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HomeMy WebLinkAbout10-067resolution RESOLUTION OF THE BOARD OF SUPERVISORS OF THE COUNTY OF BUTTE, STATE OF CALIFORNIA, FOLLOWING A PUBLIC HEARING REGARDING THE ABANDONMENT AND RECLAMATION OF THE NEW ERA MINE PURSUANT TO CALIFORNIA PUBLIC RESOURCES CODE SECTION 2773.1 Recitals WHEREAS, the New Era Mine is located on Assessor's Parcel No. 041-080-027 at 4095 Dry Creek Raad, Oroville, California, is owned in part by Ronald and Betty Logan, and was in operation from 2007 to October 2009 by North Continent Land & Timber, Inc. ("North Continent"); and WHEREAS, an August 6, 2008, North Continent provided to the County: {1) a signed Statement of Responsibility; {2} an agreement in writing to provide a f nancial assurance mechanism for the amount of $267,411.36 for the New Era Mine; and WHEREAS, North Continent provided the County with (1) an Irrevocable Standby Letter of Credit in the amount of $264,411.36, held by Wachovia Bank, N.A. and {2) a Certificate of Deposit in the amount of $3,000.00, held by Tri Counties Bank, with both to serve as the financial assurance for reclamation of the New Era Mine (the "Financial Assurance"); and WHEREAS, on September 12, 2008 the Dry Creek Coalition of Butte County and Butte EnviranmentaI Council timely filed a petition with the Butte County Superior Court for a writ of mandate compelling Butte County to set aside the Board's Resolution 08- 104 and prohibiting fiu Cher mining activities at the New Era Mine until the operation was brought into compliance with the California Environmental Quality Act {"CEQA"} and the Surface Mining and Reclamation Act ("SMARA"); and WHEREAS, as a result of this action, the Butte County Superior Court issued an Amended Statement of Decision on November 2, 2009, a Final Judgment on December 10, 2009, and a Peremptory Writ of Mandate on December 15, 2009 {the "Writ"}; and WHEREAS, the Writ (1) compelled the County to set aside Resolution No. 08- 1.04 and issue a new decision consistent with the Court's final judgment, (2) compelled North Continent and Ron Logan to suspend all mining activity, except reclamation, at the New Era Mine until a new surface mining and reclamation proposal is reviewed and approved by the County and (3) remanded the matter to the County for any further Page 1 of 6 administrative or enforcement proceedings that the County may determine are appropriate or necessary to bring the mining operations into compliance with CEQA, SMARA and the Court's judgment; and WHEREAS, the Board of Supervisors first met on February 23, 2010 in order to respond to the Writ of Mandate and, having considered a staff report and public testimony, adopted Resolution 10-034 with the following determinations and actions: I. Sets aside Resolution 0$-104. II. Determines that mining operations at the New Era Mine were abandoned in the 1990s and that Mining and Reclamation Permit 81-135 and the Reclamation Plan are no longer valid. ITT. Determines that, if North Continent wants to continue its mining operations, then a new Mining and Reclamation Permit, among other things, will be required. IV. Grants the appeals of Richard Meyers, Lucy Cooke, and the Residents of Butte Valley and Paradise, to the extent that they raise issues addressed in this new resolution. V. Denies the appeal of North Continent. VI. Determines that the following independent agreements and commitments by North Continent remain in full force and effect: 1. The signed Statement of Responsibility dated August 5, 2008 for the reclamation of the New Era Mine; 2. The financial assurance mechanism for reclamation of $267,411.36; 3. The payment of $50,000 to the Department of Development Services for the Department's incurred costs in regards to the New Era Mine enforcement; and 4. The signed indemnification agreement dated July 29, 2008; and WHEREAS, the Amended Statement of Decision, citing Public Resources Code Sections 2727.1 and 2770(h)(6), requires that reclamation be completed at the New Era Mine; and WHEREAS, the Department of Development Services sent a certified letter to North Continent dated October 20, 2009 which stated that North Continent should submit an application for a new reclamation plan and fees within 90 days of the date of the letter; and Page 2 of 6 WHEREAS, the Office of Mine Reclamation issued a Notice and Order to Comply with SMARA to North Continent on March 11, 2010 that became effective upon adoption by the State Mining and Geology Board at a hearing on April 15, 2010; and WHEREAS, the Notice and Order from the Office of Mine Reclamation to North Continent requires several actions within a specified period of the effective date of April 15, 2010, including submission and approval of a reclamation plan consistent with SMARA, commencement of reclamation according to the approved plan by June I5, 2010, completion of reclamation by December 1, 2010 and subsequent monitoring far revegetation success thereafter; and WHEREAS, Butte County remains the Lead Agency responsible for the implementation of the Surface Mining and Reclamation Act in regards to the New Era Mine; and WHEREAS, North Continent sent a letter to the County dated January 18, 2010 which stated {1) there have been no mining activities at the New Era Mine since the date of the Court's final decision and {2} there is no mining equipment at the New Era Mine and North Continent and Ron Logan do not contemplate mining at the site; and WHEREAS, Wachovia Bank, N.A., holder of a portion of the Financial Assurance, sent a letter to the Department of Development Services on February 24, 2010 which (1) indicated the bank had received a request for early cancellation of the Standby Letter of Credit, (2) requested that the County agree to early cancellation and (3) stated if the County did not agree to early cancellation that the Standby Letter of Credit would expire on September 30, 2010; and WHEREAS, the Department of Development Services sent a letter to Wachovia Bank, N.A. on February 26, 2010 which rejected early cancellation of the Standby Letter of Credit; and WHEREAS, North Continent sent a letter to the County dated January 22, 2010 which indicated that North Continent rescinded its Statement of Responsibility and the Financial Assurance; and WHEREAS, North Continent sent an email communication to the County on March 8, 2010 which stated that North Continent would nat apply for a new permit or a reclamation plan; and WHEREAS, the Department of Development Services as well as the Office of Mine Reclamation have inspected the New Era Mine site and confirmed that there is no mining activity or equipment on site and North Continent has not reclaimed the mine site; and Page 3 of 6 WHEREAS, pursuant to the requirements of SMARA, as lead agency, the County must require financial assurances of all mining operations in the county to ensure that reclamation is performed in accordance with the approved reclamation plan; and WHEREAS, the Office of Mine Reclamation determined during their 7anuary 12, 2010 inspection of the New Era Mine that certain conditions related to slope stability and inadequate sediment pond capacity created an imminent and substantial threat to health, human safety and the environment; and WHEREAS, the Department of Development Services has determined that there is a substantial risk that the tailing ponds may fail during the rainy season next winter if they are not properly maintained because there is no approved plan to insure their maintenance; and WHEREAS, the Department of Development Services has determined that it is imperative that reclamation be substantially commenced and the New Era site stabilized before the onset of next rain season. NOW, THEREFORE, BE IT RESOLVED that the Board of Supervisors makes the following f ndings and determinations: Findings A. The operations conducted by North Continent at the New Era Mine during 2007 through 201.0 have resulted in approximately 10 acres of disturbed land, denuded of vegetation and susceptible to erosion and illegal discharges of storm water to Dry Creek, without suitable maintenance and reclamation. B. As required by Public Resources Code Sections 2727.1 and 2770{h)(b), the only activity authorized under the Surface Mining and Reclamation Act for an abandoned mine is complete reclamation of the site pursuant to an approved reclamation plan. (Amended Stmt. Of Dec., p.23, lines 20-24 and p. 24, lines 3- 6.} C. The reclamation plan must be reviewed and approved pursuant to the provisions of Public Resources Code Sections 2772, 2773, and 2774. D. North Continent has stated that it does not intend to honor its obligations to reclaim the New Era Mine and has attempted to rescind the Financial Assurance. E. The County's inspections indicate that there is a substantial risk that the tailing ponds may fail during the next rain season because there is no approved plan ar funding mechanism for their maintenance. F. North Continent, as operator of the New Era Mine during the period said disturbances occurred, is responsible for all costs of reclamation of the site. Page4of6 G. North Continent has abandoned their surface mining operation at the New Era Mine without commencing reclamation. H. The Butte County Superior Court determined that the New Era Mine operation permitted to Ronald Logan under Mining Permit 81-135 was abandoned in the 1990's. I. New Era Mine property owner Ronald Logan does not have a valid mining permit or reclamation plan for the New Era Mine. Determinations and Actions Based on the above f ndings, the record herein, and the Amended Statement of Decision, the Butte County Board of Supervisors: I. Directs the Director of Development Services to notify North Continent that it intends to seek forfeiture of the Financial Assurances for the New Era Mine pursuant to PRC Section 2773.1(b) and reclaim the New Era Mine pursuant to the requirements of SMARA and CEQA. II. Provides that should North Continent choose, pursuant to PRC Section 2773.1(b)(2}, to commence reclamation, it must obtain approval of a reclamation plan and implement that plan as directed by the Order to Comply adopted by the State Mining and Geology Board on April 15, 2010. North Continent must also comply with all other requirements of said Order to Comply. III. Directs the Director of Development Services to take appropriate action to require forfeiture of the Financial Assurances for the New Era Mine if, by June 28, 2010, North Continent has not substantially complied with the Order to Comply adopted by the State Mining and Geology Board on April 15, 2010. Substantial compliance shall mean, at a minimum, the f lung of the ponds and the excavation pit, and the grading of all over-steepened slopes to a stable condition as verified by a licensed civil engineer and pursuant to the approved reclamation plan. Failure to comply with any other requirements of said Order to Comply shall also constitute grounds far Butte County to require forfeiture of the Financial Assurance. Page 5 of 6 DULY PASSED AND ADOPTED this 27th day of April 2010, by the following vote: AYES: Supervisors Dolan, Kirk, Lambert, Yamaguchi, and Chair Connelly NOES: None ABSENT: None; ABSTAIN: None Bill Connelly, Chair Butte County Board of Supervisors ~cer Page 6 of 6