Chapter 8.32 — MINING OPERATIONS

The Town Council finds and declares as follows:

(1)

The Town is endowed with a variety of valuable natural resources, including, but not limited to, gravel and gold, which have periodically been the subject of mining throughout the Town's history.

(2)

The Town is also endowed with a pristine and beautiful natural environment, whose forests, lakes, streams, and mountains are home to diverse flora, fauna, and ecosystems, and the site of numerous recreational and scenic attractions.

(3)

The Town is obligated and committed by its own general plan, Code, and State laws such as CEQA to ensuring that the environment is adequately protected, to the extent the Town possesses the legal authority to do so.

(4)

The Town has land use and zoning authority over private lands within the Town and over certain lands owned by State and local government agencies. The vast majority of real property in the Town, however, is public land owned by the Federal Government and administered by the Federal Department of Agriculture, acting through the U.S. Forest Service.

(5)

The Federal Mining Act of 1872, 30 USC 21 et seq. (herein, Mining Act) confers certain rights to explore the public lands for valuable mineral deposits and provides that the locators of such deposits shall have the exclusive right to extract those minerals if they comply with Federal law and State and local laws that do not conflict with Federal law. (See 30 USC 26.)

(6)

The United States Supreme Court and other courts, have held, in cases such as California Coastal Commission vs. Granite Rock Co., 480 USC 572 (1987), that State and local laws that impose and require compliance with reasonable regulatory requirements designed to protect the environment are not preempted by the Mining Act as long as they do not act as a de facto ban on mining or otherwise act as a clear obstacle to the accomplishment of the congressional purposes and objectives embodied in the Mining Act.

(7)

Accordingly, this chapter is intended to establish, through a purely environmental (non-land use) permit process, legally permissible regulatory requirements designed to protect the environment of the Town, and not to create a de facto ban on mining or create a clear obstacle to accomplishing the objectives of the Mining Act.

(8)

The Town is a lead agency for purposes of the Surface Mining and Reclamation Act, Public Resources Code § 2710 et seq. Mining operations on all land in the Town, including public land, are already subject to Chapter 8.32. This chapter does not amend that certified ordinance, nor does it impose reclamation requirements. It is intended solely as an exercise of the Town's constitutional authority to make and enforce within its limits all ordinances not in conflict with general laws.

(9)

Methods of processing that use hazardous chemicals, such as mercury, cyanide and cyanide compounds, breakdown products of cyanide, and sulfuric acid, are of especially grave concern to the residents and the Town Council of the Town due to their potential to cause damage to the environment, including, but not limited to, streams, lakes, groundwater, air, flora, and fauna. Anecdotal and scientific evidence of such potential harm is detailed in various sources, including, but not limited to, publications, staff reports, and testimony that have been brought to the Town Council's attention.

(10)

The Town Council is unwilling to risk such damage to the Town environment, and thus, by way of a rebuttable presumption established in this chapter, declines to allow certain known hazardous chemicals to be used in connection with any processing activity in the Town unless the use of the chemical in a given project can be shown by the project proponent, by substantial evidence, to have no significant adverse impact on the environment.

(11)

The enactment of this chapter is exempt from the CEQA as either a non-project or as a Class 7 or Class 8 categorical exemption.

(Code 1990, § 8.26.010; Ord. No. 00-11, § 2, 2000)

The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

Acid mine drainage means the natural process through which sulfuric acid is created by the exposure of iron sulfide minerals in mined metal ores to oxygen in the air.

Artificial means occurring as a result of human design or activity, as opposed to natural activities and processes that occur regardless of any human involvement.

Average case scenario means typical project operations under average conditions, with reasonably foreseeable environmental impacts.

Benefication means the process of liberating and concentrating a mineral from ore.

Best case scenario means atypical project operations under better than average conditions, causing the least possible environmental impact.

Environmental contamination means degradation of any aspect of the natural environment in and around a proposed extraction project, including, but not limited to, pollution of the air, soil, or surface waters or groundwater, and any associated harm caused to flora, fauna, or humans.

Exploratory extraction means extraction conducted for the purpose of searching for or investigating a mineral deposit and includes, but is not limited to, geophysical, geochemical, or geological surveying and sampling, drilling or rotary drilling of core and bore holes, and digging pits, trenches, or cuts and other works for the purpose of extracting samples prior to commencement of mine development or extraction operations, and the building of roads, access ways, and other facilities related to such work.

Exposed means uncovered through extraction and put in direct physical contact with air, precipitation, and other atmospheric elements.

Extraction means the artificial removal of solid (not liquid or gaseous), nonliving, and naturally-occurring substances from the surface or subsurface of the earth, including, but not limited to, rocks, sand, gravel, pumice, clay, salt, gold, silver, diamonds, or other minerals or gems.

Feasible means achievable based on known scientific or engineering data and technology. Feasible does not mean the least expensive method nor the method necessary for an extraction or processing project to yield a profit in light of prevailing market prices for mined substances, except in the event that all other things are equal with respect to protecting the environmental, in which case the most cost-effective means may be deemed the most feasible.

Financial assurance, to the extent permitted by applicable State and Federal law, means bonds, escrowed funds, letters of credit, insurance, or other form of security provided to the Town by a project proponent in an amount set by the Planning and Economic Development Commission (or Town Council in the event of an appeal) and in a form approved by the Town Attorney that will ensure sufficient funding for the clean-up, restoration, or other remediation of any environmental damage caused by the project.

Groundwater means all water beneath the surface of the earth within the zone at or below the water table in which the soil is completely saturated with water.

Hydrology means the scientific study of the origin, distribution, and circulation of water through, among other things, precipitation, stream flow, infiltration, groundwater storage, and evaporation.

Immediate vicinity means the geographic area surrounding a project site whose environment could foreseeably be impacted by a project.

In situ mining means a method of processing in which chemical reagents are injected directly into the ground before extraction occurs.

Kinetic testing refers to a method of testing in which a sample of mine waste is placed in a cylindrical chamber or other closed container and factors such as air, water, and bacteria are introduced into the chamber, allowing the impact of these factors on acid generation to be measured over time.

Mining and mining operations mean extraction or processing or both, and all activities integral to such extraction or processing occurring in the Town, including, but not limited to, the movement, transportation, loading, unloading, and other activity of vehicles, offices, buildings, facilities, equipment, structures, mined substances, materials, or personnel associated with extraction or processing.

Processing means the artificial refinement, purification, beneficiation, adulteration, or other special treatment of rock ore and other extracted substances to separate valuable metals or other substances from nonvaluable materials such as soils and other impurities, examples of which include, but are not limited to, washing, flotation, aeration, electrification, gravity concentration, solvent extraction/electrowinning (SX/EW), magnetic separation, crushing, heating, smelting, soaking, leaching, spraying, grinding, sorting, or sifting. For purposes of this chapter, in situ mining shall be considered a form of processing rather than extraction.

Project means a proposal, embodied in a permit applicable, to engage in extraction, processing, or other mining operations, as well as any resulting extraction, processing, or other mining activity.

Project proponent means a party submitting a permit application under this chapter and assuming responsibility for that application, as well as that party's agents, representatives, successors, or assigns (if any).

Scientific means performed by an individual with expertise in a particular field of human knowledge, using generally accepted standards and methodologies for observing, identifying, objectifying, explaining, studying and describing phenomena in that field of knowledge.

Significant adverse environmental impact has the meaning attributed to that term under CEQA or under any applicable CEQA guidelines, regulations, or case law.

Static testing means the measuring of bulk amounts of acid-generating and acid-neutralizing material in samples of mined waste, expressed as numerical values, which are then compared to predict the likelihood that the waste will generate acid mine drainage.

Substantial evidence has the meaning attributed to that term under CEQA and under any applicable CEQA guidelines, regulations, or case law.

Surface water refers to rivers, streams, creeks, lakes, ponds, and other bodies of water existing on a constant or seasonal basis on the surface of the land.

Worst case scenario means atypical project operations under worse than average conditions, where virtually everything that conceivably could go wrong does go wrong, causing the most adverse environmental impacts possible.

(Code 1990, § 8.26.020; Ord. No. 00-11, § 2, 2000)

(a)

It is unlawful for any person to engage in extraction, processing, or other mining operations within the territorial boundaries of the Town without processing at the time of such activity both of the following:

(1)

A reclamation plan (including financial assurance requirements) approved by the Town in accordance with the Surface Mining and Reclamation Act, Public Resources Code § 2710 et seq., the Town general plan, and any applicable chapters of this Code; and

(2)

Either a mining operations permit issued in accordance with this chapter in the case of mining operations on land over which the Town lacks full land use and zoning authority or a use permit issued in accordance with this Code in the case of mining operations on land over which the Town possesses full land use and zoning authority.

(b)

Violation of this section constitutes a misdemeanor and a public nuisance which may, in addition to any other legal or equitable remedies available to the Town, be prosecuted and/or enjoined.

(Code 1990, § 8.26.030; Ord. No. 00-11, § 2, 2000)

It shall be and is rebuttably presumed that any proposed processing operation located above or adjacent to surface waters or groundwaters, or which could potentially impact such waters regardless of their location, that would use one or more of the following chemical as a processing agent poses an unreasonable risk of environmental harm due to the toxicity of such chemicals and their demonstrated potential to cause damage to the environment: mercury, cyanide or cyanide compounds, breakdown products of cyanide, or sulfuric acid. Use of such chemicals shall not be permitted as part of any processing operation unless the project applicant can demonstrate, by substantial evidence, based on reliable scientific or engineering data, that the proposed use of such chemicals in a given project will not, under any reasonably foreseeable scenario, cause significant adverse environmental impacts. Scenarios considered shall include but not be limited to best case, average case, and worst case scenarios, taking into account any environmental contamination reasonably foreseeable over time from both natural and artificial causes, including, but not limited to, spills, leaks, and other releases or discharges resulting from potential design or construction flaws or miscalculations (if any), foreseeable errors or negligence (if any) of processing operators, as well as rainfall, snowfall, snow melt, floods, fires, earthquakes, and other potential natural forces and events.

(Code 1990, § 8.26.040; Ord. No. 00-11, § 2, 2000)

(a)

The Town Planning and Economic Development Commission shall possess the authority to issue mining operations permits in accordance with the provisions of this chapter and to adopt such reasonable administrative regulations as it deems necessary and proper to implement this chapter, including, but not

limited to, regulations establishing advisory committees to examine project applications and to provide reports and recommendations to the Commission. Applications for mining operations permits shall be submitted to the Town Planning Division on forms developed by that Division. Such application forms shall, at a minimum, solicit detailed plans, specifications, studies, maps, and other information from applicants addressing the following:

(1)

The nature, estimated location, and physical and chemical characteristics of the substances proposed to be extracted, exposed, or processed;

(2)

The location, duration, manner, and method of proposed extraction or processing activities;

(3)

The quantity of substances proposed to be mined or processed;

(4)

The estimated facilities, personnel, equipment, and vehicles that will be brought into or constructed with in the Town to conduct or provide services related to the proposed extraction or processing;

(5)

The days of the week and times of the day when the proposed extraction or processing will foreseeably occur;

(6)

The manner or method by which personnel, equipment, mined substances, or any materials associated with the proposed extraction or processing will be moved, transported, or otherwise conveyed to, from, at, or around the extraction or processing site;

(7)

The quantity and source of any water proposed to be used in conjunction with the proposed extraction or processing;

(8)

The nature and sources of power, electrical or otherwise, that will be used at the site of the proposed extraction or processing;

(9)

The quantity, nature, and proposed means of disposing of any solid or liquid waste, including all mining waste, generated by the project;

(10)

The type and nature of any chemical reagents that will be used in processing and the manner and method by which such processing will be conducted; and

(11)

The description of any foreseeable extensions, continuations, or modifications of the proposed project.

Submission of any of the foregoing information to the Town as part of an application for a reclamation plan or amendment thereto with respect to a proposed extraction or processing project may, with the prior approval of the Community Development Director, be incorporated by reference into an application for a mining operations permit under this chapter with respect to the same proposed project.

(b)

Upon receipt of a completed application, the Town and its consultants shall analyze and assess, at the applicant's cost, the potential adverse environmental impacts of the proposed extraction or processing operations in accordance with the CEQA and this chapter. Among other things, such analysis and assessment shall include, to the extent deemed relevant and appropriate by the Community Development Director after performing an initial study under CEQA, in order to gather baseline data and to effectuate the intent of this chapter or CEQA:

(1)

Hydrological studies of any surface waters on the project property or within the runoff or drainage path of the project;

(2)

Biological studies regarding the nature and quantity of any species of fish, birds, reptiles, mammals, and other flora and fauna living in or dependent on such surface waters;

(3)

Studies regarding the potential impacts of the project on any natural habitats or ecosystems in the Town;

(4)

Studies regarding the potential impacts of the project on human health in the Town;

(5)

A hydrological determination of whether or not groundwater exists directly below or in the immediate vicinity of the site of the proposed extraction or processing;

(6)

To the extent groundwater is present, a detailed scientific analysis of the nature, quantity, locations, and properties of such water and a detailed analysis of soil, percolation, and drainage characteristics of the land on which the proposed extraction or processing will occur;

(7)

Hydrological studies of the sources of water that will be used by the project itself and the impacts of the project on such sources and documentation of the use of such water by other parties, including analysis of the degree and duration of the project's anticipated impact on such other water users for the life of the project and until reclamation is completed;

(8)

Hydrological studies regarding any erosion and sedimentation impacts likely to be associated with or caused by the project;

(9)

A geological determination of whether or not any notable sources of actual or potential seismic or volcanic activity exist below or in the immediate vicinity of the site of the proposed extraction or processing;

(10)

To the extent any notable sources of actual or potential seismic or volcanic activity are present, a detailed scientific analysis of the nature and characteristics of such sources and their foreseeable relationship to and effects, if any, upon the proposed project, including, but not limited to, any groundwater used by or otherwise impacted by the project;

(11)

Studies to determine the impacts of all project transport and vehicle movements on air quality, noise, road systems, and traffic;

(12)

Scientific studies regarding the potential for the project to cause or be subject to land subsidence and collapse, and the hydrological impacts of any such potential on the environment;

(13)

Hydrological studies examining the flooding and drainage potential and characteristics of the proposed project and site of extraction or processing and the foreseeable environmental effects such flooding and drainage may have on the site and on adjacent properties;

(14)

Scientific studies regarding the nature, quantity, and characteristics of any dust, gas, or other airborne substances likely to be generated or dispersed by the proposed project;

(15)

Studies regarding the nature, quantity, and characteristics of any nighttime lighting proposed to be used on the project;

(16)

Scientific studies regarding the nature, decibel level, and other pertinent characteristics of any noise or sound likely to be generated by the proposed project;

(17)

Scientific studies examining the probability, nature, and extent of environmental contamination, if any, that could foreseeably result from the project in best case, average case, and worst case scenarios, taking into account both natural and artificial causes of such contamination, including, but not limited to, spills, leaks, and other discharges resulting from design flaws, negligent design or construction, negligence of extraction or processing operators, as well as rainfall, snowfall, snow melt, floods, fires, earthquakes, and other potential natural forces and events;

(18)

Scientific studies determining whether or not items of archeological or cultural significance are present at the site and, if so, the degree to which they would be disturbed or otherwise impacted by the proposed project;

(19)

Scientific studies determining whether or not rare, threatened, or endangered species of plants or animals are present at the site and, if so, the degree to which they would be disturbed or otherwise impacted by the proposed project;

(20)

Feasible project alternatives and mitigation measures, which may include components of any reclamation plan proposed or approved for the project.

(c)

Mining operations permits shall be granted only after a duly noticed public hearing and only if the Planning and Economic Development Commission (or the Town Council in the event of an appeal) makes all of the following findings based on the evidence before it:

(1)

The application and any documentation submitted with it for purposes of complying with or facilitating CEQA review are complete and adequate;

(2)

The proposed project is consistent and compliant with this chapter, this Code, and any applicable environmental policies, regulations, or standards set forth in the Town general plan, as the same may be amended from time to time, as well as any applicable State or Federal laws, orders of State or Federal agencies having jurisdiction, and applicable court orders, except to the extent that such consistency or compliance is impossible to achieve through any feasible modification or mitigation of the proposed project

without violating or conflicting with the Federal Mining Act of 1872, 30 USC 21 et seq. or with other applicable Federal or State laws;

(3)

The proposed project, as mitigated, will not cause any significant adverse environmental impacts, except to the extent that such impacts are impossible to avoid through any feasible mitigation measures without violating or conflicting with the Federal Mining Act of 1872, 30 USC 21 et seq. or with other applicable Federal or State laws, unless a statement of overriding considerations is made through the CEQA process.

(d)

Conditions of approval imposed on mining operations permits by the Planning and Economic Development Commission shall, among other things, to the extent deemed relevant and appropriate by the Planning and Economic Development Commission or the Town Council in order to effectuate the intent of this chapter or CEQA:

(1)

Require that all mining operations, before and during mining, characterize the potential of their ore and waste rock to generate acid mine drainage. Operators may be required to use both static and kinetic testing to make this determination;

(2)

Require pollution prevention and pollution containment techniques in all phases of mine operation;

(3)

Require mining operations to use the best available technology and practices in order to protect the environment, including, but not limited to, preventing or minimizing acid mine drainage;

(4)

Impose specific contamination standards for water, air, and other environmental components that the project may not exceed;

(5)

Require post-mining water quality monitoring to ensure that acid mine drainage does not develop (or worsen, to the extent it is present before the proposed mining or processing occurs) over time;

(6)

Require inspections of mining operations, especially water-related facilities, by Town staff or consultants at frequent intervals;

(7)

Require adequate financial assurances in order to cover the estimated costs of cleaning up or otherwise remediating any reasonably foreseeable environmental contamination that could result from the project despite any imposed mitigation measures, including, but not limited to, natural and artificial causes of such potential contamination, including, but not limited to, spills, leaks, and other releases or discharges resulting from negligent design or construction, negligence of extraction or processing operators, as well as rainfall, snowfall, snow melt, floods, fires, earthquakes, and other potential natural forces and events;

(8)

Require any other appropriate mitigation measures and associated monitoring programs. Significant adverse environmental impacts associated with mining operations shall be mitigated to a level of nonsignificance to the extent feasible without violating or conflicting with the Federal Mining Act of 1872, 30 USC 21 et seq. or with other applicable Federal or State laws, unless a statement of overriding considerations is made through the CEQA process.

(e)

All permit applications shall be accompanied by a processing fee in an amount set by resolution of the Town Council, not to exceed the Town's direct and indirect costs of administering this chapter, including any funds periodically required to be paid or placed on deposit with the Town to fund its associated costs of staff time and consultants necessary to implement and comply with CEQA and this chapter.

(f)

The decision of the Planning and Economic Development Commission is final unless timely appealed to the Town in compliance with Section 2.04.070.

(Code 1990, § 8.26.050; Ord. No. 00-11, § 2, 2000)

Noncompliance with any term or condition of a mining operations permit issued under this chapter, including, but not limited to, any mitigation measures, monitoring requirements, or financial assurance requirements, shall constitute a misdemeanor and a public nuisance, and shall be grounds for suspension or revocation of the permit by the Planning and Economic Development Commission. Before the Commission shall consider revocation or suspension of any permit, the Commission shall hold a public hearing thereon after giving written notice thereof to the permittee at least ten days in advance of such hearing. The decision of the Commission may be appealed to the Town Council in accordance with Section 2.04.070.

(Code 1990, § 8.26.060; Ord. No. 00-11, § 2, 2000)

This chapter shall not apply to the following activities:

(1)

Mining that would be exempt from any reclamation requirements under the Surface Mining and Reclamation Act, Public Resources Code § 2710 et seq., the Town general plan, and any other chapter of this Code, as the same may be amended from time to time.

(2)

Any mining operations, other than exploratory extraction, that were actually in existence and functioning as of November 3, 2000 (the date the ordinance from which this chapter is derived took effect), and which were otherwise compliant at that time with applicable laws, and also proposed expansions of such mining operations with respect to which complete applications for reclamation plans or amendments thereto had already been filed with the Town as of November 3, 2000 (the date the ordinance from which this chapter is derived took effect).

(Code 1990, § 8.26.070; Ord. No. 00-11, § 2, 2000)