Loading...
HomeMy WebLinkAboutbocc.res.048.1976Recorded at 8:30 A.M., November 10, 1976 Julie Hane, Recorder Reception Number: ~ ~~ ~1 PITKIN COUNTY BOARD OF COUNTY COMMISSIONERS ~~~oK ~.~ ~ ~,~~~ ~~1 RESOLUTION #76-45 RE: Amended Anschutz Special Review Use Permit, Amending Resolution #75-65 Adopted September 22, 1975 WHEREAS, Anschutz Coal Corporation (hereinafter "Anschutz Coal) has applied to the Board of County Commissioners of Pitkin County (hereinafter the "Board) for a Special Review Permit pursuant to Section VI of the Pitkin County Zoning Resolution for a proposed underground mining operation and related surface facilities at the Thompson Creek Coal mine in, on and under the real property more specifically described in Exhibits A and B attached hereto (hereinafter the "Lands"); and WHEREAS, on April 30, 1975, the Pitkin County Planning and Zoning Commission recommended approval of the special review permit subject to certain conditions; and WHEREAS, on June 9, 1975, a Public Hearing was held pursuant to the Pitkin County Zoning Resolution and such hearing was continued until July 21, 1975, to enable Anschutz Coal to present additional infor- mation to the Board, and to provide for additional public comment, and WHEREAS, such hearings and proceedings have resulted in the issuance of a certain limited improvement permit to install footings and foundations for certain of the proposed improvements, without prejudice to the possible denial of said special review permit; and WHEREAS, the proposed mine is located in a remote area of Pitkin County which presents certain management hardships for Pitkin County unless it is meticulously controlled and regulated; and WHEREAS, significant possibility exists for air and water pollution caused by the operation planed, which necessitates strict environmental controls; and WHEREAS, a special review permit should not be granted absent the imposition of conditions which require that the installation and operation at the Lands, more particularly described on Exhibit A (hereinafter the "Minesite") shall have "no significant adverse effect" on the adjacent landowners, stream and air quality, road congestion, wildlife, and the general public interest; and - 1 - s~oK fly ;,~ ~ ~~ l> ~ WHEREAS, a special review permit should require Minesite inspections during the course of construction and operation of the mine to assure compliance with terms and intent of the special review permit; and WHEREAS, the special review permit should provide for an annual hearing to determine the continued compliance thereof with the conditions of this resolution and permit; NOW THEREFORE BE IT RESOLVED that the Board hereby approves Anschutz Coal's special review application under the Pitkin County Zoning resolution and grants to the Anschutz Corporation and to Anschutz Coal (hereinafter called collectively "Anschutz"), their successors and assigns, the right and privilege to use the Lands for developing, mining, washing, storing, and otherwise preparing for market, using, transporting, loading, shipping and selling coal, coke and other products of coal, including the rights to use the Lands to construct, maintain, enlarge, repair, alter and operate all pipelines, conveyors, telephone Lines, power lines, tipples, coal washing facilities, buildings, shops, plants, fixtures and structures, as may be necessary, useful or convenient to its use of the Lands for the life of the mine subject to the terms and conditions as follows, the Board hereby concluding that upon the following terms and conditions all of the findings required by Section VI of the Pitkin County Zoning Resolution can be and are hereby made: 1. Strict Compliance - Anschutz shall not engage in any aspect of any development except in strict compliance with all conditions hereof, all of which are imposed pursuant to the above referenced authority, or to other delegated authority, including, e.g., H.B. 1041. 2. Permits - Anschutz Coal agrees to obtain all necessary permits and approvals from all federal, state and local agencies prior to the commencement of the activity or operation which is the subject of such permit or approval. Anschutz further agrees to comply with and abide by all federal, state and local laws, regulations, orders, permits and and approvals in conduct of its operations and activities on the Lands. Anschutz is required specifically to comply with all conditions of permits required by the Garfield County Commissioners and the City of Carbondale, Anschutz may, of course, contest in good faith any such laws, regulations, orders or the like. Anschutz shall furnish copies of all permits it obtains relating to operations or activities on the Lands to the Board. - 2 - 3. Reclamation and Revegation of Mine Site and Accessory Areas - a. If reasonably required by the Board and consistent with the plan described in paragraph 8 below, Anschutz shall construct berms above and below the existing concrete covering of North Thompson Creek at the Mine Site so as to preserve the stream from surface runoff pullution, protect aquatic habitat, and the like. Surface drainage shall be channeled to settling ponds. The disturbed area shall be revegetated as part of the revegetation plan. b. Above the No. 1 Mine opering and the concrete culvert, the northeast area of the stream side shall be riprapped with large boulders or equivalent to prevent additional erosion of the stream bank. c. All trash, scrap iron, etc., shall be removed from the North Thompson Creek stream on the Lands and within 30 feet of the stream bed. d. If reasonably required by the Board and consistent with the plan described in paragraph 8 below, certain sections of North Thompson Creek shall be rechanneled in order to create a buffer zone between the stream and the mine activity and dump tailings thus reducing the potential for stream pollution. Such rechanngelization shall be accomplished according to the implementation technique and design criteria of the Division of Wildlife as more fully described in Exhibit I. The channelization shall be conducted under the direct supervision of the Division of Wildlife. Such rechannelization work shall be accomplished by the time of the first annual permit hearing. e. All areas where excavation and construction, if any, has been completed shall be restored to slopes less than 45 degrees, unless a greater slope is approved in advance by the County Engineer; top soil shall be applied sufficient to allow revegetation; and reseeded and planted with plant species appropriate to the area. Anschutz shall, in con- sultation with, among others, the Pitkin County Extension agent, develop a specific revegetation plan that shall be subject to the Board's reasonable approval. At the earliest practible time during operations, unless a longer time is approved by the Board, Anschutz shall stabilize and revegetate the surface disturbed in the operation and/or construction to a natural-appearing condition. At all times Anschutz shall take such measures as will prevent or control on-site and off-site damage to the environment and public health or safety, relating to or caused by Anschutz's operations on the Lands, including, but not limited to: i) control of erosion and landslides; ii) control of water runoff; iii) isolation, removal or control of toxic materials; iv) reshaping and revegetation of disturbed areas pursuant to revegetation procedures developed by Anschutz in consultation with the Pitkin County Extension Agent and approved by the Board (e.g., minimally the require- ments shall be as set forth in Exhibits C and D); - 3 - v) stabilization of access roads by proper grading, grade control, surface treatment and vegetation. Inspection by the Pitkin County Extension Agent and/or other appropriate government officials shall be permitted to evaluate rehabilitation measures and success of revegetation. 4, Agricultural Conservation - Anschutz shall coordinate its mining operations with the reasonable movement of cattle through the Lands by the North Thomppon-Four Mile Mineral and Land Corpora- tion and other stock users of the county road through the Lands so as not to adversely affect the reasonable movement of cattle or existing agricultural uses in the area without the consent of those engaged in such activities. 5, Wildlife - a. The Division of Wildlife has, by letter dated July 18, 1975, expressed concern for disturbance of elk wintering areas on the south aspect of Stony Ridge due to the location of a mine air ventilation blower. Upon determination by the Division of Wildlife, after hearing, that the air blower interferes with effective utilization of the Stony Ridge area for winter range habitat, Anschutz agrees to contri- bute reasonable, appropriate funds or services, or both, for specific habitat improvement measures on other winter ranges in order to prevent a loss of elk habitat through depletion of winter range. The amount of such reasonable monies or services to be designated for such purposes shall be determined by the Board on advice of the Division of Wildlife and after consultation with Anschutz. b. It is recognized that additional car traffic in the area and the extended hours of operation of the mine may facilitate poaching of game. Anschutz shall develop rules for employees to minimize or eliminate such poaching. 6. Environmental Health - Anschutz hereby agrees to obtain applicable approvals of the Environmental Protection Agency and Colorado Department of Health of its water and sewer systems and to abide by appropriate federal., state and local laws and regulations for such operations regarding control of fugitive dust, air pollution and noise generation. Anschutz Coal represents that potable water will be obtained from the underground mine for use at the Minesite. The Colorado Department of Health will approve the water source. Should the water prove unsuitable for domestic use, Anschutz Coal agrees to consult with the Board before taking any action to obtain senior adjudicated water rights involving any change from irrigation or domestic uses. Anschutz shall reimburse annually the County for the County's actual and reasonable costs of monitoring and sampling air and water to determine compliance with this permit not to exceed $1,000.00 as adjusted by changes in the cost of living index. Such costs may be increased pursuant to a budget presented to Anschutz at or before any annual hearing and reasonably approved by the Board. It is acknowledged by the parties that the goal of this permit is to eliminate discharge of pollutants into North Thompson Creek and that the original standards of this section were designed to attempt to accomplish this goal; and that it has developed that such original standards were impractical in that it was apparently difficult to separate natural from Anschutz-caused pollution. Therefore on an interim basis only, and not to be interpreted as permanent standards, and after consultation with Anschutz, the following interim discharge standards are specified which standards shall remain in effect until September 24, 1976: - 4 - PARAMETER 1) Total Dissolved Solids 2) Sulfates 3) Iron (Total) 4) Total hardness 5) pH 6) Suspended solids REQUIREMENT 1300 mg/1 or 2400 x stream flow in cfs, whichever is less 600 mg/1 or 1200 x stream flow in cfs, whichever is less 1.0 mg/1 or 1.8 x stream flow in cfs, whichever is less 600 mg/1 or 1200 x stream flow in cfs, whichever is less 6.0 to 9.0 40 mg/1 Insofar as it is practical, discharge from the mines will be at a continuous rate. Anschutz Coal Corporation shall continue to diligently implement the Briscoe-Maphis-Murray-Lamont Plan for the capture and impoundment of surface run-off waters. Monitoring results of creek and mine discharges taken by Anschutz shall be forwarded to the County, and the County shall have the right to conduct its own sampling program on lands owned or leased by Anschutz Coal Corporation. During the period between execution of this amended permit and August 9, 1976, Anschutz shall diligently proceed to develop a plan, the goal of which is to eliminate discharge of pollutants into North Thompson Creek. The standard shall be to develop a plan, and a rapid implementation schedule, comprised of the very best control and treatment measures that have been, or are capable of being achieved. In the event no plan is presented or in the event the plan presented does not meet the standards herein, or Anschutz fails to agree to implement an acceptable plan, then any such event shall be grounds for termination of this permit. A plan which equals or substantially approximates pollutant control of zero discharge is sufficient. In the event the parties are unable to agree on an acceptable plan or on permanent standards prior to annual review, the permit shall terminate. In addition to requiring the diligent construction of an acceptable water pollution control plan as a condition for continuation of this permit beyond the first annual review hearing, the Board shall also at that time specify new discharge standards (as opposed to the interim standards set forth above.) - 5 - _ ~,, ~, 7. Scenic Values - Anschutz shall to the extent practicable, harmonize operations with scenic values through such measures as the design and location of operating facilities, including roads and other means of access, vegetative screening of operations, and construction of structures and improvements which blend with the landscape. 8. Surface Drainage and Storm Runoff Management - Anschutz Coal agrees to prepare at its expense a master plan for surface drainage and storm runoff management. Such plan shall be prepared by a qualified expert and be subject to the reasonable approval of the Board. The plan shall (a) include an implemen- tation schedule; (b) be submitted to the Board for approval within thirty (30) days of the effective date of this permit; and (c) include an analysis of flood danger to the Minesite; and (d) be in substantial conformance with Briscoe-Maphis guidelines as described in Exhibit G. The plan is hereby incorporated as a condition of this permit. 9. Solid Waste Disposal - Anschutz Coal agrees to prepare at its expense a plan for solid waste disposal. Such plan shall be prepared by a qualified expert and be subject to reasonable approval of the Board. The plan shall (a) include provisions for the concerns expressed by the Colorado Geological Survey by letter dated July 30, 1975; (b) include an implementation schedule; and (c) be submitted to the Board for approval within 30 days of the effective date of this permit; and (d) be in substantial conformance with Briscoe-Maphis guidelines as described in Exhibit H. The plan is hereby incorporated as a condition of this permit. In the event that the proposed disposal site is insufficient for the term of this permit, Anschutz Coal and the Board shall reasonably agree upon a new site when needed and, absent such agreement following good faith negotiation, this permit shall lapse. 10. Bureau of Land Management - Anschutz agrees to cooperate with the Bureau of Land Management plans and programs for establish- ment of the proposed Thompson Creek Natural Environmental Area. 11. Mine Subsidence Report - A mine subsidence report has been furnished by Anschutz pursuant to the recommendations of the Colorado Geo- logical Survey, and such a report has been reviewed and approved by the Colorado Geological Survey. 12. Schools Impact - Based upon Anschutz Coal's operations as projected in paragraph 8(a) of Exhibit E, the Roaring Fork School District, RE-1 by L. Allen, Superintendent, states that Anschutz Coal "will not create any substantial financial or space problem for the school district." This has been confirmed by the present superintendent, Nicholas R. Massaro. In the event the Anschutz Coal school children projections are exceeded in fact by more than 150, the Board and Anschutz Coal shall consider at the annual hearing whether additional commitments should be made by Anschutz Coal, if the additional Anschutz Coal employee students beyond those projected has created a financial or space problem for the school district. 13. Housing Impact - Anschutz believes that the private sector is capable of supplying adequate housing for Anschutz Coal employ- ment and population impacts, based upon employment projections contained in Exhibit E. The Board may consider at the annual hearing whether housing impacts have adequately been met in fact. If, in the Board's reasonable opinion, they have not, as a result of Anschutz's having so exceeded those projections, the Board may require Anschutz Coal to take reasonable measures, after consultation with Anschutz, to alleviate those impacts. - 6 - -. e, 14. Dog Control - Dogs will be permitted on the Lands only if under the leash control of the owner, so as to minimize possible negative wildlife impacts. 15. H.B. 1041 Designations - Official historic sites in existence on the Lands shall be preserved in their natural state. Anschutz agrees to cooperate with the Board to obtain historic designation for the Spring Gulch Coal Mine site and coking ovens under H.B. 1041. The Board will provide Anschutz Coal with wt`itten notice of any proposed designation pursuant to H.B. 1041 which may affect the Lands. Such notice shall be given to Anschutz Coal prior to 20 days before the public hearing to be held concerning the proposed designation. 16. Utilities - Anschutz represents that appropriate utility service is available on the Minesite for the mine facilities and operations. 17. Tax and Management Hardships - The tax revenue projections in Exhibit E prepared by Anschutz Coal are represented as minimal revenues to Pitkin County given the existing mill levy, the manner of assessment, and other relevant financial data, and appear to represent minimal hardships to Pitkin County given strict compliance with the conditions of this permit. In the event the actual revenues are at least 15 per cent less than the projected revenues, the Board and Anschutz Coal may consider at the annual hearing requiring additional financial commitments from Anschutz Coal if that disparity results in tax and management hardships for the County or the special taxing districts therein by virtue of Anschutz's activities and operations under this permit. 18. Road and Transportation - a. Anschutz Coal agrees to limit speeds of company vehicles to 40 miles per hour on the Pitkin County Minesite access road and to take reasonable steps to help assure that employees do not exceed that limit on the road. b. Anschutz shall encourage car pooling among employees to and from the Minesite. c. In cooperation with the City of Carbondale and Garfield County, Anschutz will investigate the installation of a bus shuttle for its employees. Pitkin County offers to operate such service in return for Anschutz Coal's rebating the actual costs of that service, as determined by the Pitkin County Finance Officer, to Pitkin County. d. In the first year of operations, Anschutz shall install no more than 20 parking spaces on the Lands. e. The intent of the provisions of paragraphs 18(b), (c) and (d) is to encourage car pooling, busing, etc., and to lessen motor vehicle traffic in the area. f. Road Improvement Schedule - Anschutz will be responsible for the design, construction, and maintenance of all stages of improvement to the road access within Pitkin County in support of the Anschutz mining activities. All such improvements shall be reasonably approved by the Pitkin County Engineer. Improvement shall be implemented according to the report, "Anschutz Coal Company - Roadway Access" prepared by Briscoe, Maphis, Murray & Lamont, Inc., which is hereby incorporated as a condition of this permit (Exhibit F). Pitkin County shall pay to Anschutz a sum not exceeding (a) the gross ton-mile tax revenues generated by this Anschutz operation and received by Pitkin County or (b) Anschutz's actual maintenance and road construction costs, whichever is less. Pitkin County shall have no further liability other than as stated for payment or reimbursement of Anschutz for required road improvements. g. Anschutz agrees to apply for and obtain building permits for construction of new roads on the lands within Pitkin County. 19. Existing Mine Refuse Fire - Approximately three quarters of a mile from the Minesite, there is evidence of fire caused by spontaneous combustion of a dump area into which coal wastes from the former operation had been placed. The evidence of the fire is that of small wisps of smoke coming from the edge of the refuse dump. This is the remaining remnants of refuse burning. Anschutz Coal represents that to disturb the surface from which the small amount of smoke is emanating would result in an outbreak of fire to larger areas, in that increased oxygen would be added because of the disturbed areas, and that, therefore, the area should remain undisturbed and the fire allowed to burn out. Anschutz Coal shall fence and post the area from the roadside to protect persons from possible fire danger and shall provide the Board with written evidence to support its conclusion from another qualified authority within ninety days. 20. Fire Protection - Fire Protection will be the responsibility of Anschutz Coal and will be provided by fire control systems, including high pressure pumps, as well as chemical fire extinguishers strategically located. Anschutz Coal agrees to immediately notify the U.S. Forest Service if any fire should develop on the Lands which may threaten federal lands or require federal assistance to extinguish. 21. Security of the Property and Equipment - Security of property and equipment of Anschutz Coal shall be the responsibility of Anschutz Coal. The Pitkin County Sheriff's Office shall be informed of any acts requiring their notification. 22. Additional Mine Portals, etc. - The opening of additional mine portals or creation of new run-off or effluent discharge points into North Thompson Creek or other streams shall require an amendment to these permit conditions. 23. Change in Ownership - In the event of any change of ownership (fee or lease) in the Lands, Anschutz shall notify the succeeding owner or lessee of the terms of this permit by letter, a copy of which shall be forwarded to the Board. In the event Anschutz is succeeded in operation on the Lands by legal process or order of court, the new operator shall be required to make application to the Board for approval of it and for continuance under this permit, which approval shall not be unreasonably withheld. 24. Recordation of Permit - This permit shall be recorded in the office of the Pitkin County Clerk and Recorder, and shall con- stitute a burden running with the land. 25. Public Liability Insurance Policy - Anschutz Coal agrees to post with the Board a public liability insurance policy in the initial sum of $300,000 for the benefit and purpose for the protection of Pitkin County, and to indemnify and hold harmless the County, from any liability arising out of the maintenance, existence or operations of Anschutz Coal on or relating to the Lands or arising from the issuance of this permit; such sum may be increased if the Board determines, after consultation with Anschutz Coal, it is reasonably necessary to do so. 26. Performance Bond - In order to insure compliance with the revege- tation and reclamation conditions of this permit, Anschutz Coal agrees to furnish to the Board a performance bond in the amount of $20,000. In the event Anschutz Coal's activities and opera- tions on the Lands are conducted at a rate and extent which is less than that set forth in this permit and the Exhibits hereto, Anschutz Coal shall only be required to satisfy the conditions of this permit (other than revegetation and reclamation which must be satisfied regardless) as are reasonable in light of the then rate and extent of Anschutz's activities and operations on the Lands. 27. Non-Compliance - Public Hearing - a. In the event that the Board determines that probable cause exists that Anschutz is not acting in substantial compliance herewith, the Board may issue and serve upon Anschutz a written order which shall specify the nature of the alleged non-compliance, and such order shall require Anschutz to cease and desist from such non-compliance within such reasonable time as the Board may determine. Within seven days after the receipt of such order, Anschutz may file with the Board either a notice advising the Board that Anschutz is now in compliance or a written petition requesting a hearing to determine any one or both of the following matters: (i) Whether the alleged non-compliance exists or did exist; or (ii) Whether a variance or extension of time should be granted with respect to any such non-compliance which is determined to exist. Upon the receipt of such a petition, the Board shall promptly schedule a public hearing at a reasonable time and place to consider the matters set forth in the cease and desist order and in the petition. The hearing shall be convened and con- ducted pursuant to the procedures normally established by the Board for other public hearings. The burden of going forward with the evidence as to the existence of compliance shall be upon Anschutz; and Anschutz shall bear the burden of going forward with the evidence and the burden of proof relating to the reasonableness of requests for extensions of time and variances. If the Board determines by a prepon- derance of the evidence that non-compliance exists that has not been remedied, it may issue such orders as may be appro- priate under the circumstances; provided, however, no order terminating the permit shall enter without the Board's finding substantial evidence warrants that action. The Board may stay its order pending further review at the instance of Anschutz. If it does not so stay its order, the order shall be effective upon delivery to Anschutz, which may, of course, seek a judicial stay, A final determination of material non-compliance which has not been remedied or for which no variance has been granted shall at the option of the Board terminate this permit and Anschutz shall be required to discontinue its operations hereunder within such reasonable time thereafter as the Board may determine. b. On or before October 1, 1976, or each year, BEGINNING WITH THE YEAR 1976, Anschutz Coal and the Board shall select a date for the public hearing and publish public notice thereof, at which hearing the Board shall review Anschutz Coal's operations on or relating to the Lands and shall give the public an opportunity to comment thereon. At the conclusion of such hearing, the Board shall determine whether Anschutz has substantially complied with the terms of this permit and, if it has not, th? Board may issue a cease and desist order and otherwise follow the procedures set forth in paragraph 27 (a) hereof. The Board has the right to waive the holding of the annual hearing upon prior notice to Anschutz and to any known interested parties. c. In the event that the Board determines that material and reasonable conditions not now included or incorporated in this permit should be added to the permit for the•prupose of protecting the health and safety of the present and future inhabitants of Pitkin County from Anschutz's activities or operations on or relating to the Lands, the Board may issue and serve upon Anschutz a written notice which sets forth the language of the proposed condition ofr conditions. Within - ~ - ~ook319 ~au~~~~~~~ seven days after the receipt of such notice, Anschutz shall file with the Board a written response advising the Board that either (a) it agrees that the proposed condition or conditions may be added to this permit or (b) it requests a hearing relating to the proposed condition or conditions. Upon the receipt of such a request for hearing, the Board shall promptly schedule a public hearing at a reasonable time and place to consider the proposed condition or condi- tions. It may hold such hearing in conjunction with the annual hearing specified in paragraph 27 (b). The hearing shall be convened and conducted pursuant to the procedures normally established by the Board for other public hearings. If the Board determines by a preponderance of the evidence that additional reasonable and material conditions to this permit are necessary to protect the health and safety of the present and future inhabitants of Pitkin County from Anschutz's activities or operations on or relating to the Lands, the Board may promulgate such additional material and reasonable conditions to this permit. The Board's final conditions shall be effective upon delivery to Anschutz; however, the enforcement of such conditions shall be stayed pending final administrative and judicial review initiated by Anschutz, if any, which review shall be filed within the time specified in Rule 106 (b), Colo. Rules Civ. Pro. 28. Record Made - Amendments - Anschutz's plans, supporting permit data, maps and statements to the Board shall constitute and contain Anschutz's program. Anschutz may not materially and adversely change or modify its program without prior submission thereof in writing to the Board and approval by the Board after public hearings if the Board so desires. 29. Non-Severability - This permit is granted only upon each and every condition herein stated. If any condition hereof be challenged by the applicant and held invalid by a Court of competent juris- diction for any reason, unless otherwise determined by the Board upon Anschutz's application the whole permit shall lapse and be thereby terminated pending remand to the Board for the formu- lation of proper or lawful conditions in accordance with the ruling of the Court and reissuance, if any, of the permit. The Board shall act upon such remand within a reasonable period not to exceed 60 days unless such period is inadequate in the cir- cumstances because of the necessity to assemble scientific data. and the like, in which event it shall be as soon as reasonably possible. In the event there is enacted supervening federal or state law or regulations imposing greater restrictions or pre- empting the field of any condition, the permit shall continue notwithstanding such change. 30. Notice - All notices issued to Anschutz hereunder shall be de- livered by mailing to Anschutz at P.O. Box 980, Carbondale, Colorado 81623, with a copy by mail to Albert M. Keenan, 1110 Denver Club Building, Denver, Colorado 80202. Notices to the Board shall be mailed to it at 506 E. Main Street, Aspen, Colo- rado 81611, with a copy to the Pitkin County Attorney, at the same address. BOARD OF COUNTY COMMISSIONERS PITKIN COUNTY ~? ~ By ~ ; ~ ~~ Joseph.E. ards, Jr. Chairihan DATED :. ~~ / (/ ~ / ~O _ ATTEST,c APPROVED AS TO FORM: «-- 1 i~. C k & Recorder County Attorney