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HomeMy WebLinkAboutMillhollin Appeal CARMEL NACCASIIA LLP - ATTORNEYS at LAW TIMOTHY).CARMEL I OF COUNSEL Zn AD I.N ACC\Sf Id 1 A LICIA NI.G AMr z MICR AEL NI.N1dIA0ON W Arrr R J.alit JAR DONALD D.Wu5ON W\7BR1.S UCKFv DAVID H.HIRSCH A/ARA J.NIAnn:I HF \THER K.WrnTI IAM E AI SO AUnul'I'ED IN NEVADA DALLAS K.HOSIER December 24, 2013 ALSO ADAIrrED IN ILLINOIS ToN M.ANSL1LABEIII:Itr BRIAN).STACK Via Overnight Mail jon @camaclaw.com Department of Conservation Office of Mining and Reclamation 801 K Street, MS 09-06 Sacramento, CA 95814 RE: Appeal of Lead Agency Financial Assurances Determination Millhollin Quarry; Mine ID: 40-0001 11600 Santa Lucia Road, Atascadero, CA To Whom It May Concern: This firm represents Glenn Millhollin, the owner of the Millhollin Quarry (the "Quarry") located at 11600 Santa Lucia Road, Atascadero, California (the "Property"). This appeal is being submitted to the California Office of Mining and Reclamation ("OMR") pursuant to Public Resources Code Section 2770(e),I Specifically, section 2770(e) provides: A person who, based on the evidence of the record, can substantiate that a lead agency has either (1)Jailed to act according to due process or has relied on considerations not related to the specific applicable requirements of Sections 2772. 2773, and 2773.1, and the lead agency surface mining ordinance adopted pursuant to subdivision (a) of Section 2774. in reaching a decision to deny approval of a reclamation plan or financial assurances for reclamation. (2)Jailed to act within a reasonable time of receipt of a completed application, or (3)failed to review and approve reclamation plans orb financial assurances as requires by subdivisions (c) and (d). may appeal that action or inaction to the board. The City of Atascadero ("City") is the lead agency for the Quarry. The Quarry is a permitted use pursuant to Conditional Use Permit No. 96003 (the "CUP"), which was approved by the City in 1996. We should note that we didn't see any appeal forms or any other specific OMR requirements with regard to appeals made under Public Resources Code section 2770(e), except that question 5 in OMR's Financial Assurance Guidelines states that "...the operator may appeal the lead agency's inaction or denial of financial assurances to the SMGB within 15 days of exhausting his or her rights to appeal according to the procedures of the lead agency."Given the short 15 day time frame and holidays, assuming that AMR does not decline to hear the appeal as provided in Public Resources Code section 27700), we respectfully request the right to supplement our appeal to OMR with additional evidence from our client's engineer, Mr. Robert Tartaglia. SAN Luis OBISPO OFFICE:1410 MARSII STREET•SAN LIDS Gulmp°,CA 93401•TEL:805.546.8785•FAX:805.546.8015 PASO ROBLES OFFICE: 1908 SPRING STREET•PASO Rctnl ES,CA 93446•Tn.:805.226.4148•FAX:805.226.4147 WEBSITE ADDRESS:W W W'rARNACI.AW.COM Page 2 of 3 CARMEL&NACCASHA LLP December 24, 2013 On December 10, 2013, the Atascadero City Council denied our client's application for an interim management plan. One of the reasons cited by the City for such a denial is that our client's proposed financial assurances are inadequate to reclaim the Property. CUP No. 96003 included $11,888.00 in financial assurances, which were in the form of a certificate of deposit. Since 1996, the amount of financial has been virtually unchanged. In response to our client's IMP application, however, the City prepared a preliminary opinion of probable cost, which estimates the costs of reclamation to be $279,000,or roughly twenty three and one half times the amount of financial assurances that had been in place for the past twenty years. A copy of the City's opinion of probable cost is attached hereto as Exhibit A. The City did "update" its financial assurance determination in November of 2013 in preparation of an appeal hearing for our client's IMP denial by way of an estimate prepared by Diversified Projects Services International ("DPSI"). DPSI's estimate was $121,996, which included approximately $34,856 in administration and contingency costs. A copy of DPSI's estimate is attached as Exhibit B. Although DPSI's figure is less than fifty percent of the City's original estimate, their number is still roughly twelve times the amount of financial assurances that have been in place over the last twenty years. Based on the history of the Quarry and public sentiment about the use, it is clear that the City's financial assurance determination was used in order to leverage the City's denial of our client's IMP. Public Resources Code section 2773.1(a) states that "[t]he amount of financial assurances required of a surface mining operation for any one year shall 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." Over the years, our client has mined aggregate and, at the same time, reclaimed property that was disturbed. Our client submitted annual reports to the City which included the amount of material that was mined for that year and the amount of financial assurances to account for"new lands disturbed" and "reclamation of lands." The City had an obligation to annually inspect the Quarry to ensure that the surface mining operation was in compliance with the provisions of the Surface Mining and Reclamation Act("SMARA") and CUP. More specifically, Public Resources Code section 2774(b) states, in pertinent part: "The lead agency shall conduct an inspection of a surface mining operation within six months of receipt by the lead agency of the surface mining operations report...solely to determine whether the surface mining operation is in compliance [with SMARA]." In this case, the City had an obligation to inform our client and the State of any non- compliance with SMARA, including having inadequate financial assurances. Between 2006 and 2011, our client's mining operation was significantly reduced and the OMR deemed the Quarry as being "idle" in 2011. Since 2011, our client has not extracted any material from the mine due to a letter from the City prohibiting any further extractions. Around this same time, our client submitted an IMP application which, as discussed above, was subsequently denied by the City. The City failed to act according to due process in that it "accepted" the conditions of the Quarry property and related financial assurances over many years and later increased the financial assurance amount by over ten times without any additional lands that were disturbed from previous years. In other words, our client is being held responsible for the City's failure to properly inspect and/or review our client's financial assurances and is now looking at a six figure bill without any corresponding change in the condition of the Property. Financial assurances are supposed to by dynamic and reflect the mining operation itself, which is the reason why they are reviewed at least every year and why the language in Public Resources Code section 2773.1 references "new lands disturbed" and "reclamation of lands." A property owner shouldn't be penalized by having to come up with over ten times the amount of financial assurances because the lead agency suddenly believes that previous amounts that they approved were • Page 3 of 3 CARMEL&NACCASIJA LLP December 24, 2013 insufficient. Such a tactic could be used in order to financially shut down an operation because of a change in attitude towards mining operations by the lead agency. Furthermore, the City's estimates included incorrect information. For example, the City's and DPSI's estimates indicate replacement of fifty trees that were proposed to be removed, however, due to our client's operations, only seven trees were actually removed. Furthermore, assuming that some additional reclamation needs to be performed on the Property in order to make the "finished Quarry slopes be laid back and blended with adjacent grades to resemble a more natural condition" as described in the CUP, the City grossly exaggerates the amount of material that needs to be moved. The City estimated this work to include approximately 15,000 cubic yards of material, DPSI indicates it is 7,100 cubic yards and our engineer has indicated that it would be more to the tune of 2,163 cubic yards. Of course, the "finished Quarry slopes" as described in the CUP assumed that all of the 120,000 cubic yards of aggregate would be removed. Approximately 50,000 cubic yards of aggregate remains and the current conditions of the Property substantially comply with the CUP/Reclamation Plan, which has been reviewed and approved by the City on an annual basis. In sum, after twenty plus years of operation, annual inspections, reviews and approvals, the City is only now contending that the amount of financial assurances that are in place are inadequate. Such an eleventh hour decision is fundamentally unfair and we respectfully request that OMR review this matter as provided in Public Resources Code section 2770(e). Please let us know if you have any questions, comments or would like any additional information. 0 Sincely, C a e r •casha LLP ` : I M. Ans. abehere Cc: Brian Pierik, City Attorney EXHIBIT "A" ITEM NUMBER: B-2 DATE: 12-10-13 ATTACHMENT 20 — JUNE 20, 2013 LETTER TO MILLHOLLIN CITY OF ATASCADERO COMMUNITY DEVELOPMENT DEPARTMENT June 20,2013 Page 27 of 99 Attachment 4: City Engineer's Preliminary Opinion of Probable Cost of Reclamation MIIIhaRin Mine Reclatnntlon-Pretiminary Opinion of Probate Cost RThompson 9f27J2011 15g1L ThEiW6liel Oeantitr Yid Unit Cmt lean colt 1 MObigzatktn 1 LS $ 2,500.00 $ 2,500.00 2 Earthwork 15000 CY $ 800 $ 120,000.00 3 Disrbatlon of Topsoil 6000 CY $ 6.00 $ 36,000.00 4 ttydmseediog(75%of34 act 124000 SF $ 0.20 $ 24,800,00 5 Temporerylnigation(Drip to 50 trees) 1 L5 $ 3,500.00 5 3,500.00 6 Replacement Oak Tree Planting 50 EA $ 110.00 $ 5,50(100 7 Erosion Control MIN 1 L5 $ 7,500.00 $ 7,500.00 Sub-Total $ 299,800.00 Administration 20% $ 39,960.00 Inflation 10% $ 191980.00 Contingency 10% 5 19,98000 TetalEstimate $ 219,720.00 ,.>. 06 w lf,*Mna Sat-a.-mu.nue •tb'■ vaeorm m.m,pa/ID13.crl mn.e..alen Oen alllIaw w.a a•...,oxe EXHIBIT `B" 12-10-13'' ITEM NUMBER: B-2 ATTACHI—_ L N MINE RESTORATION ESTIMATE DIVERSIFIED PROJECT SERVICES INTEnNAT1ONAL Millhollin Mine Bonding Estimate Atascadero CA Millhollin Mine Reclamation - Bonding Estimate Quantity Unit $/Unit Extension Mobilization/Demobilization 1 LS $1,800.00 $1,800.00 Earthwork-Cut 7100 CY $5.50 $39,050.00 Distribution of Top Soil 600 CY $5.50 $3,300.00 Hydroseeding with Soil Binder 56900 SF $0.10 $5,690.00 Temporary Irrigation 1 LS $10,000.00 $10,000.00 Replacment Oak Trees(1 gallon) 50 EA $36.00 $1,800.00 BMP's(Fiber Rolls) 3500 LF $2.00 $7,000.00 QSP Inspections(12 months) 250 EA $52.00 $13,000.00 QSD Reports&Fees 1 LS $5,500.00 $5,500.00 SUBTOTAL - - - $87,140.00 130921 1 12-10-13 ITEM NUMBER: B-2 ATTACH 2 I—_ N MINE RESTORATION ESTIMATE DIVERSIFIED PROJECT SERVICES INTERNATIONAL Milihollin Mine Restoration - Atascadero CA Rood Estimate Outitei °.° ;:a;+ : - ._ �; , Road Construction Items $87,140.00 Total On Site Cost: $87,140.00 ToJil autlig'actios 4:56A3 Total On Site Cost: $87,140.00 20%Administration $17,428.00 20%Contingency $17,428.00 Total Construction Cost: $121,996.00 ;,.;/ L.Alberto Lopez,PE,QSD/P Director of Civil Engineering 11 -20 - 13 Date 545 I liguera Street,San Luis Obispo,CA 934W P:(805)250-2891.F.(805)250-28% wnU.dpsiinc.com