HomeMy WebLinkAboutAGENDA REPORT (2)0. . .
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BUTTE COUNTY PLANNING COMMISSION
DRAFT AGENDA REPORT — MARCH 13, 2008
Operators: Lee Ogle, President Location: 4095 Dry Creek Road,
Frank Noland, Vice approximately 2.5 miles north
President of its - intersection with
Messilla Valley Road, in the
North Continent Land & canyon between Morgan and
Timber, Inc. (the Lime Ridge, just east of Dry
operators) Creek
Owner:
File #:
Recommended
Action:
G.P.
Zoning:
Zone Date:
APN:
Ronald and Betty Logan Parcel Size: ±18 acres
PLCE08-0001, New Era
Mine
Hold a hearing on the Supervisor 5
issues raised in the District:
Revised Order To
Comply, New Era Mine,
and make findings and
determinations
AR (Agricultural Planner: Chris Thomas, Associate
Residential) Planner
FR - 40 (Foothill Attachments: See Table of Contents
Recreation — 40 acre
minimum lot size)
September 18, 1990
041-080-027
M Butte County Department of Development Services ■
0 March 13, 2007 0 Staff Report — New Era Mine ■ Page 1 of 55■
SUMMARY:
Butte County Code Section 13-116(b) Enforcement Procedure
This hearing is being held pursuant to a Notice of Violation and proposed Revised Order To
Comply in regards to a recent and substantial expansion in a mining operation at the New Era
Mine, 4095 Dry Creek Road, approximately 2.5 miles north of its intersection with Messilla
Valley Road. Butte County Code Section 13-116(b) specifies the enforcement process for a
mining operation that is in noncompliance with the provisions of Chapter 13, Article II (Surface
Mining and Reclamation). Butte County Code Section 13-116(b)(1), in conformance with the
Public Resources Code Section 2774.1(a), specifies that the county notify the operator of that
violation by certified mail:
If the violation extends beyond thirty (30) days after the date of the county's
notification, the public works director shall issue an order by personal service or
certified mail requiring the operator to comply with this article."
A Notice of Violation was sent to the mine operators and owners on December 20, 2007 and, as
the Departments of Public Works and Development Services determined that the violations had
extended beyond thirty days, a Revised Order To Comply was sent to the operators and owners
• on February 11, 2008.
Butte County Code Section 13-116(b)(2) states:
"An order issued under section 13-116(b)(1) above shall not take effect until the
operator has been provided a hearing before the planning commission concerning the
alleged violation. Any order issued under the section cited above shall specify which
aspect of the surface mine's activities or operations are inconsistent with this article
and shall specify a time for compliance, and shall set a date for the hearing, which
shall not be sooner than thirty (30) days after the date of the order."
The Revised Order To Comply, sent to the operators on February 11, 2008, is thus the subject of
this hearing.
Butte County Code Section 13-116(b)(6) states:
"Any operator aggrieved by an act or determination by the planning division, public
works department or planning commission in the exercise of the authority granted
herein shall have the right to appeal to the board of supervisors. Appeal procedures
shall be in accordance with section 2774.2 of the Public Resources Code."
Current Process
• The Departments of Development Services and Public Works first became aware of extensive
site disturbance at the New Era Mine in October 2007. On December 5, 2007, staff conducted an
inspection of the New Era Mine and observed approximately 12 acres of graded and benched
0 Butte County Department of Development Services ■
0 March 13, 2007 0 Staff Report — New Era Mine 0 Page 2 of 55 ■
lands immediately west of and above Dry Creek, representing roughly 100,000 cubic yards of
displaced soil and rock.
The New Era Mine received Planning Commission approval for Use Permit (UP) 81-135 and an
associated reclamation plan on May 20, 1982. Butte County Code Chapter 13, Article II and the
state Surface Mining and Reclamation Act (SMARA) require that all surface mining operations
provide adequate financial assurance for reclamation (since 1975), annual production and
inspection reports (since 1975 and 1990, respectively), and annually adjusted cost estimates for
reclamation (since 1994). Prior to December 2007, the owners and operators had not submitted
any of these required items for the New Era Mine (or, for that matter, any indication of a mine
operating as permitted under UP 81-135) to either the Departments of Public Works or
Development Services or the state Department of Conservation.
Accordingly, per Butte County Code Section 13-116(b), a Notice of Violation was sent on
December 20, 2007 to the New Era Mine owner Ronald Logan and operators, F.L. Ogle and
Frank Noland (President and Vice President, respectively, North 'Continent Land and Timber,
Inc.). The Notice of Violation stated that the current New Era Mine operation was being
conducted without a valid permit, reclamation plan or financial assurance, and provided a 30 -day
period to respond. That period was extended 15 days to February 4, 2008 to allow both the
operators and the Department of Development Services more time to assess the New Era Mine
• record and information submitted by the operators.
Between December 2007 and January 2008 the operators provided a substantial amount of
materials to demonstrate ongoing operations at the New Era Mine for the period between 1982
and 2007. While reserving judgment as to whether or not UP 81-135 has lapsed due to cessation
of use for periods of greater than one year, staff still found, at the end of the Notice of Violation
response period, that the New Era Mine had failed in its financial assurance and reporting
requirements and, additionally, that the current operation violates- a number of UP 81-135
conditions of approval. Per Butte County Code Section 13-116(b), the Departments. of
Development Services and Public Works therefore sent an Order To Comply to the owners and
operators of the New Era Mine by certified mail on February 5, 2008.
As it was necessary to clarify the Order To Comply in regards to a Regional Water Quality
Control Board Cleanup and Abatement Order issued for the New Era Mine on December 17,
2007, a Revised Order To Comply was sent via .certified mail to the owners and operators on
February 11, 2008. The Revised Order To Comply is the subject of this hearing.
Staff recommends that the Planning Commission hold the required public hearing and affirm the
Revised Order To Comply, by making the recommended findings and determinations in the
resolution. This requires the following actions on the part of the owner and operator:
1. Sign an approved "Statement of Responsibility" form and return it to the
Department of Development Services within one week of the effective date of the
Order.
• 2. Submit and maintain an Interim Financial Assurance'. Mechanism in a form and
amount approved by Butte County and the California Department of Conservation
Office of Mine Reclamation within two weeks .of the effective date of this Order.
M Butte County Department of Development Services ■
■ March 13, 2007 0 Staff Report — New Era Mine ■ Page 3 of 55 0
•
3. Select consultant(s) and licensed professionals experienced in the preparation of a
mining permit and reclamation plan within five weeks of the effective date of this
Order. The consultant's statements of qualifications must be forwarded and
approved by . the Department of Development Services prior to the owner or
operator's selection of a' consultant.
4. Submit complete applications to the Department of Development Services for a
Use Permit, Mining Permit, and Reclamation Plan to amend UP 81-135, together
with the required application fees, within three months of the effective date of this
Order.
5. The owner and operator are ordered to take all appropriate actions necessary to
obtain approval of a permit, a reclamation plan, and a financial assurance in
accordance with the attached compliance schedule
6. All unreimbursed costs incurred by Butte County in regards to this revised order
must be fully compensated upon determination by the Planning Commission.
Alternatively, the Planning Commission may choose to levy administrative penalties per Butte
County Code 13-116(b)(3):
"Any operator who violates or fails to comply with an order issued under section 13-
116(b)(1) above after the order's effective date shall be subject to an order by the
county imposing an administrative penalty of not more than five thousand dollars
• ($5,000.00) per day, assessed from the original date of noncompliance with this
article."
is
Under UP 81-135 Standard Condition 2, the Planning Commission may also choose to suspend,
revoke or modify the permit:
"The public works director may suspend the permit for a period not to exceed
fifteen (15) days where continuation of a violation will adversely affect the
public. In the event of a suspension, or should the public works director request a
disciplinary action, the planning commission shall immediately set a hearing
thereon with not less than five (5) days' notice to the operator. The planning
commission, after completion of the hearing, may suspend or revoke the permit,
or modify the permit, or may place the operator on probation should the violation
found to exist be of a serious nature, adversely affecting the health and welfare of
the residents of the county."
Finally, the Planning Commission may choose other remedies available under Butte
County Code Section 13-116(b)(8):
"Remedies under this section are in addition to, and do not supersede or limit, any
and all other remedies, civil or criminal, including, but not limited to, use permit,
mining permit and/or reclamation plan revocation proceedings."
B Butte County Department of Development Services ■
0 March 13, 2007 0 Staff Report—New Era Mine ■ Page 4 of 550
•
BACKGROUND
Summary of the Current Mining Operation and Site Information
This background provides a brief summary of the current operation at the New Era Mine, UP
81-135 and basic site information. For a more detailed timeline of the 2007-2008
compliance process and a history of the UP 81-135 permit approval process, please see the
2007 - 2008 Events and Current Compliance Process and UP 81-135 Application History
sections below. (Note that "Page" numbers in parenthesis noted for reference in this report
refer to the large -font number on the lower right hand side of the attachments.)
• The +18 acre New Era Mine parcel, owned by Ronald and Betty Logan, is in a rural
residential area on the western slope above Dry Creek. The current zoning and General
Plan designation are FR -40 and AR, respectively.
On May 22, 1981, Mr. Logan applied for a mining and reclamation permit (Use Permit
81-135), proposing to process some 80 cubic yards of material per day in a cut and cover
operation. At that time the parcel was zoned A-2 (General) and designated as AR by the
General Plan. Although there is apparently no record. of this original application, its
accompanying Appendix E Environmental Information Form may be seen on Pages 9-11,
and a -Suggested Model Reclamation Plan on Pages 12 —21.
• • UP 81-135 was denied by the Planning Commission on August 26, 1981. Mr. Logan
appealed to the Board of Supervisors and, on October 27, 1981 the Board of Supervisors
denied his appeal without prejudice and instructed him to reapply to the. Planning
Division with the normal application fee waived (Pages 32-35).
• The second UP 81-135 Application For Use Permit was received on October 28, 1981
(Page 7).
• Although initially required by the Planning Division,. the Planning Commission voted not
to require an Environmental Impact Report on March 10, 1982, allowing the UP 81-135
application to move ahead on the basis of an Initial Study and Mitigated Negative
Declaration (Page 122).
• After several Planning Commission hearings during 1981-1982, UP 81-135 was
eventually approved with 24 conditions on May 20, 1982 (see Pages 4-6), including
requirements for three inspections per year by the Public Works Department, a "Phase I"
limit to operations subject to Planning Commission review, and submission of a
performance bond of $3,000 as a financial assurance for reclamation. Prior to January
25, 2008, the $3,000 financial assurance had never been submitted for the New Era Mine.
• During the period June 1982 - October 2007 the County has had no records (e.g., annual
. production reports, inspection reports, updated cost estimates) on file for the New Era
Mine. No such records are on file with the Department of Conservation and the New Era
Mine did not, until December 20, 2007, have a California State mine identification
number issued and required by the Department of Conservation since 1991.
M Butte County Department of Development Services ■
■ March 13, 2007 ■ Staff Report — New Era Mine ■ Page 5 of 55 ■
0
• As a result of concerns expressed by local residents during the spring and summer of
2007, staff first made contact with Mr. Ogle on October 24, 2007. At that time Mr. Ogle
asserted that UP 81-135 was valid.
• Staff performed an inspection of the New Era Mine on December 5, 2007 and found
approximately 12 acres of benched and graded land (roughly 1,300 x 400 feet), an
estimated 100,000 cubic yards of soil displaced, five process water ponds and processing
machinery.
• A representative from the California Regional Water Quality Control Board accompanied
staff and noted severe deficiencies in the New Era's site stability in the face of coming
winter rains (Pages 230 - 237). The operators hired the engineering firm of Holdrege and
Kull on December 6, 2007 and immediately commenced site stability work.
• On December 17, 2007, the California Regional Water Quality Control Board issued a
Cleanup and Abatement Order requiring compliance with a plan to address site stability
issues (Pages 222 - 229). (As of February 22, 2007, the Regional Water Quality Control
Board has been satisfied with the operators' site stability work — see Pages 240 - 241.)
• • During the period between October and December 2007, staff requested that the
operators submit information showing that the New Era Mine has been operating on a
continuous basis since 1982 and provide evidence of financial assurance.
• During December 2007 and January 2008 the operators submitted various materials
(affidavits, photographs, receipts) that they assert shows continuous operations at the
New Era Mine from the present back to 1982.
• Given the scale of the current operation, the lack of the required inspection or production
reports, financial assurances, and conclusive information showing that operation at the
New Era has been ongoing, a Notice of Violation, per Section 13-116(b), was sent to the
operators on December 20, 2007 requiring that they show the current New Era Mine
operation have a valid permit, reclamation plan and financial assurance (Pages 183 —
185).
• The operators submitted 'a substantial amount of additional material in late January 2008,
further asserting ongoing operations at the New Era Mine. Staff finds that for the period
May 1982 through June 2007 the New Era Mine was a small operation that underwent a
recent and substantial expansion during the summer and fall of 2007. The scale and
scope of the current operation is therefore in violation of several sections of Butte County
,Code and the state Public Resources Code, and specific UP 81-135 conditions of
approval as discussed below.
• •
Accordingly, staff sent the New Era Mine owner and operators an Order To Comply P PY on
February 4, 2008 (Pages 186 - 193). A Revised Order To Comply was subsequently
M Butte County Department of Development Services ■
0 March 13, 2007 0 Staff Report — New Era Mine ■ Page 6 of 55 ■
•
issued on February 11, 2008 in order to clarify that the Order did not conflict with the
operators' requirement to comply with the Regional Water Quality Control Board's
Cleanup and Abatement Order (Pages 194 - 201).
REGULATORY CONTEXT FOR SURFACE MINING OPERATIONS
The regulatory context for the Revised Order To Comply derives from both applicable Butte
County Code (Chapters 13 and 24) and SMAR.A as they evolved over the period between the
first receipt of the application for UP 81-135 on May 22, 1981 and the present.
UP 81-135 Application and Approval
The Planning Division first received Mr. Logan's use permitapplication for a mining and
reclamation permit on May 22, 1981 (no record exists of this first .application in the UP
81-135 microfiche file). As described below in. greater detail, after denial by the
Planning Commission on August 23, 1981, the Board of Supervisors denied UP 81-135
without prejudice on October 27, 1981.
• In reapplying, an application for a use permit was received by the Planning Division on
October 28, 1981 (Page 7) and, considered'de novo, UP 81-135 was eventually approved
• by the Planning Commission on May 20, 1982.
Zoning for the Logan parcel was A-2 (General) during this time and its general plan
designation was AR.
• Per BCC 24-66(a), a use permit for mining was not required in the A-2 (General) Zone.
BCC 24-66(a) stated:
"(a) Uses permitted: All uses except those for which a permit is required under
[paragraph] (b) below are permitted."
• However, BCC 24-66(b)(11) also required a use permit for industrial uses:
"(11) Industrial uses which might be objectionable by reason of emission of noise,
offensive odor, smoke, dust, bright light, vibration or involving the handling of
explosives or dangerous materials. (Ord. No. 1750, Sec. 1, 8-31-76)"
1981/1982 Butte County Code
• During the time UP 81-135 was received, processed and approved by Butte County,.
Chapter 13 Article II (Replacement of Material Displaced in Surface Mining Operations),
as established by Ordinance No. 1827, Section 1, 5-24-77 and Ordinance No. 2003,
Section 1, 2-13-79, regulated surface mining operations in Butte County.
u Butte County Department of Development Services ■
■ March 13, 2007 0 Staff Report — New Era Mine 0 Page 7 of 55 ■
•
• At that time, BCC Section 13-104 governed permit and reclamation plan requirements for
surface mining operation permit applications, stating in part:
"(a) Any person, except as provided in section 2776, California Surface Mining
and Reclamation Act of 1975, who proposes to engage in surface mining
operations as defined in this article, shall, prior to commencement of such
operations, obtain (1) a permit to mine, and (2) approval of a reclamation plan, in
accordance with the provisions set forth in this article and as further provided in
article 5, California Surface Mining and Reclamation Act of 1975."
In 1981/1982, application and review procedures in Chapter 13 referenced Chapter 24.
BCC Section 13-105 stated in part:
"The planning commission shall, in the same manner as provided for in section
24-46 of chapter 24 of this Code, schedule a public hearing within twenty (20)
days of the completion of the environmental review procedure and filing of all
documents as required by the county public works department."
• BCC Section 24-46 specified the notification process for hearings.
• • BCC Section 13-105 continued:
"The determination of the planning commission shall be final unless a written
appeal is filed in the same manner as provided for in section 24-48 of chapter 24
of this Code."
• BCC 24-48 specified the appeal procedure subsequent to a denial of a use permit
and based was upon Ordinance No. 1750, Section 1, (enacted August 1, 1976),
Ordinance No. 1798, Section 1 (enacted February 2, 1977), and Ordinance No.
1997, Section 9 (enacted January 23, 1979).
• It appears that Chapter 13 Article II referenced Sections 24-46 and 24-48 as they
pertain to use permits for purposes of process rather than substantive
requirements.
• The Chapter 13 Article II enforcement process differed from that of today.
• In 1981/1982, the public works director enforced the provisions of Chapter 13,
Article II. Per Butte County Code Section 13-112 then in effect: "The provisions
of this article shall be enforced by the public works director or any authorized
member of the public works department."
• Section 13-112 also had a different enforcement procedure:
® Butte County Department of Development Services ■
■ March 13, 2007 ■ Staff Report — New Era Mine ■ Page 8 of 55 ■
•
"The public works director may suspend the permit for a period not to exceed
fifteen (15) days where continuation of the violation will adversely affect the
public; provided, however, written notification shall have previously been sent to
the operator. In the event of a suspension, or should the public works director
request disciplinary action, the planning commission shall immediately seta
hearing thereon with not less than five (5) days' notice to the operator. The
planning commission, after completion of the hearing, may suspend or revoke the
permit, or modify the permit, or may place the operator on probation should the
violation found to exist be of a serious nature, adversely affecting the health and
welfare of the residents of the county.
Current Butte County Code
Section 1 of Ordinance No. 3083, adopted August 10, 1993, repealed Article II discussed
above in its entirety.. (Again, Article II formerly consisted of Sections 13-101 — 13-110
and Section 13-112 — 13-115 and derived from Section 1 of Ordinance No. 1827, adopted
May 24, 1977, and Sections 1 - 4,6, and 7 of Ordinance No. 2003, adopted February 13,
1979.)
• Chapter '13 Article II Surface Mining and Reclamation, in effect since August 10, 1993
contains important distinctions from its predecessor Article and, in regards to the issues
raised by the Revised Order To Comply, provides guidance for the following:
o financial assurances (Section 13-106);
o idle mines (Section 13-109);
o annual inspection/reports (Section 13-112);
o amendments to approved reclamation plans (Section 13-113); and
o enforcement (Section 13-116). .
• BCC Section 13-106 specifies that mine operators are required to submit "good faith"
estimates of the financial assurance for reclamation. These estimates have been required
annually since 1994.
Per BCC Section 13-109 an idle mine requires an interim management plan. Per BCC
Section 13-102, a mine is in idle status when surface mining operations are "curtailed for
a period of one year or more by more than ninety (90) percent of the operation's previous
maximum annual production, with the intent to resume those surface mining operations at
a future date."
• Per BCC Section 13-112, the public works department is to conduct annual inspections in
accordance with section 2774(b) of the Public Resources Code. Annual inspections,
required by SMARA since 1990, are intended to insure that the mining operation is
proceeding according to the conditions of its permit, County code and SMARA. This
annual requirement was the responsibility of the Public Works Department until 1998,
and by Planning Division from that time to the present.
■ Butte County Department of Development Services ■
0 March 13, 2007 0 Staff Report — New Era Mine ■ Page 9 of 55 0
r1
BCC Section 13-112 also requires the mine operator to forward an annual production
report to the director of the Department of Conservation. This requirement has been in
place since 1975.
BCC Section 13-116(b)(4) specifies that any operator failing 'to submit an annual
production report
"to the Department of Conservation and public works department and planning
division is subject to an order by the county imposing an administrative penalty of
not more than five thousand dollars ($5,000.00) per day, assessed from the
original date of noncompliance..."
• Per BCC Section 13-113, substantial deviations from an approved reclamation plan (that
is, changes in a mining operation that would substantially affect an approved reclamation
plan) require an amendment to that plan. Substantial deviations, discussed in detail
below, are defined by Title 14 California Code of Regulations. Section 3502(d). BCC
Section 13-113 states in part:
"Substantial deviations from the original plan shall not be undertaken until such
amendment has been filed with and approved by the planning commission. The
planning commission shall set a public hearing regarding such amendments in the
same manner as is provided for in Section 13-107."
• BCC Section 13-116 stipulates enforcement procedures for mining operations that are not
in compliance with the provisions of Article Il. For a noncompliant mining program, 13-
11 6(b)(1)
3 -116(b)(1) states that the County,
"in conformance with section 2774.1(a) of the Public Resources Code, shall
notify the operator of that violation by personal service or certified mail. If the
violation extends beyond -thirty (30) days after the date of the county's
notification, the public works director shall issue an order by personal service or
certified mail requiring the operator to comply with this article."
• Again, a Notice of Violation was sent to the operators and owner on December 20, 2007,
and the Revised Order To Comply was sent on February 11, 2008.
• Due process is provided to an allegedly noncompliant operator by BCC Section 13-
116(b)(2):
"An order issued under Section 13-116(b)(1) does not take effect until the
operator has been provided a hearing before the planning commission concerning
• the alleged violation. Any order issued under the section cited above shall specify
which aspect of the surface mine's activities or operations are inconsistent with
this article and shall specify a time for compliance, and shall set a date for the
■ Butte County Department of Development Services ■
■ March 13, 2007 ■ Staff Report—New Era Mine 0 Page 10 of 550
•
•
hearing, which shall not be sooner than thirty (30) days after the date of the
order."
• Continuing with the due process afforded an operator in the 13-116(b) compliance
process, BCC Section 13-116(b)(6) provides that "any operator aggrieved by an act or
determination by the planning division, public works department or planning
commission... shall have the right to appeal to the board of supervisors."
• BCC Section 13-116(b)(3) stipulates that the county may. impose an
administrative penalty of not more than five thousand dollars ($5,000.00) per day,
assessed from the original date of noncompliance, for any operator who fails to
comply with an order after its effective date.
• As noted above, where a mining operation is found to be noncompliant, the Planning
Commission may choose other remedies available under Butte County Code Section 13-
I I6(b)(8)
"Remedies under this section are in addition to, and do not supersede or limit, any
and all other remedies, civil or criminal, including, but not limited to, use permit,
mining permit and/or reclamation plan revocation proceedings." .
• As also previously noted, UP 81-135 Standard Condition 2 also afforded the Planning
Commission options to suspend, revoke or modify the permit:
"The public works director may suspend the permit for a period not to exceed
fifteen (15) days where continuation of a violation will adversely affect the.
public. In the event of a suspension, or should the public works director request a
disciplinary action, the planning commission shall immediately set a hearing
thereon with not less than five (5) days' notice. to the operator. The planning
commission, after completion of the hearing, may suspend or revoke, the permit,
or modify the permit, or may place the operator on probation should the violation
found to exist be of a serious nature, adversely affecting the health and welfare of
the residents of the county."
California Code
• The Surface Mining and Reclamation Act of 1975 (SMARA) (Public Resources Code
Sect 2710 et seq.) regulates surface mining and reclamation in California. SMARA
requires that,every surface mining operation have a permit (excepting those mines that
have received vested status), a reclamation plan, and adequate financial assurance, as set
forth in Public Resources Code (PRC) Section 2770, subd. (a).
0 • In defining surface mining operations, Section 2735 of the PRC states:
■ Butte County Department of Development Services ■
■ March 13, 2007 ■ Staff Report'—. New Era Mine 0 Page 11 of 55 0
r�
u
"'Surface mining operations' means all or any part of, the process involved in the
mining of minerals on mined lands by removing overburden and mining directly
from the mineral deposits, open -pit mining of minerals naturally exposed, mining
by the auger method, dredging and quarrying, or surface work incident to an
underground mine. Surface mining operations shall include, but are not limited
to: chi -
1. Inplace distillation or retorting or leaching.-
- 1 PAA * `r
2. The production and disposal of mining waste. W �N1
3. Prospecting and exploratory activities." y� 1
ANALYSIS �,` !�✓. "
L
Staff analyses for the violations noted in the Revised Order To Comply, with specific objections
to those violations by the Operator, are presented below. LA (A 0� f)04
Chapter 13 Violations of Butte County Code Section 13-113 �SMQ7 d1�1 Oft 0�W
1. Condition 21 of UP 81-135 states: "Mining operation to be limited to a maxi =T of 20��
cubic yards per day with subsequent review by the Planning Commission for proposed , t I l
expansion to Phase II. No such subsequent review by the Planning Commission was `�
• ever held.
t ro
As detailed below under UP 81-135 Application History, during the year the UP 81-1
application was under consideration the concept of phasing operations at the New Era Mine
evolved in conjunction with discussions as to whether or not an Environmental Impact
Report - as opposed to the eventually approved Initial Study/MitigatedNe ati a Declaama�tion V�-'
- would be required. C''i�oTti J
To summarize, UP 81-135 applicant Ronald Logan was notifiA Wta&December 29, 1981 'n /
letter from then Director of Planning Bettye Blair that a focused E.I.R. would be required CN -Y
(Pages 60-61). Mr. Logan appealed this requirement in a January 5, 1982 letter to the
Planning Department (Page 77), and the record shows that this appeal of the E.I.R. N
requirement was considered by the. Planning Commission at hearings on January 27,
February 10 (Pages 86 - 87), March 3 (Pages 108 -,112), and March 10, 1.982, at which time
the Planning Commission voted 3 to 1 to uphold Mr. Logan's appeal (Pages 118 -119).
•
During this period the record also shows that the concept of phasing. was -under active
consideration. (Note also the "Three Phases" exhibit on Page 20 showing operation phases at
six months, 18 months and five years.)
Senior Planner Steve Streeter first posed the concept of reduced operation in Question 9 of
his November 6, 1981 letter to Mr. Logan:
■ Butte County Department of Development Services ■
■ March 13, 2007 ■ Staff Report — New Era Mine ■ Page 12 of 55 ■
"What would be a reasonable reduction in the proposed size of the operation?
Would 20 cubic yards per day or some other reduced amount be acceptable rather
than 80 cubic yards per day?" (Page 37)
Mr. Logan, in a January 5, 1982 response wrote:
"We possibly could reduce our proposed size. from 80 to 40 cubic yds. per day
until we build a record [and] then come back to the commission for a larger
permit." (Page 70)
Phasing with specific reference to an initial 20 cubic yards per day is referenced in a March
23, 1982 letter from Ken A. Cole, Reclamation Specialist/Engineering Geologist, California
Division of Mines and Geology:
"4) This idea of a staged operation, starting at 20-tons/day and increasing in
stages, should be accompanied by periodic monitoring to determine if the operator
is capable of going to a larger scale of production." (Page 124)
The April 8, 1982 Staff Findings (Page 138) included discussion of the following meeting at
the Logan property on March 12, 1982, two days after Mr. Logan's appeal of the E.I.R.
requirement was approved by the Planning Commission:
"Tony Landis - Regional Water Quality Control Board, Ken Cole - Department of
Conservation, Division of Mines and Geology and Gayland Taylor — Department
of Fish and Game surveyed the site along with the Logan's, Frank Bennett and
Steve Streeter on March 12, 1982. As a result of the field trip, Mr. Logan
tentatively agreed to a three-phase plan to expand the mining operation. , Phase I
would restrict him to a maximum output of 20 cubic yards per day, the limitation
on his current permit from the Department of Fish and Game. Phase II would
double the output of mined material to 40 cubic yards per day. Finally, Phase III
would be for 80 cubic yards per day, the figure originally requested for the mining
permit and in the draft reclamation plan." (Page 138)
The April 8, 1982 Staff Findings further discussed the benefits of a phased operation:
"The phasing would allow for a more careful review of the mining operation by
State agency representatives and County personnel. If through periodic
monitoring a reasonable `track record' is established, the expansion from 20 cubic
yards per day to 40 cubic yards per day could be considered by the Planning
Commission." (Page 13 8)
The April 8, 1982 Staff Findings, approximately two months prior to the approval of UP 81-
135, also included Condition 21 as it was eventually written:
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■ March 13, 2007 ■ Staff Report — New Era Mine 0 Page 13 of 55 0
"Condition 21. 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." (Page 140)
A.J. Landis, P.E. provided context for the phasing concept at the New Era Mine in his April
9, 1982 Central Valley Regional Water Quality Control Board Inspection Report:
"4: Mr. Logan proposes to open pit mine the entire property in a three phase
operation of 20, 40 and 80 cubic yards/day.
5. I said we did not object to the proposal, provided all muddy water is contained
on-site. This will, however, be very difficult to achieve because of the closeness
of Dry Creek, the extensive hillside spring activity and the steep topography.
6. 'Mr. Logan agreed that he would only process up to 20 cubic yards/day (Phase I
operation) for the next few years, until he can solve the mine's muddy water
containment problems.
7. Downstream landowners are concerned that the full scale open pit mining
operation may effect their hillside springs. The county will have Mr. Logan hire a
• hydrogeologist to investigate these concerns.
8. Waste discharge requirements should be drafted for all three phases of the
operation. A technical report could be required when Mr. Logan wishes to
increase mining activity." (Pages 147-148)
Additional unambiguous references to phasing prior to the May 20, 1982 approval of UP 81-
135 are also in the record on Pages 162, 166, 167 and 169. Note in particular the "Three
Phases" exhibit on Page 20 showing expansion of the operation at six months, 18 months and
five years.
The intent of the Planning Commission to review the New Era Mine operation at the end'of
Phase I is also stated on the day UP 81-135 is approved. Immediately prior to the
Commission's approval of UP 81-135, the May 20, 1982 Planning Commission Minutes
stated:
"The hearing was closed. It was agreed that the Commission would re°view the
operation at the end of Phase I.
Commissioner Max then made a motion which was seconded by Commissioner
Schrader to:"
• A. Adopt and certify the mitigated Negative Declaration, finding that
conditions have been incorporated into the approval of this project which
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■ March 13, 2007 ■ Staff Report — New Era Mine 0 Page 14 of 55 0
•
mitigate the significant environmental effects identified in the initial study
pursuant to the California Environmental Quality Act; and
B. Find that the project meets the criteria of Butte County Code Section 13
and Code Section 24-47; and
C. Approve a mining permit and reclamation plan on AP 41-08-27, subject to
the following conditions..." (Page 167)
The record shows that a requirement for an EIR was removed with the understanding that a
phased approach of 20 to 40 to 80 cubic yards per day would be incorporated into the New
Era operation, with expansion beyond the 20 cubic -yards per day limit only after successful
review and approval by the Planning Commission. This approach is also referred to in the
"three Phases" exhibit (Page 20).
As stated. above, neither the Department of Development Services nor the Department of
Public Works has any record of "subsequent review" by the Planning Commission prior to
expansion to Phase II. The current extent of the New Era Mine — approximately 12 acres of
disturbed land with an estimated 100,000 cubic yards of material moved.— occurred between
June and October of 2007 and is well in excess of the Phase I, limitation specified by
Condition 21. The current New Era Mine operation is therefore in violation of UP 81-135
Condition 21.
• 2. The scope of the current operation has substantially deviated, as defined by California
Code of Regulations (CCR) Title 14, Chapter 8, Article 1, Section 3502(d), from the
operation permitted by UP 81-135 and is in violation of Butte County Code Section 13-
113:
"Substantial deviations from the original plan shall not. be undertaken until such
amendment has been filed with and approved by the planning commission. The
planning commission shall set a public hearing regarding such amendments in
the same manner as is provided in section 13-107."
Section 3502(d) states in part:
"For purposes of the Surface Mining and Reclamation Act of 1975 and regulations
adopted pursuant thereto, a substantial deviation shall be defined 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 for the surface mining
operation is substantially changed."
Section 3502(d) provides five factors that a lead agency shall consider "in determining whether a
change or expansion constitutes a substantial deviation." These five factors are listed below,
• with comment in italics as to how the current New Era Mine operation substantially affects the
previously approved reclamation plan and the stated end use for the New Era Mine property.
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■ March 13, 2007 0 Staff Report — New Era Mine ■ Page 15 of 55 ■
0
Section 3502(d) goes on to state:
"In determining whether a change or expansion constitutes a substantial deviation, the lead 1 ��
agency shall take into consideration the following factors: jy
ftL
(1) A substantial increase in the disturbance of a surface area or in the maximum depth o
mining.
The current disturbance area — approximately 12 acres - represents a "substantial increase
in the disturbance area" of the New Era Mine as originally permitted with regards to the
Condition 21 Phase I limit. Again, expansion to Phase II could only occur subject to a
review and approval by the Planning Commission that never occurred.
(2) A substantial extension of the termination date of the mining operation as set out in
approved reclamation plan.
UP 81-135 specifies no time limit regarding the mining operation. Item 14 of the
reclamation plan approved with UP 81-135 gives an "Estimated Life of Operation" for the
New Era Mine of 50-100 years (Page 15). The current New Era Mine does not substantially
deviate due to a substantial extension of its termination date.
(3) Changes that would substantially affect the approved end use of the site as establishs ,
Wo
the reclamation plan;
In Item 23 of the reclamation plan approved with UP 81-135, Mr. Logan identified the
following as the ultimate physical condition and proposed .uses of the mined lands as
reclaimed: "We want to put the land back and plant native to area" (Page 17). The
current disturbance — with a substantial headwall and benching of the slope above Dry
Creek — will not allow the land to be "put back" or re-contoured in a manner approaching
its pre -disturbance condition. Further, there are no reclamation standards in the
reclamation plan which would guarantee that this highly disturbed site could be successfully
planted "native " again. The current disturbance will substantially affect the approved end
use of the site as established in the reclamation plan.
(4) The consistency of any proposed change to the operation with the previously adopted
environmental determinations.
An Initial Study was prepared for the UP 81-135 and circulated to the State Clearinghouse
on July 9, 1981 (Page 29). In his July 2, 1981 letter to Mr. Logan, Stephen Streeter writes:
"Potentially significant impacts are identified with a `maybe' response in the
checklist. Mitigations for these impacts are necessary to reduce the level of
significance for the identified effects, as required by the California Environmental
Quality Act. In the attached recommended Conditional Negative Declaration, we
have proposed some mitigation measures which would provide mitigation for
particular factors. "
40 "If the list of mitigation measures listed are acceptable to you, or if you can
provide alternate conditions or project modifications that would likewise reduce
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■ March 13, 2007 ■ Staff Report — New Era Mine 0 Page 16 of 55 0
•
the significant impacts, then we can proceed to send copies of the initial study to
the State Clearinghouse for a 30 day review period prior to the Planning
Commission hearing. Otherwise, without adequate mitigation of the significant
impacts, an environmental impact report (EIR) is required. "(Page 26)
The Appendix F checklist for the Initial Study (Pages 39-47) identifies 20 potentially
significant impacts noted as "maybe " and for which, as Mr. Streeter pointed out, mitigation
measures were required to reduce the level of significance to less than significant.
As detailed in the UP 81-135 History section below, there was considerable debate as to
whether or not the potentially significant impacts of the New Era Mine as originally
proposed in the initial May 22, 1981 UP 81-135 application'— 80 cubic yards per day of
disturbance — required an E.I.R. As noted above, Staff believes the requirement for an E.I.R.
was waived with the imposition of a phased operation in Condition 21 of the approved
permit, wherein Planning Commission approval was required for expansion to Phase II.
Accordingly, the current level of disturbance at the New Era Mine is not consistent with the
previously adopted environmental determination as presented in the record. The
environmental impact of the current operation, resulting from a much greater disturbance
area than that considered under the Phase I limitation, substantially deviates from those
considered by the Initial Study/Mitigated Negative Declaration adopted and certified for UP
81-135 by the Planning Commission on May 20, 1982 (Page 167). (A Notice of
Determination for the Initial Study Negative Declaration was filed with the Secretary for
Resources, State of California, on May 26, 1982 (Page 173)).
(5) Any other changes that the lead agency deems substantial deviations as defined in the
subsection.
Staff finds that the scale and pace of the current level of disturbance - some 12 acres of
highly disturbed land within a relatively short period of four to five months (June to
October, 2007) substantially deviates with the phased cut and cover operation permitted by
UP 81-135 and the measured, 'reclaim -as -you -go' approach, intended by the Planning
Commission and as shown in the record leading to the approval of UP 81-135. (See, for
example, Mr. Logan's description of reclamation as occurring "as we go" on Page 71.)
UP 81-135 Condition 6 states: "Preserve as much vegetation as possible to promote
ground stability and reduce erosion" and Condition 11 states, "[ujndertake reclamation
immediately once each open pit mine has been processed. " (Pages 4 — 5)
Again, the record shows that the New Era Mine was permitted as a phased cut and cover
operation (see, for example, Mr. Logan's description and diagram of how the cut and cover
h Pages 72- The su stantia vege ation removal and earthmoving
that has occurred over muc o e Logan parcel makes preserving "as much vegetation as
possible" and phased reclamation impossible.
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■ March 13, 2007 0 Staff Report — New Era Mine ■ Page 17 of 55 ■
•
3. The scope of the current operation has substantially deviated from the operation
permitted by UP 81-135 and is in violation of CCR Section 3502(d):
"An amended reclamation plan shall be approved by the lead agency prior to
the commencement of activities determined to be a substantial deviation
from the approved plan."
This is also a violation of SMARA (Public Resources Section 2777).
No amended reclamation plan has been approved by the Planning Commission prior to the
commencement of the current New Era Mine operation that is, for the reasons enumerated
above, in substantial deviation from its approved plan.
SMARA Section 2777 states:
"Amendments to an approved reclamation plan may be submitted detailing
proposed changes from the original plan. Substantial deviations from the original
plan shall not be undertaken until such amendment has been filed with, and
approved by, the lead agency."
• The Operator is therefore in violation of CCR Section 3502(d) and SMARA (Public
Resources , Code Section 2777) requiring Butte County'sLead Agency approval of an
amended reclamation plan for the current New Era Mine operation.
4. The Operators are in violation of Butte County Code Section 13-106 and Public
Resources Code Section 2773.1 requiring adequate financial assurance to reclaim the
site according to the reclamation plan.
During the 1981/1982 period UP ,81-135 was received, reviewed and approved, BCC Section
13-106 then in effect required a "performance bond or other security device":
"Upon a finding by the planning commission that a supplemental guarantee for
the reclamation of the mined land is necessary and upon the determination by the
public works department of the cost of the reclamation of the. mined land
according to the reclamation plan, a reasonable surety bond, lien on the property
or a portion thereof, or other security- guarantee conditioned upon the faithful
performance of the reclamation plan shall be filed with the public works
department. (Ord. No. 1827, § 1, 5-24-77; Ord. No. 2003, § 2, 2-13-79)"
Current BCC Section 13-106 states:
"The planning 'commission shall require financial assurances as necessary to
• conform to the provisions of this article and with section 2773.1 of the Public
Resources Code. The mine operator or applicant shall submit a good faith
estimate of the financial assurance for reclamation, based on the state's financial
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■ March 13, 2007 ■ Staff Report — New Era Mine 0 Page 18 of 55 ■
•
assurance guidelines. The director of public works shall be responsible for
verifying the estimate so as to guarantee reclamation. If the mine operation is
phased and a program is provided by the operator, financial assurances can be
based on each specific phase. Such financial assurances shall be made payable to
the county and the department of conservation. (Ord. No. 3083, § 2, 8-10-93)"
The Public Resources Code Section 2773.1 states in part:
"(a) Lead agencies shall require financial assurances of each surface mining
operation. to ensure reclamation is performed in accordance with the surface
mining operation's approved reclamation plan..."
Section 2773.1 then identifies the permissible types of financial assurance mechanisms and
their specific requirements with regard to ensuring reclamation. No approved financial
assurance for the New Era Mine was in place from the time of approval of UP 81-135 until
January 24, 2008, when the operators, submitted a certificate of deposit for $3,000 (Pages 202
-203).
As noted below in the 2007-2008 Events and Current Compliance Process section, the
operators first submitted a cost estimate for $24,000 on December 5, 2007 (Pages 204 - 210).
• This estimate was found to be inadequate by the Department of Conservation (Page 211).
A second and substantially increased cost estimate of $200,036.67 was received on January
24, 2008 (Pages 211 — 217). The methods for determination of this estimate were found
deficient by the County's consultant and the operators were so -informed; however, this
second revised estimate is more in accord with the anticipated cost of reclamation should the
operators default on their responsibility.
SMARA Section 2773.1(a)(3) has required, since 1994, that financial assurances be adjusted
annually "to account for new lands disturbed by surface mining operations, inflation, and
reclamation of lands accomplished in accordance with the approved reclamation plan." No
such annually adjusted cost estimates and financial assurances were ever provided to the
County until the fust cost estimate provided on December 5, 2007.
In a January 16, 2008 letter and accompanying affidavit, Ronald and Betty Logan assert that
Butte County agreed to have a lien placed on the Logan property as financial assurance for
reclamation. Indeed, Standard Condition 3 of UP 81-135 states:
"Upon a finding by the planning commission that a supplemental guarantee for
the reclamation of the mined land is necessary, a reasonable surety bond, lien on
the property or a portion thereof, or other security guarantee conditioned upon the
faithful performance of the reclamation plan shall be filed with the public works
department."
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0 March 13, 2007 0 Staff Report — New Era Mine 0 Page 19 of 55 ■
n
u
Staff has no record that such a lien was ever placed on the Logan property and, for reasons
deduced from the record and noted below, believes it would have been highly unlikely for the
County to have accepted a lien on Mr. Logan's property as a financial assurance mechanism
to ensure reclamation at the New Era site.
First and foremost, however, UP 81-135 Condition 5 explicitly requires a performance bond:
"5. Submit a reclamation performance bond in the amount of $3,000 and letter
allowing the County of Butte, or persons designated by the County, access to the
property to accomplish reclamation in the event of default."
Again, staff has found no record whatsoever of either the required bond or access letter prior
to the January 24, 2008 certificate of deposit.
It is important to note that the record does contain discussion regarding requirements for a
performance bond and, similar to the discussion regarding an E.I.R., consideration of the
amount of the bond and the type of financial' mechanism to be required evolved as the UP 81-
135 process progressed:
• In Stephen Streeter's November 6, 1981 letter to Ronald Logan, Question 14 asked
• "[w]hat are your comments with respect to the County requiring a performance bond
to fulfill certain conditions?" (Page 37)
• In his January 6, 1982 response, Mr. Logan stated "[w]e think a bond would be an
unreasonable condition in that our reclamation plan calls for land reclamation as we
go, also Fish and Game and Water Quality Control has on site inspection at any
time." (Page 71)
• March 3, 1982 Planning Commission Minutes noted concerns regarding a
performance bond from Tony (A.J.) Landis: "He also recommended that a
performance bond be required to ensure that the required reclamation work be
accomplished — at no expense to the County." (Pages 108 —109)
•. The April 8, 1982 Staff Findings also discussed a performance bond:
"A performance bond has been recommended as a method of assuring that
reclamation will take place. In the event that the mining operation did not
prove successful or for some other reason the Logans were not able to
initiate and complete reclamation of the land, the performance bond would
allow the County to complete the work by hiring someone to do it." (Page
138)
• • The April 8, 1982 Staff Finding Recommendations included Condition 5: "Submit a
reclamation performance bond, pursuant to Sec. 13-106 of the County Code, in the
amount of $10,000 and letter allowing the County of Butte, or persons designated by
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0 March 13, 2007 ■ .Staff Report — New Era Mine ■ Page 20 of 55 0
the County, access to the property to accomplish reclamation in the event of default."
(Page 139)
• The April 8, 1982 Planning Commission Minutes revealed that Mr. Logan disagreed
with the $10,000 bond requirement:
"Ron Logan, pointing to a map indicating that hydrology of the area is
such that downstream springs would not be affected by the project, and
that he felt that the proposed $10,000 bond requested was entirely
unreasonable for the little hole that his proposed 20 cu. yds. per day
operation would make."
"Commissioner Max commented that he felt that the bonding was
necessary to assure it is a viable project."
"Commissioner Bennett agreed with Mr. Logan that the bond should be
adjusted for the phase operation — that the bond should be phased
accordingly."
"Opponents: Walter C. Kirk, Jr. again expressed concern about the
. proposed bond to ensure that downstream property owners would be
protected..." (Page 142)
• In an April 9, 1982 Inspection Report, A.J. Landis (Regional Water Quality Control
Board) noted in Item 9: "The County is considering requiring a performance bond. I
agreed that a performance bond would be appropriate considering the potential
problems of the site." (Page 1.48)
• Bill Cheff (Deputy Director, Public Works), in a May 17, 1982 Inter -Departmental
Memorandum to Bettye Kircher stated:
"The Planning Commission has requested a specific amount for a
performance bond pursuant to Section 13-106, an amount to be sufficient
to cover reclamation of the first year's operation which is anticipated will
be 20 cu. yds. per day."
"In addition to the dollar amount the Commission has asked for a
recommendation as to the type of bond that would be preferable to achieve
the desired results." (Page 162)
• In a May 18, 1982 Inter -Departmental Memorandum, Public Works Deputy Director
William Cheff recommends a $5,000 performance bond:
"A $5,000.00 Performance Bond would be the preferable document to
guaranty [sic] that he will do, the necessary reclamation work. Attached is
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■ March 13, 2007 0 Staff Report — New Era Mine ■ Page 21 of 55 ■
•
an example of one that we use on subdivisions. An alternate would be a
$5,000.00 cash deposit or a Letter of Credit." (Page 163)
• The May 20, 1982 Planning Commission Minutes reveal that the Commission did not
favor a lien:
"Ron Logan took exception to the amount of the performance bond,
stating that they had no place to store the overburden and had to put it
back as they went along, and that contractors had estimated that the entire
20 cu. yds. per day could be replaced for $500 ,to $1,000: He, asked
whether a lien could be placed on his property rather than putting up the
money for the bond."
"Commissioner Schrader reminded the Commission.of the requirement for
a title search prior to placing the lien and the necessity and expense of a
foreclosure sale of the land for just a little reclamation work." (Pages 166-
167)
The record does not support the Operator's assertion that a lien was to have served as
financial assurance for the New Era Mine under UP 81-135.
• No financial assurance has been on file for the New Era Mine during the period between May
20, 1982 and January 24, 2008 and UP 81-135 Condition 5 was therefore in violation during
that 25 year period. The cost for reclamation of the current operation far exceeds the $3,000
certificate of deposit created by the operators and staff concludes that the New Era Mine has
been and is in violation of Butte County Code Section 13-106 and Public Resources Code
Section 2773.1.
5. UP 81-135 Condition 8 states: "Improve Dry Creek Road from Messilla Valley`
Road, at such time as mining traffic warrants, to reduce vehicle dust impacts and
for traffic safety purposes."
As detailed below in the Recent History and Current Compliance Process, staff held a
meeting with residents concerned about the New Era Mine operation on January 28, 2008.
Several residents noted a high volume of mine -related heavy trucks traveling on Dry Creek
Road and consequent adverse impacts to the road and its encroachment onto the County -
maintained Messilla Valley Road. Impacts mentioned included ruts, dust, loss of gravel and
road -base, damage to trees, and traffic safety (Pages 311 - 313).
In December and January, the operators notified staff that the road would be repaired.
Conversations with neighbors and a site visit by staff on February 15, 2008, confirmed that
the operators have done extensive work to repair and maintain Dry Creek Road. Staff has
also had contact with two Dry Creek Road residents hired by the operators to maintain the
road.
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■ March 13, 2007 ■ Staff Report — New Era Mine ■ Page 22 of 55 0
Staff, at this time, finds that the operators have made a good effort to maintain the private
Dry Creek Road per UP 81-135 Condition 8. Given the expanded operation at the New Era
Mine, the question remains, however, how and when Dry Creek Road shall be improved to
accommodate mine -related traffic and maintain safe driving conditions for residents. Staff
believes, given the expanded New Era Mine operation, that the matter of Dry Creek Road
maintenance and traffic safety must be addressed within the context of an amended permit
subject to discretionary review and public input.
6. UP 81-135 Condition 9 states: "Erosion control measures are required.
a. Stabilization of all graded areas.
b. Stabilization of the streambank in area of mining operation.
c. Proper development of drainage for open pit mine area.
d. Install culvert for any stream crossing of Dry Creek."
At the December 5, 2007 inspection of the New Era Mine, a representative of the
Central Valley Regional Water Quality Control Board found stabilization measures at
the site to be inadequate and subsequently issued Cleanup and Abatement Order R5-
2006-0731. This is a violation of Condition 9(a) and 9(b).
As the violation notes, both the Regional Water ,Quality Control Board's representative,
Philip Woodward, P.E., and Butte County's SMARA inspection consultant, found that
adequate erosion control measures as required in Condition 9 were not in place at the time of
the December 5, 2007 site inspection (see Mr. Woodward's inspection report, Pages 230 -
237). Indeed, the Regional Water Quality Control Board took the somewhat unusual step of
issuing a Cleanup and Abatement Order due to concerns about site stability with the
approaching winter rain season (Pages 222 - 229).
It is important to note that the operators immediately engaged the experienced geotechnical
engineering firm Holdrege and Kull and, at considerable expense, commenced stabilization
work soon thereafter. That work continued through the extreme rains of late December 2007
and early January 2008. As of this writing, Mr. Woodward reports that, although required
stabilization work is not yet complete, the operators are satisfactorily complying with the
Cleanup and Abatement Order.
Despite the operators' commendable efforts to stabilize- the New Era Mine site, staff notes
that had a site inspection not been made on December 5, 2007 (with the resulting Cleanup
and Abatement Order), extensive site erosion and severe sedimentation of Dry Creek would
have resulted in the heavy rains experienced over the past two months. The current
stabilization effort is a result of compliance with the Regional Water Quality Control Board's
Cleanup and Abatement Order and not a result of compliance with Condition 9, which was
violated at the time of the December 5, 2007 inspection.
7. UP Condition 24 states: "Applicant must also comply with all other applicable State
and local statutes, ordinances and regulations." The New Era Mine has not
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0 March 13, 2007 0 Staff Report — New Era Mine 0 Page 23 of 55 ■
•
complied with the following applicable State and local statutes, ordinances and
regulations:
• No annual inspections were conducted at the site during the period
between 1993 and December 5, 2007, as required by Butte County Code
Section 13-112 and Section 2774(b) of the Public Resources Code.
• No MRRC-2 Surface Mining Operations Annual Reports were received
by the Department of Conservation or Butte County between the period
of 1993 and 2007, as required by Butte County Code Section 13-112 and
Public Resources Code Section 2207.
• During the period between 1994 and January 25, 2008, no annually
updated financial assurance for reclamation was on file with Butte
County, as required by Butte County Code Section 13-106 and Public
Resources Code Section 2773.1.
As stated in this violation and as discussed above, the New Era Mine operation has not
complied with S orting requirements as itemiypd for the period between
1982 and 2007 arV, per Butte County Code Section 24-45.65(b), is therefore in violation of
• UP 81-13 5 Condition 24.
Staff notes that Butte County Code Section 13-112 also 'requires annual inspections and
reports:
"13-112 Annual Inspection/Reports.
(a) The public works department, development services department, and such
technical specialists as they may deem necessary, shall conduct 'annual
inspections in accordance with section 2774(b) of the Public Resources Code, for
each mining operation to determine whether the surface mining operation is in
compliance with the spirit and intent of this article and the Act, and the provisions
thereof. Such inspection shall be conducted using,a form provided by the director
of department of conservation for that purpose, and shall be conducted no later
than six (6) months after receiving the surface mining operation's annual report
submitted pursuant to section 2207 of the Public Resources Code and section 13-
112(b). This section does not preclude the county from requiring additional
inspections for the purpose of ensuring appropriate environmental protection.
(b) In compliance with section 2207 of the, Public Resources Code, the owner,
manager, or other person in charge of any surface mining operation shall forward
an annual report to the director of department of conservation not later than an
anniversary date established for that operation by the director of department of
conservation upon forms furnished by the state board of mines and geology. Such
annual report shall be in accord with instructions included with the forms. The
■ Butte County Department of Development Services ■
0 March 13, 2007 ■ Staff Report — New Era Mine ■ Page 24 of 55 ■
•
designated copy shall be submitted to the planning division and public works
department on or before the aforesaid anniversary date.
(c) The cost of the annual inspection dictated by section 13-112(a), above, shall
be borne by the operator. The county shall establish and annually review a fee
recovery program to cover the reasonable costs incurred in implementing this
article. (Ord. No. 3083, § 2, 8-10-93)"
Additionally; per Butte County Code Section 13-116(b)(4), the New Era Mine is subject to
administrative fines for failure to submit annual inspections and reports:
"(4) Any operator who fails to submit a report to the director of department of
conservation and public works department and planning division under section
13-112 and section 2207 of the Public Resources Code shall be subject to an order
by the county imposing an administrative penalty of not more than five thousand
dollars ($5,000.00) per day, assessed from the original date of noncompliance
with this article and/or section 2207 of the Public Resources Code."
Annual inspections per SMARA Section 2774(b), intended to insure that a mine operation is
complying with State and local regulations and its permit, have been required by the
Department of Conservation since 1990. The New Era Mine has thus been out of compliance.
• ` with this requirement since 1990.
Annual production reports per SMARA Section 2207 have been required since SMARA's
'inception in 1975. The New Era Mine has thus been out of compliance with this requirement
since the approval UP 81-1.35 in 1982.
OBJECTIONS RAISED BY THE OPERATORS
In several letters, meetings and phone conversations the operators have raised a number of
issues regarding staff's interpretation of the following:
1. Whether or not mining activity has been continuous at the New Era Mine for the period
1982 —2007;
2. The applicability of Butte County Code Chapters 13 and 24 to the New Era operation;
and
3. Whether or not the UP 81-135 Condition 21 limit of 20 cubic yards per day- represents a
gross volume or a net concentrate derived from some larger excavated volume.
Staff addresses these issues in order as follows:
1. Has mining activity been continuous at the New Era Mine from 1982 — 2007?
Butte County Code Section 13-108 states:
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0 March 13, 2007 0 Staff Report — New Era Mine 0 Page 25 of 55 ■
•
"13-108 Lapse of permit.
Upon approval of the mining permit, the operator shall commence surface
mining operations within five (5) years from the date of issuance of the
permit. Should operations not commence within said five (5) years the permit
shall expire and become void, unless extended by the planning commission
prior to expiration. (Ord. No. 3083, § 2, 8-10-93)"
As staff became aware of the extent of the current New Era Mine operation during the
Fall of 2007, it appeared from records at the County that there was no evidence
whatsoever of mining activity there subsequent to UP 81-135 approval in 1982 — no
annual production reports, annual inspections, annual updates of financial assurance or,
for that matter, any other indication of an operating mine.
As noted in the 2007-2008 Events and Current Compliance Process section below,
staff first asked Mr. Logan (in late winter 2007) and subsequently, the operators (several
times during the Fall, 2007), to submit evidence of continuous operations at the New Era
Mine, such as reports, employee pay stubs, . bank account information, tax statements,
records of gold assays and sales, equipment rental slips, investor prospectuses, or any
other material information that might demonstrate some kind of ongoing gold mining
• activity.
Information Submitted by the Operator
The operators submitted the following as evidence of on-going mining activity at the
New Era Mine. Staff response to the evidence is presented in italics.
MRRC-2 Office of Mine Reclamation Surface Mining Inspection Report
forms back -dated for the years 1982 — 2007 with various details indicating
mining for the respective year.
Staff found the backdated MRRC-2 forms inconclusive as they had
apparently been prepared shortly before their submission. The particular
forms submitted by the operators have only been available since 2006;
prior to 2006 the MRRC-2 form was in substantially different format.
27 binders, each binder representing a year from 1981 to 2007, containing
hundreds of pages of affidavits, equipment and materials receipts, dated
and undated photographs and other various pieces of information.
The affidavits come from diverse individuals who state they visited,
worked at, or did work on equipment for the New Era Mine, or witnessed
mining activity at the New Era Mine. (See examples of affidavits on Pages
242 - 262) Some receipts do suggest the purchase, rental and repair of
mining -related equipment, but generally indicate a small mining operation
that was periodically pursued over the years. The photographs also show.
excavations and processing equipment indicative of a small-scale mine
■ Butte County Department of Development Services ■
■ March 13, 2007 0 Staff Report — New Era Mine 0 Page 26 of 55 ■
•
operation. Although this information, taken as a whole, might
demonstrate at least minimal mining activity at the New Era Mine, it was
mining at a scale far smaller than the current operation (that is, since
June 2007) with approximately 12 acres of highly disturbed land and
roughly 100, 000 cubic yards of material displaced on the mine site.
Information from the Regional Water Quality Control Board
Information received from the California Water Quality Control Board, Central Valley
Region, indicates mining activity at the New Era for at least the period between 1982 and
1992.
UP 81-135 Condition 3 required the New Era operator to submit "a current report of
,wastewater discharge("WDR") to the California Regional Water Quality Control Board
and comply with requirements pertaining to wastewater discharge." (Page 4)
Staff obtained documentation showing that New Era Mine WDRs were on file with the
California Regional Water Quality Control Board (Pages 263 - 271).
In a series of letters between Mr. Logan and Central Valley Region officials, however,
operations at the New Era Mine appear to have ceased for an unknown period of time.
• Ina January 16, 1991 letter to the California Water Quality Control Board,
Central Valley Region, Ron Logan writes:
"This is in response to your letter of 11 Jan. 1991 regarding the subject
permit. I wish to inform you that the New Era Mines Partnership is no
more, it has dissolved, we are inactive." (Page 272)
• In regards to this apparent cessation of mining at the New Era Mine in
1992, the operators, on January 28, 2008, submitted a letter signed by
Frank Noland and acknowledged by Ronald Logan that this January 11,
1991 letter referred only to the New Era Mines Partnership, not operations
at the mine itself. (Pages 273 - 280)
• Although the record shows the mine had WDRs on file with the Regional Water
Quality Control Board for various times during the period between 1982 and
1991, Ronald S. Dykstra, P.E. of the California Regional Water Quality Control
Board Central Valley Region wrote to Ronald Logan in a July 6, 1992 letter:
"In accordance with our recent phone conversation attached is a copy of
an invoice for your annual operating fee. We understand that you have not
actively mined at this site in the last several years." (Page 277)
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■ March 13, 2007 ■ Staff Report — New Era Mine ■ Page 27 of 55 0
0
• Mr. Logan, in an August 4, 1992 response, asked to have his waste discharge
requirements rescinded: '
"This letter is in response to your letter received 4 Aug. 1992 about
rescinding our waste discharge requirements.'
"I agree to meet your conditions and am asking you to please rescind our
waste discharge requirements until we wish to reinstate full scale
operations." (Page 278)
• In an October 7, 1992 letter to Ron Logan, James Pedri, Supervising
Engineer for the California Regional Water Quality Control Board Central
Valley Region, states:
"Order No. 91-003, adopted 25 January 1991, prescribes requirements for
New Era Mines, a limited partnership operating a placer mine, in Butte
County. The mine extracts placer deposits from a streambed, then
hydraulically processes the ore for gold recovery. The limited partnership
was dissolved in 1990 and no mining has taken place since then. There
are no current plans to resume mining." (Pages 279 - 280)
is Information from the Department of Fish and Game
Per UP 81-135 Condition 3, a current streambed alteration permit from the Department of
Fish and Game was required:
• The record shows that two streambed alteration permits were issued to
Ronald Logan: one for the period effective February 2, 1982 to February
2, 1983 (Pages 89 - 92) and one for the period May 1, 1988 to May 1,
1989.
• The two streambed alteration permits indicate mining activity during
1982-1983 and 1988-1989.
• However, these two permits were issued for periods of one year.
Streambed alteration permits may be renewed, but a renewal must be
applied for. Staff has checked with the Department of Fish and Game and
no such applications to renew the required Streambed Alteration Permit
for the New Era Mine has been received. "
In their January 30, 2008 letter to Tim Snellings (Pages 281 - 288), the operators make
several points based upon Butte County Code Sections 13-101 and 104, and the Public
Resources Code Sections 2727.1 (Idle Mines) and Section 2735 and related Sections
regarding the definition of mining as it pertains to continuous operations (Page 284). The
• operators conclude:
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0 March 13, 200TE Staff Report — New Era Mine ■ Page 28 of 55 ■
"It is difficult to conceive of more inclusive or flexible language than that
which defines `surface mining operations' under the BCC and PRC. Further
examples of this broad concept of what constitutes being engaged in mining
operations are found with the definitions of the terms used in the definition of
`surface mining operations.' For instance, the terms `exploration' and
`prospecting' are defined to include `sampling' or `any surface or
underground works needed to determine the type, extent, or'quantity of
minerals present.' In addition, it is extremely difficult to quantify this activity
and there is no authority that places the burden of doing so on the operator of .
any surface mining operation. Provided that any such operations are
undertaken within any one-year period, the surface mining operations are
ongoing. In other words, interruptions in operations lasting less than one year
do not negate the existence of active surface mining operations under the BCC
or PRC." (Page 285)
As previously noted, the County has no. records in the form of annual inspections (as
required by UP 81-135 Condition 22), annual production reports (as required by Butte
County Code 13-112 and Public Resources Code 2207), or financial assurance (until the
January 24, 2008 certificate of deposit), as required by the then in effect Butte County
Code 13-106 and SMARA Section 2773.1, or, indeed, any indication of an operating
• mine at the New Era site.
Staff tentatively concedes that the waste discharge requirements, the two streambed
alteration permits and, if taken at face value, the many affidavits and other supporting
documents (receipts, photographs, newspaper articles, etc.) do indicate that mining
activities did commence within five years of the issuance of UP 81-135 and, further, may
indicate that some small mining activity occurred in some ongoing .fashion during the
years between 1982 and 2007.
Staff disagrees with the operators' assertion in the aforementioned January 30, 2008 letter
that the definition of "surface mining operations is so inclusive and flexible as to
encompass virtually any surface disturbance within the period of a year so long as it is
said to be in the service of "mining".
Surface mining operations may be active and operating, active and reclaiming, idle, or
abandoned. Butte County Code Section 13-102, quoting verbatim Public Resources
Code Section 2727. 1, defines idle operations as follows: "'Idle' means to curtail for a
period of one year or more surface mining operations by more than ninety (90) percent of
the operation's previous maximum annual mineral production, with the intent to resume
those surface mining operations at a future date." Butte County Code 13-1.09, following
Section 2770(h) of the Public Resources Code, specifies an interim management plan
when a surface mine is in idle status:
• "13-109 Idle mines/interim management plans.
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(a) Within ninety (90) days of a surface mining operation becoming idle, as
defined in section 13-102 and section 2770(h) of the Public Resources Code,
the operator shall submit to the planning division for review and approval an
interim management plan. The interim management plan shall be considered
an amendment to the approved reclamation plan and shall include measures
the operator will implement to.maintain the site in compliance with all permit
conditions of the approved reclamation plan, mining and/or use permit.
(b) The interim management plan may remain in effect for a period not to
exceed five (5) years, at which time the county shall do one of the following:
(1) Renew the interim management plan for an additional period not to exceed
five (5) years.
(2) Require the operator to commence reclamation in accordance with the
approved reclamation plan.
(c) The financial assurance required by section 13-106 shall, remain in effect
during the period the surface mining operation is idle.
(d) The planning division shall review and approve the interim .management
plan in accordance with section 2770(h) of the Public Resources Code.
(e). The public works department shall' periodically inspect each idle mine to
assure compliance with the approved interim management plan. (Ord. No.
3083, § 2, 8-10-93)"
• No operator of the New Era Mine has ever submitted an interim management plan for the
mine.
•
Given the lack of evidence in the form of required reports and submittals such as annual
production reports, cost estimates and inspections, operations at the New Era Mine may
have ceased for periods of a year or longer both before and after 1992 when waste
discharge requirements were rescinded.
However, the voluminous information submitted by the operators may, depending upon
what constitutes "mining", support their claim that the New Era Mine has operated for
the eniire period 1982 — 2007 with no break in mining activity longer than one year. The
submitted affidavits, however, indicate that such mining activity that did occur was
frequently very minor: sluicing, panning and small diggings.
To conclude, ongoing mining operations at the New Era Mine are not supported by the
lack of required reports and rescinded and non -renewed state requirements such as the
waste discharge reports and streambed alteration permits. The evidence submitted by the
operators (affidavits, photographs, receipts), indicates that whatever the mining activity
that did occur between the period May 1982 and June 2007 was generally minor in scale
and scope regardless of whether or not it was ongoing or continuous, and completely
inconsistent with the current operation of some 12 acres of highly disturbed land.
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0 March 13, 2007 ■ Staff Report — New Era Mine 0 Page 30 of 55 0
•
•
2. The applicability of Butte County Code Chapters 13 and 24 to the New Era
operation.
In their January 30, 2008 letter to Tim Snellings (Pages 281 - 288), the operators assert in
a lengthy passage that "Chapter 24 of the BCC, as it existed on the date the Permit was
issued and as of the date of this letter, did not and does not apply to the New Era Mine."
(Page 283)
The record is not definitive as to whether or not UP 81-135 is an entitlement for a use
permit (governed by Chapter 24), mining permit and reclamation plan (governed by
Chapter 13) or only a mining permit and reclamation plan. Staff would simply note again
that the scope and scale of the current operation is far in excess of that allowed by
Condition 21 of UP 81 -135 -and is in no way consistent with the small, episodic operation
that apparently occurred at the New Era Mine between May 1982 and June 2007.
3. Does the UP 81-135 Condition 21 limit of 20 cubic yards per day represent a gross
volume or a net concentrate derived from some larger excavated volume?
The operators, in discussions with Tim Snellings and in a February 7, 2008 letter (Pages
289 - 299), assert that the 20 cubic yards per day limit in Condition 21 refers to an end
product — a "concentrate" — of an unspecified larger initial volume of material extracted
from the earth. The operators argue that in placer gold mining operations a large volume
of raw material, excavated from the earth, is processed and reduced via various sorting
procedures to a final volume from which gold and other precious metals are ultimately
extracted. The operators assert that the Phase I limitation of 20 cubic yards per day refers
to this end product and, in the February 7, 2008 letter, provides an affidavit signed by
Ronald R. Logan, .that he (nor his agents) "have ever exceeded the 20 cubic yards of
concentrated material per day limit set within -my permit." (Page 290)
In regards to placer gold mining practice in general, the operator may be correct in
asserting that a final condensate is the result of a (perhaps much) larger initial volume of
excavated material. However, staff disagrees with the operator's assertion that 20 cubic
yards per day was intended by the Butte County Planning Commission to mean the
reduced end product of some unspecified larger volume at the New Era Mine for the
following reasons:
Nowhere in the many references in the record to phasing or the proposed New Era
Mine operation is there any mention of 20 cubic yards per day (or, for that matter, the
80 cubic yards per day originally applied for) as representing an end "concentrate" of
some greater "gross" volume first excavated and then processed.
• To the contrary, the April 8, 1982 Planning Commission Minutes make clear that the
20 cubic yards per day figure under consideration represents a total volume:
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■ March 13, 2007 0 Staff Report — New Era Mine ■ Page 31 of 55 ■
•
"Ron Logan, pointing to a map indicating that hydrology of the area is such
that downstream springs would not be affected by the project, and that he felt
that the proposed $10,000 bond requested was entirely unreasonable for the
little hole that his proposed 20 cu. yds. per day operation would make." (Page
142)
The language in the record referring .to 20 cubic yards per day is consistently
unambiguous — it represents a total volume and, for purposes of environmental
review, a total measure of disturbance and potential impact upon the environment.
For example, in the context of a discussion regarding the amount of a performance
bond during the May 20, 1982 hearing that ended with approval of UP 81-135, the 20
cubic yards per day figure refers to a total, gross volume, not a net concentrate:
"Ron Logan took exception to the amount of the performance bond, stating
that they had no place to store the overburden and had to put it back as they
went along, and that contractors had estimated that the entire 20 cu. yds. per
day could be replaced for $500 to $1,000. He asked whether a lien could be
placed on his property rather than putting up the money for the bond." (Pages
166-167)
• Accepting the operators' assertion that 20 cubic yards per day represents an end product of
some unspecified greater volume begs the question of what that greater volume is: 40, 801
100 or more cubic yards per day? By the operators' argument, any greater volume might be
subject to disturbance if it could be shown to concentrate down to 20 cubic yards per day.
Such a potentially variable disturbance make a consistent project description that was (and
is) required by the California Environmental Quality Act impossible.
In his February,7, 2008 letter to Tim Snellings, the operators state their intention to have a
consultant determine what initial volume the so-called concentrate is derived from:
"North Continent Land and Timber, Inc. has hired the firm of Holdrege and
Kull, Consulting Engineers -Geologists to confirm the concentrated material
calculations that can be used to verify the amount of concentrated material
that is produced from our mining operation. Mr. Don Olsen will be heading
this task." (Page 289)
Whatever the validity of the consultant's estimation as to how much material is necessarily
disturbed and excavated at the New Era site to end up with 20 cubic yards per day of
"concentrate', that figure has no bearing on the Planning Commission's intentions with the
Phase I limit in 1982 which, as the record shows, was a gross, total volume, not a
"concentrate".
To conclude, the record shows that the requirement for a more rigorous EIR was waived in
favor of an Initial Study/Mitigated Negative Declaration because the New Era operation was
intended to start small and only enlarge pending successful review by the Planning
■ Butte County Department of Development Services ■
■ March 13, 2007 M Staff Report — New Era Mine ■ Page 32 of 550
•
Commission as stated in Condition 21. This view does not accord with the operators'
assertion that the Phase I limitation was a concentrate of some unknown larger volume and
its correspondingly larger area of disturbance.
2007 - 2008 EVENTS AND CURRENT COMPLIANCE PROCESS
The •sequence of events from the time current Staff first encountered the New Era Mine in the
winter of 2007 to the present is provided below.
• Late winter, 2007, owner Ron Logan came to the Development Services public counter to
ask about his permit (UP 81-135) status and was informed, based on a lack of records
showing operation (e.g., annual inspections, production reports) that UP 81-135 appeared
to have lapsed. Mr. Logan disagreed, and staff requested that he submit evidence that his
mine had been operating over the past 25 years. Mr. Logan submitted no such evidence.
• During May 2007 two Dry Creek Road residents came to Development Services to ask
about activity on the Logan property.
• In late May staff asked Department of Fish and Game warden Josh Brennan to visit the
• Logan property. Warden Brennan reported back on June 5, 2007 that there was a small
operation, well outside the creek, and one of the better -run operations he had seen.
• Over the summer of 2007 staff received a few calls and a visit by a Dry Creek Road
resident again asking about activity on the Logan property. On October 24, at staff s
request, Code Enforcement visited the site and reported back that there was an extensive
mining operation.
• Staff first spoke by phone with Lee Ogle (President, North Continent Land & Timber) on
October 26, informing him that it appeared UP 81-135 had lapsed and that a new mining
permit was required to conduct mining operations. Mr. Ogle protested and emailed staff
11 digital photographs showing operations at the New Era Mine that confirmed extensive
disturbance on the Logan property.
• Staff (Chris Thomas, Dan Breedon and Chuck Thistlethwaite) met with Lee Ogle and
Frank Noland on October 30, 2007. The operators presented various documents.
describing the current operation, including a "Plan of Operations For New Era Mine" and
a "Storm Water Pollution Prevention Plan For New Era Mine".
• Regarding the proposed operation at the New Era Mine, the "Plan of Operations For New
Era Mine," prepared for North Continent and Timber, Inc. by KAS Gales Company,
states in part:
• "The mining itself will be an open -pit and will be staged over a period of years.
The pits will be a nominal size of 100 x 200 feet or approximately one-half (1/2)
■ Butte County Department of Development Services ■
0 March 13, 2007 0 Staff Report —New Era Mine ■ Page 33 of 55 0
•
acre in surface area. The method will be the continuing excavation of one pit and .
simultaneous backfilling and reclamation of the previous pit, therefore limiting
the total disturbed surface to one (1) acre or less." (Pages 309 - 310)
As noted above on Page 2 of this staff report, the benched and graded area observed in
the December 5, 2007 inspection was approximately 12 acres in size.
• Staff noted at the October 30, 2007 meeting with the operators that Butte County had no
record of operations at the New Era Mine subsequent to the approval of UP 81-135 and
requested any evidence of on-going operations at the New Era between 1982 and the
present. The operators were instructed that such evidence might include New Era Mine
employee -pay stubs, records of gold assays and sales, receipts for rental equipment, bank
statements, tax statements, investor reports, in addition to any other form of production
reports or inspections.
• On November 20 the operators submitted back -dated Department of Conservation
MRRC-2 Mining Operation Annual Reports for the years 1982 - 2006 using a particular
form that has been used by the Department of Conservation only since January 2006.
Again, neither Butte County nor the Department of Conservation has received Mining
Operation Annual Reports for the New Era Mine since UP 81-135 approval in 1982.
• • On November 30, 2007 the operator paid to the County a deposit fee of $1,740.00 to
cover expenses for the 2007 SMARA inspection of the New Era Mine site.
• On December 5, 2007 staff, accompanied by a representative from the Department of
Public Works and Butte County's SMARA inspector, Nash Gonzalez (Pacific Municipal
Consultants), conducted the first SMARA inspection of the New Era Mine and found
approximately 12 acres of disturbed area with about 100,000 cubic yards of material
redistributed on the site. Nine violations were noted on page 3 of the resulting Surface
Mining Inspection Report MRRC-1 (Pages 314 - 323).
• Philip Woodward, Senior Engineering Geologist with the Central Valley Regional Water
Quality Control Board, also performed an inspection for his agency during the December
5, 2007 site visit and, at the conclusion, noted a number of serious deficiencies in site
engineering with regard to stability and sediment control. He advised the operator to
consult immediately with a knowledgeable ' engineering firm. (See Mr. Woodward's
Inspection report, Pages 230 — 237.)
• On December 6, 2007, the operators notified staff that they had retained the geotechnical
engineering firm of Holdrege and Kull in order to address site stability issues raised at the
conclusion of the December 5 inspection.
• • On December 17, 2007 the Regional Water Quality Control Board issued Cleanup and
Abatement Order No. R5-2007-0731 containing several requirements and a timeline to
address stabilization issues at the site (Pages 222 - 229).
■ Butte County Department of Development Services ■
0 March 13, 2007 0 Staff Report — New Era Mine 0 Page 34 of 55 ■
•
On December 20 a Notice of Violation under Butte County Code 13-116(b)(1) was sent
by the County to.Ron Logan and the operator (Page 183 - 185), stating in part:
"Butte County Code and the Surface Mining and Reclamation Act (SMARA)
require, at a minimum, three items be approved prior to commencing a mining
operation: a permit, a reclamation plan and a financial assurance mechanism.
None of these items exist for the current operation."
• The Notice of Violation further states:
"The current operation exceeds the scope of UP 81-135 and, more
importantly, UP 81-135 is no longer considered a valid permit. It is our
determination that UP 81-135 has lapsed."
"Within 30 days (Monday, January 21, 2008) you are required to demonstrate
that you have a valid permit, reclamation plan and financial assurance
mechanism for this site." (Page 184)
• In response to the Notice of Violation, the operators met with staff on January 16, 2008
• and submitted a binder with a number of photographs of various activities at the New Era
Mine for the period 1977 through August 1990. (That binder is too large to include in the
attachments to this report but is available with Development Services.)
In a January 16, 2008 cover letter to Tim Snellings (Pages 300 to 308) included in the
binder, the operators address the Notice of Violation, again asserting that mining has
been continuous at the New Era Mine, current operations are within the scope of UP 81-
135, and UP 81-135 and its reclamation plan are valid. In regards to the required
financial assurance mechanism for the New Era Mine, the operators state:
"In accordance with this authority and as set forth in the affidavits of Mr. Logan and
Betty Logan attached hereto, Bettye Kircher, Director of Planning; BCPC, and Mr.
and Mrs. Logan mutually agreed in connection with Mr. Logan's signing of the
validated Permit on June 12, 1982 that the BCPC would file a lien against the
premises upon which the. Permit pertained in satisfaction of the financial assurance
requirement under the Permit." (See also Affidavits, Pages 220 - 221)
• On January 18, in order to further research the submitted materials and the history and
status of operations at the New Era Mine and UP81-135, staff granted the operators an
extension until February 4, 2008 for responding to the December 20, 2007 Notice of
Violation (Page 308).
• . Over the period of December 20, 2007 — January 20, 2008, staff was informed via phone
calls with. the operators and with Mr. Woodward of the Regional Water Quality Control
Board that site stability issues are being addressed through a considerable amount of
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0 March 13, 2007 0 Staff Report - New Era Mine 0 Page 35 of 55 ■
earth -moving, much of it during the extreme weather' experienced in the area from late
December through early January.
On January 24, 2008 the Regional Water Quality Control Board reported that the
Operator was complying with the cleanup and abatement order and that a substantial
amount of stabilization work had been done (Pages 239 - 241).
On January 24, 2008, the operators provided a substantially revised cost estimate for
reclamation prepared by Holdrege and Kull, along with a $3,000 certificate of deposit for
reclamation (Pages 202 - 203). This second estimate has been reviewed by Butte
County's SMARA consultant and found to be deficient in some areas (Pages 218 - 219).
A letter was sent to the operators asking that they provide additional information with
regard to the deficiencies noted.
• On January 28, in response to concerns expressed by neighbors, staff met with
approximately 30 concerned residents to discuss the New Era Mine situation
(summarized in the "Summary" on Pages 311 - 313). In brief residents expressed a range
of concerns, including potential impacts to local springs relied upon by many Dry Creek
Road residents, mine traffic impacts upon Dry Creek Road, roadway safety, adverse
impacts to Dry Creek and the local environment, blasting, and County oversight of the
operation.
In the January 30, 2008 letter to Tim Snellings (Pages 281.- 288), the operators provide
"an explanation of the nature of the New Era Mine placer mining operations in light of
the applicable county, state, and federal legal standards governing such operations, as
well as certain catalogued evidence in support of this explanation." In brief, the operators
assert the following:
■ Butte County Code Chapter 24 "did not and does not apply to the New Era Mine."
(Page 283)
■ Operations at the New Era Mine have been continuous and, regardless, the
definition of "surface mining operations" is "inclusive and "flexible" and "we are
not aware of any mining regulation that mandates any concept of `continuous'
operation upon penalty of revocation of a surface mining permit." (Page 285)
■ Due to the unique nature of record-keeping in the mining industry, no negative
inferences "may be drawn from federal taxation information concerning'Mr. or
Mrs.'Logan or the New Era Mine as regards the historical evidence of active
placer mining operations since the issuance of the Permit." (Pages 285 - 287)
■ "The operation of the New Era Mine has been open and obvious and pursuant to
• proper authorization of Butte County and certain California state authorities."
(Page 287)
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■ March 13, 2001 ■ Staff Report—New Era Mine 0 Page 36 of 55■
•
• On January 31, 2008, staff met with the operators at County offices for approximately
one hour. The operators submitted individual binders for the years 1981 — 2007, each
containing affidavits, photographs, receipts and other material to demonstrate continuous
operation at the New Era Mine. They also discussed the financial assurance in the form
of the lien they believe was agreed to by then -County staff and the Logan's (but which
was apparently not recorded) and also asserted that UP 81-135 is for the entire 18 acres of
the Logan parcel, not for any Phase I area as identified in the "3 Phases" exhibit (Page
20).
• On February 4, 2008 staff met with the operators and, per Butte County Code Section 13-
116(b)(1), presented them with an Order To Comply (Pages 186 - 193) requiring:
■ An application for an amended mining permit UP81-135 reflecting current and
proposed mining activities at the New Era Mine;
■ A revised Reclamation Plan for the amended Mining Use Permit; and
■ A financial assurance mechanism reflecting activities proposed in the revised
Mining Use Permit.
• The Order To Comply also identifies a number. of violations Butte County Code and
SMARA.
• The Order To Comply was sent to Ronald Logan and Lee Ogle and Frank Noland via
certified mail.
• In a February 5, 2008 letter to Tim Snellings, the operators note that they would be
unable to comply with the Regional Water Quality Control Board's Cleanup and
Abatement Order given the Order's authorization for the operators to "continue mining
operations... consistent with all conditions of UP 81-135, and in particular Condition 21
limiting mining operations to a maximum of 20 cubic yards per day." (Page -324 - 325)
• Staff's understanding of Condition 21 is that mining operations are to be limited to a
maximum of 20 cubic yards per day and that this limit would not apply to requirements
for the operator to comply with the Cleanup and Abatement Order.
• However, upon confirmation with Phil Woodward of the Regional Water Quality Control
Board that the 20 cubic yards mining operation limit might be construed as applying to
their Cleanup and Abatement Order, staff agreed to revise the Order.
• Accordingly, a Revised Order To Comply was sent via certified mail to Ronald and Betty
Logan, Floyd Leland Ogle and Frank Noland on February 11, 2008 in which explicit note
was made that the any "activities to stabilize or restore the subject property as ordered by
a state (including but not limited to Cleanup and Abatement Order No. R5-2007-0731
from the California Regional Water Quality Control Board Central Valley Region) or
local agency is not a violation of this REVISED ORDER TO COMPLY." (Pages 194 -
201)
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•
Similar to the first Order To Comply, the Revised Order To Comply allows the operators
to continue mining operations at the New Era Mine: "During this period between receipt
of this REVISED ORDER and the determination by the Planning Commission, you are
authorized to continue mining operations at the. New Era Mine consistent with all
conditions of UP 81-135." (Page 197)
UP 81-135 APPLICATION HISTORY
County records for UP 81-135 consist almost entirely of 181 pages on microfiche.
Additional materials are from Regional Water Quality Control Board Central Valley Region
records. The history below highlights important parts of the record.
Although neither a.hard copy or microfiche record exists, the Planning Division received
the first. UP 81-135 application on May 22, 1981 (zoning for the project parcel at that
time was A-2 General). The Appendix E Environmental Information Form for the first
UP 81-135 application is preserved in the file (Pages 9-11) as is the "Model Reclamation
Plan" (Pages 12-21). The project site is defined as 18 acres.
• A June 15, 1981 Inter -Departmental Memorandum from Clay Castleberry (Director,
• Public'Works) to Bettye Blair (Planning Director) stated in part:
"I ' have reviewed the small mining operation for this subject permit and
reclamation plan and due to its size feel that there will be no problems that would
not be in keeping with the requirements of the county and state Surface Mining
Act."
"It appears to be a small family operation and is being, conducted in a reasonable
and safe manner. I would recommend you hold the required hearings and issue
the permit." (Page 22)
• Other comments were received from the Department of Fish and Game on June 13, 1981
with several questions as to the proposed operation (Page 23).
• Paul Jensen, Regional Manager, Department of Fish and Game, in a July 8, 1981 letter to
Steve Streeter, Butte County, provided the following comments:
1. The channel of Dry Creek should not be disturbed during the mining operations. Any
alteration of the streambed will require a written agreement with the Department in
accordance with Fish and Game Code Section 1603.
2. Settling ponds should be located above the 100 -year flood plain and have enough
capacity to contain all process water without discharging to surface drainages.
• 3. Reclamation should be accomplished concurrently with the mining operation. (Page
25)
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■ March 13, 2007 ■ Staff Report — New Era Mine 0 Page 38 of 55■
•
• In a July 2, 1981 letter Stephen A. Streeter notified Ronald R. Logan that evaluation of
potential environmental impacts has been completed and noted that without mitigation of
significant environmental impacts, an environmental impact report (EIR) would be
required. (Page 26)
• The State Clearinghouse received the UP 81-135 Initial Study on July 9; 1981. (Page 29)
On August 5, 1981, UP 81-135 was scheduled for an August. 26, 1981 Planning
Commission hearing (Page 31). The Planning Commission evidently denied UP 81-135
as Mr. Logan's appeal was heard by the Board of Supervisors on October 27, 1981;
however, there are no records (e.g., staff report or minutes) in the UP 81-135 microfiche
file, or anywhere else, of the August 26, 1981 Planning Commission hearing.
• On October 27, 1981, the Board of Supervisors denied Mr. Logan's appeal without
prejudice and instructed him to reapply to the Planning Department without paying the
required fee. (Pages 32-35)
• The second UP 81-135 application was received on October 28, 1981. (Pages 7-8)
On-going debate during the Fall of 1981 about whether or not an Environmental Impact
• Report (EIR) would be required (rather than Initial Study), particularly in regards to
potential impacts to downstream seeps used by area residents as sources of water. (See
Pages 36-39, 50-54)
• In an effort to obtain more information regarding potential. environmental impacts
resulting from the proposed New Era operation, Steve Streeter mailed Ronald Logan 21
questions in a November 6, 1981 letter. (Page 36)
• On December 28, 1981, Stephen Streeter recommends that an EIR be required. (Page 57)
• On December 28, 1981, Bettye Blair, Director of Planning, wrote .a letter to .Ronald
Logan informing him that a focused EIR would be required. (Page 60)
• Ron Logan appealed the requirement for an EIR in a January 5, 1982 letter to the Butte
County Planning. Commission. (Page 77)
• In a January 6, 1982 response to Stephen Streeter's November 6, 1981 questions, Ron
Logan described a phased operation at the New Era Mine. (Pages 71-73) .
• At the February 10, 1982 Planning Commission meeting, the Planning Commission
.discussed the EIR requirement. Ron Logan noted that mining of 1,000 cubic yards per
year is exempt from permits (Page 86). The hearing was continued open to the March 3,
1982 Planning Commission hearing.
■ Butte County Department of Development Services ■
■ March 13, 2007 ■ Staff Report — New Era Mine ■ Page 39 of 55 0
•
• Ronald Logan was issued a DFG Streambed Alteration Permit II -24-82 for the period
February 17, 1982 to February 17, 1983. (Pages 89-92)
• The UP 81-135 microfiche record shows the neighbors argued that the proposed New Era
operation required an EIR and proper performance bonding and stated a number of
concerns. (Pages 93-107)
• At the March 3, 1982 Planning Commission hearing there was discussion of phasing for
the New Era operation. Concern is expressed about impacts to down -canyon springs. UP
81-135 was continued closed to the March 10, 1982 hearing with a request that state
agency personnel visit the site.
• On March 10, 1982, the Planning Commission voted 4 to 1 that an EIR would not be
required of the applicant. The minutes state that "thirteen mitigation measures proposed
by the applicant to minimize the impacts have been added to the project... These
mitigations address the concerns and comments of the staff, commission and the
public..." (Page 118) Condition 6 states: "Undertake reclamation immediately once
each open pit mine has been processed."
• At the April 8, 1982 Planning Commission hearing a hydrologic report was requested.
• Phasing, with an initial maximum output of 20 cubic yards per, day for Phase I with future
expansion to 40 and 80 cubic yards per day in Phases II and III, was discussed.
Continued open to April 15, 2008. (Pages 136-143)
• At the April 15, 1982 hearing Planning Director Bettye Kircher explained that the
applicant asked for a 30 -day extension. (Page 152)
• In a May 11, 1982 report, Wesley Paulsen (Consulting Engineer) concluded that the
proposed New Era Mine would have no effect on downstream or area springs. (Pages
155-159)
• At the May 13, 1982 Planning Commission hearing, UP 81-135 was continued open to
May 20, 1982 so Staff could have time to read the Wesley. Paulsen hydrology report.
(Page 161)
• UP 81-135 was approved by the Planning Commission on May 20, 1982 (Pages 166-'
169). Among 24 conditions of approval were the following:
■ Condition 5 required that a $3,000 financial assurance bond for
reclamation;
■ Condition 21 required that the mining operation be limited to a maximum
of 20 cubic yards per day with subsequent review by the Planning
Commission for proposed expansion to Phase II; and
■ Condition 22 required that Public Works inspect site three times per year.
■ Butte County Department of Development Services ■
0 March 13, 2007 ■ Staff Report — New Era Mine ■ Page 40 of 55 0
• A Notice of Determination was filed on May 26, 1982 (Page 173).
• A validated Mining and Reclamation Permit was sent to Ronald Logan on July 7,
1982 (Page 178).
• An inter -Departmental Memorandum from Steve Streeter (Senior Planner) to
Clay Castleberry (Director of Public Works) asked how the required three site
inspections per year by Public Works would occur.. (Page 182)
FACTS AND FINDINGS
Staff recommends that the Planning Commission adopt the following facts and findings:
Procedural Findings
A. The Notice of Violation was sent to the operators as required by Butte County Code
Section 13-116(b)(1).
• Regarding the procedure for a notice of violation, Butte County Code Section 13-
116(b)(1) states in part:
40
"if the public works director should determine that an operator is not in
compliance with the provisions of this article, the county, in conformance with
section 2774.1(a) of the Public Resources Code, shall notify the operator of that
violation by personal service or certified mail. "
A Notice of Violation was sent via email and certified mail to the operators, Lee
Ogle and Frank Noland, and via certified mail to the owner, Ronald Logan, on
December 20, 2007. The Notice of Violation required that the operators
demonstrate, by January 21, 2008, that the New Era Mine had a valid permit,
reclamation plan and financial assurance mechanism.
During the period between late October 2007 (when Butte County Code
enforcement first reported on the current, extensive operation at the New Era
Mine) and December 20, 2007 (when the Notice. of Violation was sent),
Departments of Development Services and Public Works staff.had a number of
conversations regarding the mine, including conversations between Mike Crump,
(Director, Department of Public Works) and Charles Thistlethwaite and Chris
Thomas, (Planning Manager and Associate Planner, respectively, Planning
Division). Further, Tom Odekirk of Public Works participated in the December
S, 2007 inspection of the New Era Mine and reported his findings back to Stuart
Edell, who in turn forwarded those findings 'to Mr. Crump (in addition to other
Public Works and Development Services staffi. Prior to the December 20, 2007
Notice of Violation, Mr. Crump determined with Development Services staff that
■ Butte County Department of Development Services ■
■ March 13, 2007 ■ Staff Report — New Era Mine ■ Page 41 of 55 ■
•
the operators were not in compliance with the provisions of Chapter 13, Article
II.
B. The Order and Revised Order To Comply were issued to the operators as required by
Butte County Code Section 13-116(b)(1).
Regarding the procedure for issuance of an order, Butte County Code Section 13-
116(b)(1) states in part:
"If the violation extends beyond thirty (30) days after the' date of the county's
notification [e.g., the notice of violation], the public works director shall issue an
order by personal service or certified mail requiring the operator to comply with
this article. "
The December 20, 2007 Notice of Violation instructs the operators (and owner) to
respond within 30 days (January 21, 2008). On January 18, 2008 the County, in
order to provide the operators more time to prepare their response to the Notice
of Violation, granted an extension until February 4, 2008.
The record shows that the operators submitted a substantial amount of material
• in the form of affidavits, photographs, receipts and other evidence by which they .
asserted ongoing operation at the New Era Mine. The operators, in January 16
and January 30, 2008 letters to Tim Spellings also asserted in diverse arguments
that UP 81-135 was and is valid.
Mike Crump (Director, Public Works) and Tim Snellings (Director, Development
Services) determined that the submitted materials and arguments advanced by the
operators did not adequately respond to the violations noted in the Notice of
Violation and, on February 4, 2008, an Order To Comply was sent to the
operators and owner via certified mail. (The Order To Comply was also
presented in person to the operators on February 4, 2008.)
The Order To Comply listed a number of specific noncompliance violations
pertaining to the current New Era Mine operation and in reference to those
violations listed in the December 20, 2007 Notice of Violation (demonstrate a
valid permit, reclamation plan and financial assurance). The Order To Comply
also presented a compliance schedule by which the operators were required
address the noted violations.
The'February 4, 2008 Order To Comply also authorized the operators, per Butte
County. Code Section 13-116(b)(2), to continue operations at the New Era Mine
"consistent with all conditions of UP 81-135, and in particular Condition 21
limiting mining operations to a maximum of 20 cubic yards per day" until a
determination is made by the Planning Commission:
■ Butte County Department of Development Services ■
0 March 13, 2007 0 Staff Report —New Era Mine 0 Page 42 of 550
•
"During the period between receipt of this Order and the
determination by the Planning Commission, you are authorized to
continue mining operations at the New Era Mine consistent with all
conditions of UP 81-135, and in particular Condition 21 limiting
mining operations to a maximum of 20 cubic yards per day. "
In order to clarify that the Phase 120 cubic yard per day limitation did not
include the operators' obligations under, the Regional Water Quality Control
Board Cleanup and Abatement Order No. R5-2007-0731, a Revised Order To
Comply was sent via certified mail and email to the operators and via certified
mail to . the owner. The Revised Order To Comply explicitly instructs the
operators that compliance with the Regional Water Quality Control Board's
Cleanup and Abatement Order is not a violation of the Revised Order To Comply,
stating:
"Any activities to stabilize or restore the current operation as ordered
by a state (including the Cleanup and Abatement Order from the
Regional Water Quality Control Board) or local agency would not be
considered a violation of the Order to Comply. Work to stabilize the
site per the Regional Water Quality Control Board's cleanup and
• abatement order can and should continue. If stabilization activities
requiring the movement of more than 20 cubic yards of material per
day are required to comply with the Regional Water Quality Control
Board's cleanup and abatement order, it would not be considered a
violation of this Order to Comply. "
current New Era Mine is subject to current Butte County Code Chapter 13, Article II
iitions, procedures, requirements and enforcement provisions.
Butte County Code Chapter 13, Article II (Surface Mining and R
derives from the following:
"Section 1 of Ord. No. 3083, adopted Aug. 10, 1993, repealedrt in
entirety. Formerly, Art. II consisted of §§ 13-101--13-110 and -112--13-11
which pertained to replacement of material dis ein surface mini
operations and derived from § 1 of Ord. No. , adopted May 24, 1977, and
17-4, 6, and 7 of Ord. No. 200033 -adopted Feb. 13, 1979. Section 2 of Ord. A
3083 further provided -the-addition of a new Art. II, §§ 13-101--13-116,
herein set out. " 7
81-135, approved on May 20, 1982 and issued on or near July 7, 1982, was
subject to the previous Article II until its repeal on August 10, 1993. The
is
violations noted in the Revised Order To Comply are pursued under the current
Chapter 13, Article IL
■ Butte County Department of Development Services ■
0 March 13, 2007 0 Staff Report — New Era Mine ■ Page 43 of 55 0
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S antive Findings
D. The current scope and scale of -the New Era Mine operation represents a substantial
change and deviation from that which occurred between the period between May 1982
and June 2007.
As stated in the analysis and revealed in the UP 81-135 record (including
affidavits and other materials submitted by the operators), the operations and
accompanying environmental impacts at the New Era Mine during the period
May 1982 and June 2007 were minor in comparison to its current scope and
scale: approximately 12 acres of disturbed land with roughly 100, 000 cubic yards
of displaced soil and rock a large, multi faceted oce ing plant nd fiv ' v
pr cess water ponds. F
V plant
'/ js 1yrl "�
E. *V-118 1 ConditionT2P ase I mining operation�limita4 io'f 20 cubic yards per
day refers to a gross total volume, not a concentrated final volume of some unspecified
larger volume of material excavated, processed and (hreby reduced to 20 cubic y
As stated in the staffreport analysis and as reveale throu out the UP 81-135
p
record, the Condition 21 Phase I limitation of 20 cubic yards p r day refers to
gross total volume, not a concentrated final volume. A h
(0
F. Per Butte County Code Section 13-113, UP 81-135 must be amended for the following
reasons.
1. Condition 21 of 81-135 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." No such subsequent review
by the Planning Commission was ever held.
As stated in the staff report analysis and as revealed throughout the UP 81-
135 record, the Condition Phase I limitation .was intended to limit expansion
and impacts subject to Planning Commission review and approval.
IThe scope of the current operation has substantially deviated, as defined by California
ode of Regulations (CCR) Title 14, Chapter 8, Article 1, Section 3502(d), from the
operation permitted by JA 81-135 and is in violation of Butte County Code Section
13-113:
"Substantial deviations from the original plan shall not be undertaken until
such amendment has been filed with and approved by the planning
commission. The planning commission shall set a public hearing regarding
such amendments in the same manner as is provided in section 13-107."
As stated in the staff report analysis and as revealed throughout the UP 81-
135 record, the current scope and scale of the New Era Mine operation
■ Butte County Department of Development Service_ s ■
KI March 13, 2007 ■ Staff Report — New Era Mine 0 Page 44 of 55 ■
•
represents a substantial expansion from that originally permitted in UP 81-
135. As the record shows, no amendment to the reclamation plan for UP 81-
135 has been filed with and approved by the Planning Commission.
pJ� 3. The current New Era Mine operation is in violation of Butte County Code
1 Section 13-106 and Public Resources Code Section 2773.1 requiring adequate
financial assurance to reclaim the site according to the reclamation plan.
As stated in the staff report analysis and as revealed throughout the UP 81-135
record, no financial assurance was in place for the New Era Mine until the
operators submitted a $3,000 certificate of deposit on January 24, 2008. The
current cost for reclamation, most recently estimated at over $200, 000 by the
operators' engineer, is far in excess of $3, 000.
4. 81-135 Condition 8 states: "Improve Dry Creek Road from Messilla
Jimalley Road, at such time as mining traffic warrants, to reduce vehicle dust
pacts and for traffic safety purposes."
\\As stated in the staff report analysis and as revealed in the January 28, 2008
meeting between Planning Division staff and residents regarding the New Era
Mine, strong concern was voiced about heavy mine -related traffic, consequent
damage to Dry Creek Road, and road safety. While acknowledging that the
operators have made repairs to Dry Creek Road the Planning. Commission finds
that the traffic related to the current mine operation exceeds that anticipated in
ondition 8 and new conditions must be addressed via an amended permit.
5. UP 81-135 Condition 9 states: "Erosion control measures are required.
a. Stabilization of all graded areas.
b. Stabilization of the streambank in area of mining operation.
c. Proper development of drainage for open pit mine area.
d. Install culvert for any stream crossing of Dry Creek."
At the December 5, 2007 inspection of the New Era Mine, a representative of the
Central Valley Regional Water Quality Control Board found stabilization
measures at the site to be inadequate and subsequently issued Cleanup and
Abatement Order R5-2006-0731. At that time the operators were therefore in
violation of Condition 9(a) and 9(b).
The Planning Commission finds that the operators immediately engaged an
experienced geotechnical engineering firm and, commenced stabilization work
soon thereafter. That work continued through the extreme rains of late December
2007 and early January 2008. At the date of this finding, Mr. Woodward 'of the
Regional Water Quality Control Board reports that, although required
stabilization work is not yet complete, the operators are satisfactorily complying
with the Cleanup and Abatement Order.
■ Butte County Department of Development Services ■
0 March 13, 2007 ■ Staff Report — New Era Mine ■ Page 45 of 55 ■
•
Despite the operators' efforts to stabilize the New Era Mine site, the Planning
Commission finds that had a site inspection not been made on December S, 2007
(with the resulting Cleanup and Abatement Order), extensive site erosion and
severe sedimentation of Dry Creek would have resulted from the heavy rains
experienced over the past two months. The current stabilization effort, not yet
complete, is a result of the Regional Water Quality Control Board's Cleanup and
Abatement Order. At the time of the December 5, 2007 inspection, the New Era
operation was in violation of Condition 9.
UP 81-135 Condition 24 states: "Applicant must also comply with all other
applicable State and local statutes, ordinances and regulations." The New Era
Mine has not complied with the following applicable State and local statutes,
ordinances and regulations:
• No annual inspections were conducted at the site during the period
W C1 ^ between 1993 and December 5, 2007, as required by Butte County Code
Section 13-112 and Section 2774(b) of the Public Resources Code.
• No MRRC-2 Surface Mining Operations Annual Reports were received by
the Department of Conservation or Butte County between the period of 1993
and 2007, as required by Butte County Code Section 13-112 and Public
Resources Code Section 2207.
• During the period between the issuance of UP 81-135 and January 25,
2008, no annually updated financial assurance for reclamation was on file
with Butte County, as required by Butte County Code Section 13-106 and
Public Resources Code Section 2773.1.
The New Era Mine operation has not complied with State and local reporting
requirements as itemized for the period between 1982 and 2007 and is
therefore in violation of UP 81-135 Condition 24
OUTSTANDING ISSUES
The Planning Commission may, in regards to its determination with regard to the Revised Order
To Comply and the Condition 21 Phase I mining limitation of 20 cubic yards per day, wish to
consider to what extent, if at all, the New Era Mine be allowed to continue operating while
complying with the Revised Order.
RECOMMENDATION
Staff recommends that the Planning Commission affirm the Revised Order To Comply as
follows:
1. Sign the "Statement of Responsibility" form and return to the Department of
Development Services within one week of the effective date of the Order.
•
■ Butte County Department of Development Services ■
N March 13. 2007 ® Staff Report — New Era Mine is Pam 46 of 56■
•
•
•
2. Submit and maintain anrFinancial Assurance Mechanism in a form and
amount approved by Butte County and the California Department of Conservation
Office of Mine Reclamation within two weeks of the effective date of this Order,
e e7SI UK Iicensed professionals experience in the preparation of a
mining permit and a reclamation plan within five weeks of the effective date of
this Order. Your consultant's statements of qualifications must be forwarded and
approved by the Department of Development Services prior to your selection of a
consultant.
u 5 mit a Butte County mining permit application and reclamation plan to amend
UP 81-135, with the required application fee, within three months of the effective
date of this Order.
5. The owner and operator are ordered to take all appropriate actions necessary to
obtain approval of a permit, a reclamation plan, and a financial assurance in
accordance with the attached compliance schedule
6. All unreimbursed costs incurred by Butte County in regards to this REVISED
ORDER must be fully compensated upon determination by the Planning
Commission.
IN Butte County Department of Development Services ■
■ March 13. 2007 0 Staff Reuort — New Era Mine E. Page 47 of 56 ■
•
•
COMPLIANCE SCHEDULE - NEW ERA MINE
Deadline
Action
Within one week of
Fully pay unreimbursed costs incurred by Butte County in regards -to this Order.
the effective date of
Applicant shall continue to pay all costs associated with this Order.
this Order and
ongoing as necessary
Within one week of
Sign Statement of Responsibility form and return to the Department of
the effective date of
Development Services.
this Order
Within two weeks of
Submit and maintain an. adequate Interim Financial Assurance Mechanism to the
the effective date of
Department of Development Services.
this Order
Within 5 weeks of the
Select consultant(s) and licensed professionals experienced in the preparation of
effective date of this
a mining permit and a reclamation plan within five weeks of the effective date of
Order
this Order. Your consultant's statements of qualifications must be forwarded and
approved
Within 6 weeks of the
All applicable materials regarding the New Era mining operation delivered to
effective date of this
Environmental Consultant with Request for Scope of Work/Budget.
Order
Within 8 weeks of the
Delivery of Consultant's Scope of Work/Budget for County Review.
effective date of this
Order
Within 12 weeks of
Submit to Butte County Department of Development Services a complete mining
the effective date of
permit application and reclamation plan to amend UP 81-135, with the required
this Order
application fee.
Within 4 months of
County review and submittal of comments to, Consultant.
the effective date of
this Order
Within 8 months of
Environmental document submitted.
the effective date of
this Order
Within 10 months of
Public comment period.for environmental document.
the effective date of
this Order
Within one year of the
Planning Commission Environmental Document hearing (as required).
effective date of this_
Order
Within 14 months of
Final Environmental document approved/published (as required).
the effective date of
this Order
Within 18 months of
Planning Commission Hearing on Use Permit and Environmental Document.
the effective date of
`
this Order
■ Butte County Department of Development Services ■
u March 13, 2007 ■ Staff Report — New Era Mine 0 Page 48 of 55 IN
i
•
■ Butte County Department of Development Services ■
0 March 13, 2007 0 Staff Report — New Era Mine 0 Page 49 of 55 ■
11
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February 15, 2008 Inspection
Work along Dry Creek (to left)
View southeast towards Dry Creek
Work subsequent to December 5, 2007 inspection
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- ■ Butte County Department of Development Services ■
0 March 13, 2007 0 Staff Report New Era Mine 0 Page 55 of 55■