BACKGROUND: (CONT'D)
The cleanup of the Mount Diablo Mercury Mine is one of the County’s priority Projects. On December 4, 2012, the Board accepted a comprehensive status report on the Army Corps of Engineers (Corps) planning process to clean up the mercury mine through their Remediation of Abandoned Mine Sites program. The following are some of the key events that have occurred since that last status report.
Enforcement Action
The Central Valley Regional Water Quality Control Board (Regional Board) issued a Cleanup and Abatement Order to Sunoco to clean up the mercury mine. Sunoco, however, claims to not have performed active mining on the site but only conducted exploratory excavation for a short period of time and only at an isolated location within the mining complex. It will be a couple of years before this process is concluded and we have certainty on how much of the mine site will be cleaned up by Sunoco.
Water Quality Standards
The Regional Board approved a total maximum daily load (TMDL) for mercury and methylmercury in the Delta. The TMDL will provide a long-range plan and goals for reducing mercury in the watersheds that drain into the Delta and San Francisco Bay. Cleanup of the Mount Diablo Mercury Mine will be one of the actions in the plan.
Funding
Through the good work and considerable effort of our congressional delegation, the Corps has the funding to complete the planning process as originally contemplated. It is uncertain, however, whether the funding will be enough to cover the costs of the Corps’ new requirements.
New Corps Requirements
Last year the Corps decided the rather informal 2009 letter agreement between the County and Corps would need to be replaced with a more formal cost-share agreement, or Project Partnership Agreement. Staff is currently reviewing the new agreement, but on the surface it appears more complicated and requires the County to be more involved in the project than the prior letter agreement. Added complexity and involvement usually means added cost and liability exposure. When staff has worked out the details with the Corps on the agreement it will come to the Board for approval. At that time the County will need to make several policy decisions that will impact whether we move forward with the project or not.
Detailed Events
The December 4, 2012 status report to the Board included a history of the project, project objectives, and an outline of our strategy at that time. The report concluded the list of key milestones with the September 21, 2012 completion of the Data Collection Plan. Completion of this plan depleted the original congressional appropriation of $517,000. Additional planning work was needed to perform the data collection, assess the impacts of the mine drainage and develop a project scope. It is estimated that another appropriation of $483,000 will be needed to complete the planning work. The following is a more detailed update of the Board of Supervisors status report.
On April 16, 2013, the Executive Officer of the Central Valley Regional Water Quality Control Board (Regional Board) issued a Cleanup and Abatement Order to several responsible parties to clean up the mine site. Responsible parties are entities that have legal responsibility to clean up the mine site under the federal Comprehensive Environmental Response, Compensation, and Liability Act. The two key responsible parties were Sunoco and Kennametal. These two responsible parties subsequently requested the Regional Board reconsider issuance of the Cleanup and Abatement Order (CAO). The Regional Board agreed to reconsider the CAO on August 8, 2013, and it was subsequently scheduled for the Regional Board meeting of March 27, 2014. On March 12, 2014 the Board of Supervisors sent a letter to the Regional Board requesting they not modify the CAO but rather to fully pursue the CAO and require the responsible parties to clean up the mine site. The reconsideration was continued and finally heard by the Regional Board at their October 10, 2014 meeting where they upheld the Executive Officer’s Cleanup and Abatement Order. Of all the responsible parties listed in the final Quarter, Sunoco was the only mining company, as Kennametal had been released for lack of evidence. In November 2014, Sunoco appealed the Regional Board’s decision to the State Water Resources Control Board. On October 23, 2015 the Regional Board sent a letter to Sunoco and California State Parks with comments on the site remediation work plan submitted by Sunoco in response to the Cleanup and Abatement Order. The letter approves the remedial action approach proposed in the 2015 Work Plan, but requires additional information on grading, springwater drainage, removal of the lower pond, and post-project maintenance and monitoring. The letter also requires submittal of a Closure and Post Closure Maintenance Plan by January 30, 2016.
On October 20, 2011, the Central Valley Regional Water Quality Control Board approved a Total Maximum Daily Load (TMDL) allocation to control methylmercury and total mercury in the watershed and amended the Water Quality Control Plan for the Sacramento-San Joaquin River Delta. Marsh Creek drains into the Delta and is subject to this TMDL requirement. The Response Plan for the TMDL recognizes the Mount Diablo Mercury Mine as a point source of mercury contamination and its cleanup now takes on an additional degree of importance. We participate in (help fund) the Delta Mercury Exposure Reduction Program, through the County Clean Water Program, which works to reduce exposure to mercury among people who eat fish from the Delta. We are also currently developing a Methylmercury Control Study to meet our TMDL requirements and taking water quality sampling for mercury below the Marsh Creek Reservoir. The Regional Board is currently working on a TMDL for both Marsh Creek and Dunn Creek. The information we are gathering should help with the Corps planning work.
The Mount Diablo Mercury Mine project has enjoyed strong support in Congress for many years. The Water Resources Development Act of 2007, authorizing projects and programs for the Army Corps of Engineers (Corps), extended and increased funding for the RAMS program, and at our request included language in the accompanying Statement of Managers that “In carrying out this section, the Secretary shall give priority to the Mount Diablo Mercury Mine Cleanup project in Contra Costa County, California.”
On May 15, 2013, the Board of Supervisors sent a letter to Senator Feinstein requesting support for a $1 million appropriation to fund the Remediation of Abandoned Mine Sites (RAMS) program and, without any reference that might constitute an earmark, also expressed our hope the Corps would program $483,000 towards the Mount Diablo Mercury Mine. A similar letter was sent to our Congressional Representatives on May 21, 2013. Congress approved a Consolidated Appropriations Act which included $1 million for the RAMS program. In July 2014, the County’s congressional delegation sent a letter to Jo-Ellen Darcy, Assistant Secretary of the Corps, urging the Corps to program $483,000 for the mine project. As a result, $483,000 is currently in the project account at the Sacramento Corps District.
In 2013 Congress was debating passage of a Water Resources Development Act. On June 28, 2013, at our request, Congressman Mike Thompson sent a letter to the House Committee on Transportation and Infrastructure requesting an expansion of authority for the Corps to construct mine cleanup projects under the RAMS program. Currently, the Corps only has authority to conduct planning and design work and cannot construct a cleanup project. This expansion of Corps authority would reduce liability exposure for the County, but unfortunately was not included in the adopted legislation. We will continue to propose expanding Corps authority whenever Congress introduces a new Water Resources Development Act, and continue to support appropriations each year to fund the RAMS program.
A letter agreement for the mine project dated June 10, 2009, was developed and signed by the program manager for the RAMS program and the project manager for the Flood Control District outlining the cost-share activities performed by the County. Subsequently, the national and local economies suffered heavily as we went through what is now referred to as the Great Recession. County staff were let go and budgets slashed. The County was not able to perform the anticipated work outlined in the 2009 cost-share letter. In early 2014, there was a leadership change in the RAMS program and there was a general review of current projects and past practices. In light of this review, the Corps eventually determined that the existing letter agreement would not be adequate. Toward the end of 2014 the Flood Control District was informed by the Corps project manager that a formal cost-share agreement, or Project Partnership Agreement, would be required before any further work on the project could be performed. Since then, the Corps has been refining RAMS processes to be compliant with RAMS Authority. This involves searching for the closest model agreement that could be modified to accommodate the Mercury Mine project, which is on private property. Twice monthly coordination meetings were set up to facilitate moving the project forward. The Corps is currently preparing a draft agreement which should be in our hands within the next two months.
Current Issues
In developing the agreement with the Corps, the following are some of the issues that have been discussed and we will need to consider:
-
Design Services Agreement
The Corps has determined the most appropriate model agreement is their Section 219 Model Agreement for Design Assistance. However, we haven’t completed the planning work and the sequence and project development is to complete the planning and define the project. Once the project is adequately defined then it can be designed. We need to complete the Technical Project Planning work the Corps started in 2008 before the project can be defined and designed, so the agreement needs to include a section on planning. At this time, we have no objection to the Corps developing an agreement with both planning and design services, but we don’t want to commit to design services now when we do not know what the project is. The agreement should be written with a decision point upon completion of the planning work and project definition. At that time, with a clear understanding of the project objectives and description, the Corps and the County can decide whether or not to move forward with project design.
Cost-Share
The Local Match required for our project in the RAMS program is 50%.
In-Kind Work
-
We would like the ability to contribute in-kind work that would be integral to and supportive of the project, such as project management costs and other work like water quality testing, as part of our local match requirement, rather than having to contribute all cash. The advantage to the County is getting credit for work that benefits the project and will be done and paid for anyway. Any cash contribution would be on top of expenditures that are already occurring in the watershed. Close coordination with the Corps to determine what types of activities would be acceptable in-kind credit will be on-going.
Costs Forward
-
At this time, we are working with the Corps to determine project costs. From our perspective, there are two approaches in determining the cost-share amount. One is to calculate the cost-share from today forward and receive in-kind credit for work done from today forward. The other is to calculate the cost-share from the beginning of the project and receive credit for past work performed. With the second approach, we need to know exactly how much the Corps has spent, because we would have to match that cost. There was a $517,000 appropriation that has been expended and that may be the total past cost. Presently, we are in the process of gathering our costs since 2009 so we can determine the best approach forward.
Corps Cost
A 50% cost-share by the County will be required to complete the planning work (and possible design efforts). Before signing an agreement, we will need to know the estimated cost for that work. It is assumed the cost to complete the planning phase will be around $483,000, as that was the budget request to Congress before the local match requirement. With a 50% cost-share formula, the estimated County contribution would be $241,500. Design costs cannot be estimated until the project is defined, and those costs will be one element in the decision whether or not to go beyond the planning phase and into the design phase.
-
Liability
-
Maintaining a low exposure to liability has been a primary driver of the County’s policy and strategy with this project. County Counsel has indicated in the past that planning work is a low risk activity. The further you move along the project development continuum of planning, design, permitting, and construction, the more risk is assumed. Up until now we have not had a direct financial participation in the planning process, which has resulted in low risk. Providing direct financial participation may increase risk levels, but may also be acceptable for the planning phase. Moving into the design phase and the attendant risk will require a deeper understanding of the project, which is yet to be defined. For example, we may be interested in designing a project at the reservoir, which we own, but may not be interested in the design of a project on private property upstream or downstream of the reservoir, as we do not have control of nor responsibility for that property.
Mine Cleanup
The mine represents an ongoing point source of Mercury in the watershed and must be cleaned up. At this time, it is still unknown if the identified responsible parties will be required to remediate the entire mine site or
a portion of the site. The outcome of the State Water Resources Control Board enforcement action will be a key determinant of what our project will be.
-
Marsh Creek Reservoir
-
In our correspondence to the Regional Board and others on the enforcement action, we have requested the responsible parties also contribute to mitigating impacts downstream of the mine site, including the Marsh Creek Reservoir. However, it appears the enforcement action is focusing solely on cleaning up the mine site and it will be considered a victory if that is achieved. We should plan on not receiving any significant assistance from the responsible parties for the Marsh Creek Reservoir project.
CONSEQUENCE OF NEGATIVE ACTION:
The report would not be accepted.