Do You Have Vested Mining Rights?

By: Warren Coalson

In California, gaining the entitlement for conducting any type of mining operation has become a highly risky and expensive enterprise. Although industry wages are among the highest, and the products are one of the most commonly consumed economic commodities, public activism and high stakes entitlement processes have nearly ended the opportunity to replace depleted resource production facilities. While California seeks to lead the world in Greenhouse Gas Reduction in the fight to forestall environmental calamity, public activism and a daunting regulatory process continue to push production sites further and further from the markets they serve.

Perhaps we’re approaching this from the wrong perspective. Could there be opportunities that we can take advantage of where the permitting process can be avoided? Maybe the answer can be found by looking backwards.

Permitting processes can sometimes be avoided by finding past mining properties that, for one reason or another, have not been active for many years. Establishing a record of land use and ownership’s intent to someday continue mining, and then gaining acceptance of these facts by the local lead agency, may be all that is necessary to avoid a lengthy, expensive and risky permitting process.

About 5 years ago, EnviroMINE, Inc. was approached by the owner of a 430-acre property that had been acquired by their family in 1923 as a Patented Mining Claim. The owner’s interest was to sell or lease the property to a mining company and hoped we could help them find a buyer. The geologic resources on the property are high purity limestone and dolomite with schist on the fringes. The property was mined between 1923 and 1966. The county’s first zoning ordinance that required a permit for mining was adopted in 1951. Because operations were ongoing when zoning restrictions were established, the operations became non-conforming, or vested.

Mining operations ended in 1966 when the railroad demolished the processing plant with an intention of placing a rail spur through the property. A subsequent lawsuit ended the encroachment, but resulted in the cancellation of a deal to lease the property to an operating company.

In the years following, the property owners attempted to find a new operator, and in this interest, completed a number of mineral resource evaluations. The resource evaluations identified that as much as 268,000,000 tons of high quality limestone and dolomite were available on the property. Several potential operating companies looked at the site, but despite the abundance and quality of the minerals, permitting requirements were found to be a serious impediment to operating a mine on the property.

Because the property was mined continuously for more than 40 years, and the owners never showed any intent to abandon mining on the property, we questioned whether the property may have a vested mining right. This question was raised with San Bernardino County Land Use staff and the immediate response was: “You’re crazy.” County staff couldn’t support the suggestion, but said that the County might consider it if we were to include this request as part of a request to mine the property. Such a request would need to be accompanied by a mine plan and reclamation plan with mitigation for a variety of impacts included within the plan. Our response was: “You’re crazy.” An operator has not been identified and development of a plan that would address an unknown operator’s needs would be conjecture at best.

Over the next few months, we revisited this subject a number of times; however, the County did not have a procedure in place for considering the determination of vested mining rights outside of a normal permitting process. This was discussed at length with County staff and finally, our persistence resulted in direction to file an application for a General Plan Development Code Interpretation. Questions relating to code interpretations are typically directed to the Planning Director for a determination, but pursuant to Calvert vs. Yuba County, the determination must be made by a legislative body at a noticed public hearing. Because the Planning Director was prohibited from fulfilling these requirements, the determination was directed to the Planning Commission for consideration.

A detailed application outlining the history of ownership was prepared identifying the nature and duration of the mining operations, subsequent efforts to continue mining and a statement that the intention to continue mining had never been abandoned. This information was submitted it to the County in late October 2018. County staff evaluated the application and prepared a staff report recommending denial of the request. The staff report did not argue the facts relating to the history of use, and based its recommendation for denial on an argument that the use had been “dormant” for more than 50 years.

With less than a week to respond to the staff report, a response was prepared to carefully explain the legal basis for vested mining rights and reasons why we believed the Staff recommendation was in error.

After 3-1/2 hours, the Planning Commission voted to support the vested rights determination.

Since this successful determination was adopted, a number of potential buyers have stepped forward. We hope to report the sale of the property in the near future. While it will still be necessary to gain approval of a Reclamation Plan, the process is much simpler than establishing a land use entitlement. CEQA analysis is required, but the impact evaluation is limited to the activities involved in site reclamation – after mining has been completed.

The take-home here is that if you are looking for a site to conduct mining operations, it may be beneficial to evaluate sites that have been mined in the past, but for one reason or another are no longer active. The basic questions related to this evaluation are: was the site being mined when zoning restriction was established and did the operator (owner) intentionally abandon the mining use?

Also, we know of a number of sites where the operations were ongoing when zoning restrictions were adopted and the lead agency required the issuance of a permit to respect these new requirements. While a claim for vested mining rights should have been defended, many operator’s and land use agencies alike had little knowledge of principles relating to the subject; the simplest way to meet current zoning requirements was to get a permit. However, in most cases, the entitlements are restricted to set time periods. This puts the operator in the position of having to request permit extension at a later date. In these cases, it may not be too late. We have received vested mining rights determinations for a number of sites that had been issued Conditional Use Permits to allow mining.

If you are looking for a site to conduct mining operations, it may be beneficial to evaluate sites that have been mined in the past, but for one reason or another are no longer active.

New General Waste Discharge Requirements for inert Waste Disposal Facilities

By: Dennis Fransway

New General Waste Discharge Requirements for Inert Waste Disposal Facilities Within the Santa Ana Region Affecting Inert Debris Type A Disposal Facilities (Type A Site) and Inert Debris Engineered Fill Operations (IDEFO)

Mine operators whose site also functions as an inert waste disposal facility (IWDFs), specifically and Inert Debris Type A Disposal Facility (Type A Site) or an Inert Debris Engineered Fill Operations (IDEFO) should be aware of Order No. R8-2019-0008 adopted by the Santa Ana Regional Water Quality Control Board on March 22, 2019. Under this Order, authorizations under a general waiver of, or individual, waste discharge requirements for IWDFs in the Santa Ana Region are rescinded and the new general Waste Discharge Requirements (WDRs) applied. These requirements will not affect Construction & Demolition Waste and Inert Debris Facilities (CDI Waste Disposal Facility) operate under CalRecycle Permits and corresponding Regional Boards WDRs.

Operators proposing to discharge inert wastes must submit a Notice of Intent (NOI) along with a Technical Report described by the general WDRs. Information required in the Technical Report shall include information for the general operation, site physical condition, working and operational design, site operations and monitoring, and waste acceptance procedures. Also, to be included is information on site closure, a compliance schedule for existing facilities and attachments for any optional operations. Proposed compliance schedules for implementation of the identified collection, control, and monitoring practices must ensure compliance as soon as practicable and supported with appropriate technical or economic justification. In no case may the schedule exceed two years from the date of the NOI.

The Order establishes standards for a Monitoring and Reporting Program that requires dischargers to perform regular monitoring and reporting of waste acceptance, management, and disposal activities, and to document performance and completion of necessary site monitoring, management, and maintenance activities plus fees. Reporting will be on an established schedule to include a one time reporting of the NOI and Technical report, an annual report with 28 days of the new year and Storm Event Report within 30 days after the end of a major storm event.

In summary, these new WDRs represent a significant change for the affected IWDFs and particularly for those sites authorized under a general waiver of waste discharge requirements. If your local regional board has not implemented a similar Order, an IWDF operator may want to spend some time becoming familiar with the Santa Ana Board’s Order No. R8-2019-0008 and get prepared. It is expected that other Regional Board’s will follow with a similar Order in the future.

The Santa Ana Region Staff Report and complete Order can be reviewed and downloaded at the following link:

https://www.waterboards.ca.gov/water_issues/programs/cwa401/docs/certifications/order.pdf

AB 901 Recycling and Disposal Reporting

By Kristen Davis

In March 2019, the California Department of Resources Recycling and Recovery (CalRecycle) adopted the recycling and disposal reporting regulations mandated by Assembly Bill 901, which was passed in 2015. The new regulations will require reporting entities to submit information directly to CalRecycle on the types, quantities, and destinations of materials that are disposed of, recycled, processed, or transferred inside or outside of the state.

CalRecycle’s objective is to get a better understanding of the movement of recycled and disposed of material within the State’s infrastructure. Reporting entities will be submitting information directly to the State versus to the local lead agencies, who then submit to the State. Unlike the current reporting system where only disposal facilities report, recycling facilities are now included in reporting.

Timeline

All reporting entities were originally required to complete Recycling and Disposal Reporting System (RDRS) registration by April 30, 2019. However, because of confusion over the requirements for reporting entities, in an email notice dated April 25, 2019, CalRecycle stated they will not be taking any action against reporting entities who have not registered by the April 30th deadline, but will expect all reporting entities to register by May 31st.

Record-keeping pursuant to the AB 901 regulations will commence July 1, 2019 for the 3rd quarter 2019.

The RDRS will open for report submittals for the 3rd quarter on October 1, 2019.

Reports for all reporting entities for the first reporting period of the 3rd quarter must be submitted by December 31, 2019. The specific due dates are different for each reporting entity and are listed in their respective sections of the reporting regulations.

The reporting periods are divided by quarter: January 1 – March 31 (Reporting Period 1), April 1 – June 30 (Reporting Period 2), July 1 – September 30 (Reporting Period 3), and October 1 – December 31 (Reporting Period 4).

Reporting Entities

The recycling, processing, and disposal of construction, demolition and inert debris (CDI) are common activities in our industry. Inert debris includes broken concrete, fully cured asphalt, brick, etc.

Reporting entities are classified as the facilities and operations that are required to report according to the new reporting regulations. Reporting entities include recycling facilities, composting facilities, disposal facilities, haulers, transfer/processors, and brokers/transporters. Recycling facilities and transfer/processors are required to report if they recycle, sell, transfer, or process 2,500 tons or more of CDI material in a quarter. Disposal facilities are required to report at any tonnage in a quarter. Composting facilities are required to report if they sell or transfer 100 tons or more of material per quarter. The following operations are required to register and report if they meet the thresholds described above:

• CDI debris processing facilities/operations

• Inert Debris Type A processing operations

• Inert Debris Type A disposal facilities

• CDI waste disposal facilities

• Construction, demolition and inert debris recycling facilities

• Inert debris recycling facilities

• Construction and demolition recycling facilities

• Composting facilities

Exemptions

A number of operations and facilities that are exempt from the new reporting regulations. Some of these exemptions include:

• Generators: those who generate the initial reportable material

• IDEFOs

• Asphalt plants

• Concrete batch plants

• A recycler who only recycles material that they generate

• A person who collects material from a generator and delivers the material directly to a reporting entity or an end user inside the state, unless the person is a contract hauler hauling material to land application.

• A recycler who exclusively uses material for their own end use and does not sell or transfer reportable material.

A complete list of reporting entities and exemptions is included in the full reporting regulations.

Registration

All reporting entities will register in the new RDRS at this link: https://www.calrecycle.ca.gov/swfacilities/rdreporting/ (link is in the “Registration” section).

When in doubt, register your facility. CalRecycle has stated there will be an opportunity to delete registration before reporting begins if it is determined a facility is not a reporting entity.

An operation will register the site and then individually register the reporting entity. Information that will need to be input during registration includes site information, operator information, reporting entity type, and authorized signature designation. Sites with multiple reporting entities could have one or more RDRS numbers depending on the type of reporting entities onsite.

Reporting

Operators will need to establish an internal recording system to record the required information. Information that will be recorded and reported does vary based on what reporting entity an operation falls under. For example, a recycling facility will record the tonnages of material sold or removed from the site and the destination county for the materials. This information, along with contact and site information, RDRS number, material type, and calculation method to determine tonnage, is required to be included in all quarterly reports for recycling facilities.

The full reporting regulations give a detailed description of the information that different reporting entities must record at their operation and include in their quarterly reports.

The full reporting regulations can be found in California Code of Regulations Title 14, Division 7, Chapter 9, Article 9.25, Sections 18815.1-18815.13.

The Next Endangered Species – Construction Aggregate Resources

In 1976, the Surface Mining and Reclamation Act (SMARA) became law in California.  SMARA provides a carrot and a stick for mine operators, with promises to protect important mineral resources for future extraction, while also requiring greater regulatory oversight and enforcement.  Initially, SMARA's promised resource protection features were implemented through the addition of a team of geologists (>20) to the Division of Mines and Geology to map important resource areas, passing this information on to local land use agencies for incorporation in local land use plans.  However, as the regulatory function authorized by SMARA has flourished; the mineral resources conservation duties have not enjoyed similar attention.  From a meager beginning, the Division of Mine Reclamation now employs more than 30 full time professionals charged with implementing a highly technical law and regulations aimed at ensuring regular reporting, financial assurance adequacy, lead agency compliance, reclamation plan adequacy, and abandoned mine lands reclamation.  Yet the mineral resource conservation requirements are generally ignored by both lead agencies and the State agencies that should be protecting them for resource extraction. 

The Pros & Cons of UAV's vs. Airplanes for Aerial Mapping

In 1908, just five years after the Wright Brothers took their first flight, an Italian captain named Cesare Tardivo took the first aerial photographs from a plane for mapping purposes.  Since that time, fixed-wing airplanes have become the primary method of capturing aerial photography.  With the advent of Unmanned Aerial Vehicles (UAV), alternative methods of capturing aerial photographs and topographic mapping have emerged.

An Alternative Source for Construction Aggregates

Construction aggregates are among the most basic of economic drivers.  Aggregates are the second most commonly consumed commodity by modern society; only water is more important to our way of life.  These commodities are responsible for building and maintaining our modern infrastructure including roads, building foundations, hospitals, bridges, pipelines, office buildings, schools and the like.  Without construction aggregates, our communities would quickly become decadent eye sores and all commerce would cease.