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SD. 4
To: Board of Supervisors
From: Julia R. Bueren, Public Works
Date: December  4, 2012
The Seal of Contra Costa County, CA
Contra
Costa
County
Subject: Accept Status Report on the Clean-up of the Mount Diablo Mercury Mine
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On:   12/04/2012
APPROVED AS RECOMMENDED OTHER
Clerks Notes:

VOTE OF SUPERVISORS

AYE:
John Gioia, District I Supervisor
Candace Andersen, District II Supervisor
Mary N. Piepho, District III Supervisor
Karen Mitchoff, District IV Supervisor
Federal D. Glover, District V Supervisor
Contact: Mitch Avalon, 925-313-2203
cc: David Twa     Julie Bueren     Mitch Avalon     Mike Carlson     Paul Detjens     Cece Sellgren    
I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown.
ATTESTED:     December  4, 2012
David Twa,
 
BY: , Deputy

 

RECOMMENDATION(S):

ACCEPT the following status report on the clean-up of the Mount Diablo Mercury Mine and Direct staff to continue to seek funds to complete the planning and design phase of the project.

FISCAL IMPACT:

No Fiscal Impact.

BACKGROUND:

Introduction  
  
BACKGROUND: (CONT'D)
The Mount Diablo Mercury Mine is a large, abandoned mercury mine located on the northeast side of Mount Diablo in the headwaters of the Marsh Creek watershed. Since the early 1990’s the Flood Control District has been interested in assisting in the clean-up of the abandoned mine, which is located on private property next to Mt. Diablo State Park. The mine was operational, on and off, from 1849 to 1971. The property was purchased by the current owner in 1974, who inherited the remediation challenges associated with the abandoned mine. The current owner has been cited by the Regional Water Quality Control Board to clean up the mine site, even though he did not create the problem, did not operate the mine, and doesn’t have the resources to do the work.  
  
The mining area consists of a huge underground system of mine tunnels that collect rainwater which percolates out through cracks in the surrounding rock, showing up as seeps in the surface and bringing contaminants with it. The mining area also has remnants of an open pit mine and many piles of mine tailings. Rainwater falling on the piles of mine tailings drain down into two ponds and then overflow into Marsh Creek. This rainwater draining through the piles of tailings carries contaminates with it down through the watershed.  
  
There are several reasons why it is in the interest of the Flood Control District and the County to clean-up the Mount Diablo Mercury Mine.  
  
• Public Health - Mercury washed into Marsh Creek and downstream into the San Francisco Bay-Delta Estuary system poses a health risk. Fish in the Marsh Creek Reservoir have been tested and exceed health standards for mercury.  
  
• Water Quality – the County’s Non-Point Discharge Elimination System Permit (NPDES) requires the County, and now the Flood Control District, to improve water quality in the Marsh Creek watershed.  
  
• Pollutant Specific Requirements – The Environmental Protection Agency (EPA) and the State Water Resources Control Board have a program to focus on eliminating concentrations of specific pollutants. This program is the Total Maximum Daily Load (TMDL) program and limits specific concentrations of various pollutants discharging into receiving water bodies. The Regional Water Quality Control Board is currently working on a methyl-mercury TMDL for the Delta, which would ultimately include discharges from Marsh Creek into the Delta system.  
  
• Downstream Property Owner - The Flood Control District owns the Marsh Creek Reservoir and several miles of Marsh Creek channel downstream of the Mount Diablo Mercury Mine. As a result, mercury has settled in various locations along Flood Control District owned property, most notably in the Marsh Creek Reservoir.  
  
The Regional Board has identified the entire length of Marsh Creek from the mine site to the Sacramento-San Joaquin Delta as an impaired water body for mercury and heavy metals under Section 303(d) of the Clean Water Act. One of the key issues of concern in the Marsh Creek watershed is the presence of mercury and its toxic impact on fish and the people who consume them. In 1995, Public Works commissioned a comprehensive assessment of mercury contamination throughout the Marsh Creek watershed. The report established that about 90% of the mercury in the creek originated at the abandoned mine.  
  
The Flood Control District is interested in helping cleanup the Mount Diablo Mercury Mine but liability concerns are the principal roadblock to the District’s full participation to date. The liability that the District would incur is primarily associated with the Clean Water Act and the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). The EPA’s Good Samaritan Initiative, and its companion Good Samaritan Agreement, is an attempt to address the liability concerns tied to CERCLA and the Clean Water Act through an administrative process. In the past Congress has also reviewed legislation intended to more fully address these same concerns.   
  
Entering into a Good Samaritan Agreement would allow the Flood Control District to voluntarily improve the abandoned mine site with EPA oversight and reasonable requirements with some liability protection. This agreement will provide protection against a lawsuit by the federal government and by past mining companies who worked the mine. The agreement will not protect the District against third-party lawsuits allowed by the Clean Water Act. As a result, if we participate in cleaning up the mine site, we will expose ourselves to lawsuits by downstream property owners and environmental organizations. EPA and the Regional Water Board are working on Total Maximum Daily Load requirements for methyl-mercury in the Delta. Establishing these numeric limits will make it easier for environmental groups and others to file a lawsuit against a local agency that has cleaned up a mine site that, despite the best planning and construction practices available, will probably still have a residual discharge.  
  
If the Flood Control District participates in the planning process for a clean-up project, as we have been doing with the Army Corps of Engineers to date, our exposure is extremely small. However, if we participate in a construction project that results in changes to the mine and there are post-construction discharges, then our liability exposure goes way up. Financial participation in a construction project means we are a project participant. As a result, we have requested Congress do two things to limit our liability. First, we have requested authorization for the Corps to construct the clean-up project. If the Corps constructs the project, then the federal government is the lead agency and assumes liability. Secondly, we have requested the Corps fund 100% of the project without a local cost share. If the Corps constructed the project under normal Corps rules, we would be obligated to contribute a local cost share, which would increase our liability exposure. Alternatively, other funding sources could be used for the local cost share.  
  
There is also liability exposure at the state level. California Water Code, Section 13397, provides some protection against liability for local government agencies that clean-up an abandoned mine. It does not, however, provide protection against all potential liability, such as third party lawsuits, from individual property owners or environmental groups.  
  
  
Project Development Overview  
  
In June 2006, Sustainable Conservation, a non-profit organization that specializes in facilitating intergovernmental agency work to achieve environmental good, received a grant from CalFed for $50,000 to assist in the clean-up of the Mount Diablo Mercury Mine. Sustainable Conservation assisted the Flood Control District for several years in working with the EPA and the Water Board and others to promote a limiting liability agreement to clean-up the mercury mine.  
  
On May 15, 2006, EPA Region IX held a press conference at the Mount Diablo Mercury Mine on the need for and benefits of their proposed Good Samaritan legislation, which would assist non-responsible third parties (Good Samaritans) in cleaning up abandoned mines. For some time the Flood Control District had discussed potential ways of resolving clean up liability issues through EPA’s existing administrative authority, the Good Samaritan Initiative. The Good Samaritan legislation would provide EPA additional options to address liability associated with abandoned mine clean up by Good Samaritan agencies.  
  
In early June 2006, EPA requested Contra Costa County testify before the Senate Environment and Public Works Committee hearing on the proposed legislation. On June 14, 2006, Supervisor John Gioia testified on behalf of the County, describing the Mount Diablo Mercury Mine and the Flood Control District’s desire to clean it up but not being able to do so because of liability issues. On June 20, 2006, the Board of Supervisors took a position of support for both federal legislative and administrative efforts to eliminate liability exposure for local government agencies in remediating abandoned mines.  
  
At the Senate hearing, Senator Boxer expressed interest in our project. Over the next several weeks we fine-tuned an 8-step proposal to clean up the mine site and prepared an overview and briefing paper on the proposal. Subsequent discussions with Senator Boxer’s office along with Congresswoman Tauscher and Congressman Miller’s offices resulted in our understanding of the following:  
  
• EPA has existing authority to provide immunity under superfund law (CERCLA). This immunity, we found out later, was not 100% complete immunity.   
  
• EPA can use superfund statutes to cover mines that are not designated as superfund sites, so Mount Diablo Mercury Mine could qualify, but there is a stigma associated with superfund sites.  
  
• No other federal permits are needed if the clean-up is under the superfund statutes.  
  
• If the clean-up project improves property value, we need to ensure there is no gift of public funds by creating a conservation easement over the mine area, splitting the mine site out as a separate parcel or taking some other action.   
  
• An agreement should include a “no re-opener” clause that would disallow any future mining operations.  
  
• The term “removal action” appears to be more appropriate for our proposal than “remediation”. The term remediation means 100% clean up, whereas removal action can be less than 100% clean up.  
  
• The Army Corps of Engineers has a program for mine clean up and some potential funding.  
  
During this same time period, the Army Corps of Engineers mine clean-up program, Remediation of Abandoned Mine Sites (RAMS), was included in the Senate version of the Water Resources Development Act (WRDA). The Senate provision included an extension of the RAMS program and $45 million in funding. On September 19, 2006, the Board of Supervisor’s took a position of support for the Senate version of WRDA in the hope that some funding would be available for the Mount Diablo Mercury Mine.  
  
The following are some key points about the RAMS program:  
  
• Cost share requirement is fifty-fifty, although the local match can be reduced if the clean-up is a demonstration project. In subsequent discussions with the Corps, nobody has been able to figure a way to classify our project as a demonstration project.  
  
• Must ensure there is no Potentially Responsible Party before federal funds can be spent on the project. A Potentially Responsible Party or Responsible Party is a prior owner of the mine that conducted mining activities and is liable for clean-up under CERCLA.  
  
• RAMS funding is limited to planning and design costs, but can fund construction if it is a demonstration project.  
  
• RAMS funding has historically been appropriated through congressional add-ons/earmarks.  
  
• RAMS projects are usually done in partnership with EPA.  
  
In 2006 we submitted an appropriations request for RAMS funding in the amount of $1 million. This funding would cover the costs outlined in our September 2006 proposed eight-step “demonstration” project to clean up the mine. In 2007 Congress subsequently approved WRDA and an appropriation of $517,000 for the Mount Diablo Mercury Mine.   
  
In June 2007, EPA completed a model agreement that would limit liability to Good Samaritan agencies like the Flood Control District. The agreement was an Administrative Order on Consent. EPA released the model Administrative Order on Consent along with a model “Comfort Letter” for small projects, and guiding principles that outlined the application of these model agreements.   
  
Over the course of several months we met with EPA and others to review the model agreement for applicability to the Mount Diablo Mercury Mine and the associated impacts on Contra Costa County. Comments were submitted and various possibilities were discussed as we tried to form-fit the model agreement into a real-life project. During this time, the Army Corps stressed their preference for a watershed based approach to the mercury clean-up. Rather than focusing strictly on the mine, we should look at the entire watershed as part of the initial planning process. Another key point of discussion was the search for a potential responsible party. No federal grant funds can be expended on a project until the federal agencies are satisfied that there are no potential responsible parties. The Corps agreed to conduct the historical and chain of ownership research on the mine that would be necessary for the ultimate potential responsible party search which would be conducted by EPA. The Corps began this effort in late 2007.   
  
Discussions with EPA on their model Good Samaritan Agreement were then placed on hold for two reasons; (1) EPA cannot commit to a project until all the responsible parties have been identified and an enforcement project clarified, (2) EPA was uncertain if a Good Samaritan Agreement could be implemented in conjunction with a RAMS project.  
  
On October 29, 2007, we met with the Central Valley Regional Water Quality Control Board and others. We discussed the background of the Mount Diablo Mercury Mine project and our long-time desire for the mine to be cleaned up. The Regional Board indicated that a stormwater permit would be required during construction, and that a waste discharge permit would be required after construction if there is discharge from the mine site. We have come to understand the site will most assuredly have a post-construction discharge, which greatly complicates the liability issue. We stressed the need to limit liability for the Flood Control District as part of the project if we are actively involved in the clean-up.   
  
In early 2008 the Corps went through a process to hire a consultant to manage the planning process for the mine clean-up. The Corps uses its standard process for gathering community input called a Technical Project Planning process, which is similar to a community-based planning process or stakeholder driven process. This planning process identifies project goals and objectives, probable remedies and a conceptual design. The first public meeting was held on June 19, 2008. In the fall of 2008 the planning process was held up until the Flood Control District could verify its 50% cost share. In the summer of 2009, the Corps agreed on the Flood Control District’s participation and local cost share for the project and the planning process resumed.   
  
The following project objective for the Flood Control District has remained the same from the beginning.   
  
“Enable a clean-up of the Mount Diablo Mercury Mine that will reduce mercury discharges to the maximum extent practicable with limited liability exposure to the District.”  
  
The Corps’ planning process, which includes a host of stakeholders, resulted in the following project objective. This community based objective is broader than the Flood Control District’s objective.  
  
“Protect public health and the environment by cleaning up the Mount Diablo mine site and addressing the downstream effects on Marsh Creek and the Marsh Creek reservoir”.  
  
In 2008 EPA, now armed with the Corps historical mining information and chain of title for the mercury mine, began their search for a potential responsible party. In the fall of 2008, EPA identified Sunoco Incorporated as a potential responsible party and several months later became concerned that the spillway at the pond below the mine tailings could give way during the winter rains. In December 2008 EPA ordered Sunoco to conduct emergency repairs to the dam. This work was completed before the end of the year.  
  
In early 2009, EPA formally named Sunoco a responsible party through a Unilateral Administrative Order. EPA subsequently turned over follow up activities with Sunoco to the Central Valley Regional Water Quality Control Board. Sunoco contends they did not mine the entire site. In June 2009, the Regional Board issued a Revised Order to Sunoco requiring them to submit technical reports on what areas of the site they mined, the volume of materials mined, and other potential responsible parties. The requested technical reports will be used by the Regional Board to determine if other potential responsible parties exist, determine what further site investigation efforts are needed to identify the extent of impacts from the mine on the surrounding environment, and identify potential remedial actions.  
  
The Regional Board has continued to pursue Sunoco as a responsible party and is trying to identify other potential responsible parties and/or responsible parties. It is unknown at this time how many responsible parties will end up being identified and how long it will take to complete that process. Once that is complete, negotiations will commence on the extent of their responsibility for the cost for a total clean-up project. Given the initial results, however, it is possible the responsible party or parties will not be responsible for 100% of the total clean-up of the mine site.  
  
The Corps continued along with the planning process. In November 2010, the Corps released a report entitled “Initial Data Gaps Assessment for Mount Diablo Mercury Mine”. This report identified all of the known information on the mine site from prior reports and testing, identified what information is needed for a complete site characterization and project design, and identified what data gaps are needed to provide that information. At this point a significant amount of the original appropriation for this project had been expended. In 2009, the County began requesting an appropriation of $483,000 to complete the planning process.  
  
In February 2012, the Regional Board accepted a site characterization report submitted by Sunoco for the mercury mine. The report characterized the causes of mercury releases associated with mining wastes at the mine and provided the data necessary to design a remedial action plan for the site. Also in February 2012, the agency stakeholders met to provide an update on the project. The Regional Board verified the site characterization report prepared by Sunoco covered the entire mercury mine and not just the portion that Sunoco mined when they owned the site. It was also agreed the Corps’ planning process would focus more on the downstream impacts of mercury, especially in the Marsh Creek Reservoir, since the Regional Board had accepted the site characterization report from Sunoco.   
  
In June 2012, the Regional Board accepted a preliminary site remediation work plan submitted by Sunoco for remediation of the mercury mine. The work plan provides an evaluation of water quality, a health risk assessment, scope of work for the removal of the mine waste, management of water discharge and a long-term maintenance and monitoring program. The work plan outlines the remedial action approach and recognizes that more detailed planning and design would have to occur at a later date. This would happen with the Regional Board’s next step in their enforcement action, which will be an order to clean-up the mercury mine.   
  
On August 23, 2012, a public meeting was held to discuss the status of activities to date and to receive comments on a draft data collection plan prepared by the Corps Technical Team. The data collection plan was completed on September 21, 2012. The project is now on hold until funding is in place for the data sampling, which will take at least one year. After the data sampling is completed, evaluation of the data will ensue and a risk assessment will be developed and then remedial actions considered. The original appropriation by Congress in 2007 of $517,000 has been depleted and further work will have to wait until additional funding is secured.  
  
On a separate funding effort, the Flood Control District submitted the remediation of the mercury mine as a project to the Coalition to Support Delta Projects in May of 2012. This Coalition has requested project proponents to submit projects that would benefit Delta water quality, water flows and Delta habitat. It is uncertain how this process will proceed, whether funding will be awarded or when that might occur.  
  
Moving Forward  
  
The mercury mine project has been a perennial item on the Board’s legislative platform for the past several years, both as an appropriation and authorization request. The Board has also written letters to Congress from time to time to urge support for the project. The project also enjoys broad support from the surrounding communities, environmental groups and local creek groups.  
  
While our project objective has remained the same over the years, our strategy to achieve it has not. Below are elements of our current strategy, which may need to be changed in the future depending on how things turn out and evolve in this ongoing project.  
  
• Flood Control District Role. Progressing through the Corps planning process, the Flood Control District role has evolved. The Flood Control District has always been interested in cleaning up the mercury mine and enabling a project to achieve that goal. Through the planning process the District has taken on more of a role to clean up mercury downstream of the mine, in the District’s Marsh Creek Reservoir. Most of the mercury that flows downstream from the mine site is captured at the reservoir. The District has plans in the future to enlarge the reservoir and at that time can address the accumulation of mercury in the sediment at the bottom of the reservoir. We need to ensure that the Corps planning process provides us the information needed to develop remediation measures for the reservoir, and the Regional Board enforcement action provides as much resources towards the reservoir as possible.  
  
• Responsible Party Funding. The Regional Board needs to complete their enforcement action against the responsible party(s). This will result in a determination of remedial actions to be taken to clean-up the mercury and how much each party will contribute. The Flood Control District may have to assume responsibility for cleaning up the reservoir, which we understand could be accomplished through some sort of a cap of the sediment and could be accommodated as part of a storage enlargement project. The next phase of the planning process will provide the information we need to make the decision whether this approach will be achievable for us or not from a constructability and liability perspective. Depending on how things turn out, we may be able to get some funding from the responsible party(s) to help fund the reservoir remediation measures.  
  
• Continue the Planning Process. We need to work with the Corps to complete the planning process so we have all the information necessary to design a clean-up project that will be acceptable to the community and regulatory agencies.   
  
• Continue Legislative Requests. We need to work with our legislative representatives each year to request federal funding for the Corps’ RAMS program to move this project forward. We also need to pursue our request to expand the Corps’ authority to allow construction of the clean-up project and reduce the local cost share. This would be accomplished through the Water Resources Development Act.  
  
• Stewardship. The Flood Control District’s historic position is to not take ownership of the cleaned up mercury mine site. From the District’s perspective, the property owner currently owns the mercury mine and has the ultimate responsibility. If the District is successful in enabling a clean-up project then the property owner should continue to assume ownership as he would be in a much better position than owning the mine in its current condition.   
CONSEQUENCE OF NEGATIVE ACTION:

This report and the recommended actions to keep the project moving forward would not be accepted.
CHILDREN'S IMPACT STATEMENT:

Not applicable.

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