Mine
RESIDENT'S SIGNATURES
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eo
�Q-
NOTICE 6F APPEAL
Mining Permit N®. 81 - an New Era Mine .
RESIDENT'S SIGNATURES
•
46
Y
Mn g Permit No 81-135 and Reciamati®n P lan, Ne®w Era nine
RESIDENT'S SIGMAS URE _
NEW ERA MINE FILE, DDS, BUTTE COUNTY, CA
EXCERPTS FROM:
4) The idea of,a staged operation, starting:at-20-tons/day;.and
be by periodic mon itoring•
creasing in stages, should accompanied
if the operat6r is capable of going to a larger.
to determine
scale of production,
Tony Landis -Regional water Quality control' Bo"ar'd, Ken colo -Department of con-
and -Gayland Jaylor- Department - of
servation, Division of tdines and Geology
the site along with 'the Logans; Prank Bennett and Steve
A1r. Logan tenta- ,
Fish and Game surveyed
Streeter on March 12, 1982. As sult of expandhe fief ningloperation. Phase
plan
tively agreed to.a. three-phase p the limit -
maximum output of Zo cubic yards per day,
I would restrict him to a
on his current'permit from: the Department o . Fish and per day.' finally,
40thebfiguredoriginally
anon
would double the output'of mine d materiel day,to re -
80cubicyards e
'
Phase III would be for tp draft reclamation plan.
quested for the mining p °
138,
Staff findings April '8; 1.9x2
y
Page5
1=ILE: 41-08-27
a mby the Planningm of zobCom-
21. t4ining.operation to be limited e view by
re
'yards per day with subsequent
expansion to.phase II.
for
.mission proposed
{
°
- ,. . .-.
BU�E COUNTY PLANNING COWISSJOR
iINUTEs -- April R, .
Proponents: Ron Logan, pointing to a map indicating that 1.ydrology. of the:
area is such ,that downstream springs would not be dffected by the project,
he felt that the prop
and that osed $ln,On0 Bona requested was entirely
ole that his proposed ZO cu. yds. per day
unreasonable for the little h
operation would maks=..
-'. • 142
CAI.IEORNIA REGIONAL WATER QUALITY CONTROL BOM
-r
VALLEY REGION
CENTRAL VA
S201 ACSSTREET
SACRAMENTO, CALIFORNIA 93818
rHOHG (9161 445'0770 ,
DUH o Co. ifnrming%o(r�nti.
9 April 1982 APR I 1962
• Oronlle, Colifo:oia ,
- a '
Mr. Russell Logan
10181 Lott Road
Durham, GA 95938
Please provide the additional inforinaur operation
needs erationutoi20cubic
din ttachment A
yards/day.
to this'office before you increase ya p
When all of the additional information is submitted, waste discharge re-
quirements will he drafted and by theated to RegionalnBoardtat aarties publicfor COM -
hearing.
ments, before being considered by 9
A technical report will be .required when you propose to increase your
mining activity to Phase II 8 III. Information needed for the technical
reports will be similar to that outlined in Attachment A.
4
146
50
cEN .RAL VALLEY "REGIONAL WATER QUALITY CONTROL BOARD
INSPECTION REPORT
'NEW
9 April'1982
DISCHARGER: ERA MINE
LOCATION & COUNTY: PARADISE, BUTTE COUNTY
INSPECTION DATE: 12 March 1982
INSPECTED BY: A. J. Landis
tor
BY: StevedStreeter ButtenC'ountyaPtanning Department -
.,ACCOMPANIED
t Ken Cole, Division of Mines and Geology
I
3. Small scale mining with,a gravel washing operation and a recycle pond
Placer gravels have been dug
has been going on for the last few years.
tha
ecentrWardenslhavetbeens
out of old existing mine shafts in anfSsh�and Gam
through the p
east and west property.
with stream bed alteration agreements for the
_
regulating the operation
past few years..-
4. Mr. Logan proposes to open pit mine the entire property.in a three -
80 cubic yards/day: ;
phase operation of 20, 40 and
S 1 said we did not object to 'the proposal; provided all muddy water is '
difficult to achieve
contained on-site.' This will, -,however, be very
spring '
of Dry Creek, the extensive hillside spring
because of the closeness
activity and the steep topography.
solvedtheay
6. Mr. Logan agreed he cancubic
foethewould
nextnfewprocess
n) years, until
(Phase I operation) ,
problems. ;
mine's muddy water containment
7. Downstream landowners are concerned that the full 5cale,open pit mining
hillside springs. The county will have
operation may effect their
opLogan hire a hydrogeologist oto investigate these"concerns.
op
Mr.147
,
y.
I S;,t0
CDIJN-fy CID
Al:�UTE S— IA'ay G n, 1 Z
Thearing +.as oYened• :.: ..•-.. ..... .
The 8 �tati.n
Ron Lt i
oan took exception t
the amount ai t'�c p-r`orR.ar.ce bocci, v back a
contractors hada .estimated that the er•ti_p 24 cu.
that tban had no cept6 20 stare the oti�erLurs ji�en and 'a`i to
he enti-eer2Fa.,
they went along, and that f.cr
Yo erty rather than puttir:g lip the mo eY
yds• per day could be replaced for SS00 to $1,44 c
lien could be plzced o1 his F. Y
the bond.
,1. the lien and the necessity and siCFense o:
Commissioner Schrader reacnded the Corran'..ssioa of the rcquird ei for a
titie search prior to pl 9
�orsmission :got11d revs
U";
it .�a agreed ,that the i
Tse ;eatirp, :,;as closed. s
r phase i.
the oper•atir;r, at the end c.
CcnmissionerMax th.n -ade a nation hhicii
was, sccorded by Cn'^mi ssior:cr
SChtaeeT to: E
&tlyt riP.C7.�lT3tioi7; fillifn� i
it, tae m�.tigated ,iee into tDa approval ° r �
Adapt aa3 sett 3 ,�cen ir,cez�o:atea n�sc,tai n_rer_... t
:Sat cor.dit;ons ha"�- Lbe`sigzxr:caat en:i=G _ t
ti zte (:a. i'torrli4 �,, ir-
this wi,icti m- g• , uc .ursu_ �t to t'r.-
project -he initial s•_ y.
idcntificd ::l
nnerital Code
ualit� %C�: and
the "project meets �t;-,e; criteria"oE autte County
rind that i4-47; ani
R• fork section •
5cc_tion .l� ar,a 41 08-?', }
perrit and reclamat?ori plan on AP
C. Approve ,i nine. ]e-,"ng conditions:
•o the fn
subje,a ,.
prctectio: ,r:oasures. k
i- :'rovide on-site fire .
`or an ..York wwth- l
Z. Obtain a current streambed alteration ncrm�t�art:::es�tyof Fish
in or near Dry Creek, from tte Cali.olai.a Ac •y,r:c�
and Carse. L•pdate permit.as required to 'nsure ;:crioc'ic
of the operation:
h.
3, Submit acurrent.
Regionalr�atcr• Qualirt of tyacontter rolCnoard andtGemply
Cali-orniQ
1.67
52
. �t1114 � S �I{7h`
C�1J4TY+L..A1v.
:01KNUTES - may 20, 1g8Z
'y to axii um of
'-1- nin;B o,eration to beli.nc �`r�ic�� b
sy the Planning
yards rer day :,rith ai��c�ci� pion Yo ;phase ?T.
ion For pTOPas d expa
aPPlA cat
j,l e State
np iic7:iz L2st also corrn_� ;r�t�, r.,ali other,uat c�-!s.
4. P o: rizr:ar�cc, and f:,
yid local Gtatrte5� r __
aT:a ivLa_ ISzx ;_ :ci ChaiT:nar.
AYES: ^oni:r,` ss iar e:.s Bennett, gg lll[11P. Schi ade7 .
Lamber =.
NOES..
No one.
ABSENT: one.
P•lotion carried.
169
53
Infer -Departmental Memorandum
TOs
Bill Chef f
FROM:
Bettye Kircher '
AP 41-08'27
Reclamation Plan, Ronald R. Logan, _
sueiEcs:
May 17, 1982
GATE:
Commission has requested a'specific amount fora
-to be
'
The planning - pursuant to Section 13.1,06, an amount
performance bond p ear's operation
of the errda Y
sufficient to cover the reclamation
will be .20 cu. yds. p Y•
which is. anticipated
Red for
addition,to the dollar amountf theaCoh ouldon hbe;preferableas as a .
In a of bon
the typ
recommendation as to
the desired results.'"
;
;
to achieve
ro ect was continued to May,20, so we would
3t
Th'e.hearing on, this p hat time'.
the information prior to.
appreciate
Thank you!
BK/hd
tip:
•
'
IIID
_
• f.
4.
162
t .
54
`..•.,
Fmm: Kevin.Doherty@conservation.ca.gov
To: Ivlichael.Liaksic@conservation.ca. gov, ,
Daylight Time
Sent: 3/17/2008 8:52:12 A.M. Pacific ,
Subj: RE: NEW ERA MINE
Mike Luksic asked me to respond to your questions.
wer to the second question is yes, myself and'- research sslonthea g last Thursday �and .
Alice Johnson of ihe
The ans
Office of Mine Reclamation (OMR) attended the Planning
we plan to attend the next meeting on April, 10. Mike is also planning on attending on the t0 .
first question the short answer is yes, once a mine site is closed and approved
In response to theqerator would need, a valid
by the County and OMR, it can be mined aer eaSMARA But�there could be a number of
permit, reclamation. plan and financial assurance,erptnit had not expired, based on County permit
different scenarios. For instance, if the County p
regulations, it could still be valid. The mine operator woushndards. If ave to they County permit reclamation
ad ation
g and apply to the
,plan and financial assurance, based on current SMA
expired, the mine operator would have nostart Wepro eclamatioh plan and cess from The beginning
assurance.
County for anew permit as well as sub
Feel free to contact Mike Luksic or myself if you have any questions.
Thanks
Kevin
Kevin Doherty.PG 7824
Engineering Geologist ,
Department of Conservation
office of Mine Reclamation
Compliance Unit -
Sol K S4 MS 09-06, Sacramento CA 95894 -
916-324-0681 Phone 916-322=4862 Fax `
From: Luksic, Michael
Sent: Monday, March 97, 20087:52 AM
To: Doherty, Kevin
Subject: FW: NEW ERA MINE
Good Morning Kevin,
Can ou answer the second question for me. DID BUREAU OF MINES STAFF ATTEND THE
PLANNING COMMISSION MEETING ON THE, 13TH.
know the answer to the first one.is'yes'.
® Mike Luksic
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