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HomeMy WebLinkAboutMINUTES - 06202006 - C.49 TO: BOARD OF SUPERVISORS •-=- .Contra FROM: PUBLIC WORKS DIRECTOR , 9.-" Costa �o DATE: JUNE 20, 2006 s County r'� COUly� Q • k4 SUBJECT: AMEND PRIOR BOARD OF SUPERVISORS ACTION ON JUNE 13,2006 REGARD` ING THE "GOOD SAMARITAN CLEAN WATERSHED ACT", TO SUPPORT BOTH FEDERAL LEGISLATIVE AND ADMINISTRATIVE EFFORTS TO ELIMINATE LIABILITY EXPOSURE FOR LOCAL GOVERNMENT IN REMEDIATING ABANDONED MINES (COUNTYWIDE) SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION RECOMMENDED ACTION: AMEND prior Board of Supervisors action on June 13,2006 regarding the"Good Samaritan Clean Watershed Act", to SUPPORT both federal legislative and administrative efforts to eliminate liability exposure for local government in remediating abandoned mines, and AUTHORIZE the Chair to execute the attached letter to Congress. CONTINUED ON ATTACHMENT: 0 SIGNATURE: �! RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE APP OTHER SIGNATURE(S): J,�IdL ACTION OF BO ON APPROVED AS RECOMMENDED OTHER VOTE OF SUPERVISORS: I HEREBY CERTIFY THAT THIS IS A TRUE AND CORRECT COPY OF AN ACTION TAKEN AND ENTERED ON UNANIMOUS(ABSENT ) MINUTES OF THE BOARD OF SUPERVISORS ON THE AYES: NOES: DATE SHOWN. ABSENT: ABSTAIN: Contact: Mitch Avalon(3I3-2203) / RMA:lz f C:\)OCUME--1\jenea\I,OCALS—I\Temp\c.lotus.notes.data\6-13-06 support fed leg ATTESTED good sam clean water act.doc JOHN CULLEN,CLE OF THE BO OF SUPERVISORS cc: John Cullen,CAO Sara Hoffman,CAO Maurice Shin,PW Dennis Barry,CDD BY: L4,p-au.-� ,DEPUTY Mitch Avalon,PW Greg Connaughton,PW Steve Goetz,CDD John Kopchik,CDD f SUBJECT: AMEND PRIOR BOARD OF SUPERVISORS ACTION ON JUNE 13,2006 REGARDING THE "GOOD SAMARITAN CLEAN WATERSHED ACT", TO SUPPORT BOTH FEDERAL LEGISLATIVE AND ADMINISTRATIVE EFFORTS TO ELIMINATE LIABILITY EXPOSURE FOR LOCAL GOVERNMENT IN REMEDIATING ABANDONED MINES (COUNTYWIDE) DATE: JUNE 20, 2006 PAGE: 2 of 3 FISCAL IMPACT• Congress and the Environmental Protection Agency(EPA)are working on legislative and administrative initiatives that would reduce the liability exposure for the Flood Control District or the County in remediating abandoned mines that leach pollutants into the watersheds of the County. In the very near future,the Flood Control District and County will likely be required to eliminate these pollutants from the watershed through our National Pollutant Discharge Elimination System(NPDES)permit. This legislation will ultimately save the County and the District the cost of liability claims when the work is required to be done. REASONS FOR RECOMMENDATIONS AND BACKGROUND: Current legislative and administrative efforts by Congress and EPA to eliminate liability exposure would help the Flood Control District to remediate the Mt. Diablo Mercury Mine and improve water quality in the Marsh Creek Watershed. 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. The Flood Control District has been interested for over a decade in assisting in the remediation of the abandoned mine,which is located on private property next to Mt. Diablo State Park. The mine was operational,on and off,from 1875 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 Board to clean up the mine site,even though they did not create the problem and don't have the resources to do the work. 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 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 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 is an attempt to address the liability concerns tied to CERCLA and the Clean Water Act through an administrative process. Congress is also reviewing legislation that is intended to address these same concerns. The Board supports these efforts that would ultimately allow us to voluntarily improve abandoned mine sites with EPA oversight and reasonable requirements without liability. Contra Costa County was requested to testify before the Senate Environment and Public Works Committee and discuss our experiences with the liability barriers for a local government agency to voluntarily assist in cleaning up SUBJECT: AMEND PRIOR BOARD OF SUPERVISORS ACTION ON JUNE 13,2006 REGARDING THE "GOOD SAMARITAN CLEAN WATERSHED ACT", TO SUPPORT BOTH FEDERAL LEGISLATIVE AND ADMINISTRATIVE EFFORTS TO ELIMINATE LIABILITY EXPOSURE FOR LOCAL GOVERNMENT IN REMEDIATING ABANDONED MINES(COUNTYWIDE) DATE: JUNE 20,2006 PAGE: 3 of 3 an abandoned mine. Supervisor Gioia provided testimony on this subject Iast week. Attached is the written testimony submitted to the Senate Committee. CONSEQUENCES OF NEGATIVE ACTION The Boards position on current legislative and administrative efforts to allow voluntary clean up of abandoned mines would not be forwarded to Congress. J June 20, 2006 Congressman George Miller 2205 Rayburn House Office Building Washington, DC 20515 Dear Congressman Miller: Abandoned mines have a huge detrimental impact on the water quality of our creeks,rivers, and the San Francisco Bay. We support the efforts of Congress to legislatively or administratively eliminate liability exposure for local government in remediating these abandoned mines. The most prominent mine in Contra Costa County is the abandoned Mount Diablo Mercury Mine, located near the headwaters of Marsh Creek on the eastern slopes of Mount Diablo. The mine runoff has many negative environmental impacts on fish, wildlife and human health. Our Flood Control District owns a reservoir midway through the watershed that has extensive riparian, marsh and aquatic growth along the shoreline providing habitat for a variety of wildlife,including resident populations of fish. The reservoir has been fenced off for over 20 years and posted for no trespassing or fishing due to elevated levels of mercury in the flesh of the fish. The mine is a portion of a large 109 acre parcel that is bordered on three sides by Mount Diablo State Park. The current property owner purchased the property in 1974 as a bucolic site to raise their children and retire. The Regional Water Quality Control Board has issued the property owner a Cleanup and Abatement Order for the mine discharge,even though they did not create the problem. The owners do not have the resources to complete a full scale mine remediation project. As it is,they have spent over$300,000 of their retirement money in trying to address the Cleanup and Abatement Order. The Contra Costa County Flood Control District has been interested in helping to remediate the mine and improve water quality in the watershed for the last 15 years but have not been able to do so because of the substantial liability the District would assume if a project were built. Senator June 20,2006 Page 2 Congress is currently reviewing legislation that would provide limited liability protection for local government, such as ourselves, who are interested in voluntarily assisting in the remediation of abandoned mines. In addition,we understand the Environmental Protection Agency(EPA)is developing a Good Samaritan Initiative,which attempts to provide liability protection for public agencies through an administrative order and consent process. Our understanding of this current administrative process, however, is that it is very time consuming and lengthy. In its current form this process is not a viable alternative for us. This administrative process may work well if it was changed so the agreement provisions were known in advance and the process streamlined. We are ready,willing and able to fix a source of pollution in our county and improve water quality for the San Francisco Bay Area. We support the efforts of the EPA and Congress to develop legislation or an effective,efficient and collaborative administrative process that will allow public agencies like ours to remediate an abandoned mine without exposure to unlimited liability. Very truly yours, John Gioia Chair, Board of Supervisors JG:MMS:RMA:lz G:\Admin\Mitch\bo\2006\6-13-06 support mercury mine legislation ltr.doc c: Congressional Delegation John Cullen,CAO Sara Hoffman,CAO Maurice Shin,PW Dennis Barry,CDD Mitch Avalon,PW Greg Connaughton,PW John Kopchik,CDD SEAL ,,_ ti `covr`�`� GP TESTIMONY OF JOHN GIOIA CHAIR OF THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY AND CONTRA COSTA COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT BEFORE THE SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE REGARDING LIABILITY BARRIERS TO CLEANING UP ABANDONED MINES June 14, 2006 651 Pine Street,Martinez,California 94553 255 Glacier Drive,Martinez,California 94553 Mr. Chairman, and members of the Committee, thank you for the opportunity to appear before you today to discuss an issue of great importance for the water quality of our County, the State of California, and other States of the Union - the cleanup of abandoned or inactive mines. I appear before you as Chair of the Board of Supervisors of Contra Costa County and the Contra Costa County Flood Control and Water Conservation District. I am pleased to provide you with our experiences and recommendations related to abandoned mine cleanups and the liability associated with a county agency involved in the clean up work. I would like to describe to the.Committee an example of a project in Contra Costa County that would greatly benefit water quality in the region, yet has not been able to be completed due to the lack of"Good Samaritan" legislation. Background Contra Costa County is located in the San Francisco Bay Area of California. The west portion of the County fronts on the Bay, while the northern portion fronts along the Sacramento River, and the east portion drains into the Sacramento-San Joaquin Delta. Mount Diablo, the most prominent and tallest mountain in the area, presides in the center of the County. Marsh Creek drains from its headwaters at the top of Mt. Diablo to the west towards the Delta and discharges into the Sacramento River. An abandoned mercury mine is located in the upper slopes of Mt. Diablo, near the headwaters of Marsh Creek. Rain water washing over the mine tailings transports mercury down into Marsh Creek and ultimately out into the San 2 Francisco Bay. Marsh Creek also flows through the communities of Brentwood and Oakley with a total population of 60,000 residents. In the early 1960's, our Flood Control District built flood protection improvements in the Marsh Creek watershed, channelizing the downstream reaches of Marsh Creek through the flat alluvial area near the City's of Brentwood and Oakley. In 1963 the Flood Control District built a dam across Marsh Creek approximately five miles upstream of the City of Brentwood for flood control purposes. The resulting Marsh Creek Reservoir impounds water year round, and has extensive riparian, marsh and aquatic growth along the shoreline, providing habitat for a variety of wildlife including resident populations of fish. The Flood Control District owns the Marsh Creek Reservoir and most of the downstream channel. Health Issue In 1980 the California Department of Fish and Game analyzed fish from the reservoir and found mercury levels in the fish flesh were above existing health standards.' The reservoir has since been fenced off and noticed for no trespassing or fishing due to the mercury contamination. Mercury is a health problem in the San Francisco Bay Area and advisory notices are posted for adults to not eat fish from the Bay more than twice every month (only once a month for children and pregnant women) due to elevated levels of mercury in the flesh of the fish. 3 The Mercury Mine Mercury was first mined in this area in 1875 and continued on and off until 1971. In 1974, the current property owner purchased the abandoned mine and surrounding property. The property totaled 109 acres and is bordered on three sides by Mount Diablo State Park. The current owners were not looking to develop the property, but looked at the property as a beautiful spot to raise their children and retire. The owner and his wife intended to build their retirement home on the property, they had no plans nor any desire to mine the property, or contract with others to mine the property. The State's Regional Water Quality Control Board (RWQCB) first issued waste discharge requirements (WDR) to prior mine operators in 1952 and recommended corrective action be taken. Although waste discharge . requirements were issued to the mine operators, contaminated discharges continued after the mine was abandoned. In 1978 the RWQCB issued the property owner a Cleanup and Abatement Order because of mercury discharging from the mine site, even though the property owner was not a mining operator and did not create the problem. In response, the property owner has taken efforts to clean up the property as best he can, but does not have the resources to complete a full scale mine remediation project. The property owner recently said, "So far we have spent over $300,000 of our retirement money, in 1975 dollars, and the "well" is nearly dry." 4 Attempted Remediation In 1995 Contra Costa County contracted with a team from the University of California at Davis, lead by Dr. Darryl G. Slotten, to study and provide an assessment of mercury in the Marsh Creek watershed. The study showed that approximately 90% of the mercury in the watershed originates from the piles of tailings at the abandoned mercury mine. Based on the study, Contra Costa County applied for a Calfed grant in 1997 to remediate the mercury mine and reduce the mercury transported from the mine to the downstream watershed'and into the Bay/Delta system. Our County Counsel and Risk Manager reviewed the grant in light of the lawsuit that the East Bay Municipal Utility District was facing with the remediation work they had done at the Penn Mine site and concluded that our county would be exposed to liability if the project was built. As a result, we withdrew the grant. Our sentiment was summed up in a staff memo that said, "It is sad that we can't try to help this problem, but we cannot risk getting into a situation that costs the County $5 million dollars plus huge attorney bills like it did the East Bay Municipal Utility District". The Flood Control District is still interested in remediating the mine and we are confident we can get the grant funds to do so. The local watershed council in the Marsh Creek watershed is a stakeholder group that includes several local environmental groups and is very supportive of our efforts to remediate the mine. The property owner is also very supportive of our efforts. The barrier to us implementing the project is liability. 5 Good Samaritan Initiative Understanding that liability exposure was the fundamental issue preventing us from participating in remediating the mine, Contra Costa County partnered with the Natural Heritage Institute and the cities of Oakley and Brentwood for a grant in 2000 that sought to solve the liability problem. This grant application was unsuccessful. Still interested in pursuing the remediation of the mercury mine, last year we partnered with Sustainable Conservation, a non-profit organization with experience in the arena of liability exposure with environmental projects. This has lead to discussions with EPA on their Good Samaritan Initiative and the prospect of emulating the Trout Unlimited cleanup project in the American Fork River watershed in Utah. The Good Samaritan Initiative is based on EPA's administrative authority to issue an Administrative Order and Consent. This is intended to be used in enforcement actions for liable parties. The difference is we are not a liable party. We are interested and willing to help clean up the mine site, but we don't legally have to. Since the Administrative Order and Consent is an enforcement tool, it would take an inordinate amount of our staff time and resources to modify it to be used for voluntary work. The other concern we have is that throughout the negotiation process to draft the Administrative Order and Consent there is no public input. In our experience, projects that have no public input end up creating huge problems later on. When the public ultimately finds out about the project, we have to spend an inordinate amount of staff time and resources to change the project design based upon 6 subsequent public input. As a result, we will not sponsor a project development process without public input. We support legislation specifically tailored to agencies cleaning up mines on a voluntary basis. This would be much better than the current attempt to modify an existing enforcement tool to achieve the same purpose. Liability Issue Our liability exposure occurs in at least two ways. One is under the Clean Water Act. This would be similar to the situation the East Bay Municipal Utility District (EBMUD) found themselves in after working on improving the Penn Mine drainage. EBMUD worked with the.State's Regional Water Quality Control Board (RWQCB) in developing a remediation plan for the mine site. The remediation work, which was completed in 1978, reduced the pre-project copper discharge from an average of 64,000 pounds per year to an average of 13 pounds per year. An environmental group sued claiming that EBMUD should have taken out a National Pollutant Discharge Elimination System (NPDES) permit. The courts agreed and found that in performing the remediation work EBMUD should have obtained a NPDES permit, then followed the NPDES requirements to improve the discharge to current water quality standards. After the court case, EBMUD and the RWQCB worked on a follow-up remediation plan that brought the site back to pre-mining conditions at a cost of approximately $10,000,000. There is also liability exposure to the County under the Federal Comprehensive Environmental Response, Compensation.and Liability Act 7 (CERCLA). This law imposes liability for response costs upon owners and operators for the release of hazardous materials from a facility. Summary California's State Water Resources Control 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. The San Francisco Bay Regional Water Quality Control Board is currently developing a total maximum daily load (TMDL) for mercury in the Bay Area. The TMDL will provide a long range plan and goals for reducing mercury in the watersheds that drain into San Francisco Bay. With the Mt. Diablo mercury mine being one of the important sources of mercury into the bay, it will be imperative to remediate the mine tailings and prevent further discharge of mercury from the abandoned mine site. Contra Costa County and the Contra Costa County Flood Control and Water Conservation District have been interested in remediating the mercury mine in ourcounty for the last fifteen years. We are confident that we will be able to obtain the grant funding necessary to remediate the mercury mine. Every granting entity we have talked to is extremely excited about the prospects of the Flood Control District remediating the mercury mine. We are ready, willing and able to fix a source of pollution in our county once the issue of liability exposure is addressed. We strongly support the efforts of EPA and Congress to adopt legislation that would eliminate our liability exposure and 8 allow us to improve the water quality for the residents of Contra Costa County and downstream San Francisco Bay Area. 9 The Board of Supervisors Contra John Sweeten p ¢ Clerk of the Board ®Std and lu Counl)'AdnuSlTation Building Counh Administrator 65.1 Pine Street..Root 106 County (925)335-1900 Martinez. California 94553-4068 •1 John Gioia,District I N&AR.... Gayle B.Uilkema,District II Mary N.Piepho,District III Mark DeSauhtier,District IV" .' Federal D.Glover, District V ,�✓5 l ( K � k ,ie 20, 2006 C4, r Srgw NTS^' V Senator Barbara Boxer I k 9 112 Hart Senate Office Building Washington, DC 20510 Dear Senator Boxer:. Abandoned mines have a huge detrimental impact on i ,mss, rivers, and the San Francisco Bay. We support the efforts of Congress to i ,. aaministratively eliminate liability exposure for local government in remediating these aba-coned mines. The most prominent mine in Contra Costa County is the abandoned Mount Diablo Mercury Mine, located near the headwaters of Marsh Creek on the eastern slopes of Mount Diablo. The mine runoff has many negative environmental impacts on fish, wildlife and human health. Our Flood Control District owns a reservoir midway through the watershed that has extensive riparian, marsh and aquatic growth along the shoreline providing habitat for a variety of wildlife, including resident populations of fish. The reservoir has been fenced off for over 20 years and posted for no trespassing or fishing due to elevated levels of mercury in the flesh of the fish. The mine is a portion of a large 109 acre parcel that is bordered on three sides by Mount Diablo State Park. The current property owner purchased the property in 1974 as a bucolic site to raise their children and retire. The Regional Water Quality Control Board has issued the property owner a Cleanup and Abatement Order for the mine discharge, even though they did not create the problem. The owners do not have the resources to complete a full scale mine remediation project. As it is, they have spent over $300,000 of their retirement money in trying to address the Cleanup and Abatement Order. The Contra Costa County Flood Control District has been interested in helping to remediate the mine and improve water quality in the watershed for the last 15 years but have not been able to do so because of the substantial liability the District would assume if a project were built. As you are aware, Congress is currently reviewing legislation that would provide limited liability protection for local government, such as ourselves, who are interested in voluntarily assisting in the remediation of abandoned mines. In addition, we understand the Environmental Protection Agency (EPA) is developing a Good Samaritan Initiative, which attempts to provide liability protection for public agencies through an administrative order and consent process as.used in the Trout Unlimited cleanup in Utah. Our understanding of this current administrative process, however, is that it is very time consuming, complex and costly. In its current form this process is not a viable alternative for us. Senator Boxer June 20, 2006 Page 2 This administrative process may work well if it was changed so the agreement provisions were known in advance, .and the process streamlined. We appreciate your comments at the June 14, 2006 Senate Environment and Public Works Committee hearing expressing your willingness to work with us on an administrative solution to our issue. We are ready, willing and able to fix a source of pollution in our county and improve water quality for the San Francisco Bay Area. We support the efforts of the EPA and Congress to develop legislation or an effective, efficient and collaborative administrative process that will allow public agencies like ours to safely and responsibly remediate an abandoned mine without exposure to unlimited liability. Very,truly your , +Chair�, Board ia of Supervisors JG:MMS:RMA:iz G:\Admin\Mitch\bo\2006\Boxer support ltr.doc c: Congressional Delegation John Cullen,CAO Sara Hoffman,CAO Maurice Shiu,PW Dennis Barry,CDD Mitch Avalon,PW Greg Connaughton,PW John Kopchik,CDD The Board of Supervisors Contra John Sweeten Clerk of the Board and County Administration Building Costa County Administrator 651 Pine Street, Room 106 County (925)335-1900 Martinez,California 94553-4068 �...... .lohn Gioia,District I Gayle B.Uilkema,District II - Mary N.Piepho,District-if I, Mark DeSaulnier.District IV Federal D.Glover, District V June 20, 2006 Congressman Richard Pombo 2411 Rayburn, Hart Office Building Washington, DC 20515 Dear Congressman Pombo: Abandoned mines have a huge detrimental impact on the water quality of our creeks, rivers, and the San Francisco Bay. We support the efforts of Congress to legislatively or administratively eliminate liability exposure for local government in remediating these abandoned mines. The most prominent mine in Contra Costa County is the abandoned Mount Diablo Mercury Mine, located near the headwaters of Marsh Creek on the eastern slopes of Mount Diablo. The mine runoff has many negative environmental impacts on fish, wildlife and human health. Our Flood Control District owns a reservoir midway through the watershed that has extensive riparian, marsh and aquatic growth along the shoreline providing habitat for a variety of wildlife, including resident populations of fish. The reservoir has been fenced off for over 20 years and posted for no trespassing or fishing due to elevated levels of mercury in the flesh of the fish. The mine is a portion of a large 109 acre parcel that is bordered on three sides by Mount Diablo State Park. The current property owner purchased the property in 1974 as a bucolic site to raise their children and retire. The Regional Water Quality Control Board has issued the property owner a Cleanup and Abatement Order for the mine discharge, even though they did not create the problem. The owners do not have the resources to complete a full scale mine remediation project. As it is, they have spent over $300,000 of their retirement money in trying to address the Cleanup and Abatement Order. The Contra Costa County Flood Control District has been interested in helping to remediate the mine and improve water quality in the watershed for the last 15 years but have not been able to do so because of the substantial liability the District would assume if a project were built. Congress is currently reviewing legislation that would provide limited liability protection for local government, such as ourselves, who are interested in voluntarily assisting in the remediation of abandoned mines. In addition, we understand the Environmental Protection Agency (EPA) is developing a Good Samaritan Initiative, which attempts to provide liability protection for public agencies through an administrative order and consent process as used in the Trout Unlimited cleanup in Utah. Our understanding of this current administrative process, however, is that it is very time consuming, complex and costly. In its current form this process is not a viable alternative for us. This Congressman Pombo June 20, 2006 Page 2 administrative process may work well if it was changed so the agreement provisions were known in advance, and the process streamlined. We are ready, willing and able to fix a source of pollution in our county and improve water quality for the San Francisco Bay Area. We support the efforts of the EPA and Congress to develop legislation or an effective, efficient and collaborative administrative process that will allow public agencies like ours to safely and responsibly remediate an abandoned mine without exposure to unlimited liability. Very,,truly yours, John Gioia Chair, Board of Supervisors JG:MMS:RMA:lz G:\Admin\Mitch\bo\2006\Pombo support Itr.doc c: Congressional Delegation John Cullen,CAO Sara Hoffman,CAO Maurice Shiu,PW Dennis Barry,CDD Mitch Avalon,PW Greg Connaughton,PW John Kopchik,CDD The Board of Supervisors Contra John Sweeten Clerk of the Board County Administration BuildinC4Sta and g County Administrator 651 Pine Street, Room 106 County (9.25)335-1900 Martinez,California 94553-4068 John Gioia,District i § :o Gavle B.Uilkema,District II _ Mary Y.Piepho,District 111 •f _ -`�. Mark DeSsulnier,District IV Federal D.Glover, District V ° T'4 COLlt1' June 20,2006 Congressman George Miller 2205 Rayburn, House Office Building Washington, DC 20515 Dear Congressman Miller: Abandoned mines have a huge detrimental impact on the water quality of our creeks, rivers, and the San Francisco Bay. We support the efforts of Congress to legislatively or administratively eliminate liability exposure for local government in remediating these abandoned mines. The most prominent mine in Contra Costa County is the abandoned Mount Diablo Mercury Mine, located near the headwaters of Marsh Creek on the eastern slopes of Mount Diablo. The mine runoff has many negative environmental impacts on fish, wildlife and human health. Our Flood Control District owns a reservoir midway through the watershed that has extensive riparian, marsh and aquatic growth along the shoreline providing habitat for a variety of wildlife, including resident populations of fish. The reservoir has been fenced off for over 20 years and posted for no trespassing or fishing due to elevated levels of mercury in the flesh of the fish. The mine is a portion of a large 109 acre parcel that is bordered on three sides by Mount Diablo State Park. The current property owner purchased the property in 1974 as a bucolic site to raise their children and retire. The Regional Water Quality Control Board has issued the property owner a Cleanup and Abatement Order for the mine discharge, even though they did not create the problem. The owners do not have the resources to complete a full scale mine remediation project. As it is, they have spent over $300,000 of their retirement money in trying to address the Cleanup and Abatement Order. The Contra Costa County Flood Control District has been interested in helping to remediate the mine and improve water quality in the watershed for the last 15 years but have not been able to do so because of the substantial liability the District would assume if a project were built. Congress is currently reviewing legislation that would provide limited liability protection for local government, such as ourselves, who are interested in voluntarily assisting in the remediation of abandoned mines. In addition, we understand the Environmental Protection Agency (EPA) is developing a Good Samaritan Initiative, which attempts to provide liability protection for public agencies through an administrative order and consent process as used in the Trout Unlimited,cleanup in Utah. Our understanding of this current administrative process, however, is that it is very time consuming, complex and costly. In its current form this process is not a viable alternative for us. This Congressman Miller June 20, 2006 Page 2 administrative process may work well if it was changed so the agreement provisions were known in advance, and the process streamlined. We are ready, willing and able to fix a source of pollution in our county and improve water quality for the San Francisco Bay Area. We support the efforts of the EPA and Congress to develop legislation or an effective, efficient and collaborative administrative process that will allow public agencies like ours to safely and responsibly remediate an abandoned mine without exposure to unlimited liability. YVery ruly Very Yru" z ohn Gioia Chair, hair, Board of Supervisors JG:MMS:RMA;lz G:1Adrnin\Mitch\bo\20061Miller support ltr,doc c: Congressional Delegation John Cullen,CAO Sara Hoffman,CAO Maurice Shiu,PW Dennis Barry,CDD Mitch Avalon,PW Greg Connaughton,PW John Kopchik,CDD The Board of Supervisors Contra John Sweeten P Clerk of the Board Costaand County Administration Building County Administrator 651 Pine Street,Room 106 County (925)335-1900 Martinez,California 94553-4068 eE t John Gioia,District 1 =4 Gavle B.Uilkema,District 11 Mary N.Piepho,District III Mark DeSaulnier,District IV Federal D.Glover, District V x "i'ut°` - r'4 CODI1'� - June 20, 2006 Senator Dianne Feinstein Hart Office Building, Room 331 Washington, DC 20510 Dear Senator Feinstein: Abandoned mines have a huge detrimental impact on the water quality of our creeks, rivers, and the San Francisco Bay. We support the efforts of Congress to legislatively or administratively eliminate liability exposure for local government in remediating these abandoned mines. The most prominent mine in Contra Costa County is the abandoned Mount Diablo Mercury Mine, located near the headwaters of Marsh Creek on the eastern slopes of Mount Diablo. The mine runoff has many negative environmental impacts on fish, wildlife and human health. Our Flood Control District owns a reservoir midway through the watershed that has extensive riparian, marsh and aquatic growth along the.shoreline providing habitat for a variety of wildlife, including resident populations of fish. The reservoir has been fenced off for over 20 years and posted for no trespassing or fishing due to elevated levels of mercury in the flesh of the fish. The mine is a portion of a large 109 acre parcel that is bordered on three sides by Mount Diablo State Park. The current property owner purchased the property in 1974 as a bucolic site to raise their children and retire. The Regional Water Quality Control Board has issued the property owner a CIeanup and Abatement Order for the mine discharge, even though they did not create the problem. The owners do not have the resources to complete a full scale mine remediation project. As it is, they have spent over $300,000 of their retirement money in trying to address the Cleanup and Abatement Order. The Contra Costa County Flood Control District has been interested in helping to remediate the mine and improve water quality in the watershed for the last 15 years but have not been able to do so because of the substantial liability the District would.assume if a project were built. Congress is currently reviewing legislation that would provide limited liability protection for local government, such as ourselves, who are interested in voluntarily assisting in the remediation of abandoned mines. In addition, we understand the Environmental Protection Agency (EPA) is developing a Good Samaritan Initiative, which attempts to provide liability protection for public agencies through an administrative order and consent process as used in the Trout Unlimited cleanup in Utah. Our understanding of this current administrative process, however, is that it is very time consuming, complex and costly. In its current form this process is not a viable alternative for us. This Senator Feinstein June 20,2006 Page 2 administrative process may work well if it was changed so the agreement provisions were known in advance, and the process streamlined. We are ready, willing and able to fix a source of pollution in our county and improve water quality for the San Francisco Bay Area. We support the efforts of the EPA and Congress to develop legislation or an effective, efficient and collaborative administrative process that will allow public agencies like ours to safely and responsibly remediate an abandoned.mine without exposure to unlimited liability. Very truly yours, ohn Gioia Chair,Board of Supervisors JG:MMS:RMA:lz G:\Admin\Mitch\bo\2006\Feinstein support Itr.doc c: Congressional Delegation John Cullen,CAO Sara Hoffman,CAO Maurice Shiu,PW Dennis Barry,CDD Mitch Avalon,PW Greg Connaughton,PW John Kopchik,CDD The Board of Supervisors Contra John Sweeten / Clerk of the Board - Costa . and County Administration Building County Administrator 651 Pine Street, Room 106 County (925)335-1900 Martinez,California 94553-4068 �* John Gioia,District 1 dE '""...L.. Gavle B.Uilkema.District 11 Mary N.Piepho,District III Mark DeSaulnier,District IV Federal D.Glover, District V ° iduta dSTA CO .�. June 20, 2006 Congresswoman Ellen Tauscher 1034 Longworth, Hart Office Building Washington,DC 20515 Dear Congresswoman Tauscher: Abandoned mines have a huge detrimental impact on the water quality of our creeks, rivers, and the San Francisco Bay. We support the efforts of Congress to legislatively or administratively eliminate liability exposure for local government in remediating these abandoned mines. The most prominent mine in Contra Costa County is the abandoned Mount Diablo Mercury Mine, located near the headwaters of Marsh Creek on the eastern slopes of Mount Diablo. The mine runoff has many negative environmental impacts on fish, wildlife and human health. Our Flood Control District owns a reservoir midway through the watershed that has extensive riparian, marsh and aquatic growth along the shoreline providing habitat for a variety of wildlife, including resident populations of fish. The reservoir has been fenced off for over 20 years and posted for no trespassing or fishing due to elevated levels of mercury in the flesh of the fish. The mine is a portion of a large 109 acre parcel that is bordered on three sides by Mount Diablo State Park. The current property owner purchased the property in 1974 as a bucolic site to raise their children and retire. The Regional Water Quality Control Board has issued the property owner a Cleanup and Abatement Order for the mine discharge, even though they did not create the problem. The owners do not have the resources to complete a full scale mine remediation project. As it is, they have spent over $300,000 of their retirement money in trying to address the Cleanup and Abatement Order. The Contra Costa County Flood Control District has been interested in helping to remediate the mine and improve water quality in the watershed for the last 15 years but have not been able to do so because of the substantial liability the District would assume if a project were built. Congress is currently reviewing legislation that would provide limited liability protection for local government, such as ourselves, who are interested in voluntarily assisting in the remediation of abandoned mines. In addition, we understand the Environmental Protection Agency (EPA) is developing a Good Samaritan Initiative, which attempts to provide liability protection for public agencies through an administrative order and consent process as used in the Trout Unlimited cleanup in Utah. Our understanding of this current administrative process, however, is that it is very time consuming, complex and costly. In its current form this process is not a viable alternative for us. This Congresswoman Tauscher June 20, 2006 Page 2 administrative process may work well if it was changed so the agreement provisions were known in advance, and the process streamlined. We are ready, willing and able to fix a source of pollution in our county and improve water quality for the San Francisco Bay Area. We support the efforts of the EPA and Congress to develop legislation or an effective, efficient and collaborative administrative process that will allow public agencies like ours to safely and responsibly remediate an abandoned mine without exposure to unlimited liability. Ver truly yours, ohn Gioia Chair, Board of Supervisors JG:MMS:RMA:lz G:\Admin\Mitch\bo\2006\Tauscher support Itr.doc c: Congressional Delegation John Cullen,CAO Sara Hoffman,CAO Maurice Shiu,PW Dennis Barry,CDD Mitch Avalon,PW Greg Connaughton,PW John Kopchik,CDD TO: BOARD OF SUPERVISORS K. Contra FROM: PUBLIC WORKS DIRECTOR of �,;;�,u�, _ " � Costa n ,40 DATE: JUNE 20' 2006 _' CODi1� s = ~~ -� County _ Tq Q - � � SUBJECT: AMEND PRIOR BOARD OF SUPERVISORS ACTION ON JUNE 13,2006 REGARDING THE "GOOD SAMARITAN CLEAN WATERSHED ACT", TO SUPPORT BOTH FEDERAL LEGISLATIVE AND ADMINISTRATIVE EFFORTS TO ELIMINATE LIABILITY EXPOSURE FOR LOCAL GOVERNMENT IN REMEDIATING ABANDONED MINES (COUNTYWIDE) SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION RECOMMENDED ACTION: AMEND prior Board of Supervisors action on June 13,2006 regarding the"Good Samaritan Clean Watershed Act", to SUPPORT both federal legislative and administrative efforts to eliminate liability exposure for local government in remediating abandoned mines, and AUTHORIZE the Chair to execute the attached letter to Congress. CONTINUED ON ATTACI VAENT: 21 SIGNATURE: RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE APP OTHER SIGNATURE(S)S: ACTION OF BO ON APPROVED AS RECOMMENDED OTHER VOTE OF SUPERVISORS: I HEREBY CERTIFY THAT THIS IS A TRUE AND CORRECT COPY OF AN ACTION TAKEN AND ENTERED ON UNANIMOUS(ABSENT ) MINUTES OF THE BOARD OF SUPERVISORS ON THE AYES: NOES: DATE SHOWN. ABSENT: ABSTAIN: Contact: Mitch Avalon(313-2203) :\D lz COC :\DOCUME-1\jenea\LOCALS-1\Temp\c.lotus.notes.data\6-13-06 support fed leg ATTESTED °` good sam clean water act.doc JOHN CULLEN,CLERI OF THE BOARU OF SUPERVISORS cc: John Cullen,CAO Sara Hoffman,CAO Maurice Shiu,PW Dennis Barry,CDD BY: f h DEPUTY Mitch Avalon,PW Greg Connaughton,PW Steve Goetz,CDD John Kopchik,CDD SUBJECT: AMEND PRIOR BOARD OF SUPERVISORS ACTION ON JUNE 13,2006 REGARDING THE `GOOD SAMARITAN CLEAN WATERSHED ACT", TO SUPPORT BOTH FEDERAL LEGISLATIVE AND ADMINISTRATIVE EFFORTS TO ELIMINATE LIABILITY EXPOSURE FOR LOCAL GOVERNMENT IN REMEDIATING ABANDONED MINES (COUNTYWIDE) DATE: JUNE 20, 2006 PAGE: 2 of 3 FISCAL IMPACT: Congress and the Environmental Protection Agency(EPA)are working on legislative and administrative initiatives that would reduce the liability exposure for the Flood Control District or the County in remediating abandoned mines that leach pollutants into the watersheds of the County. In the very near future,the Flood Control District and County will likely be required to eliminate these pollutants from the watershed through our National Pollutant Discharge Elimination System(NPDES)permit. This legislation will ultimately save the County and the District the cost of liability claims when the work is required to be done. REASONS FOR RECOMMENDATIONS AND BACKGROUND: Current legislative and administrative efforts by Congress and EPA to eliminate liability exposure would help the Flood Control District to remediate the Mt. Diablo Mercury Mine and improve water quality in the Marsh Creek Watershed. 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. The Flood Control District has been interested for over a decade in assisting in the remediation of the abandoned mine,which is located on private property next to Mt. Diablo State Park. The mine was operational,on and off,from 1875 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 Board to clean up the mine site,even though they did not create the problem and don't have the resources to do the work. 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 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 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 is an attempt to address the liability concerns tied to CERCLA and the Clean Water Act through an administrative process. Congress is also reviewing legislation that is intended to address these same concerns. The Board supports these efforts that would ultimately allow us to voluntarily improve abandoned mine sites with EPA oversight and reasonable requirements without liability. Contra Costa County was requested to testify before the Senate Environment and Public Works Committee and discuss our experiences with the liability barriers for a local government agency to voluntarily assist in cleaning up SUBJECT: AMEND PRIOR BOARD OF SUPERVISORS ACTION ON JUNE 13,2006 REGARDING THE "GOOD SAMARITAN CLEAN WATERSHED ACT", TO SUPPORT BOTH FEDERAL LEGISLATIVE AND ADMINISTRATIVE EFFORTS TO ELIMINATE LIABILITY EXPOSURE FOR LOCAL GOVERNMENT IN REMEDIATING ABANDONED MINES (COUNTYWIDE) DATE: JUNE 20,2005 PAGE: 3 of 3 an abandoned mine. Supervisor Gioia provided testimony on this subject last week. Attached is the written testimony submitted to the Senate Committee. CONSEQUENCES OF NEGATIVE ACTION The Boards position on current legislative and administrative efforts to allow voluntary clean up of abandoned mines would not be forwarded to Congress. June 20, 2006 Congressman George Miller 2205 Rayburn House Office Building Washington, DC 20515 Dear Congressman Miller: Abandoned mines have a huge detrimental impact on the water quality of our creeks,rivers, and the San Francisco Bay. We support the efforts of Congress to legislatively or administratively eliminate liability exposure for local government in remediating these abandoned mines. The most prominent mine in Contra Costa County is the abandoned Mount Diablo Mercury Mine, located near the headwaters of Marsh Creek on the eastern slopes of Mount Diablo. The mine runoff has many negative environmental impacts on fish, wildlife and human health. Our Flood Control District owns a reservoir midway through the watershed that has extensive riparian, marsh and aquatic growth along the shoreline providing habitat for a variety of wildlife,including resident populations of fish. The reservoir has been fenced off for over 20 years and posted for no trespassing or fishing due to elevated levels of mercury in the flesh of the fish. The mine is a portion of a large 109 acre parcel that is bordered on three sides by Mount Diablo State Park. The current property owner purchased the property in 1974 as a bucolic site to raise their children and retire. The Regional Water Quality Control Board has issued the property owner a Cleanup and Abatement Order for the mine discharge,even though they did not create the problem. The owners do not have the resources to complete a full scale mine remediationproject. As it is,they have spent over$300,000 of their retirement money in trying to address the Cleanup and Abatement Order. The Contra Costa County Flood Control District has been interested in helping to remediate the mine and improve water quality in the watershed for the last 15 years but have not been able to do so because of the substantial liability the District would assume if a project were built. Senator June 20, 2006 Page 2 Congress is currently reviewing legislation that would provide limited liability protection for local government,,such as ourselves, who are interested in voluntarily assisting in the remediation of abandoned mines. In addition,we understand the Environmental Protection Agency(EPA)is developing a Good Samaritan Initiative,which attempts to provide liability protection for public agencies through an administrative order and consent process. Our understanding of this current administrative process, however, is that it is very time consuming and lengthy. In its current form this process is not a viable alternative for us. This administrative process may work well if it was changed so the agreement provisions were known in advance and the process streamlined. We are ready,willing and able to fix a source of pollution in our county and improve water quality for the San Francisco Bay Area. We support the efforts of the EPA and Congress to develop legislation or an effective,efficient and collaborative administrative process that will allow public agencies like ours to remediate an abandoned mine without exposure to unlimited liability. Very truly yours, John Gioia Chair, Board of Supervisors JG:MMS:RMA:lz G:\Admin\Mitch\bo\2006\6-13-06 support mercury mine legislation ltr.doc c: Congressional Delegation John Cullen,CAO Sara Hoffman,CAO Maurice Shin,PW Dennis Barry,CDD Mitch Avalon,PW Greg Connaughton,PW John Kopchik,CDD sE9 t b a CQU G TESTIMONY OF JOHN GIOIA CHAIR OF THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY AND CONTRA COSTA COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT BEFORE THE SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE REGARDING LIABILITY BARRIERS TO CLEANING UP ABANDONED MINES June 14, 2006 651 Pine Street,Martinez,California 94553 255 Glacier Drive,Martinez,California 94553 Mr.-Chairman, and members of the Committee, thank you for the opportunity to appear before you today to discuss an issue of great importance for the,water-quality of our County, the State of California, and other States of the Union - the cleanup of abandoned or inactive mines. I appear before you as Chair of the Board of Supervisors of Contra Costa County and the Contra Costa County Flood Control and Water Conservation District. I am pleased to provide you with our experiences and recommendations related to abandoned mine cleanups and the liability associated with a county agency involved in the clean up work. I would like to describe to the.Committee an example of a project in Contra Costa County that would greatly benefit water quality in the region, yet has not been able to be completed due to the lack. of"Good Samaritan" legislation. Background Contra Costa County is located in the San Francisco Bay Area of California. The west portion of the County fronts on the Bay, while the northern portion fronts along the Sacramento River, and the east portion drains into the Sacramento-San Joaquin Delta. Mount Diablo, the most prominent and tallest mountain in the area, presides in the center of the County. Marsh Creek drains from its headwaters at the top of Mt. Diablo to the west towards the Delta and discharges into the Sacramento River. An abandoned mercury mine is located in the upper slopesof Mt. Diablo, near the headwaters of Marsh Creek. Rain water washing over the mine tailings transports mercury down into Marsh Creek and ultimately out into the San 2 Francisco Bay. Marsh Creek also flows through the communities of Brentwood and Oakley with a total population of 60,000 residents. In the early 1960's, our Flood Control District built flood protection improvements in the Marsh Creek watershed, channelizing the downstream reaches of Marsh Creek through the flat alluvial area near the City's of Brentwood and Oakley. In 1963 the Flood Control District built a dam across Marsh Creek approximately five miles upstream of the City of Brentwood for flood control purposes. The resulting Marsh Creek Reservoir impounds water year round, and has extensive riparian, marsh and aquatic growth along the shoreline, providing habitat for a variety of wild life including resident populations of fish. The Flood Control District owns the Marsh Creek Reservoir and most of the downstream channel. Health Issue In 1980 the California Department of Fish and Game analyzed fish from the reservoir and found mercury levels in the fish flesh were above existing health standards. The reservoir has since been fenced off and noticed for no trespassing or fishing due to the mercury contamination. Mercury is a health problem in the San Francisco Bay Area and advisory notices are pasted for adults to not eat fish from the Bay more than twice every month (only once a month for children and pregnant women) due to elevated levels of mercury in the flesh of the fish. 3 The Mercury Mine Mercury was first mined in this area in 1875 and continued on and off until 1971. In 1974, the current property owner purchased the abandoned mine and surrounding property. The property totaled 109 acres and is bordered on three sides by Mount Diablo State Park. The current owners were not looking to develop the property, but looked at the property as a beautiful spot to raise their children and retire. The owner and his wife intended to build their retirement home on the property, they had no plans nor any desire to mine the property, or contract with others to mine the property. The State's Regional Water Quality Control Board (RWQCB) first issued waste discharge requirements (WDR) to prior mine operators.in 1952 and recommended corrective action be taken. Although waste discharge requirements were issued to the mine operators, contaminated discharges continued after the mine was abandoned. In 1978 the RWQCB issued the property owner a Cleanup and Abatement Order because of mercury discharging from the mine site, even though the property owner was not a mining operator and did not create the problem. In response, the property owner has taken efforts to clean up the property as best he can; but does not have the resources to complete a full scale'mine remediation project. The property owner recently said, "So far we have spent over $300,000 of our retirement money, in 1975 dollars, and the "well" is nearly dry." 4 Attempted Remediation In 1995 Contra Costa County contracted with a team from the University of California-at Davis, lead by Dr. Darryl G. Slotten, to study and provide an assessment of mercury in the Marsh Creek watershed. The study showed that approximately 90% of the mercury in the watershed originates from the piles of tailings at the abandoned mercury mine. Based on the study, Contra Costa County applied for a Calfed grant in 1997 to remediate the mercury mine and reduce the mercury transported from the mine to the downstream watershed and into the Bay/Delta system. Our County Counsel and Risk Manager reviewed the grant in light of the lawsuit that the East Bay Municipal Utility District was facing with the remediation work they had done at the Perin Mine site and concluded that our county would be exposed to liability if the project was built. As a result, we withdrew the grant. Our sentiment was summed up in a staff memo that said, "It is sad that we can't try to help this problem, but we cannot risk getting into a situation that costs the County $5 million dollars plus huge attorney bills like it did the East Bay Municipal Utility District". The Flood Control District is still interested in remediating the mine and we are confident we can get the grant funds to do so. The local watershed council in the Marsh Creek watershed is a stakeholder group that includes several local environmental groups and is very supportive of our efforts to remediate the mine. The property owner is also very supportive of our efforts. The barrier to us implementing the project is liability. 5 Good Samaritan Initiative Understanding that liability exposure was the fundamental issue preventing us from participating in remediating the mine, Contra Costa County partnered with the Natural Heritage Institute and the cities of Oakley and Brentwood for a grant in 2000 that sought to solve the liability problem. This grant application was unsuccessful. Still interested in pursuing the remediation of the mercury mine, last year we partnered with Sustainable Conservation, a non-profit organization with experience in the arena of liability exposure with environmental projects. This has lead to discussions with EPA on their Good Samaritan Initiative and the prospect of emulating the Trout Unlimited cleanup project in the American Fork River watershed in.Utah. The Good Samaritan Initiative is based on EPA's administrative authority to issue an Administrative Order and Consent. This is intended to be used in enforcement actions for liable parties. The difference is we are not a liable party. We are interested and willing to help clean up the mine site, but we don't legally have to. Since the Administrative Order and Consent is an enforcement tool, it would take an inordinate amount of our staff time and resources to modify it to be used for voluntary work. The other concern we have is that throughout the negotiation process to draft the Administrative Order and Consent there is no public input. In our experience, projects that have no public input end up creating huge problems later,on. When the public ultimately finds out about the project, we have to spend an inordinate amount of staff time and resources to change the project design based upon 6 subsequent public input As a result, we will not sponsor a project development process without public input. We support legislation specifically tailored to agencies cleaning up mines on a voluntary basis. This would be much better than the current attempt to modify an existing enforcement tool to achieve the same purpose. Liability Issue Our liability exposure occurs in at least two ways. One is under the Clean Water Act. This would be similar to the situation the East Bay Municipal Utility District (EBMUD) found themselves in after working on improving the Penn Mine drainage. EBMUD worked with the State's Regional Water Quality Control Board (RWQCB) in developing a remediation plan for the mine site. The remediation work, which was completed in 1978, reduced the pre-project copper discharge from an average of 64,000 pounds per year to an average of 1.3 pounds per year. An environmental group sued claiming that EBMUD should have taken out a National Pollutant Discharge Elimination System (NPDES) permit. The courts agreed and found that in performing the remediation work EBMUD should have obtained a NPDES permit, then followed the NPDES requirements to improve the discharge to current water quality standards. After the court case, EBMUD and the RWQCB worked on a follow-up remediation plan that brought the site back to pre-mining conditions at a cost of approximately $10,000,000. There is also liability exposure to the County under the Federal Comprehensive Environmental Response, Compensation and Liability Act 7 (CERCLA). This law imposes liability for response costs upon owners and operators for the release of hazardous materials from a facility. Summary California's State Water Resources Control 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. The San Francisco Bay Regional Water Quality Control Board is currently developing a total maximum daily load (TMDL) for mercury in the Bay Area. The TMDL will provide.a long range plan and goals for reducing mercury in the watersheds that drain into San Francisco Bay. With the Mt. Diablo mercury mine being one of the important sources of mercury into the bay, it will be imperative to remediate the mine tailings and prevent further discharge of mercury from the abandoned mine site. Contra Costa County and the Contra Costa County Flood Control and Water Conservation District have been interested in remediating the mercury mine in our county for the last fifteen years. We are confident that we will be able to obtain the grant funding necessary to remediate the mercury mine. Every granting entity we have talked to is extremely excited about the prospects of the Flood Control District remediating the mercury mine. We are ready, willing and able to fix a source of pollution in our county once the issue of liability exposure is addressed. We strongly support the efforts of EFA and Congress to adopt legislation that would eliminate our liability exposure and 8 allow us to improve the water quality for the residents of Contra Costa County and downstream San Francisco Bay Area. 9 The Board of Supervisors Contra John Sweeten Clerk of the Board Costa and County Administration Building County:administrator 6151 Pine Street.Room 106 County (925)335-1900 Martinez.California 94553-4068 John Gioia.District I _ Gayle B.UBkema,District II AMary N.Piepho,District III Mark DeSaulnier,District IN I Federal D.Glover, District� t ! K ,ie 20, 2006 1 CA" V Senator Barbara Boxer q 112 Hart Senate Office Building I Washington, DC 20510 Dear Senator Boxer: t Abandoned mines have a huge detrimental impact on i J� _.,.,..s, rivers, and the San Francisco Bay. We support the efforts of Congress to i , ,,. aaministratively eliminate liability exposure for local government in remediating these aba-,coned mines. The most prominent mine in Contra Costa County is the abandoned Mount Diablo Mercury Mine, located near the headwaters of Marsh Creek on the eastern slopes of Mount Diablo. The mine runoff has many negative environmental impacts on fish, wildlife and human health. Our Flood Control District owns a reservoir midway through the watershed that has extensive riparian, marsh and aquatic growth along the shoreline providing habitat for a variety of wildlife, including resident populations of fish. The reservoir has been fenced off for over 20 years and posted for no trespassing or fishing due to elevated levels of mercury in the flesh of the fish. The mine is a portion of a large 109 acre parcel that is bordered on three sides by Mount Diablo State Park. The current property owner purchased the property in 1974 as a bucolic site to raise their children and retire. The Regional Water Quality Control Board has issued the property owner a Cleanup and Abatement Order for the mine discharge, even though they did not create the problem. The owners do not have the resources to complete a full scale mine remediation project. As it is, they have spent over $300,000 of their retirement money in trying to address the Cleanup and Abatement Order. The Contra Costa County Flood Control District has been interested in helping to remediate the mine and improve water quality in the watershed for the last 15 years,but have not been able to do so because of the substantial liability the District would assume if a project were built. As you are aware, Congress is currently reviewing legislation that would provide limited liability protection for local government, such as ourselves, who are interested in voluntarily assisting in the remediation of abandoned mines. In addition, we understand the Environmental Protection Agency (EPA) is developing a Good Samaritan Initiative, which attempts to provide liability protection for public agencies through an administrative order and consent process as used in the Trout Unlimited cleanup in Utah. Our understanding of this current administrative process, however, is that it is very time consuming, complex and costly. In its current form this process is not a viable alternative for us. Senator Boxer June 20, 2006 Page 2 This administrative process may work well if it was-changed so the agreement provisions were known in advance, and the process streamlined. We appreciate your comments at the June 14, 2006 Senate Environment and Public Works Committeehearing expressing your willingness to work with us on an administrative solution to our issue. We are ready, willing and able to fix a source of pollution in our county and improve water quality for the San Francisco Bay Area. We support the efforts of the EPA and Congress to develop legislation or an effective, efficient and collaborative administrative process that will allow public agencies like ours to safely and responsibly remediate an abandoned mine without exposure to unlimited liability. Very,truly your , +Chair�, Board ia of Supervisors JG:MMS:RMA:lz G:\Admin\Mitch\bo\2006\Boxer support ltr.doc c: Congressional Delegation John Cullen,CAO Sara Hoffman,CAO Maurice Shin,PW Dennis Barry,CDD Mitch Avalon.PW Greg Connaughton,PW John Kopchik,CDD The Board of Supervisors Contra John Sweeten Clerk of the Board Costa and _ County Administration Building County Administrator 651 Pine Street, Room 106 Count (925)33 -1900 County Martinez,California 94553-4068 `J John Gioia,District 1 Gayle B.Uilkema,District 11 Mary N.Piepho,District III Mark DeSaulnier,District IV c• Federal D.Glover. District V %y CO � June 20, 2006 Congressman Richard Pombo 2411 Rayburn, Hart Office Building Washington, DC 20515 Dear Congressman Pombo: Abandoned mines have a huge detrimental impact on the water quality of our creeks, rivers, and the San Francisco Bay. We support the efforts of Congress to legislatively or administratively eliminate liability exposure for local government in remediating these abandoned mines. The most prominent mine in Contra Costa County is the abandoned Mount Diablo Mercury Mine, located near the headwaters of Marsh Creek on the eastern slopes of Mount Diablo. The mine runoff has many negative environmental impacts on fish, wildlife and human health. Our Flood Control District owns a reservoir midway through the watershed that has extensive riparian, marsh and aquatic growth along the shoreline providing habitat for a variety of wildlife, including resident populations of fish. The reservoir has been fenced off for over 20 years and posted for no trespassing or fishing due to elevated levels of mercury in the flesh of the fish. The mine is a portion of a large 109 acre parcel that is bordered on three sides by Mount Diablo State Park. The current property owner purchased the property in 1974 as a bucolic site to raise their children and retire. The Regional Water Quality Control Board has issued the property owner a Cleanup and Abatement Order for the mine discharge, even though they did not create the problem. The owners do not have the resources to complete a full scale mine remediation project. As it is, they have spent over $300,000 of their retirement money in trying to address the Cleanup and Abatement Order. The Contra Costa County Flood Control District has been interested in helping to remediate the mine and improve water quality in the watershed for the last 15 years but have not been able to do so because of the substantial liability the District would assume if a project were built. Congress is currently reviewing legislation that would provide limited liability protection for local government, such as ourselves, who are interested in voluntarily assisting in the remediation of abandoned mines. In addition, we understand the Environmental Protection Agency (EPA) is developing a Good Samaritan Initiative, which attempts to provide liability protection for public agencies through an administrative order and consent process as used in the Trout Unlimited cleanup in Utah. Our understanding of this current administrative process, however, is that it is very time consuming, complex and costly. In its current form this process is not a viable alternative for us. This r Congressman Pombo June 20, 2006 Page 2 administrative process may work well if it was changed so the agreement provisions were known in advance, and the process streamlined. We are ready, willing and able to fix a source of pollution in our county and improve water quality for the San Francisco Bay Area. We support the efforts of the EPA and Congress to develop legislation or an effective, efficient and collaborative administrative process that will allow public agencies like ours to safely and responsibly remediate an abandoned mine without exposure to unlimited liability. Very,truly yours, John Gioia Chair, Board of Supervisors JG:MMS:RMA:lz G:\Admin\Mitch\bo\2006\Pombo support Itr.doc c: Congressional Delegation John Cullen,CAO Sara Hoffman,CAO Maurice Shiu,PW Dennis Barry,CDD Mitch Avalon,PW Greg Connaughton,PW John Kopchik,CDD The Board of Supervisors Contra John Sweeten _ .. Clerk of the Qoard County Administration BuildinCosta osta and g County Administrator 651 Pine Street, Room 106 County (925)335-1900 Martinez,California 94553-4068 John Gioia,District 1 s$--- ----- p Gavle B.Uilkema,District 11 i Man'N.Piepho,District III Mark DeSaulnier,District 1V ,S Federal D.Glover, District V 01. NA fpSr't COUN'� June 20,2006 Congressman George Miller 2205 Rayburn, House Office Building Washington, DC 20515 Dear Congressman Miller: Abandoned mines have a huge detrimental impact on the water quality of our creeks, rivers, and the San Francisco Bay. We support the efforts of Congress to legislatively or administratively eliminate liability exposure for local government in remediating these abandoned mines. The most prominent mine in Contra Costa County is the abandoned Mount Diablo Mercury Mine, located near the headwaters of Marsh Creek on the eastern slopes of Mount Diablo. The mine runoff has many negative environmental impacts on fish, wildlife and human health. Our Flood Control District owns a reservoir midway through the watershed that has extensive riparian, marsh and aquatic growth along the shoreline providing habitat for a variety of wildlife, including resident populations of fish. The reservoir has been fenced off for over 20 years and posted for no trespassing or fishing due to elevated levels of mercury in the flesh of the fish. The mine is a portion of a large 109 acre parcel that is bordered on three sides by Mount Diablo State Park. The current property owner purchased the property in 1974 as a bucolic site to raise their children and retire. The Regional Water Quality Control Board has issued the property owner a Cleanup and Abatement Order for the mine discharge, even though they did not create the problem. The owners do not have the resources to complete a full scale mine remediation project. As it is, they have spent over. $300,000 of their retirement money in trying to address the Cleanup and Abatement Order. The Contra Costa County Flood Control District has been interested in helping to remediate the mine and improve water quality in the watershed for the last 15 years but have not been able to do so because of the substantial liability the District would assume if a project were built. Congress is currently reviewing legislation that would provide limited liability protection for local government, such as ourselves, who are interested in voluntarily assisting in the remediation of abandoned mines. In addition, we understand the Environmental Protection Agency (EPA) is developing a Good Samaritan Initiative, which attempts to provide liability protection for public agencies through an administrative order and consent process as used in the Trout Unlimited cleanup in Utah. Our understanding of this current administrative process, however, is that it is very time consuming, complex and costly. In its current form this process is not a viable alternative for us. This Congressman Miller June 20, 2006 Page 2 administrative process may work well if it was changed so the agreement provisions were known in advance, and the process streamlined. We are ready, willing and able to fix a source of pollution in our county and improve water quality for the San Francisco Bay Area. We support the efforts of the EPA and Congress to develop legislation or an effective, efficient and collaborative administrative process that will allow public agencies like ours to safely and responsibly remediate an abandoned mine without exposure to unlimited liability. Very ruly ohn Gioia Chair, Board of Supervisors JG:MMS:RMA:lz G:\Admin\Mitch\bo\2006\Miller support ltr.doc c: Congressional Delegation John Cullen,CAO Sara Hoffman,CAO Maurice Shiu,PW Dennis Barry,CDD Mitch Avalon,PW Greg Connaughton,PW John Kopchik,CDD The Board of Supervisors Contra John sweeten Clerk of the Board -, ": .,.._..... __ . - County Administration Building l..ostsa. and County Administrator 651 Pine Street, Room 106 County (925)335-1900 Martinez,California 94553-4068 John Gioia,District I -s-- --- Gayle - Gayle B.tlilketna,District If r' Mary N.Piepho,District III Mark De5aulnier,District IV Federal D.Glover, District V srA•ca"urz`t,t June 20, 2006 Senator Dianne Feinstein Hart Office Building, Room 331 Washington, DC 20510 Dear Senator Feinstein: Abandoned mines have a huge detrimental impact on the water quality of our creeks, rivers, and the San Francisco Bay., We support the efforts of Congress to legislatively or administratively eliminate liability exposure for local government in remediating these abandoned mines. The most prominent mine in Contra Costa County is the abandoned Mount Diablo Mercury Mine, located near the headwaters of Marsh Creek on the eastern slopes of Mount Diablo. The mine runoff has many negative environmental impacts on fish, wildlife and human health. Our Flood Control District owns a reservoir midway through the watershed that has extensive riparian, marsh and aquatic growth along the shoreline providing habitat for a variety of wildlife, including resident populations of fish. The reservoir has been fenced off for over 20 years and posted for no trespassing or fishing due to elevated levels of mercury in the flesh of the fish. The mine is a portion of a large 109 acre parcel that is bordered on three sides by Mount Diablo State Park. The current property owner purchased the property in 1974 as a bucolic site to raise their children and retire. The Regional Water Quality Control Board has issued the property owner a Cleanup and Abatement Order for the mine discharge, even though they did not create the problem. The owners do not have the resources to complete a full scale mine remediation project. As it is, they have spent over $300,000 of their retirement money in trying to address the Cleanup and Abatement Order. The Contra Costa County Flood Control District has been interested in helping to remediate the mine and improve water quality in the watershed for the last 15 years but have not been able to do so because of the substantial liability the District would assume if a project were built. Congress is currently reviewing legislation that would provide limited liability protection for local government, such as ourselves, who are interested in voluntarily assisting in the remediation of abandoned mines. In addition, we understand the Environmental Protection Agency (EPA) is developing a Good Samaritan Initiative, which attempts to provide liability protection for public agencies through an administrative order and consent process as used in the Trout Unlimited cleanup in Utah. Our understanding of this current administrative process, however, is that it is very time consuming, complex and costly. In its current form this process is not a viable alternative for us. This Senator Feinstein June 20, 2006 Page 2 administrative process may work well if it was changed so the agreement provisions were known in advance, and the process streamlined. We are ready, willing and able to fix a source of pollution in our county and improve water quality for the San Francisco Bay Area. We support the efforts of the EPA and Congress to develop legislation or an effective, efficient and collaborative administrative process that will allow public agencies like ours to safely and responsibly remediate an abandoned mine without exposure to unlimited liability. Very truly yours, Vj,nA n Gioia ir, Board of Supervisors JG:MMS:RMA:lz G:\Admin\Mitch\bo\2006\Feinstein support Itr.doc c: Congressional Delegation John Cullen,CAO Sara Hoffman,CAO Maurice Shiu,PW Dennis Barry,CDD Mitch Avalon,PW Greg Connaughton,PW John Kopchik,CDD The Board-of Supervisors Contra John Sweeten Clerk of the Board Costa -and - County Administration Building County Administrator 651 Pine Street, Room 106 County (925)335-1900 Martinez,California 94553-4068 �J sE t John Gioia,District 1 Gayle B.Uilkema,District 11 Mary N.Piepho,District III Mark DeSaulnier,District IV n �� Federal D.Glover, District V oosrAcovx't't � June 20, 2006 Congresswoman Ellen Tauscher 1034 Longworth, Hart Office Building Washington, DC 20515 Dear Congresswoman Tauscher: Abandoned mines have a huge detrimental impact on the water quality of our creeks, rivers, and the San Francisco Bay. We support the efforts of Congress to legislatively or administratively eliminate liability exposure for local government in remediating these abandoned mines. The most prominent mine in Contra Costa County is the abandoned Mount Diablo Mercury Mine, located near the headwaters of Marsh Creek on the eastern slopes of Mount Diablo. The mine runoff has many negative environmental impacts on fish, wildlife and human health. Our Flood Control. District owns a reservoir midway through the watershed that has extensive riparian, marsh and aquatic growth along the shoreline providing habitat for a variety of wildlife, including resident populations of fish. The reservoir has been fenced off for over 20 years and posted for no trespassing or fishing due to elevated levels of mercury in the flesh of the fish. The mine is a portion of a large 109 acre parcel that is bordered on three sides by Mount Diablo State Park. The current property owner purchased the property in 1974 as a bucolic site to raise their children and retire. The Regional Water Quality Control Board has issued the property owner a Cleanup and Abatement Order for the mine discharge, even though they did not create the problem. The owners do not have the resources to complete a full scale mine remediation project. As it is, they have spent over $300,000 of their retirement money in trying to address the Cleanup and Abatement Order. The Contra Costa County Flood Control District has been interested in helping to remediate the mine and improve water quality in the watershed for the last 15 years but have not been able to do so because of the substantial liability the District would assume if a project were built. Congress is currently reviewing legislation that would provide limited liability protection for local government, such as ourselves, who are interested in voluntarily assisting in the remediation of abandoned mines. In addition, we understand the Environmental Protection Agency (EPA) is developing a Good Samaritan Initiative, which attempts to provide liability protection for public agencies through an administrative order and consent process as used in the Trout Unlimited cleanup in Utah. Our understanding of this current administrative process, however, is that it is very time consuming, complex and costly. In its current form this process is not a viable alternative for us. This Congresswoman Tauscher June 20, 2006 Page 2 administrative process may work well if it was changed so the agreement provisions were known in advance, and the process streamlined. We are ready, willing and able to fix a source of pollution in our county and improve water quality for the San Francisco Bay Area. We support the efforts of the EPA and Congress to develop legislation or an effective, efficient and collaborative administrative process that will allow public agencies like ours to safely and responsibly remediate an abandoned mine without exposure to unlimited liability. Ver truly yours, ohn Gioia Chair, Board of Supervisors JG:MMS:RMA:Iz G:\Admin\Mitch\bo\2006\Tauscher support Itr.doc c: Congressional Delegation John Cullen,CAO Sara Hoffman,CAO Maurice Shiu,PW Dennis Barry,CDD Mitch Avalon,PW Greg Connaughton,PW John Kopchik,CDD sE TO: BOARD OF SUPERVISORS Contra-- ����• FROM: PUBLIC WORKS DIRECTOR Cost a c 'tiiitN" DATE: JUNE 20, 2006 County, rA covK`r't rt SUBJECT: AMEND PRIOR BOARD OF SUPERVISORS ACTION ON,TUNE 13,2006 REGARDING THE "GOOD SAMARITAN CLEAN WATERSHED ACT", TO SUPPORT BOTH FEDERAL LEGISLATIVE AND ADMINISTRATIVE EFFORTS TO ELIMINATE LIABILITY EXPOSURE FOR LOCAL GOVERNMENT IN REMEDIATING ABANDONED MINES (COUNTYWIDE) SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION RECOMMENDED ACTION: AMEND prior Board of Supervisors action on June 13,2006 regarding the"Goad Samaritan.Clean Watershed Act", to SUPPORT both federal legislative and administrative efforts to eliminate liability exposure for local government in remediating abandoned mines, and AUTHORIZE the Chair to execute the attached letter to Congress. CONTINUED ON ATTACHMENT: © SIGNATURE: RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE APP4014 OTHER SIGNATURES ACTION OF BO ONS APPROVED AS RECOMMENDED OTHER VOTE OF SUPERVISORS: I HEREBY CERTIFY THAT THIS IS A TRUE AND CORRECT COPY OF AN ACTION TAKEN AND ENTERED ON UNANIMOUS(ABSENT _ ) MINUTES OF THE BOARD OF SUPERVISORS ON THE AYES: NOES: DATE SHOWN. ABSENT: ABSTAIN: Contact: Mitch Avalon(313-2203) RMA:Iz r' C:\DOCUME-1\jenealLOCALS-11Templc.lotus.notes.datal6-13-06 support fed leg ATTESTED good sam clean water act.doc JOHN CULLEN,CLE OF THE BO OF SUPERVISORS cc: John Cullen,CAO Sara Hoffman,CAO Maurice Shiu,PW Dennis Barry,CDD BY: DEPUTY Mitch Avalon,PW Greg Connaughton,PW Steve Goetz,CDD John Kopchik,CDD SUBJECT: AMEND PRIOR BOARD OF SUPERVISORS ACTION ON.TUNE 13,2006 REGARDING THE "GOOD SAMARITAN CLEAN WATERSHED ACT", TO SUPPORT BOTH FEDERAL LEGISLATIVE AND ADMINISTRATIVE EFFORTS TO ELIMINATE LIABILITY EXPOSURE FOR LOCAL GOVERNMENT IN REMEDIATING ABANDONED MINES(COUNTYWIDE) DATE: JUNE 20, 2006 PAGE: 2 of 3 FISCAL,IMPACT: Congress and the Environmental Protection Agency(EPA)are working on legislative and administrative initiatives that would reduce the liability exposure for the Flood Control District or the County in remediating abandoned mines that leach pollutants into the watersheds of the County. In the very near future,,the Flood Control District and County will likely be required to eliminate these pollutants from the watershed through our National Pollutant Discharge Elimination System(NPDES)permit. This legislation will ultimately save the County and the District the cost of liability claims when the work is required to be done. REASONS FOR RECOMMENDATIONS AND BACKGROUND: Current legislative and administrative efforts by Congress and EPA to eliminate liability exposure would help the Flood Control District to remediate the Mt. Diablo Mercury Mine and improve water quality in the Marsh Creek Watershed. 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. The Flood Control District has been interested for over a decade in assisting in the remediation of the abandoned mine, which is located on private property next to Mt. Diablo State Park. The mine was operational,on and off,from 1875 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 Board to clean up the mine site,even though they did not create the problem and don't have the resources to do the work. 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(4)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 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 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 is an attempt to address the liability concerns tied to CERCLA and the Clean Water Act through an administrative process. Congress is also reviewing legislation that is intended to address these same concerns. The Board supports these efforts that would ultimately allow us to voluntarily improve abandoned mine sites with EPA oversight and reasonable requirements without liability. Contra Costa County was requested to testify before the Senate Environment and Public Works Committee and discuss our experiences with the liability barriers fora local government agency to voluntarily assist in cleaning up SUBJECT: AMEND PRIOR BOARD OF SUPERVISORS ACTION ON JUNE 13, 006 REGARDING THE "GOOD SAMARITAN CLEAN WATERSHED ACT", 'TO SUPPORT BOTH FEDERAL LEGISLATIVE AND ADMINISTRATIVE EFFORTS TO ELIMINATE LIABILITY EXPOSURE FOR LOCAL GOVERNMENT IN REMEDIATING ABANDONED MINES(COUNTYWIDE) DATE: JUNE 20, 2006 PAGE: 3 of 3 an abandoned mine. Supervisor Gioia provided testimony on this subject last week. Attached is the written testimony submitted to the Senate Committee. CONSEQUENCES OF NEGATIVE ACTION The Boards position on current legislative and administrative efforts to allow voluntary clean up of abandoned mines would not be forwarded to Congress. r June 20, 2006 Congressman George Miller 2205 Rayburn House Office Building Washington, DC 20515 Dear Congressman Miller: Abandoned mines have a huge detrimental impact on the water quality of our creeks,rivers, and the San Francisco Bay. We support the efforts of Congress to legislatively or administratively eliminate liability exposure for local government in remediating these abandoned mines. The most prominent mine in Contra Costa County is the abandoned Mount Diablo Mercury Mine, located near the headwaters of Marsh Creek on the eastern slopes of Mount Diablo. The mine runoff has many negative environmental impacts on fish, wildlife and human health. Our Flood Control District owns a reservoir midway through the watershed that has extensive riparian, marsh and aquatic growth along the shoreline providing habitat for a variety of wildlife,including resident populations of fish. The reservoir has been fenced off for over 20 years and posted for no trespassing or fishing due to elevated levels of mercury in the flesh of the fish. The mine is a portion of a large 109 acre parcel that is bordered on three sides by Mount Diablo State Park. The current property owner purchased the property in 1974 as a bucolic site to raise their children and retire. The Regional Water Quality Control Board has issued the property owner a Cleanup and Abatement Order for the mine discharge,even though they did not create the problem. The owners do not have the resources to complete a full scale mine remediation project. As it is,they have spent over$300,000 of their retirement money in trying to address the Cleanup and Abatement Order. The Contra Costa County Flood Control District has been interested in helping to remediate the mine and improve water quality in the watershed for the last 15 years but have not been able to do so because of the substantial liability the District would assume if a project were built. Senator June 20,2006 .Page 2_ Congress is currently reviewing legislation that would provide limited liability protection for local government, such as ourselves, who are interested in voluntarily assisting in the remediation of abandoned mines. In addition,we understand the Environmental Protection Agency(EPA)is developing a Good Samaritan Initiative,which attempts to provide liability protection for public agencies through an administrative order and consent process. Our understanding of this current administrative process, however, is that it is very time consuming and lengthy. In its current form this process is not a viable alternative for us. This administrative process may work well if it was changed so the agreement provisions were known in advance and the process streamlined. We are ready,willing and able to fix a source of pollution in our county and improve water quality for the San Francisco Bay Area. We support the efforts of the EPA and Congress to develop,legislation or an effective,efficient and collaborative administrative process that will allow public agencies like ours to remediate an abandoned mine without exposure to unlimited liability. Very truly yours, John Gioia Chair, Board of Supervisors JG:MMS:RMA:lz G:\Admin\Mitch16o1200616-13-46 support mercury mine legislation ltr,doc c: Congressional Delegation John Cullen,CAO Sara Hoffinan,CAO Maurice Shiu,PW Dennis Barry,CDD Mitch Avalon,PW Greg Connaughton,PW John Kopchik,CDD 4 if-Il.eh0.4 a:,,z• tai .:3 Os�d 1Cou TESTIMONY OF JOHN GIOIA CHAIR OF THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY AND CONTRA COSTA COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT BEFORE THE SENATE ENVIRONMENT AND PUBLIC WORDS COMMITTEE REGARDING LIABILITY BARRIERS TO CLEANING UP ABANDONED MINES June 14, 2006 651 Pine Street,Martinez,California 94553 255 Glacier Drive,Martinez, California 94553 Mr. Chairman, and members of the Committee, thank you for the opportunity to appear before you today to discuss an issue of great importance for the water quality of our County, the State of California, and other States of the Union - the cleanup of abandoned or inactive mines. I appear before you as Chair of the Board of Supervisors of Contra Costa County and the Contra Costa County Flood Control and Water Conservation District. I am pleased to provide you with our experiences and recommendations related to abandoned mine cleanups and the liability associated with a county agency involved in the clean up work. I would like to describe to the.Committee an example of a project in Contra Costa County that would greatly benefit water quality in the region, yet has, not been able to be completed due to the lack of"Good Samaritan" legislation. Background Contra Costa County is located in the San Francisco Bay Area of California. The west portion of the County fronts on the Bay, while the northern portion fronts along the Sacramento River, and the east portion drains into the Sacramento-San Joaquin Delta. Mount Diablo, the most prominent and tallest mountain in the area, presides in the center of the County. Marsh Creek drains from its headwaters at the top of Mt. Diablo to the west towards the Delta and discharges into the Sacramento .River. An abandoned mercury mine is located in the upper slopes of Mt. Diablo, near the headwaters of Marsh Creek. Rain water washing over the mine tailings transports mercury down into Marsh Creek and ultimately out into the San 2 Francisco Bay. Marsh Creek also flows through the communities of Brentwood and Oakley with a total population of 60,000 residents. In the early 1960's, our Flood Control District built flood protection improvements in the Marsh Creek watershed, channelizing the downstream reaches of Marsh Creek through the flat alluvial area near the City's of Brentwood and Oakley. In 1963 the Flood Control District built a dam across Marsh Creek approximately five miles upstream of the City of Brentwood for flood control purposes. The resulting Marsh Creek Reservoir impounds water year round, and has extensive riparian, marsh and aquatic growth along the shoreline, providing habitat for a variety of wild life including,resident populations of fish. The Flood Control District owns the Marsh Creek Reservoir and most of the downstream channel. Health Issue In 1980 the California Department of Fish and Game analyzed fish from the reservoir and found mercury levels in the fish flesh were above existing health standards. The reservoir has since been fenced off and noticed for no trespassing or fishing due to the mercury contamination. Mercury is a health problem in the San Francisco Bay Area and advisory notices are posted for adults to not eat fish from the Bay more than twice every month (only once a month for children and pregnant women) due to elevated levels of mercury in the flesh of the fish. 3 The Mercury Mine Mercury was first mined in this area in 1875.and continued on and off until 19'71. In 1974, the current property owner purchased the abandoned mine and surrounding property. The property totaled 109 acres and is bordered on three sides by Mount Diablo State Park. The current owners were not looking to develop the property, but looked at the property as a beautiful spot to raise their children and retire. The owner and his wife intended to build their retirement home on the property, they had no plans nor any desire to mine the property, or contract with others to mine the property. The State's Regional Water Quality Control Board (RWQCB) first issued waste discharge requirements (WDR) to prior mine operators in 1952 and recommended corrective action be taken. Although waste discharge requirements were issued to the mine operators, contaminated discharges continued after the mine was abandoned. In 1978 the RWQCB issued the property owner a Cleanup and Abatement Order because of mercury discharging from the mine site, even though the property owner was not a mining operator and did not create the problem. In response, the property owner has taken efforts to clean up the property as best he can, but does not have the resources to complete a full scale mine remediation project. The property owner recently said, "So far we have spent over$300,000 of our retirement money, in 1975 dollars, and the "well" is nearly dry." 4 Attempted Remediation In 1995 Contra Costa County contracted with a team from the University of California at Davis, lead by Dr. Darryl G. Slotten, to study and provide an assessment of mercury in the Marsh Creek watershed. The study showed that approximately 90% of the mercury in the watershed originates from the piles of tailings at the abandoned mercury mine. Based on the study, Contra Costa County applied for a Calfed grant in 1997 to remediate the mercury mine and reduce the mercury transported from the mine to the downstream watershed and into the Bay/Delta system. Our County Counsel and Risk Manager reviewed the grant in light of the lawsuit that the East Bay Municipal Utility District was facing with the remediation work they had done at the Penn Mine site and concluded that our county would be exposed to liability'if the project was built., As a result, we withdrew the grant. Our sentiment was summed up in a staff memo that said, "It is sad that we can't try to help this problem, but we cannot risk getting into a situation that costs the County $5 million dollars plus huge attorney bills like it did the East Bay Municipal Utility District". The Flood Control District is still interested in remediating the mine and we are confident we can get the grant funds to do so. The local watershed council in the Marsh'Creek watershed is a stakeholder group that includes several local environmental groups and is very supportive of our efforts to remediate the mine. The property owner is also very supportive of our efforts. The barrier to us implementing the project is liability. 5 Good Samaritan Initiative Understanding that liability exposure was the fundamental issue preventing us from participating in remediating the mine, Contra Costa County partnered with the Natural Heritage Institute and the cities of Oakley and Brentwood for a grant in 2000 that sought to solve the liability problem. This grant application was unsuccessful Still interested in pursuing the remediation of the mercury mine, last year we partnered with Sustainable Conservation, a non-profit organization with experience in the arena of liability exposure with environmental projects. This has lead to discussions with EPA on their Good Samaritan Initiative and the prospect of emulating the Trout Unlimited cleanup project in the American Fork River watershed in Utah. The Hood Samaritan Initiative is based on.EPA's administrative authority to issue an Administrative Order and Consent. This is intended to be used in enforcement actions for liable parties. The difference is we are not a liable party. We are interested and willing to help clean up the mine site, but we don't legally have to. Since the Administrative Order and Consent is an enforcement tool, it would take an inordinate amount of our staff time and resources to modify it to be used for voluntary work. The other concern we have is that throughout the negotiation process to draft the Administrative Order and Consent there is no public input. In our experience, projects that have no public input end up creating huge problems later on. When the public ultimately finds out about the project, we have to spend an inordinate amount of staff time and resources to change the project design based upon 6 subsequent public input. As a result, we will not sponsor a project development process without public input. We support legislation specifically tailored to agencies cleaning up mines on a voluntary basis. This would be much better than the current attempt to modify an existing enforcement tool to achieve the same purpose. Liability Issue Our liability exposure occurs in at least two ways. One is under the Clean Water Act. This would be similar to the situation the East Bay Municipal Utility District (EBMUD) found themselves in after working on improving the Penn Mine drainage. EBMt.1D worked with the State's Regional Water Quality Control Board (RWQCB) in developing a remediation plan for.the mine site. The remediation work, which was completed in 1978, reduced the pre-project copper discharge from an average of 64,000 pounds per year to an average of 13 pounds per year. An environmental group sued claiming that EBMUD should have taken out a National Pollutant Discharge Elimination System (NPDES)_permit. The courts agreed and found that in performing the remediation work EBMUD should have obtained a NPDES permit, then followed the NPDES requirements to improve the discharge to current water quality standards. After the court case, EBMUD and the RWQCB worked on a follow-up remediation plan that brought the site back to pre-mining conditions at a cost of approximately $10,000,000. There is also liability exposure to the County under the Federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). This law imposes,liability for response costs upon owners and operators for the release of hazardous materials from a facility. Summary California's State Water Resources Control 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. The San Francisco Bay Regional Water Quality Control Board is currently developing a total maximum daily load (TMDL) for mercury in the Bay Area. The TMDL will provide a long range plan and goals for reducing mercury in.the watersheds that drain into San Francisco Bay. With the Mt.,Diablo mercury mine being one of the important sources of mercury into the bay, it will be imperative to remediate the mine tailings and prevent further discharge of mercury from the abandoned mine site. Contra Costa County and the Contra Costa County Flood Control and Water Conservation District have been interested in remediating the mercury mine in our county for the last fifteen years. We are confident that we will be able to obtain the grant funding necessary to remediate the mercury mine. Every granting entity we have talked to is extremely excited about the prospects of the Flood Control District remediating the mercury mine. We are ready, willing and able to fix a source of pollution in our county once the issue of liability exposure is addressed. We strongly support the efforts of EPA and Congress to adopt legislation that would eliminate our liability exposure and 8 allow us to improve the water quality for the residents of Contra Costa County and downstream San Francisco Bay Area. 9 The Board of Supervisors Contra .John Sweeten Clerk ofthe Board and . Count' Administration Building Count.'Administrator 651 Pine Street.Room 106 County (925)335-I900 Martinez.California 94553-4068 e John Gioia,District I -•;m Gavle B.Uilkema,District II Mary N.Piepho,District II[ .. Mark DeSaulnier,District IV I Federal D.Clover, District V l t rrti 1e 20, 2006 C� L . 1 W�^ r V Senator Barbara Boxer C qq 112 Hart Senate Office Building Washington, DC 20510 A Dear Senator Boxer: f r Abandoned mines have a huge detrimental impact on t ,,mss, rivers, and the San Francisco Bay. We support the efforts of Congress to i .,. aaministratively eliminate liability exposure for local government in remediating these ab&.uuned mines. The most prominent mine in Contra Costa County is the abandoned Mount Diablo Mercury Mine, located near the headwaters of Marsh Creek on the eastern slopes of Mount Diablo. The mine runoff has many negative environmental impacts on fish, wildlife and human health. Our Flood Control District owns a reservoir midway through the watershed that has extensive riparian, marsh and aquatic growth along the shoreline providing habitat for a variety of wildlife, including resident populations of fish. The reservoir has been fenced off for over 20 years and posted for no trespassing or fishing due to elevated levels of mercury in the flesh of the fish. The mine is a portion of a large 109 acre parcel that is bordered on three sides by Mount Diablo State Park. The current property owner purchased the property in 1974 as a bucolic site to raise their children and retire. The Regional Water Quality Control Board has issued the property owner a Cleanup and Abatement Order for the mine discharge, even though they did not create the problem. The owners do not have the resources to complete a full scale mine remediation project. As it is, they have spent over $300,000 of their retirement money in trying to address the Cleanup and Abatement Order. The Contra Costa County Flood Control District has been interested in helping to remediate the mine and improve water quality in the watershed for the last 15 years but have not been able to do so because of the substantial liability the District would assume if a project were built. As you are aware, Congress is currently reviewing legislation that would provide limited liability protection for local government, such as ourselves, who are interested in voluntarily assisting in the remediation of abandoned mines. In addition, we understand the Environmental Protection Agency (EPA) is developing a Good Samaritan Initiative, which attempts to provide liability protection for public agencies through an administrative order and consent process as used in the Trout Unlimited cleanup in Utah. Our understanding of this current administrative process, however, is that it is very time consuming, complex and costly. In its current form this process is not a viable alternative for us. Senator Boxer June 20, 2006 Page=2 This administrative process may work well if it was changed so the agreement provisions were known in advance, and the process streamlined. We appreciate your comments at the June 14, 2006 Senate Environment and Public Works Committee hearing expressing your willingness to work with us on an administrative solution to our issue. We are ready, willing and able to fix a source of pollution in our county and improve water quality for the San Francisco Bay Area. We support the efforts of the EPA and Congress to develop legislation or an effective, efficient and collaborative administrative process that will allow public agencies like ours to safely and responsibly remediate an abandoned mine without exposure to unlimited liability. Very truly , +Chahr�, BoaZrdof ia Supervisors JG:MMS:RMA:lz G:\Admin\Mitch\bo\2006\Boxcr support ltr.doc c: Congressional Delegation John Cullen,CAO Sara Hoffman,CAO Maurice Shiu,PW Dennis Barry,CDD Mitch Avalon,PW Greg Connaughton,PW John Kopchik,CDD The Board of ery Su isors Contra John Sweeten - Clerk Clerk of the Board - and County Administration Building Costa . County Administrator 651 Pine Street,.Room 106 County (925)335-1900 Martinez,California 94553-4068 s .L John Gioia,District I Gayle B.Uilkema,District II 1 Mary N.Piepho,District III 3 � Mark DeSaulnier.District IV c1 fns Federal D.Glover, District V CO June 20, 2006 Congressman Richard Pombo 2411 Rayburn, Hart Office Building Washington, DC 20515 Dear Congressman Pombo: Abandoned mines have a huge detrimental impact on the water quality of our creeks, rivers, and the San Francisco Bay. We support the efforts of Congress to legislatively or administratively eliminate liability exposure for local government in remediating these abandoned mines. The most prominent mine in Contra Costa County is the abandoned Mount Diablo Mercury Mine, located near the headwaters of Marsh Creek on the eastern slopes of Mount Diablo. The mine runoff has many negative environmental impacts on fish, wildlife and human health. Our Flood Control District owns a reservoir midway through the watershed that has extensive riparian, marsh and aquatic growth along the shoreline providing habitat for a variety of wildlife, including resident populations of fish. The reservoir has been fenced off for over 20 years and posted for no trespassing or fishing due to elevated levels of mercury in the flesh of the fish. The mine is a portion of a large 109 acre parcel that is bordered on three sides by Mount Diablo State Park. The current property owner purchased the property in 1974 as a bucolic site to raise their children and retire. The Regional Water Quality Control Board has issued the property owner a Cleanup and Abatement Order for the mine discharge, even though they did not create the problem. The owners do not have the resources to complete a full scale mine remediation project. As it is, they have spent over $300,000 of their retirement money in trying to address the Cleanup and Abatement Order. The Contra Costa County Flood Control District has been interested in helping to remediate the mine and improve water quality in the watershed for the last 15 years but have not been able to do so because of the substantial liability the District would assume if a project were built. Congress is currently reviewing legislation that would provide. limited liability protection for local government, such as ourselves, who are interested in voluntarily assisting in the remediation of abandoned mines. In addition, we understand the Environmental Protection Agency (EPA) is developing a Good Samaritan Initiative, which attempts to provide liability protection for public agencies through an administrative order and consent process as used in the Trout Unlimited cleanup in Utah. Our understanding of this current administrative process, however, is that it is very time consuming, complex and costly. In its current form this process is not a viable alternative for us. This Congressman Pomba June 20, 2006 .Page 2 administrative process may work well if it was changed so the agreement provisions were known in advance, and the process streamlined. We are ready, willing and able to fix a source of pollution in our county and improve water quality for the San Francisco Bay Area. We support the efforts of the EPA and Congress to develop legislation or an effective, efficient and collaborative administrative process that will allow public agencies like ours to safely and responsibly remediate an abandoned mine without exposure to unlimited liability. Ver truly yours, John Gioia Chair, Board of Supervisors JG:MMS:RMA:lz G:\Admin\Mitch\bo\2006\Pombo support ltr.doc c: Congressional Delegation John Cullen,CAO Sara Hoffman,CAO Maurice Shiu,PW Dennis Barry,CDD Mitch Avalon,PW Greg Connaughton,PW John Kopchik,CDD The Board of Supervisors Contra Clerk sweeten Clerk of the Board Costa and County Administration Building County Administrator 651 Pine Street, Room 106 County c925)335-1900 Martinez,California 94553-4068 . 6E. L John Gioia,District 1 Gayle B.Uilkema,District II ti Mary N.Piepho,District III - Mark DeSauinier,District IV Federal D.Glover, District V sra co"vri`c't June 20, 2006 Congressman George Miller 2205 Rayburn, House Office Building Washington, DC 20515 Dear Congressman Miller: Abandoned mines have a huge detrimental impact on the water quality of our creeks, rivers, and the San Francisco Bay. We support the efforts of Congress to legislatively or administratively eliminate liability exposure for local government in remediating these-abandoned mines. The most prominent mine in Contra Costa County is the abandoned Mount Diablo Mercury Mine, located near the headwaters of Marsh Creek on the eastern slopes of Mount Diablo. The mine runoff has many negative environmental impacts on fish, wildlife and human health. Our Flood Control District owns a reservoir midway through the watershed that has extensive riparian, marsh and aquatic growth along the shoreline providing habitat for a variety of wildlife, including resident populations of fish. The reservoir has been fenced off for over 20 years and posted for no trespassing or fishing due to elevated levels of mercury in the flesh of the fish. The mine is a portion of a large 109 acre parcel that is bordered on three sides by Mount Diablo State Park. The current property owner purchased the property in 1974 as a bucolic site to.raise their children and retire. The Regional Water Quality Control Board has issued the property owner a Cleanup and Abatement Order for the mine discharge, even though they did not create the problem. The owners do not have the resources to complete a full scale mine remediation project. As it is, they have spent over $300,000 of their retirement money in trying to address the Cleanup and Abatement Order. The Contra Costa County Flood Control District has been interested in helping to remediate the mine and improve water quality in the watershed for the last 15 years but have not been able to do so because of the substantial liability the District would assume if a project were built. Congress is currently reviewing legislation that would provide limited liability protection for local government, such as ourselves, who are interested in voluntarily assisting in the remediation of abandoned mines. In addition, we understand the Environmental Protection Agency (EPA) is developing a Good Samaritan Initiative, which attempts to provide liability protection for public agencies through an administrative order and consent process as used in the Trout Unlimited cleanup in Utah. Our understanding of this current administrative process, however, is that it is very time consuming, complex and costly. In its current form this process is not a viable alternative for us. This Congressman Miller June 20, 2006 Page 2 administrative process may -work well if it was changed so the agreement provisions were known in advance, and the process streamlined. We are ready, willing and able to fix a source of pollution in our county and improve water quality for the San Francisco Bay Area. We support the efforts of the EPA and Congress to develop legislation or an effective, efficient and collaborative administrative process that will allow public agencies like ours to safely and responsibly remediate an abandoned mine without exposure to unlimited liability. . Very ruly yo s, ohm Gioia Chair, Board of Supervisors JG:MMS:RMA:lz G:\Admin\Mitch\bo\2006\Miller support ltr.doc c: Congressional Delegation John Cullen,CAO ' Sara Hoffman,CAO Maurice Shiu,PW Dennis Barry,CDD Mitch Avalon,PW Greg Connaughton,PW John Kopchik,CDD The Board of Supervisors Contra John Sweeten Clerk of the Board Costa and County Administration Building County Administrator 651 Pine Street, Room 106 County (925)335-1900 Martinez,California 94553-4068 sE.t_ John Gioia,District I �`' Gayle B.Uilkema,District II Mary N.Piepho,District III - Mark DeSaulnier,District IV ni s Federal D.Glover, District V xt sra coiitz`�. June 20, 2006 Senator Dianne Feinstein Hart Office Building, Room 331 Washington, DC 20510 Dear Senator Feinstein: Abandoned mines have a huge detrimental impact on the water quality of our creeks, rivers, and the San Francisco Bay. We support the efforts of Congress to legislatively or administratively eliminate liability exposure for local government in remediating these abandoned mines. The most prominent mine in Contra Costa County is the abandoned Mount Diablo Mercury Mine, located near the headwaters of Marsh Creek on the eastern.slopes of Mount Diablo. The mine runoff has many negative environmental impacts on fish, wildlife and human health. Our Flood Control District owns a reservoir midway through the watershed that has extensive riparian, marsh and aquatic growth along the shoreline providing habitat for a variety of wildlife, including resident populations of fish. The reservoir has been fenced off for over 20 years and posted for no trespassing or fishing due to elevated levels of mercury in the flesh of the fish. The mine is a portion of a large 109 acre parcel that is bordered on three sides by Mount Diablo State Park. The current property owner purchased the property in 1974 as a bucolic site to raise their children and retire. The Regional Water Quality Control Board has issued the property owner a Cleanup and Abatement Order for the mine discharge, even though they did not create the problem. The owners do not have the resources to complete a full scale mine remediation project. As it is, they have spent over $300,000 of their retirement money in trying to address the Cleanup and Abatement Order. The Contra Costa County Flood Control District has been interested in helping to remediate the mine and improve water quality in the watershed for the last 15 years but have not been able to do so because of the substantial liability the District would assume if a project were built. Congress is currently reviewing legislation that would provide limited liability protection for local government, such as ourselves, who are interested in voluntarily assisting in the remediation of abandoned mines. In addition, we understand the Environmental Protection Agency (EPA) is developing a Good Samaritan Initiative, which attempts to provide liability protection for public agencies through an administrative order and consent process as used in the Trout Unlimited cleanup in Utah. Our understanding of this current administrative process, however, is that it is very time consuming, complex and costly. In its current form this process is not a viable alternative for us. This Senator Feinstein June 20, 2006 Page 2 administrative process may work well if it was changed so the agreement provisions were known in advance, and the process streamlined. We are ready, willing and able to fix a source of pollution in our county and improve water quality for the San Francisco Bay Area. We support the efforts of the EPA and Congress to develop legislation or an effective, efficient and collaborative administrative process that will allow public agencies like ours to safely and responsibly remediate an abandoned mine without exposure to unlimited liability. Very truly yours, Vohn Gioia Chair, Board of Supervisors JG:MMS:RMA:lz G:\Admin\Mitch\bo\2006\Feinstein support ltr,doc c: Congressional Delegation 'John Cullen,CAO. Sara Hoffman,CAO Maurice Shiu,PW Dennis Barry,CDD Mitch Avalon,PW Greg Connaughton,PW John Kopchik,CDD The Board of Supervisors Contra John Sweeten Clerk of the Board Costa and County Administration Building County Administrator 651 Pine Street,Room 106 County (925)335-1900 Martinez,California 94553-4068 S _L John Gioia,District 1 Gayle B.Uilkema.District 11 Mary N.Piepho,District III - - Mark DeSaulnier,District IV c Federal D.Glover. District V -> COST'4 COUIj'� June 20, 2006 Congresswoman Ellen Tauscher 1034 Longworth, Hart Office Building Washington, DC 20515 Dear Congresswoman Tauscher: Abandoned mines have a huge detrimental impact on the water quality of our creeks, rivers, and the San Francisco Bay. We support the efforts of Congress to legislatively or administratively eliminate liability exposure for local government in remediating these abandoned mines. The most prominent mine in Contra Costa County is the abandoned Mount Diablo•Mercury Mine, located near the headwaters of Marsh Creek on the eastern slopes of Mount Diablo. The mine runoff has many negative environmental impacts on fish, wildlife and human health. Our Flood Control District owns a reservoir midway through the watershed that has extensive riparian, marsh and aquatic growth along the shoreline providing habitat for a variety of wildlife, including resident populations of fish. The reservoir has been fenced off for over 20 years and posted for no trespassing or fishing due to elevated levels of mercury in the flesh of the fish. The mine is a portion of a large 109 acre parcel that is bordered on three sides by Mount Diablo State Park. The current property owner purchased the property in 1974 as a bucolic site to raise their children and retire. The Regional Water Quality Control Board has issued the property owner a Cleanup and Abatement Order for the mine discharge,even though they did not create the problem. The owners do not have the resources to complete a full scale mine remediation project. As it is, they have spent over $300,000 of their retirement money in trying to address the Cleanup and Abatement Order. The Contra Costa County Flood Control District has been interested in helping to remediate the mine and improve water quality in the watershed for the last 15 years but have not been able to do so because of the substantial liability the District would assume if a project were built. Congress is currently reviewing legislation that would provide limited liability protection for local government, such as ourselves, who are interested in voluntarily assisting in the remediation of abandoned mines. In addition, we understand the Environmental Protection Agency (EPA) is developing a Good Samaritan Initiative, which attempts to provide liability protection for public agencies through an administrative order and consent process as used in the Trout Unlimited cleanup in Utah. Our understanding of this current administrative process, however, is that it is very time consuming, complex and costly. In its current form this process is not a viable alternative for us. This Congresswoman Tauscher June 20, 2006 Page 2 administrative process may work well if it was changed so the agreement provisions were known in advance, and the process streamlined. We are ready, willing and able to fix a source of pollution in our county and improve water quality for the San Francisco Bay Area. We support the efforts of the EPA and Congress to develop legislation or an effective, efficient and collaborative administrative process that will allow public agencies like ours to safely and responsibly remediate an abandoned mine without exposure to unlimited liability. Ver truly yours, ohn Gioia Chair, Board of Supervisors JG:MMS:RMA:lz G:\Admin\Ivlitch\bo\2006\Tauscher support Itr.doc c: Congressional Delegation John Cullen,CAO Sara Hoffman,CAO Maurice Shiu,PW Dennis Bary,CDD Mitch Avalon,PW Greg Connaughton,PW John Kopchik,CDD ... E...... :Q Contra TO: BOARD OF SUPERVISORS ,,;.w—;i , _��,., FROM: PUBLIC WORKS DIRECTOR Costa DATE: JUNE 20, 2006 rA` U County SUBJECT: AMEND PRIOR BOARD OF SUPERVISORS ACTION ON JUNE 13,2006 REGARDING THE "GOOD SAMARITAN CLEAN WATERSHED ACT", TO SUPPORT BOTH FEDERAL LEGISLATIVE AND ADMINISTRATIVE EFFORTS TO ELIMINATE LIABILITY EXPOSURE FOR LOCAL GOVERNMENT IN REMEDIATING ABANDONED MINES (COUNTYWIDE), SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION RECOMMENDED ACTION: AMEND prior Board of Supervisors action on June 13,2006 regarding the"Good Samaritan Clean Watershed Act", to SUPPORT both federal legislative and administrative efforts to eliminate liability exposure for local government in remediating abandoned mines, and AUTHORIZE the Chair to execute the attached letter to Congress. CONTINUED ON ATTACHMENT: 0 SIGNATURE: RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE APP OTHER SIGNATURE(S): ,J ACTION OF BO 4 ON C � APPROVED AS RECOMMENDED OTHER VOTE OF SUPERVISORS: I HEREBY CERTIFY THAT THIS IS A TRUE AND CORRECT COPY OF AN ACTION TAKEN AND ENTERED ON UNANIMOUS(ABSENT ) MINUTES OF THE BOARD OF SUPERVISORS ON THE AYES: NOES: DATE SHOWN. ABSENT: ABSTAIN: Contact: Mitch Avalon(313-2203) RMA:Iz C:IDOCUME—IijenealLOCALS—IiTemplc.tatus.notes.datal6-13-06 support fed leg ATTESTED good sam clean water act.doc JOHN CULLEN,CLRWOF THE BOARITOF SUPERVISORS cc: John Cullen,CAO Sara Hoffman,CAO Maurice Shiu,PW Dennis Barry,CDD BY: r DEPUTY Mitch Avalon,PW Greg Connaughton,PW Steve Goetz,CDD John Kopchik,CDD SUBJECT: AMEND PRIOR BOARD OF SUPERVISORS ACTION ON JUNE 13,2046 REGARDING THE "GOOD SAMARITAN CLEAN WATERSHED°ACT", TO SUPPORT BOTH FEDERAL LEGISLATIVE AND ADMINISTRATIVE EFFORTS TO ELIMINATE LIABILITY EXPOSURE FOR LOCAL GOVERNMENT IN REMEDIATING ABANDONED MINES(COUNTYWIDE) DATE: JUNE 20, 2006 PAGE: 2 of 3 FISCAL IMPACT: Congress and the Environmental Protection Agency(EPA)are working on legislative and administrative initiatives that would reduce the liability exposure for the Flood Control District or the County in remediating abandoned mines that leach pollutants into the watersheds of the County. In the very near future,the Flood Control District and County will likely be required to eliminate these pollutants from the watershed through our National Pollutant Discharge Elimination System(NPDES)permit. This legislation will ultimately save the County and the District the cost of liability claims when the work is required to be done. REASONS FOR RECOMMENDATIONS AND BACKGROUND: Current legislative and administrative efforts by Congress and EPA to eliminate liability exposure would help the Flood Control District to remediate the Mt. Diablo Mercury Mine and improve water quality in the Marsh Creek Watershed. 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. The Flood Control District has been interested for over a decade in assisting in the remediation of the abandoned mine,which is located on private property next to Mt. Diablo State Park. The mine was operational,on and off,from 1875 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 Board to clean up the mine site,even though they did not create the problem and don't have the resources to do the work. 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 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 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 is an attempt to address the liability concerns tied to CERCLA and the Clean Water Act through an administrative process. Congress is also reviewing legislation that is intended to address these same concerns. The Board supports these efforts that would ultimately allow us to voluntarily improve abandoned mine sites with EPA oversight and reasonable'requirements without liability. Contra Costa County was requested to testify before the Senate Environment and Public Works Committee and discuss our experiences with the liability barriers for a local government agency to voluntarily assist in cleaning up SUBJECT: AMEND PRIOR BOARD OF SUPERVISORS ACTION ON JULIE 13,2006 REGARDING "THE "GOOD SAMARITAN CLEAN WATERSHED ACT", TO SUPPORT BOTH ,FEDERAL LEGISLATIVE AND ADMINISTRATIVE EFFORTS TO ELIMINATE LIABILITY EXPOSURE FOR LOCAL GOVERNMENT IN REMEDIATING ABANDONED MINES(COUNTYWIDE) DATE: JUNE 20, 2006 PAGE: 3 of 3 an abandoned mine. Supervisor Gioia provided testimony on this subject last week.Attached is the written testimony submitted to the Senate Committee. CONSEQUENCES OF NEGATIVE ACTION The Boards position on current legislative and administrative efforts to allow voluntary clean up of abandoned mines would not be forwarded to Congress. June 20, 2006 Congressman George Miller 2205 Rayburn House Office Building Washington, DC 20515 Dear Congressman Miller: Abandoned mines have a huge detrimental impact on the water quality of our creeks,rivers, and the San Francisco Bay. We support the efforts of Congress to legislatively or administratively eliminate liability exposure for local government in remediating these abandoned mines. The most prominent mine in Contra Costa County is the abandoned Mount Diablo Mercury Mine, located near the headwaters of Marsh Creek on the eastern slopes of Mount Diablo. The mine runoff has many negative environmental impacts on fish, wildlife and human health. Our Flood Control District owns a reservoir midway through the watershed that has extensive riparian, marsh and aquatic growth along the shoreline providing habitat for a variety of wildlife,including resident populations of fish. The reservoir has been fenced off for over 20 years and posted for no trespassing or fishing due to elevated levels of mercury in the flesh of the fish. The mine is a portion of a large 109 acre parcel that is bordered on three sides by Mount Diablo State Park. The current property owner purchased the property in 1974 as a bucolic site to raise their children and retire. The Regional Water Quality Control Board has issued the property owner a Cleanup and Abatement Order for the mine discharge,even though they did not create the problem. The owners do not have the resources to complete a full scale mine remediation project.,As it is,they have spent over$300,000 of their retirement money in trying to address the Cleanup and Abatement Order. The Contra Costa County Flood Control District has been interested in helping to remediate the mine and improve water quality in the watershed for the last 15 years but have not been able to do so because of the substantial liability the District would assume if a project were built. Senator June 20,2006 Page 2 Congress is currently reviewing legislation that would provide limited liability protection for local government, such as ourselves, who are interested in voluntarily assisting in the remediation of abandoned mines. In addition,we understand the Environmental Protection Agency(EPA)is developing a Good Samaritan Initiative,which attempts to provide liability protection for public agencies through an administrative order and consent process. Our understanding of this current administrative process, however, is that it is very time consuming and lengthy. In its current form this process is not a viable alternative for us. This administrative process may work well if it was changed so the agreement provisions were known in advance and the process streamlined. We are ready,willing and able to fix a source of pollution in our county and improve water quality for the San Francisco Bay Area. We support the efforts of the EPA and Congress to develop legislation or an effective,efficient and collaborative administrative process that will allow public agencies like ours to remediate an abandoned mine without exposure to unlimited liability. Very truly yours, John Gioia Chair, Board of Supervisors JG:MMS:RMA:lz G:\AdminiMitchibo12006\6-13-06 support mercury mine legislation ltr.doc c: Congressional Delegation John Cullen,CAO Sara Hoffman,CAO Maurice Shiu,PW Dennis Barry,CDD Mitch Avalon,PW Greg Connaughton,PW John Kopchik,CDD M r1 4 bl � S Y •fi a' av;-Cx- y p{L. TESTIMONY OF JOHN GIOIA CHAIR OF THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY AND . CONTRA COSTA COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT BEFORE THE SENATE ENVIRONMENT AND PUBLIC WORDS COMMITTEE REGARDING LIABILITY BARRIERS TO CLEANING UP ABANDONED MINES June 14, 2006 651 Pine Street,Martinez,California 94553 255 Glacier Drive,Martinez, California 94553 Mr. Chairman, and members of the Committee, thank you for the opportunity to appear before you today to discuss an issue of great importance for the water quality of our County, the State of California, and other States of the Union - the cleanup of abandoned or inactive mines. I appear before you as Chair of the Board of Supervisors of Contra Costa County and the Contra Costa County Flood Control and Water Conservation District. I am pleased to provide you with our experiences and recommendations related to abandoned mine cleanups and the liability associated with a county agency involved in the clean up work. I would like to describe to the.Committee an example of a project in Contra Costa County that would greatly benefit water quality in the region, yet has not been able to be completed due to the lack of"Good Samaritan" legislation. Background Contra Costa County is located in the San Francisco Bay Area of California. The west portion of the County fronts on the Bay, while the northern portion fronts along the Sacramento River, and the east portion drains into the Sacramento-San Joaquin Delta. Mount Diablo, the most prominent and tallest mountain in the area, presides in the center of the County. Marsh. Creek drains from its headwaters at the top of Mt. Diablo to the west towards the Delta and discharges into the Sacramento River. An abandoned mercury mine is located in the upper slopes of Mt. Diablo, near the headwaters of Marsh Creek. Rain water washing over the mine tailings transports mercury down into Marsh Creek and ultimately out into the San 2 Francisco Bay: Marsh Creek also flows through-the communities of Brentwood and Oakley with a total population of 60,000 residents. In the early 1960's, our Flood Control District built flood protection improvements in the Marsh Creek watershed, channelizing the downstream reaches of Marsh Creek through the flat alluvial area near the City's of Brentwood and Oakley. In 1963 the Flood Control District built a dam across Marsh Creek approximately five miles upstream of the City of Brentwood for flood control purposes. The resulting Marsh Creek Reservoir impounds water year round, and has extensive riparian, marsh and aquatic growth along the shoreline, providing habitat for a variety of wild life including resident populations of fish. The Flood Control District owns the Marsh Creek Reservoir and most of the downstream channel. Health Issue In 1980 the California Department of Fish and Game analyzed fish from the reservoir and found mercury levels in the fish flesh were above existing health standards. The reservoir has since been fenced off and noticed for no trespassing or fishing due to the mercury contamination. Mercury is a health problem in the San Francisco Bay Area and advisory notices are posted for adults to not eat fish from the Bay more than twice every month (only once a month for children and pregnant women) due to elevated levels of mercury in the flesh of the fish. 3 The Mercury Mine Mercury was first mined in this area in 1875 and continued on and off until 1971. In 1974, the current property owner purchased the abandoned mine and surrounding property. The property totaled 109 acres and is bordered on three sides by Mount Diablo State Park. The current owners were not looking to develop the property, but looked at the property as a beautiful spot to raise their children and retire. The owner and his wife intended.to build their retirement home on the property, they had no plans nor any desire to mine the property, or contract with others to mine the property. The State's Regional Water Quality Control Board (RWQCB) first issued waste discharge requirements (WDR) to prior mine operators in 1952 and recommended corrective action be taken. Although waste discharge requirements were issued to the mine operators, contaminated discharges continued after the mine was abandoned. In 1978 the RWQCB issued the property owner a Cleanup and Abatement Order because of mercury discharging from the mine site, even though the property owner was not a mining operator and did not create the problem. In response, the property owner has taken efforts to clean up the property as best he can, but does not have the resources to complete a full scale mine remediation project. The property owner recently said, "So far we have spent over $300,000 of our retirement money, in 1975 dollars, and the"well" is nearly dry." 4 Attempted Remediation In 1995 Contra Costa County contracted with a team from the University of California at Davis, lead by Dr. Darryl G. Slotten, to study and provide an assessment of mercury in the Marsh Creek watershed. The study showed that approximately 90% of the mercury in the watershed originates from the piles of tailings at the abandoned mercury mine. Based on the study, Contra Costa County applied for a Calfed grant in 1997 to remediate the mercury mine and reduce the mercury transported from the mine to the downstream watershed and into the Bay/Delta system. Our County Counsel and Risk Manager reviewed the grant in light of the lawsuit that the East Bay Municipal Utility District was facing with the remediation work they had done at the Penn Mine site and concluded that our county would be exposed to liability if the project was built. As a result, we withdrew the grant. Our sentiment was summed up in a staff memo that said, "It is sad that we can't try to help this problem, but we cannot risk getting into a situation that costs the County $5 million dollars plus huge attorney bills like it did the East Bay Municipal Utility District". The Flood Control District is still interested in remediating the mine and we are confident we can get the grant funds to do so. The local watershed council in the Marsh Creek watershed is a stakeholder group that includes several local environmental groups and is very supportive of our efforts to remediate the mine. The property owner is also very supportive of our efforts. The barrier to us implementing the project is liability. 5 Good Samaritan Initiative Understanding that liability exposure was the fundamental issue preventing us from participating in remediating the mine, Contra Costa County partnered with the Natural Heritage Institute and the cities of Oakley and Brentwood for a grant in 2000 that sought to solve the liability problem. This grant application was unsuccessful. Still interested in pursuing the remediation of the mercury mine, last year we partnered with Sustainable Conservation, a non-profit organization with experience in the arena of liability exposure with environmental projects. This has lead to discussions with EPA on their Good Samaritan Initiative and the prospect of emulating the Trout Unlimited cleanup project in the American Fork River watershed in Utah. The Good Samaritan Initiative is based on EPA's administrative authority.to issue an Administrative Order and Consent. This is intended to be used in enforcement actions for liable parties. The difference'is we are not a liable party. We are interested and willing to help clean up the mine site, but we don't legally have to. Since the Administrative Order and Consent is an enforcement tool, it would take an inordinate amount of our staff time and resources to modify it to be used for voluntary work. The other concern we have is that throughout the negotiation process to draft the Administrative Order and Consent there is no public input. In our experience, projects that have no.public input end up creating huge problems later on. When the public ultimately finds out about the project, we have to spend an inordinate amount of staff time and resources to change the project design based upon 6 subsequent public input. As a result, we will not sponsor a project development process without public input.. We support legislation specifically tailored to agencies cleaning up mines on a voluntary basis. This would be much better than the current attempt to modify an existing enforcement tool to achieve the same purpose. Liability Issue Our liability exposure occurs in at least two ways. One is under the Clean Water'Act. This would be similar to the situation the East Bay Municipal Utility District (EBMUD) found themselves in after working on improving the Penn Mine drainage. EBMUD worked with the State's Regional Water Quality Control Board (RWQCB) in developing a remediation plan for,the mine site. The remediation work, which was completed in 1978, reduced the pre-project copper discharge from an average of 64,000 pounds per year to an average of 13 pounds per year. An environmental group sued claiming that EBMUD should have taken out a National Pollutant Discharge Elimination System (NPDES) permit. The courts agreed and found that in performing the remediation work EBMUD should have obtained a NPDES permit, then followed the NPDES requirements to improve the discharge to current water quality standards. After the court case, EBMUD and the RWQCB worked on a follow-up remediation plan that brought the site back to pre-mining conditions at a cost of approximately $10,000,000. There is also liability exposure to the County under the Federal Comprehensive Environmental Response, Compensation and Liability .Act 7 (CERCLA). This law imposes liability for response costs upon owners and operators for the release of hazardous materials from a facility. I i Summary California's State Water Resources Control 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. The San Francisco Bay Regional Water Quality Control Board is currently developing a total maximum daily load (TMDL) for mercury in the Bay'Area. The TMDL will provide a long range plan and goals for reducing mercury in the watersheds that drain into San Francisco Bay. With the Mt. Diablo mercury mine being one of the important sources of mercury into the bay, it will be imperative to remediate the mine tailings and prevent further discharge of mercury from the abandoned mine site. Contra Costa County and the Contra Costa County Flood Control and Water Conservation District have been interested in remediating the mercury mine in our county for the last fifteen years. We are confident that we will be able to obtain the grant funding necessary to remediate the mercury mine. Every granting entity we have talked to is extremely excited about the prospects of the Flood Control District remediating the mercury mine. We are ready, willing and able to fix a source of pollution in our county once the issue of liability exposure is addressed. We strongly support the efforts of EPA and Congress to adopt legislation that would eliminate our liability exposure and 8 allow us to improve the water quality for the residents of Contra Costa County and downstream San Francisco Bay Area. 9 The Board of Su ervisors Contra John Sweeten p Clerk of the Board and Costa County Administration Building Count3 Administrator 651 Pine Street.Room 106 - County (9zs�33s-19ao Martinez.California 94553-4068 Jolm Gioia,District I r -= Gavle B.Unk-ema,District Il Mary N.Piepho,District III Mark DeSauhtier.District IN Federal D.Glover, District V { K 7e 20, 2006 j C r SIX�� Senator Barbara Boxer 112 Hart Senate Office Building Washington,DC 20510 /S Dear Senator Boxer: Abandoned mines have a huge detrimental impact on i --.Ks, rivers, and the San -Francisco Bay. We support the efforts of Congress to i -A daministratively eliminate liability exposure for local government in remediating these ab&.uoned mines. The most prominent mine in Contra Costa County is the abandoned Mount Diablo Mercury Mine, located near the headwaters of Marsh Creek on the eastern slopes of Mount Diablo. The mine runoff has many negative environmental impacts on fish, wildlife and human health. Our Flood Control District owns a reservoir midway through the watershed that has extensive riparian, marsh and aquatic growth along the shoreline providing habitat fora variety of wildlife, including resident populations of fish. The reservoir has been fenced off for over 20 years and posted for no trespassing or fishing due to elevated levels of mercury in the flesh of the fish. The mine is a portion of a large 109 acre parcel that is bordered on three sides by Mount Diablo State Park. The current property owner purchased the property in 1974 as a bucolic site to raise their children and retire. The Regional Water Quality Control IBoard has issued the property owner a Cleanup and Abatement Order for the mine discharge, even though they did not create the problem. The owners do not have the resources to complete a full scale mine remediation project. As it is, they have spent over $300,000 of their retirement money in trying to address the Cleanup and Abatement Order. The Contra Costa County Flood Control District has been interested in helping to remediate the mine and improve water quality in the watershed for the last 15 years but have not been able to do so because of the substantial liability the District would assume if a project were built. As you are aware, Congress is currently reviewing legislation that would provide limited liability protection for local government, such as ourselves, who are interested in voluntarily assisting in the remediation of abandoned mines. In addition, we understand the Environmental Protection Agency (EPA) is developing a Good Samaritan Initiative, which attempts to provide liability protection for public agencies through an administrative order and consent process as used in the Trout Unlimited cleanup in Utah. Our understanding of this current'administrative process, however, is that it is very time consuming, complex and costly. In its current.form this process is not a viable alternative for us. Senator Boxer June 20, 2006 Page t This administrative process may work well if it was changed so the agreement provisions were known in advance, and the process streamlined. We appreciate your comments at the June 14, 2006 Senate Environment and Public Works Committee hearing expressing your willingness to work with us on an administrative solution to our issue. We are ready, willing and able to fix a source of pollution in our county and improve water quality for the San Francisco Bay Area. We support the efforts of the EPA and Congress to develop legislation or an effective, efficient and collaborative administrative process that will allow public agencies like ours to safely and responsibly remediate an abandoned mine without exposure to unlimited liability. Very truly , +Chair�, BoaZrdof ia Supervisors JG:MMS:RMA:lz G:\Admin\Mitch\bo\2006\Boxer support Itr.doc c: Congressional Delegation John Cullen,CAO Sara Hoffman,CAO Maurice Shiu,PW Dermis Barry,CDD Mitch Avalon,PW Greg Connaughton,PW John Kopchik,CDD 1. The Board of Su ervisors Contra John Sweeten p Clerk of the Board Costa - and _;, County Administration Building County Administrator 651 Pine Street, Room 106 COUIlt3', (925)335 1900 Martinez,California 94553-4068 s .a John Gioia,District I Gayle B.tiilkema,District Il Mary N.Piepho,District III _ Mark DeSaulnier,District IV no IJuudii. � Federal D.Glover, District V a oOSTa-------- � June 20, 2006 Congressman Richard Pombo 2411 Rayburn, Hart Office Building Washington, DC 20515 Dear Congressman Pombo: Abandoned mines have a huge detrimental impact on the water quality of our creeks, rivers, and the San Francisco Bay. We support the efforts of Congress to legislatively or administratively eliminate liability exposure for local government in remediating these abandoned mines. The most prominent mine in Contra Costa County is the abandoned Mount Diablo Mercury Mine, located near the headwaters of Marsh Creek on the eastern slopes of Mount Diablo. The mine runoff has many negative environmental impacts on fish, wildlife and human health. Our Flood Control District owns a reservoir midway through the watershed that has extensive riparian, marsh and aquatic growth along the shoreline providing habitat for a variety of wildlife, including resident populations of fish. The reservoir has been fenced off for over 20 years and posted for no trespassing or fishing due to elevated levels of mercury in the flesh of the fish. The mine is a portion of a large 109 acre parcel that is bordered on three sides by Mount Diablo State Park. The current property owner purchased the property in 1974 as a bucolic site to raise their children and retire. The Regional Water Quality Control Board has issued the property owner a Cleanup and Abatement Order for the mine discharge, even though they did not create the problem. The owners do not have the resources to complete a full scale mine remediation project. As it is, they have spent over $300,000 of their retirement money in trying to address the Cleanup and Abatement Order. The Contra Costa County Flood Control District has been interested in helping to remediate the mine and improve water quality in the watershed for the last 15 years but have not been able to do so because of the substantial liability the District would assume if a project were built. Congress is currently reviewing legislation that would provide limited liability protection for local government, such as ourselves, who are interested in voluntarily assisting in the remediation of abandoned mines. In addition, we understand the Environmental Protection Agency (EPA) is developing a Good Samaritan Initiative, which attempts to provide liability protection for public agencies through an administrative order and consent process as used in the Trout Unlimited cleanup in Utah. Our understanding of this current administrative process, however, is that it is very time consuming, complex and costly. In its current form this process is not a viable alternative for us. This Congressman Pombo June 20, 2006 Page 2 administrative process may work well if it was changed so the agreement provisions were known in advance, and the process streamlined. We are ready, willing and able to fix a source of pollution in our county and improve water quality for the San Francisco Bay Area. We support the efforts of the EPA and Congress to develop legislation or an effective, efficient and collaborative administrative process that will allow public agencies like ours to safely and responsibly remediate an abandoned mine without exposure to unlimited liability. Ver truly yours, John Gioia Chair, Board of Supervisors JG:MMS:RMA:lz G:\Admin\Mitch\bo\2006\Pombo support ltr.doc c: Congressional Delegation John Cullen,CAO Sara Hoffman,CAO Maurice Shiu,PW Dennis Barry,CDD Mitch Avalon,PW Greg Connaughton,PW John Kopchik,CDD The Board of Supervisors Contra John Sweeten p Clerk of the Board Costaand County Administration Building County Administrator 651 Pine Street,Room 106ounty. (925)335-1900 C Martinez, California 94553-4068 C SE L John Gioia,District 1 Gavle B.llilkema,District II Mary N.Piepho,District III _ Mark DeSaulnier.District IV ni Federal D.Glover, District V osTa co"viy`� June 20, 2006 Congressman George Miller 2205 Rayburn, House Office Building Washington, DC 20515 Dear Congressman Miller: Abandoned mines have a huge detrimental impact on the water quality of our creeks, rivers, and the San Francisco Bay. We support the efforts of Congress to legislatively or administratively eliminate liability exposure for local government in remediating these abandoned mines. The most prominent mine in Contra Costa County is the abandoned Mount. Diablo Mercury Mine, located near the headwaters of Marsh Creek on the eastern slopes of Mount Diablo. The mine runoff has many negative environmental impacts on fish, wildlife and human health. Our Flood Control District owns a reservoir midway through the watershed that has extensive riparian, marsh and aquatic growth along the shoreline providing habitat for a variety of wildlife, including resident populations of fish. The reservoir has been fenced off for over 20 years and posted,for no trespassing or fishing due to elevated levels of mercury in the flesh of the fish. The mine is a portion of a large 109 acre parcel that is bordered on three sides by Mount Diablo State Park. The current property owner purchased the property in 1974 as a bucolic site to raise their children and retire. The Regional Water Quality Control Board has issued the property owner a Cleanup and Abatement Order for the mine discharge, even though they did not create the problem. The owners do not have the resources to complete a full scale mine remediation project. As it is, they have spent over $300,000 of their retirement money in trying to address the Cleanup and Abatement Order. The Contra Costa County Flood Control District has been interested in helping to remediate the mine and improve water quality in the watershed for the last 15 years but have not been able to do so because of the substantial liability the District would assume if a project were built. Congress is currently reviewing legislation that would provide limited liability protection for local government, such as ourselves, who are interested in voluntarily assisting in the remediation of abandoned mines. In addition, we understand the Environmental Protection Agency (EPA) is developing a Good Samaritan Initiative, which attempts to provide liability protection for public agencies through an administrative order and consent process as used in the Trout Unlimited cleanup in Utah. Our understanding of this current administrative process, however, is that it is very time consuming, complex and costly. In its current form this process is not a viable alternative for us. This Congressman Miller June 20, 2006 Page 2 _. administrative process may work well if it was changed so the agreement provisions were known in advance, and the process streamlined. We are ready, willing and able to fix a source of pollution in our county and improve water quality for the San Francisco Bay Area. We support the efforts of the EPA and Congress to develop legislation or an effective, efficient and collaborative administrative process that will allow public agencies like ours to safely and responsibly remediate an abandoned mine without exposure to unlimited liability. Very ruly yo rs, J hn Gioia hair, Board of Supervisors JG:MMS:RMA:lz G:\Admin\Mitch\bo\2006\Miller support Itr.doc c: Congressional Delegation John Cullen,CAO Sara Hoffman,CAO Maurice Shiu,PW Dennis Barry,CDD Mitch Avalon,PW Greg Connaughton,PW John Kopchik,CDD The Board of Supervisors Contra a John Sweeten - Clerk of the Board County Administration Building Costa and County Administrator 651 Pine Street, Room 106 County (925)335-1900 Martinez,California 94553-4068 1 John Gioia,District 1 ..s-----' :o Gavle B.Uilkema,District Il Marv'N.Piepho,District Ili ' Mark DeSaulnier,District IV Federal D.Glover, District V �Sp9.C70u11"C� June 20, 2006 Senator Dianne Feinstein Hart Office Building, Room 331 Washington, DC 20510 Dear Senator Feinstein: Abandoned mines have a huge detrimental impact on the water quality of our creeks, rivers, and the San Francisco Bay. We support the efforts of Congress to legislatively or administratively eliminate liability exposure for local government in remediating these abandoned mines. The most prominent mine in Contra Costa County is the abandoned Mount Diablo Mercury Mine, located near the headwaters of Marsh Creek on the eastern slopes of Mount Diablo. The mine runoff has many negative environmental impacts on fish, wildlife and human health. Our Flood Control District owns a reservoir midway through the watershed that has extensive riparian, marsh and aquatic growth along the shoreline providing habitat for a variety of wildlife, including resident populations of fish. The reservoir has been fenced off for over 20 years and posted for no trespassing or fishing due to elevated levels of mercury in the flesh of the fish. The mine is a portion of a large 109 acre parcel that is bordered on three sides by Mount Diablo State Park. The current property owner purchased the property in 1974 as a bucolic site to raise their children and retire. The Regional Water Quality Control Board has issued the property owner a Cleanup and Abatement Order for the mine discharge, even though they did not create the problem. The owners do not have the resources to complete a full scale mine remediation project. As it is, they have spent over $300,000 of their retirement money in trying to address the Cleanup and Abatement Order. The Contra Costa County Flood Control District has been interested in helping to remediate the mine and improve water quality in the watershed for the last 15 years but have not been able to do so because of the substantial liability the District would assume if a project were built. Congress is currently reviewing legislation that would provide limited. liability protection for local government, such as ourselves, who are interested in voluntarily assisting in the remediation of abandoned mines. In addition, we understand the Environmental Protection Agency (EPA) is developing a Good Samaritan Initiative, which attempts to provide liability protection for public agencies through an administrative order and consent process as used in the Trout Unlimited cleanup in Utah. Our understanding of this current administrative process, however, is that it is very time consuming, complex and costly. In its current form this process is not a viable alternative for us. This Senator Feinstein June 20, 2006 Page 2 administrative process may work well if it was changed so the agreement provisions were known in advance, and the process streamlined. We are ready, willing and able to fix a source of pollution in our county and improve water quality for the San Francisco Bay Area. We support the efforts of the EPA and Congress to develop legislation or an effective, efficient and collaborative administrative process that will allow public agencies like ours to safely and responsibly remediate an abandoned mine without exposure to unlimited liability. Very truly yours, ohn Gioia Chair, Board of Supervisors JG:MMS:RMA:lz G:\Admin\Mitch\bo\2006\Feinstein support Itr.doc c: Congressional Delegation John Cullen,CAO Sara Hoffman,CAO Maurice Shiu,PW Dennis Barry,CDD Mitch Avalon,PW Greg Connaughton,PW John Kopchik,CDD The Board of Supervisors . Contra John Sweeten Clerk of the Board Costa and County Administration Building County Administrator 651 Pine Street,Room 106 County (925)335-1900 Martinez,California 94553-4068 John Gioia,District 1 Gayle B.Uilkema.District 11 Mary N.Piepho,District III =' Mark DeSaulnier,District IV — Federal D.Glover. District V ° tate ------oo---- June 20, 2006 Congresswoman Ellen Tauscher 1034 Longworth, Hart Office Building Washington,DC 20515 Dear Congresswoman Tauscher: Abandoned mines have a huge detrimental impact on the water quality of our creeks, rivers, and the San Francisco Bay. We support the efforts of Congress to legislatively or administratively eliminate liability exposure for local government in remediating these abandoned mines. The most prominent mine in Contra Costa County is the abandoned Mount Diablo Mercury Mine, located near the headwaters of Marsh Creek on the eastern slopes of Mount Diablo. The mine runoff has many negative environmental impacts on fish, wildlife and human health. Our Flood Control District owns a reservoir midway through the watershed that has extensive riparian, marsh and aquatic growth along the shoreline providing habitat for a variety of wildlife, including resident populations of fish. The reservoir has been fenced off for over 20 years and posted for no trespassing or fishing due to elevated levels of mercury in the flesh of the fish. The mine is a portion of a large 109 acre parcel that is bordered on three sides by Mount Diablo State Park. The current property owner purchased the property in 1974.as a bucolic site to raise their children and retire. The Regional Water Quality Control Board has issued the property owner a Cleanup and Abatement Order for the mine discharge, even though they did not create the problem. The owners do not have the resources to complete a full scale mine remediation project. As it is, they have spent over $300,000 of their retirement money in trying to address the Cleanup and Abatement Order. The Contra Costa County Flood Control District has been interested in helping to remediate the mine and improve water quality in the watershed for the last 15 years but have not been able to do so because of the substantial liability the District would assume if a project were built. Congress is currently reviewing legislation that would provide limited liability protection for local government, such as ourselves, who are interested in voluntarily assisting in the remediation of abandoned mines. In addition, we understand the Environmental Protection Agency (EPA) is developing a Good Samaritan Initiative, which attempts to provide liability protection for public agencies through an administrative order and consent process as used in the Trout Unlimited cleanup in Utah. Our understanding of this current administrative process, however, is that it is very time consuming, complex and costly. In its current form this process is not a viable alternative for us. This Congresswoman Tauscher June 20, 2006 Page 2 administrative process may work well if it was changed so the agreement provisions were known in advance, and the process streamlined. We are ready, willing and able to fix a source of pollution in our county and improve water quality for the San Francisco Bay Area. We support the efforts of the EPA and Congress to develop legislation or an effective, efficient and collaborative administrative process that will allow public agencies like ours to safely and responsibly remediate an abandoned mine without exposure to unlimited liability. Ver truly yours, ohn Gioia Chair, Board of Supervisors JG:MMS:RMA:lz G:\Admin\Iv4itch\bo\2006\Tauscher support ltr.doc c: Congressional Delegation John Cullen,CAO Sara Hoffman,CAO Maurice Shiu,PW Dennis Barry,CDD Mitch Avalon,PW Greg Connaughton,PW John Kopchik,CDD TO: BOARD OF SUPERVISORS '�=�. � °:� Contra •;`Jam,,%_ _ FROM: PUBLIC WORKS DIRECTOR » Costa ?S DATE: JUNE 20, 2006 A-�u County SUBJECT: AMEND PRIOR BOARD OF SUPERVISORS ACTION ON JUNE 13,2006 REGARDING THE "GOOD SAMARITAN CLEAN WATERSHED ACT", TO SUPPORT BOTH FEDERAL LEGISLATIVE AND ADMINISTRATIVE EFFORTS TO ELIMINATE LIABILITY EXPOSURE FOR LOCAL GOVERNMENT IN REMEDIATING ABANDONED MINES (COUNTYWIDE) SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION RECOMMENDED ACTION: AMEND prior Board of Supervisors action on June 13,2006 regarding the"Good Samaritan Clean Watershed Act", to SUPPORT both federal legislative and administrative efforts to eliminate liability exposure for local government in remediating abandoned mines, and AUTHORIZE the Chair to execute the attached letter to Congress. CONTINUED ON ATTAC14WNT: [K SIGNATURE: v RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Y APPROW OTHER SIGNATURES: „J ACTION OF BO ON {� APPROVED AS RECOMMENDED OTHER VOTE OF SUPERVISORS: I HEREBY CERTIFY THAT THIS IS A TRUE AND CORRECT COPY OF AN ACTION TAKEN AND ENTERED ON UNANIMOUS(ABSENT431W ) MINUTES OF THE BOARD OF SUPERVISORS ON THE AYES: NOES: DATE SHOWN, ABSENT: ABSTAIN: / Contact: Mitch Avalon(313-2203) RMA:Iz C:\DOCUME—I\jenea\LOCALS---I\Temp\c.lotus.notes.data161-13-06 support fed leg ATTESTED good sam clean water act.doc JOHN CULLEN,CLE OF THE BOAR OF SUPERVISORS cc: John Cullen,CAO Sara Hofffnan,CAO Maurice Shia,PW Dennis Barry,CDD BY: r DEPUTY Mitch Avalon,PW , Greg Connaughton,PW Steve Goetz,CDD John Kopchik,CDD SUBJECT: AMEND PRIOR BOARD OF SUPERVISORS ACTION-ON JUNE 139 2006 REGARDING THE "GOOD SAMARITAN CLEAN WATERSHED ACT", TO SUPPORT BOTH FEDERAL LEGISLATIVE AND ADMINISTRATIVE EFFORTS TO ELIMINATE LIABILITY EXPOSURE FOR LOCAL GOVERNMENT IN REMEDIATING ABANDONED MINES (COUNTYWIDE) DATE: JUNE 20, 2006 PAGE: 2 of 3 FISCAL IMPACT: Congress and the Environmental Protection Agency(EPA)are working on legislative and administrative initiatives that would reduce the liability exposure for the Flood Control District or the County in remediating abandoned mines that leach pollutants into the watersheds of the County. In the very near future,the Flood Control District and County will likely be required to eliminate these pollutants from the watershed through our National Pollutant Discharge Elimination System(NPDES)permit. This legislation will ultimately save the County and the District the cost of liability claims when the work is required to be done. REASONS FOR RECOMMENDATIONS AND BACKGROUND: Current legislative and administrative efforts by Congress and EPA to eliminate liability exposure would help the Flood Control District to remediate the Mt. Diablo Mercury Mine and improve water quality in the Marsh Creek Watershed. 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. The Flood Control District has been interested for over a decade in assisting in the remediation of the abandoned mine,which is located on private property next to Mt. Diablo State Park. The mine was operational,on and off,from 1875 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 Board to clean up the mine site,even though they did not create the problem and don't have the resources to do the work.. 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 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 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 is an attempt to address the liability concerns tied to CERCLA and the Clean Water Act through an administrative process. Congress is also reviewing legislation that is intended to address these same concerns. The Board supports these efforts that would ultimately allow us to voluntarily improve abandoned mine sites with EPA oversight and reasonable requirements without liability. Contra Costa County was requested to testify before the Senate Environment and Public Works Committee and discuss our experiences with the liability barriers for a local government agency to voluntarily assist in cleaning up SUBJECT: AMEND PRIOR.BOARD OF SUPERVISORS ACTION ON JUNE 13,2006 REGARDING THE "GOOD SAMARITAN CLEAN WATERSHED ACT", TO SUPPORT BOTH FEDERAL LEGISLATIVE AND ADMINISTRATIVE EFFORTS TO ELIMINATE LIABILITY EXPOSURE FOR LOCAL GOVERNMENT IN REMEDIATING ABANDONED MINES(COUNTYWIDE) DATE: :TUNE 20, 2006 PAGE: 3 of 3 an abandoned mine. Supervisor Gioia provided testimony on this subject last week. Attached is the written testimony submitted to the Senate Committee. CONSEQUENCES OF NEGATIVE ACTION The Boards position on current legislative and administrative efforts to allow voluntary clean up of abandoned mines would not be forwarded to Congress. June 20, 2006 Congressman George Miller 2205 Rayburn House Office Building Washington,DC 20515 Dear Congressman Miller; Abandoned mines have a huge detrimental impact on the water quality of our creeks,rivers, and the San Francisco Bay. We support the efforts of Congress to legislatively or administratively eliminate liability exposure for local government in remediating these abandoned mines. The most prominent mine in Contra Costa County is the abandoned Mount Diablo Mercury Mine, located near the headwaters of Marsh Creek on the eastern slopes of Mount Diablo. The mine runoff has many negative environmental impacts on fish, wildlife and human health. Our Flood Control District owns a reservoir midway through the watershed that has extensive riparian, marsh and aquatic growth along the shoreline providing habitat for a variety of wildlife,including resident populations of fish. The reservoir has been fenced off for over 20 years and posted for no trespassing or fishing due to elevated levels of mercury in the flesh of the fish. The mine is a portion of a large 109 acre parcel that is bordered on three sides by Mount Diablo State Park. The current property owner purchased the property in 1974 as a bucolic site to raise their children and retire. The Regional Water Quality Control Board has issued the property owner a Cleanup and Abatement Order for the mine discharge,even though they did not create the problem. The owners do not have the resources to complete a full scale mine remediation project. As it is,they have spent over$300,000 of their retirement money in trying to address the Cleanup and Abatement Order. The Contra Costa County Flood Control District has been interested in helping to remediate the mine and improve water quality in the watershed for the last 15 years but have not been able to do so because of the substantial liability the District would assume if a project were built. Senator June 20, 2006 Page 2 Congress is currently reviewing legislation that would provide limited liability protection for local government, such as ourselves, who are interested in voluntarily assisting in the remediation of abandoned mines. In addition,we understand the Environmental Protection Agency(EPA)is developing a Good Samaritan Initiative,which attempts to provide liability protection for public agencies through an administrative order and consent process. Our understanding of this current administrative process, however, is that it is very time consuming and lengthy. In its current form this process is not a viable alternative for us. This administrative process may work well if it was changed so the agreement provisions were known in advance and the process streamlined. We are ready,willing and able to fix a source of pollution in our county and improve water quality for the San Francisco Bay Area. We support the efforts of the EPA and Congress to develop legislation or an effective,efficient and collaborative administrative process that will allow public agencies like ours to remediate an abandoned mine without exposure to unlimited liability. Very truly yours, John Gioia Chair, Board of Supervisors JG:MMS:RMA:lz G:1AdmintMitchlhot200616-13-06 support mercury mine legislation ltr.doc c: Congressional Delegation John Cullen,CAO Sara Hoffman,CAO Maurice Shiu,PW Dennis Barry,CDD Mitch Avalon,PW Greg Connaughton,PW John Kopchik,CDD P C �" iii _ d i C'" ~COUt3`t TESTIMONY OF JOHN GIOIA CHAIR OF THE BOARD OF SUPERVISORS OF CONTRA. COSTA COUNTY. AND CONTRA COSTA COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT BEFORE THE SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE REGARDING LIABILITY BARRIERS TO CLEANING UP ABANDONED MINES June 14, 2006 651 Pine Street,Martinez,California 94553 255 Glacier Drive,Martinez,California 94553 Mr. Chairman; and members of the Committee, thank you for the opportunity to appear before you today to discuss an issue of great importance for the water quality of our County, the State of California, and other States of the Union - the cleanup of abandoned or inactive mines. I appear before you as Chair of the Board of Supervisors of Contra Costa County and the Contra Costa County Flood Control and Water Conservation District. I am pleased to provide you with our experiences and recommendations related to abandoned mine cleanups and the liability associated with a county agency involved in the clean up work. I would like to describe to the.Committee an example of a project in Contra Costa County that would greatly benefit water quality in the region, yet has not been able to be completed due to the lack of"Good Samaritan" legislation. Background Contra Costa County is located in the San Francisco Bay Area of California. The west portion of the County fronts on the Bay, while the northern portion fronts along the Sacramento River, and the east portion drains into the Sacramento-San Joaquin Delta. Mount Diablo, the most prominent and tallest mountain in the area, presides in the center of the County. Marsh Creek drains from its headwaters at the top of Mt. Diablo to the west towards the Delta and discharges into the Sacramento River. An abandoned mercury mine is located in the upper slopes of Mt. Diablo, near the headwaters of Marsh Creek. Rain water washing over the mine tailings transports mercury down into Marsh Creek and ultimately out into the San 2 Francisco Bay. Marsh Creek also flows through the communities of Brentwood and Oakley with a total population of 60,000 residents. In the early 1960's, our Flood Control District built flood protection improvements in the Marsh Creek watershed, channelizing the downstream reaches of Marsh Creek through the flat alluvial area near the City's of Brentwood and Oakley. In 1963 the Flood Control District built a dam across Marsh Creek approximately five miles upstream of the City of Brentwood for flood control purposes. The resulting Marsh Creek Reservoir impounds water year round, and has extensive riparian, marsh and aquatic growth along the shoreline, providing habitat for a variety of wild life including resident populations of fish. The Flood Control District owns the Marsh Creek Reservoir and most of the downstream channel. Health Issue r In 1980 the California Department of Fish and Game analyzed fish from the reservoir and found mercury levels in the fish flesh were above existing health standards. The reservoir has since been fenced off and noticed for no trespassing or fishing due to the mercury contamination. Mercury is a health problem in the San Francisco Bay Area and advisory notices are posted for adults to not eat fish from the Bay more than twice every month (only once a month for children and pregnant women) due to elevated levels of mercury in the flesh of the fish. 3 The Mercury Mine Mercury was first mined in this area in 1875 and continued on and off until 1971 In 1974, the current property owner purchased the abandoned mine and surrounding property. The property totaled 109 acres and is bordered on three sides by Mount Diablo State Park. The current owners were not looking to develop the property, but looked at the property as a beautiful spot to raise their children and retire. The owner and his wife intended to build their retirement home on the property, they had no plans nor any desire to mine the property, or contract with others to mine the property. The State's Regional Water Quality Control Board (RWQCB) first issued waste discharge requirements (WDR) to prior mine operators in'1952 and recommended corrective action be taken. Although waste discharge requirements were issued to the mine operators, contaminated discharges continued after the mine was abandoned. In 1978 the RWQCB issued the property owner a Cleanup and Abatement Order because,of mercury discharging from the mine site, even though the property owner was not a mining operator and did not create the problem. In response, the property owner has taken efforts to clean up the property as best he can, but does not have the resources to complete a fu11 scale mine remediation project. The property owner recently said, "So far we have spent over'$300,000 of our retirement money, in 1975 dollars, and the "well" is nearly dry." 4 Attempted Remediation In 1995 Contra Costa County contracted with a team from the University of California at Davis, lead by Dr. Darryl G. Slotten, to study, and provide an assessment of mercury in the Marsh Creek watershed. The study showed that approximately 90% of the mercury in the watershed originates from the piles of tailings at the abandoned mercury mine. Based on the study; Contra Costa County applied for a Calfed grant in 1997 to remediate the mercury mine and reduce the mercury transported from the mine to the downstream watershed and into the Bay/Delta system. Our County Counsel and Risk Manager reviewed the grant in light of the lawsuit that the East Bay Municipal Utility District was facing with the remediation work they had done at the Penn Mine site and concluded that our county would be exposed to liability if the project was built. As a result, we withdrew the grant. Our sentiment was summed up in a staff memo that said, "It is sad that we can't try to help this problem, but we cannot risk getting into a situation that costs the County $5 million dollars plus huge attorney bills like it did the East Bay Municipal Utility District". The Flood Control District is still interested in remediating the mine and we are confident we can get the grant funds to do so. The local watershed council in the Marsh Creek watershed is a stakeholder group that includes several local environmental groups and is very supportive of our efforts to remediate the mine. The property owner is also very supportive of our efforts. The barrier to us implementing the project is liability. 5 Good Samaritan Initiative Understanding that liability exposure was the fundamental issue preventing us from participating in remediating the mine, Contra Costa County partnered with the Natural Heritage Institute and the cities of Oakley and Brentwood for a grant in 2000 that sought to solve the liability problem. This grant application was unsuccessful. Still interested in pursuing the remediation of the mercury mine, last year we partnered with Sustainable Conservation, a non-profit organization with experience in the arena of liability exposure with environmental projects. This has lead to discussions with EPA on their Good Samaritan Initiative and the prospect of emulating the Trout Unlimited cleanup project in the American Fork River watershed in Utah. The Good Samaritan Initiative is based on EPA's administrative authority to issue an. Administrative Order and Consent. This is intended to be used in enforcement actions for liable parties. The difference is we are nota liable party. We are interested and willing to help clean up the mine site, but we don't legally have to. Since the Administrative Order and Consent is an enforcement tool, it would take an inordinate amount of our staff time and resources to modify it to be used for voluntary work. The other concern we have is that throughout the negotiation process to draft the Administrative Order and Consent there is no public input. In our experience, projects that have no public input end up creating huge problems later on. When the public ultimately finds out about the project, we have to spend an inordinate amount of staff time and resources to change the project design based upon 6 subsequent public input. As a result, we will not sponsor a project development process without public input. We support legislation specifically tailored to agencies cleaning up mines on a voluntary basis. This would be much better than the current attempt to modify an existing enforcement tool to achieve the same purpose. Liability Issue Our liability exposure occurs in at least two ways. One is under the Clean Water Act. This would be similar to the situation the East Bay Municipal Utility District (EBMUD) found themselves in after working on improving the Penn Mine drainage. EBMUD worked-with the State's Regional Water Quality Control Board (RWQCB) in developing a remediation plan for the mine site. The remediation work, which.was completed in 1978, reduced the pre-project copper discharge from an average of 64,000 pounds per year to an average of 13 pounds per year. An environmental group sued claiming that EBMUD should have taken out a National Pollutant Discharge Elimination System (NPDES) permit. The courts agreed and found that in performing the remediation work EBMUD should have obtained a NPDES permit, then followed the NPDES requirements to improve the discharge to current water quality standards. After the court case, EBMUD and the RWQCB worked on a follow-up remediation plan that brought the site back to pre-mining conditions at a cost of approximately $10,000,000. There is also liability exposure to the County under the Federal Comprehensive Environmental Response, Compensation and Liability Act 7 (CERCLA). This law imposes'liability for response costs upon owners and operators for the release of hazardous materials from a facility. Summary California's State Water Resources Control 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. The San Francisco Bay Regional Water Quality Control Board is currently developing a total maximum daily load (TMDL) for mercury in the Bay Area. The TMDL will provide a long range plan and goals for reducing mercury in the watersheds that drain into San Francisco Bay. With the Mt. Diablo mercury mine being one of the important sources of mercury into the bay, it will be imperative to remediate the mine tailings and prevent further discharge of mercury from the abandoned mine site. Contra Costa County and the Contra Costa County Flood Control and Water Conservation District have been interested in remediating the mercury mine in our county for the last fifteen years. We are confident that we will be able to obtain the grant funding necessary to remediate the mercury mine. Every granting entity we have talked to is extremely excited about the prospects of the Flood Control District remediating the mercury mine. We are ready, willing and able to fix a source of pollution in our county once the issue of liability exposure is addressed. We strongly support the efforts of EPA and Congress to adopt legislation that would eliminate our liability exposure and 8 allow us to improve the water quality for the residents of Contra Costa County and downstream San Francisco Bay Area. 9 The Board of Supervisors Contra John Sweeten L' Clark of the Board ®S1a and Coun1V Administration Building County Administrator 651 Pine Street.Room 1.06 County (925)335-1900 Martinez.California 945534068 John,Gioia.District I Ie Gavle B.Uilkema;District II 1 Mare N.Piepho,District III Ntark DeSaulnier,District IV Federal D.Glover, District V K le 20, 2006 V Senator Barbara Boxer qq 112 Hart Senate Office Building Washington, DC 20510 S DearSenator Boxer: _ � l Abandoned mines have a huge detrimental impact on i .,,,ns, rivers, and the San Francisco Bay. We support the efforts of Congress to i , ,,. aaministratively eliminate liability exposure for local government in remediating these ab&.uoned mines. The most prominent mine in Contra Costa County is the abandoned Mount Diablo Mercury Mine, located near the headwaters of Marsh Creek on the eastern slopes of Mount Diablo. The mine runoff has many negative environmental impacts on fish, wildlife and human health. Our Flood Control District owns a reservoir midway through the watershed that has extensive riparian, marsh and aquatic growth along the shoreline providing habitat for a variety of wildlife, including resident populations of fish. The reservoir has been fenced off for over 20 years and posted for no trespassing or fishing due to elevated levels of mercury in the flesh of the fish. The mine is a portion of a large 109 acre parcel that is bordered on three sides by Mount Diablo State Park. The current property owner purchased the property in 1974 as a bucolic site to raise their children and retire. The Regional Water Quality Control Board has issued the property owner a Cleanup and Abatement Order for the mine discharge, even though they did not create the problem. The owners do not have the resources to complete a full scale mine remediation project. As it is, they have spent over $300,000 of their retirement money in trying to address the Cleanup and Abatement Order. The Contra Costa County Flood Control District has been interested in helping to remediate the mine and improve water quality in the watershed for the last 15 years but have not been able to do so because of the substantial liability the District would assume if a project were built. As you are aware, Congress is currently reviewing legislation that would provide limited liability protection for local government, such as ourselves, who are interested in'voluntarily assisting in the remediation of abandoned mines. In addition, we understand the Environmental Protection Agency (EPA) is developing a Good Samaritan Initiative, which attempts to provide liability.protection for public agencies through an administrative order and consent process as used in the Trout Unlimited cleanup in Utah. Our understanding of this current administrative process, however, is that it is very time consuming, complex and costly. In its current form this process is not a viable alternative for us. Senator Boxer June 20, 2006 Page 2 This administrative process may work well if it was changed so the agreement provisions were known in advance, and the process streamlined. We appreciate your comments at the June 14, 2006 Senate Environment and Public Works Committee hearing expressing your willingness to work with us on an administrative solution to our issue. We are ready, willing and able to fix a source of pollution in our county and improve water quality for . the San Francisco Bay Area. We support the efforts of the EPA and Congress to develop legislation or an effective, efficient and collaborative administrative process that will allow public agencies like ours to safely and responsibly remediate an abandoned mine without exposure to unlimited liability. Very truly , r +Chaii�, BoaZrdof Gioia Supervisors JG:MMS:RMA:lz G:\Admin\Mitch\bo\2006\Boxersupportltr.doc c: Congressional Delegation John Cullen,CAO Sara Hoffman,CAO Maurice Shin,PW Dennis Barry,CDD Mitch Avalon,PW Greg Connaughton,PW John KopcW CDD The Board of Supervisors Contra John Sweeten Clerk of the Board Costa and County Administration Building County Administrator 651 Pine Street, Room 106 County (925)335-1900 Martinez,California 94553-4068 !� John Gioia,District I s......•,o� Gayle B.tlilkema,District II ,. Mary N.Piepho,District lit Mark DeSaulnier,District IV Federal D.Glover, District V Q; %#iiurca- srA•coon" June 20, 2006 Congressman Richard Pombo 2411 Rayburn, Hart Office Building Washington, DC 20515 Dear Congressman Pombo: Abandoned mines have a huge detrimental impact on the water quality of our creeks, rivers, and the San Francisco Bay. We support the efforts of Congress to legislatively or administratively eliminate liability exposure for local government in remediating these abandoned mines. The most prominent mine in Contra Costa County is the abandoned Mount Diablo Mercury Mine, located near the headwaters of Marsh Creek on the eastern slopes of Mount Diablo. The mine runoff has many negative environmental impacts on fish, wildlife and human health. Our Flood Control District owns a reservoir midway through the watershed that has extensive riparian, marsh and aquatic growth along the shoreline providing habitat for a variety of wildlife, including resident populations of fish. The reservoir has been fenced off for over 20 years and posted for no trespassing or fishing due to elevated levels of mercury in the flesh of the fish. The mine is a portion of a large 109 acre parcel that is bordered on three sides by Mount Diablo State Park. The current property owner purchased the property in 1974 as a bucolic site to raise their children and retire. The Regional Water Quality Control Board has issued the property owner a Cleanup and Abatement Order for the mine discharge, even though they did not create the problem. The owners do not have the resources to complete a full scale mine remediation project. As it is, they have spent over $300,000 of their retirement money in trying to address the Cleanup and Abatement Order. The Contra Costa County Flood Control District has been interested in helping to remediate the mine and improve water quality in the watershed for the last 15 years but have not been able to do so because of the substantial liability the District would assume if a project were built. Congress is currently reviewing legislation that would provide limited liability protection for local government, such as ourselves, who are interested in voluntarily assisting in the remediation of abandoned mines. In addition, we understand the Environmental Protection Agency (EPA) is developing a Good Samaritan Initiative, which attempts to provide liability protection for public agencies through an administrative order and consent process as used in the Trout Unlimited cleanup in Utah. Our understanding of this current administrative process, however, is that it is very time consuming, complex and costly. In its current form this process is not a viable alternative for us. This Congressman Pombo June 20, 2006 Page 2 administrative process may work well if it was changed so the agreement provisions were known in advance, and the process streamlined. We are ready, willing and able to fix a source of pollution in our county and improve water quality for the San Francisco Bay Area. We support the efforts of the EPA and Congress to develop legislation or an effective, efficient and collaborative administrative process that will allow public agencies like ours to safely and responsibly remediate an abandoned mine without exposure to unlimited liability. Ver truly yours, John Gioia Chair, Board of Supervisors JG:MMS:RMA:lz G:\Admin\Mitch\bo\2006\Pombo support Itr.doc c: Congressional Delegation John Cullen,CAO Sara Hoffman,CAO Maurice Shiu,PW Dennis Barry,CDD Mitch Avalon,PW Greg Connaughton,PW John Kopchik,CDD The Board of Supervisors Contra John Sweeten p., Clerk of the Board Costaand County Administration Building County Administrator 651 Pine Street,Room 106 County (925)335-1900 Martinez,California 94553-4068 John Gioia,District I M.sE -L Gayle B.Uilkema,District 11 Mary N.Piepho,District III Mark DeSsulnier,District IV �: 4 Federal D.Glover, District V xt sra coriti`� June 20, 2006 Congressman George Miller 2205 Rayburn, House Office Building Washington, DC 20515 Dear Congressman Miller: Abandoned mines have a huge detrimental impact on the water quality of our creeks, rivers, and the San Francisco Bay. We support the efforts of Congress to legislatively or administratively eliminate liability exposure for local government in remediating these abandoned mines. The most prominent mine in Contra Costa County is the abandoned Mount Diablo Mercury Mine, located near the headwaters of Marsh Creek on the eastern slopes of Mount Diablo. The mine runoff has many negative environmental impacts on fish, wildlife and human health. Our Flood Control District owns a reservoir midway through the watershed that has extensive riparian, marsh and aquatic growth along the shoreline providing habitat for a variety of wildlife, including resident populations of fish. The reservoir has been fenced off for over 20 years and posted for no trespassing or fishing due to elevated levels of mercury in the flesh of the fish. The mine is a portion of a large 109 acre parcel that is bordered on three sides by Mount Diablo State Park. The current property owner purchased the property in 1974 as a bucolic site to raise their children and retire. The Regional Water Quality Control Board has issued the property owner a Cleanup and Abatement Order for the mine discharge, even though they did not create the problem. The owners do not have the resources to complete a full scale mine remediation project. As it is, they have spent over $300,000 of their retirement money in trying to address the Cleanup and Abatement Order. The Contra Costa County Flood Control District has been interested in helping to remediate the mine and improve water quality in the watershed for the last 15 years but have not been able to do so because of the substantial liability the District would assume if a project were built. Congress is currently reviewing legislation that would provide limited liability protection for local government, such as ourselves, who are interested in voluntarily assisting in the remediation of abandoned mines. In addition, we understand the Environmental Protection Agency (EPA) is developing a Good Samaritan Initiative, which attempts to provide liability protection for public agencies through an administrative order and consent process as used in the Trout Unlimited cleanup in Utah. Our understanding of this current administrative process, however, is that it is very time consuming, complex and costly. In its current form this process is not a viable alternative for us. This Congressman Miller June 20, 2006 Page 2 - administrative process may work well if it was changed_ so the agreement provisions were known in advance, and the process streamlined. We are ready, willing and able to fix a source of pollution in our county and improve water quality for the San Francisco Bay Area. We support the efforts of the EPA and Congress to develop legislation or an effective, efficient and collaborative administrative process that will allow public agencies like ours to safely and responsibly remediate an abandoned mine without exposure to unlimited liability. Very ruly yo s, ohn Gioia Chair, Board of Supervisors JG:MMS:RMA:lz G:\Admin\Mitch\bo\2006\Miller support Itr.doc c: Congressional Delegation John Cullen,CAO Sara Hoffman,CAO Maurice Shiu,PW Dennis Barry,CDD Mitch Avalon,PW Greg Connaughton,PW John Kopchik,CDD The Board of Supervisors Contra John sweeten Clerk of the Board . Costa and County Administration Building County Administrator 651 Pine Street,Room 106 County (925)335-1900 Martinez,California 94553-4068 s t John Gioia,District 1 Gayle B.Uilkema,District II 1 Mary N.Piepho,District III Mark DeSaulnier,District IV o, Federal D.Glover, District V Sp'4.COON' June 20, 2006 Senator Dianne Feinstein Hart Office Building, Room 331 Washington,DC 20510 Dear Senator Feinstein: Abandoned mines have a huge detrimental impact on the water quality of our creeks, rivers, and the San Francisco Bay. We support the efforts of Congress to legislatively or administratively eliminate liability exposure for local government in remediating these abandoned mines. The most prominent mine in Contra Costa County is the abandoned Mount Diablo Mercury Mine, located near the headwaters of Marsh Creek on the eastern slopes of Mount Diablo. The mine runoff has many negative environmental impacts on fish, wildlife and human health. Our Flood Control District owns a reservoir midway through the watershed that has extensive riparian, marsh and aquatic growth along the shoreline providing habitat for a variety of wildlife, including resident .populations of fish. The reservoir has been fenced off for over 20 years and posted for no trespassing or fishing due to elevated levels of mercury in the flesh of the fish. The mine is a portion of a large 109 acre parcel that is bordered on three sides by Mount Diablo State Park. The current property owner purchased the property in 1974 as a bucolic site to raise their children and retire. The Regional Water Quality Control Board has issued the property owner a Cleanup and Abatement Order for the mine discharge, even though they did not create the problem. The owners do not have the resources to complete a full scale mine remediation project. As it is, they have spent over $300,000 of their retirement money in trying to address the Cleanup and Abatement Order. The Contra Costa County Flood Control District has been interested in helping to remediate the mine and improve water quality in the watershed for the last 15 years but have not been able to do so because of the substantial liability the District would assume if a project were built. Congress is currently reviewing legislation that would provide limited liability protection for local government, such as ourselves, who are interested in voluntarily assisting in the remediation of abandoned mines. In addition, we understand the Environmental Protection Agency (EPA) is developing a Good Samaritan Initiative, which attempts to provide liability protection for public agencies through an administrative order and consent process as used in the Trout Unlimited cleanup in Utah. Our understanding of this current administrative process, however, is that it is very time consuming, complex and costly. In its current form this process is not a viable alternative for us. This Senator Feinstein June 20, 2006 Page 2 administrative process may work well if it was changed so the agreement provisions were known in advance, and the process streamlined. We are ready, willing and able to fix a source of pollution in our county and improve water quality for the San Francisco Bay Area. We support the efforts of the EPA and Congress to develop legislation or an effective, efficient and collaborative administrative process that will allow public agencies like ours to safely and responsibly remediate an abandoned mine without exposure to unlimited liability. Very truly yours, ohm Gioia Chair, Board of Supervisors JG:MMS:RMA:lz G:Wdmin\Mitch\bo\2006\Feinstein support Itr.doc c: Congressional Delegation John Cullen,CAO Sara Hoffman,CAO Maurice Shiu,PW Dennis Barry,CDD Mitch Avalon,PW Greg Connaughton,PW John Kopchik,CDD The Board of Supervisors Contra John Sweeten p Clerk of the Board Costa and County Administration Building County Administrator 651 Pine Street, Room 106 County (925)335-1900 Martinez,California 94553-4068 sE a John Gioia,District 1 �E'.... Gavle B.Uilkema,District 11 Mary N.Piepho,District III ' Mark DeSaulnier,District IV ni Federal D.Glover, District V x; Op. - Sy'4.COi) I June 20, 2006 Congresswoman Ellen Tauscher 1034 Longworth, Hart Office Building Washington, DC 20515 Dear Congresswoman Tauscher: Abandoned mines have a huge detrimental impact on the water quality of our creeks, rivers,and the San Francisco Bay. We support the efforts of Congress to legislatively or administratively eliminate liability exposure for local government in remediating these abandoned mines. The most.prominent mine in Contra Costa County is the abandoned Mount Diablo Mercury Mine, located near the headwaters of Marsh Creek on the eastern slopes of Mount Diablo. The mine runoff has many negative environmental impacts on fish, wildlife and human health. Our Flood Control District owns a reservoir midway through the watershed that has extensive riparian, marsh and aquatic growth along the shoreline providing habitat for a variety of wildlife, including resident populations of fish. The reservoir has been fenced off for over 20 years and posted for no trespassing or fishing due to elevated levels of mercury in the flesh of the fish. The mine is a portion of a large 109 acre parcel that is bordered on three sides by Mount Diablo State Park. The current property owner purchased the property in 1974 as a bucolic site to raise their children and retire. The Regional Water Quality Control Board has issued the property owner a Cleanup and Abatement Order for the mine discharge, even though they did not create the problem. The owners do not have the resources to complete a full scale mine remediation project. As it is, they have spent over $300,000 of their retirement money in trying to address the Cleanup and Abatement Order. The Contra Costa County Flood Control District has been interested in helping to remediate the mine and improve water quality in the watershed for the last 15 years but have not been able to do so because of the substantial liability the District would assume if a project were built. Congress is currently reviewing legislation that would provide limited liability protection for local government, such as ourselves, who are interested in voluntarily assisting in the remediation of abandoned mines. In addition, we understand the Environmental Protection Agency (EPA) is developing a Good Samaritan Initiative, which attempts to provide liability protection for public agencies through an administrative order and consent process as used in the Trout Unlimited cleanup in Utah. Our understanding of this current administrative process, however, is that it is very time consuming, complex and costly. In its current form this process is not a viable alternative for us. This Congresswoman Tauscher June 20, 2006 Page 2 administrative process may work well if it was changed so the agreement provisions were known in advance, and the process streamlined. We are ready, willing and able to fix a source of pollution in our county and improve water quality for the San Francisco Bay Area. We support the efforts of the EPA and Congress to develop legislation or an effective, efficient and collaborative administrative process that will allow public agencies like ours to safely and responsibly remediate an abandoned mine without exposure to unlimited liability. Ver .truly yours, ohn Gioia Chair, Board of Supervisors JG:MMS:RMA:lz G:\Admin\Mitch\bo\2006\Tauscher support Itr.doc c: Congressional Delegation John Cullen,CAO Sara Hoffman,CAO Maurice Shiu,PW Dennis Barry,CDD Mitch Avalon,PW Greg Connaughton,PW John Kopchik,CDD TO: BOARD OF SUPERVISORS 4A -,p� Contra- FROM: PUBLIC WORKS DIRECTOR g; Costa DATE: JUNE 20, 2006 - �o County STA`coax r;~ SUBJECT: AMEND PRIOR BOARD OF SUPERVISORS ACTION ON JUNE 13,2006 REGARDING THE "GOOD SAMARITAN CLEAN WATERSHED ACT", TO SUPPORT BOTH FEDERAL LEGISLATIVE AND ADMINISTRATIVE EFFORTS TO ELIMINATE LIABILITY EXPOSURE FOR LOCAL GOVERNMENT IN REMEDIATING ABANDONED MINES (COUNTYWIDE) SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION RECOMMENDED ACTION: AMEND prior Board of Supervisors action on June 13,2006 regarding the"Good Samaritan Clean Watershed Act", to SUPPORT both federal legislative and administrative efforts to eliminate liability exposure for local government in remediating abandoned mines, and AUTHORIZE the Chair to execute the attached letter to Congress. CONTINUED ON ATTACHMENT: © SIGNATURE: RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE APP OTHER SIGNATURE s a ACTION OF BO ON 7 APPROVED AS RECOMMENDED OTHER VOTE OF SUPERVISORS: I HEREBY CERTIFY THAT THIS IS A TRUE AND CORRECT COPY OF AN ACTION TAKEN AND ENTERED ON _ UNANIMOUS(ABSENT ' ) MINUTES OF THE BOARD OF SUPERVISORS ON THE AYES: NOES: DATE SHOWN, ABSENT: ABSTAIN: Contact: Mitch Avalon(313-2203) :DO CC :iDOCUME—i\jenea\LOCALS—IlTemp\c.Eotns.nates.data\5-13-06 support fed leg ATTESTED good sam clean water act.doc JOHN CULLEN,,CLE�EBOARITOF SUPERVISORS cc: John Cullen,CAO Sara Hoffinan,CAO Maurice Shiu,PW Dennis Bary,CDD BY: DEPUTY Mitch Avalon,PW Greg Connaughton,PW Steve Goetz,CDD John Kopchik,CDD SUBJECT: AMEND PRIOR BOARD OF SUPERVISORS ACTION ON JUNE 13,2006 REGARDING THE "GOOD SAMARITAN CLEAN' WATERSHED ACT", TO SUPPORT BOTH FEDERAL LEGISLATIVE AND ADMINISTRATIVE 'EFFORTS TO ELIMINATE LIABILITY EXPOSURE FOR.LOCAL GOVERNMENT IN REMEDIATING ABANDONED MINES (COUNTYWIDE) DATE: JUNE 20, 2406 PAGE: 2 of 3 FISCAL IMPACT: Congress and the Environmental Protection Agency(EPA)are working on legislative and administrative initiatives that would reduce the liability exposure for the Flood Control District or the County in remediating abandoned mines that leach pollutants into the watersheds of the County. In the very near future,the Flood Control District and County will likely be required to eliminate these pollutants from the watershed through our National Pollutant Discharge Elimination System(NPDES)permit. This legislation will ultimately save the County and the District the cost of liability claims when the work is required to be done. REASONS FOR RECOMMENDATIONS AND BACKGROUND: Current legislative and administrative efforts by Congress and EPA to eliminate liability exposure would help the Flood Control District to remediate the Mt. Diablo Mercury Mine and improve water quality in the Marsh Creek. Watershed. 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. The Flood Control District has been interested for over a decade in assisting in the remediation of the abandoned mine,which is located on private property next to Mt. Diablo State Park. The mine was operational,on and off,from 1875 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 Board to cleanup the mine site,even though they did not create the problem and don't have the resources to do the work. 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 Acta 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 n mercury contamination throughout the Marsh Creek watershed.The report established that 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 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 is an attempt to address the liability concerns tied to CERCLA and the Clean Water Act through an administrative process. Congress is also reviewing legislation that is intended to address these same concerns. The Board supports these efforts that would ultimately allow us to voluntarily improve abandoned mine sites with EPA oversight and reasonable requirements without liability. Contra Costa County was requested to testify before the Senate Environment and Public Works Committee and discuss our experiences with the liability barriers for a local government agency to voluntarily assist in cleaning up SUBJECT: AMEND PRIOR BOARD OF SUPERVISORS ACTION ON JUNE 13,2006 REGARDING THE "GOOD SAMARITAN CLEAN WATERSHED ACT", TO SUPPORT BOTH FEDERAL LEGISLATIVE AND ADMINISTRATIVE EFFORTS TO ELIMINATE LIABILITY EXPOSURE FOR LOCAL GOVERNMENT IN REMEDIATING ABANDONED MINES(COUNTYWIDE) DATE: JUNE 20, 2006 PAGE: 3 of 3 an abandoned mine. Supervisor Gioia provided testimony on this subject last week. Attached is the written testimony submitted to the Senate Committee. CONSEQUENCES OF NEGATIVE ACTION The Boards position on current legislative and administrative efforts to allow voluntary clean up of abandoned mines would not be forwarded to Congress. June 20,2006 Congressman George Miller 2205 Rayburn House Office Building Washington,DC 20515 Dear Congressman Miller: Abandoned mines have a huge detrimental impact on the water quality of our creeks,rivers, and the San Francisco Bay. We support the efforts of Congress to legislatively or administratively eliminate liability exposure for local government in remediating these abandoned mines. The most prominent mine in Contra Costa County is the abandoned Mount Diablo Mercury Mine, located near the headwaters of Marsh Creek on the eastern slopes of Mount Diablo. The mine runoff has many negative environmental impacts on fish, wildlife and human health. Our Flood Control District owns a reservoir midway through the watershed that has extensive riparian, marsh and aquatic growth along the shoreline providing habitat for a variety of wildlife,including resident populations of fish. The reservoir has been fenced off for over 20 years and posted for no trespassing or fishing due to elevated levels of mercury in the flesh of the fish. The mine is a portion of a large 109 acre parcel that is bordered on three sides by Mount Diablo State Park. The current property owner purchased the property in 1974 as a bucolic site to raise their children and retire. The Regional Water Quality Control Board has issued the property owner a Cleanup and Abatement Order for the mine discharge,even though they did not create the problem. The owners do not have the resources to complete a full scale mine remediation project. As it is,they have spent over$300,000 of their retirement money in trying to address the Cleanup and Abatement Order. The Contra Costa County Flood Control District has been interested in helping to remediate the mine and improve water quality in the watershed for the last 15 years but have not been able to do so because of the substantial liability the District would assume if a project were built. Senator June 20, 2006 Page 2 Congress is currently reviewing legislation that would provide limited liability protection for local government, such as ourselves, who are interested in voluntarily assisting in the remediation of abandoned mines. In addition,we understand the Environmental Protection Agency(EPA)is developing a Good Samaritan Initiative,which attempts to provide liability protection for public agencies through an administrative order and consent process. Our understanding of this current administrative process, however, is that it is very time consuming and lengthy. In its current form this process is not a viable alternative for us. This administrative process may work well if it was changed so the agreement provisions were known in advance and the process streamlined. We are ready,willing and able to fix a source of pollution in our county and improve water quality for the San.Francisco Bay Area. We support the efforts of the EPA and Congress to develop legislation or an effective,efficient and collaborative administrative process that will allow public agencies like ours to remediate an abandoned mine without exposure to unlimited liability. Very truly yours, John Gioia Chair, Board of Supervisors JG:MMS:RMA:1z GAAdmin\Mitch\boV006\6-13-06 support mercury mine legislation ltr.doc c: Congressional Delegation John Cullen,CAO Sara Hoffman,CAO Maurice Shin,PW Dennis Barry,CDD Mitch Avalon,PW Greg Connaughton,PW John Kopchik,CDD x E *`as.."' � _' ♦` ._ .. ..., - .. - . .- .,,t`;' � . ire 4 C e T r_ ~Cf�U TESTIMONY OF JOHN GIOIA CHAIR OF THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY AND CONTRA COSTA COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT BEFORE THE SENATE ENVIRONMENT AND PUBLIC WORDS COMMITTEE REGARDING LIABILITY BARRIERS TO CLEANING UP ABANDONED MINES June 14, 2006 651-Pine Street,Martinez,California 94553 255 Glacier Drive,Martinez, California 94553 Mr. Chairman, and members of the Committee, thank you for the opportunity to appear before you today to discuss an issue of great importance for the water quality of our County, the State of California, and other States of the Union - the cleanup of abandoned or inactive mines. I appear before you as Chair of the Board of Supervisors of Contra Costa County and the Contra Costa County Flood Control and Water Conservation District. I am pleased to provide you with our experiences and recommendations related to abandoned mine cleanups and the liability associated with a county agency involved in the clean up work. I would like to describe to the.Committee an example of a project in Contra Costa County that would greatly benefit water quality in the region, yet has not been able to be completed due to the lack of"Good Samaritan" legislation. Background Contra Costa County is located in the San Francisco Bay Area of California. The west portion of the County fronts on the Bay, while the northern portion fronts along the Sacramento River, and the east portion drains into the Sacramento-San Joaquin Delta. Mount Diablo, the most prominent and tallest mountain in the area, presides in the center of the County. Marsh Creek drains from its headwaters at the top of Mt. Diablo to the west towards the Delta and discharges into the Sacramento River. An abandoned mercury mine,is located in the upper slopes of Mt. Diablo, near the headwaters of Marsh Creek. Rain water washing over the mine,tailings transports mercury down into Marsh Creek and ultimately out into the San 2 Francisco Bay. Marsh Creek also flows through the communities of Brentwood and Oakley with a total population of 60,000 residents. In the early 1960's, our Flood Control District built flood protection improvements in the Marsh Creek watershed, channelizing the downstream reaches of Marsh Creek through the flat alluvial area near the City's of Brentwood and Oakley. In 1963 the Flood Control District built a dam across Marsh Creek approximately five miles upstream of the City of Brentwood for flood control purposes. The resulting Marsh Creek Reservoir impounds water year round, and has extensive riparian, marsh and aquatic growth along the shoreline, providing habitat for a variety of wild life including resident populations of fish. The Flood Control District owns the Marsh Creek Reservoir and most of the downstream channel. Health Issue In 1980 the California Department of Fish and Game analyzed fish from the reservoir and found mercury levels in the fish flesh were above existing health standards. The reservoir has since been fenced off and noticed for no trespassing or fishing due to the mercury contamination. Mercury is a health problem in the San Francisco Bay Area and advisory notices are posted for adults to not eat fish from the Bay more than twice every month (only once a month for children and pregnant women) due to elevated levels of mercury in the flesh of the fish. 3 The Mercury Mine Mercury was first mined in this area in 1875 and continued on and off until 1971. In 1974, the current property owner purchased the abandoned mine and surrounding property. The property totaled 109 acres and is bordered on three sides by Mount Diablo State Park. The current owners were not looking to develop the'property, but looked at the property as a beautiful spot to raise their children and retire. The owner and his wife intended to build their retirement home on the property, they had no plans nor any desire to mine the property, or contract with others to mine the property. The State's Regional Water Quality Control Board (RWQCB) first issued waste discharge requirements (WDR) to prior mine operators in 1952 and recommended corrective action be taken. Although waste discharge requirements were issued to the mine operators, contaminated discharges continued after the mine was abandoned. In 1978 the RWQCB issued the property owner a Cleanup and Abatement Order because of mercury discharging from the mine site, even though the property owner was not a mining operator and did not create the problem. In response, the property owner has taken efforts to clean up the property as best he can, but does not have the resources to complete a full scale mine remediation project. The property owner recently said, "So far we have spent over$300,000 of our retirement money, in 1975 dollars, and the "well" is nearly dry." 4 Attempted Remediation In 1995 Contra Costa County contracted with a team from the University of California at Davis, lead by Dr. Darryl G. Slotten, to study and provide an assessment of mercury in the Marsh Creek watershed. The study showed that approximately 90% of the mercury in the watershed originates from the piles of tailings at the abandoned mercury mine. Based on the study, Contra Costa County applied for a Calfed grant in 1997 to remediate the mercury mine and reduce the mercury transported from the mine to the downstream watershed and into the Bay/Delta system. Our County Counsel and Risk Manager reviewed the grant in light of the lawsuit that the East Bay Municipal Utility District was facing with the remediation work they had done at the Penn Mine site and concluded that our county would be exposed to liability if the project was built. As a result, we withdrew the grant. Our sentiment was summed up in a staff memo that said, "It is sad that we can't try to help this problem, but we cannot risk getting into a situation that costs the County $5 million dollars plus huge attorney bills like it did the East Bay Municipal Utility District". The Flood Control District is still interested in remediating the mine and we are confident we can get the grant funds to do so. The local watershed council in the Marsh Creek watershed is a stakeholder group that includes several local environmental groups and is very supportive of our efforts to remediate the mine. The property owner is also very supportive of our efforts. The barrier to us implementing the project is liability. 5 Good Samaritan Initiative Understanding that liability exposure was the fundamental issue preventing us from participating in remediating the mine,Contra Costa County partnered with the Natural Heritage Institute and the cities of Oakley and Brentwood for a grant in 2000 that sought to solve the liability problem. This grant application was unsuccessful. Still interested in pursuing the remediation of the mercury mine, last year we partnered with Sustainable Conservation, a non-profit organization with experience in the arena of liability exposure with environmental projects. This has lead to discussions with EPA on their Good Samaritan Initiative and the prospect of emulating the Trout Unlimited cleanup project in the American Fork River watershed in Utah. The Good Samaritan Initiative is based on EPA's administrative authority to issue an Administrative Order and Consent. This is intended to be used in enforcement actions for liable parties. The difference is we are not a liable party. We are interested and willing to help clean up the mine site, but we don't legally have to. Since the Administrative Order and Consent is an enforcement tool, it would take an inordinate amount of our staff time and resources to modify it to be used for voluntary work. The other concern we have is that throughout the negotiation process to draft the Administrative Order and Consent there is no public input. In our experience, projects that have no public input end up creating huge problems later on. When the public ultimately finds out about the project, we have to spend an inordinate amount of staff time and resources to change the project design based upon 6 subsequent public input. As a result, we will not sponsor a project development process without public input. We support legislation specifically tailored to agencies cleaning up mines on a voluntary basis. This would be much better than the current attempt to modify an existing enforcement tool to achieve the same purpose. Liability Issue Our liability exposure occurs in at least two ways. One is under the Clean Water Act. This would be similar to the situation the East Bay Municipal Utility District (EBMUD) found themselves in after working on improving the Penn Mine drainage. EBMUD worked.1 the State's Regional Water Quality Control Board (RWQCB) in developing a remediation plan for the mine site. The remediation work, which was completed in 1978, reduced the pre-project copper discharge from an average of 64,000 pounds per year to an average of 13 pounds per year. An environmental group sued claiming that EBMUD should have taken out a National Pollutant Discharge Elimination System (NPDES) permit. The courts agreed and found that in performing the remediation work EBMUD should have obtained a NPDES permit, then followed the NPDES requirements to improve the discharge to current water quality standards. After the court case, EBMUD and the RWQCB worked on a follow-up remediation plan that brought the site back to pre-mining conditions at a cost of approximately $10,000,000. There is also liability exposure to the County under the Federal Comprehensive Environmental Response, Compensation and Liability Act 7 (CERCLA). This law imposes liability for response costs_upon owners and operators for the release of hazardous materials from a facility. Summary.. California's State Water Resources Control 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. The San Francisco Bay Regional Water Quality Control Board is currently developing a total maximum daily load (TMDL) for mercury in the Bay Area. The TMDL will provide a long range plan and goals for reducing mercury in the watersheds that drain into San Francisco Bay. With the Mt. Diablo mercury mine being one of the important sources of mercury into the bay, it will be imperative to remediate the mine tailings and prevent further discharge of mercury from the abandoned mine site. Contra Costa County and the Contra Costa County Flood Control and Water Conservation District have been-interested in remediating the mercury mine in our county for the last fifteen years. We are confident that we will be able to obtain the grant funding necessary to remediate the mercury mine. Every granting entity we have talked to is extremely excited about the prospects of the Flood Control District remediating the mercury mine. We are ready, willing and able to fix a source of pollution in our county once the issue of liability exposure is addressed We strongly support the efforts of EFA and Congress to adopt legislation that would eliminate our liability exposure and 8 allow us to improve the water quality for the residents of Contra Costa County and downstream San Francisco Bay Area. 9 The Board of Supervisors Contra John Sweeten Clerk or the Board Costaand County Administration Building Comm,Administrator 651 Pine Street.Room 106 ®linty (925)335-1900 Martinez. California 94553-4068 John Gioia,District I Gayle B.Uilkema,District_11 i Mary N.Piepho,District III Mark DeSaulnier,District IV Federal D.Glover, District V ie 20, 2006 C4*A r Senator Barbara Boxer k c q -I 112 Hart Senate Office Building I Washington, DC 20510 Dear Senator Boxer: Abandoned mines have a huge detrimental impact on i ...,ns, rivers, and the San Francisco Bay. We support the efforts of Congress to i - aaministratively eliminate liability exposure for local government in remediating these ab&woned mines. The most prominent mine in Contra Costa County is the abandoned Mount Diablo Mercury Mine, located near the headwaters of Marsh Creek on the eastern slopes of Mount Diablo. The mine runoff has many negative environmental impacts on fish, wildlife and human health. Our Flood Control District owns a reservoir midway through the watershed that has extensive riparian, marsh and aquatic growth along the shoreline providing habitat for variety of wildlife, including resident populations of fish. The reservoir has been fenced off for over 20 years and posted for no trespassing or fishing due to elevated levels of mercury in the flesh of the fish. The mine is a portion of a large 109 acre parcel that is bordered on three sides by Mount.Diablo State Park. The current property owner purchased the property in 1974 as a bucolic site to raise their children and retire. The Regional Water Quality Control Board has issued the property owner a Cleanup and Abatement Order for the mine discharge, even though they did not create the problem. The owners do not have the resources to complete a full scale mine remediation project. As it is, they have spent over $300,000 of their retirement money in trying to address the Cleanup and Abatement Order. The Contra Costa County Flood Control District has been interested in helping to remediate the mine and improve water quality in the watershed for the last 15 years but have not been able to do so because of the substantial liability the District would assume if a project were built. .. As you are aware, Congress is currently, reviewing legislation that would provide limited liability protection for local government, such as ourselves, who are interested in voluntarily. assisting in the remediation of abandoned mines. In addition, we understand the Environmental Protection Agency (EPA) is developing a Good Samaritan Initiative, which attempts to provide liability protection for public agencies through an administrative order and consent process as used in the Trout Unlimited cleanup in Utah. Our understanding of this current administrative process, however, is that it is very time consuming, complex and costly. In its current form this process is not a viable alternative for us. Senator Boxer June 20, 2006 Page 2 This administrative process may work well if it was changed so the agreement provisions were known in advance, and the process streamlined. We appreciate your comments at the June 14, 2006 Senate Environment and Public Works Committee hearing expressing your willingness to work with us on an administrative solution to our issue. We are ready, willing and able to fix a source of pollution in our county and improve water quality for the San Francisco Bay Area. We support the efforts of the EPA and Congress to develop legislation or an effective, efficient and collaborative administrative process that will allow public agencies like ours to safely and responsibly remediate an abandoned mine without exposure to unlimited liability. Very truly your , Ik John GI Chair, Board of Supervisors JG:MMS:RMA:lz G:\Admin\Mitch\bo\2006\Boxer support ltr.doc c: Congressional Delegation John Cullen,CAO Sara Hoffman,CAO Maurice Shin,PW Dennis Barry,CDD Mitch Avalon,PW Greg Connaughton,PW John Kopchik,CDD The Board of Supervisors Contra John Sweeten Clerk of the Board Costa and County Administration Building County Administrator 651 Pine Street;Room 106 County (925)335-1900 Martinez,California 94553-4068 John Gioia,District 3 Gayle B.Uilkema,District 11 Mary N.Piepho,District III INtark DeSaulnier,District IV of rN;�luia Federal D.Glover, District V srA,cou June 20, 2006 Congressman Richard Pombo 2411 Rayburn, Hart Office Building Washington, DC 20515 Dear Congressman Pombo: Abandoned mines have a huge detrimental impact on the water quality of our creeks, rivers, and the San Francisco Bay. We support the efforts of Congress to legislatively or administratively eliminate liability exposure for local government in remediating these abandoned mines. The most prominent mine in Contra Costa County is the abandoned Mount Diablo Mercury Mine, located near the headwaters of Marsh Creek on the eastern slopes of Mount Diablo. The mine runoff has many negative environmental impacts on fish, wildlife and human health. Our Flood Control District owns a reservoir midway through the watershed that has extensive riparian, marsh and aquatic growth along the shoreline providing habitat for a variety of wildlife, including resident populations of fish. The reservoir has been fenced off for over 20 years and posted for no trespassing or fishing due to elevated levels of mercury in the flesh of the fish. The mine is a portion of a large 109 acre parcel that is bordered on three sides by Mount Diablo State Park. The current property owner purchased the property in 1974 as a bucolic site to raise their children and retire. The Regional Water Quality Control Board has issued the property owner a Cleanup and Abatement Order for the mine discharge, even though they did not create the problem. The owners do not have the resources to complete a full scale mine remediation project. As it is, they have spent over $300,000 of their retirement money in trying to address the Cleanup and Abatement Order. The Contra Costa County Flood Control District has been interested in helping to remediate the mine and improve water quality in the watershed for the last 15 years but have not been able to do so because of the substantial liability the District would assume if a project were built. Congress is currently reviewing legislation that would provide limited liability protection for local government, such as ourselves, who are interested in voluntarily assisting in the remediation of abandoned mines. In addition, we understand the Environmental Protection Agency (EPA) is developing a Good Samaritan Initiative, which attempts to provide liability protection for public agencies through an administrative order and consent process as used in the Trout Unlimited cleanup in Utah. Our understanding of this current administrative process, however, is that it is very time consuming, complex and costly. In its current form this process is not a viable alternative for us. This Congressman Pombo June 20, 2006 Page 2 administrative process may work well if it was changed so the agreement--.provisions were known in advance, and the process streamlined. We are ready, willing and able to fix a source of pollution in our county and improve water quality for the San Francisco Bay Area. We support the efforts of the EPA and Congress to develop legislation or an effective, efficient and collaborative administrative process that will allow public agencies like ours to safely and responsibly remediate an abandoned mine without exposure to unlimited liability. Ver truly yours, John Gioia Chair, Board of Supervisors JG:MMS:RMA:lz G:\Admin\Mitch\bo\2006\Pombo support Itr.doc c: Congressional Delegation John Cullen,CAO Sara Hoffman,CAO Maurice Shiu,PW Dennis Barry,CDD Mitch Avalon,PW Greg Connaughton,PW John Kopchik,CDD The Board of Supervisors Contra John Sweeten p Clerk of the Board Costa and County Administration Building County Administrator 651 Pine Street,Room 106County (925)335-1900 _Martinez,California 94553-4068 l• John Gioia,District 1 Gayle B.Uilkema,District II 1 Mary N.Piepho,District III Mark DeSaulnier,District IV ni Federal D.Glover, District V �OST'9COLIN'� � . June 20, 2006 Congressman George Miller 2205 Rayburn, House Office Building Washington, DC 20515 Dear Congressman Miller: Abandoned mines have a huge detrimental impact on the water quality of our creeks, rivers, and the San Francisco Bay. We support the efforts of Congress to legislatively or administratively eliminate liability exposure for local government in remediating these abandoned mines. The most prominent mine in Contra Costa County is the abandoned Mount Diablo Mercury Mine, located near the headwaters of Marsh Creek on the eastern slopes of Mount Diablo. The mine runoff has many negative environmental impacts on fish, wildlife and human health. Our Flood Control District owns a reservoir midway through the watershed that has extensive riparian, marsh and aquatic growth along the shoreline providing habitat for a variety of wildlife, including resident populations of fish. The reservoir has been fenced off for over 20 years and posted for no trespassing or fishing due to elevated levels of mercury in the flesh of the fish. The mine is a portion of a large 109 acre parcel that is bordered on three sides by Mount Diablo State Park. The current property owner purchased the property in 1974 as a bucolic site to raise their children and retire. The Regional Water Quality Control Board has issued the property owner a Cleanup and Abatement Order for the mine discharge, even though they did not create the problem. The owners do not have the resources to complete a full scale mine remediation project. As it is, they have spent over $300,000 of their retirement money in trying to address the Cleanup and Abatement Order. The Contra Costa County Flood Control District has been interested in helping to remediate the mine and improve water quality in the watershed for the last 15 years but have not been able to do so because of the substantial liability the District would assume if a project were built. Congress is currently reviewing legislation that would provide limited liability protection for local government, such as ourselves, who are interested in voluntarily assisting in the remediation of abandoned mines. In addition, we understand the Environmental Protection Agency (EPA) is developing a Good Samaritan Initiative, which attempts to provide liability protection for public agencies through an administrative order and consent process as used in the Trout Unlimited cleanup in Utah. Our understanding of this current administrative process, however, is that it is very time consuming, complex and costly. In its current form this process is not a viable alternative for us. This Congressman Miller June 20, 2006 Page 2 administrative process may work well if it was changed so the'agreeinerit provisions"were known in advance, and the process streamlined. We are ready, willing and able to fix a source of pollution in our county and improve water quality for the San Francisco Bay Area. We support the efforts of the EPA and Congress to develop legislation or an effective, efficient and collaborative administrative process that will allow public agencies like ours to safely and responsibly remediate an abandoned mine without exposure to unlimited liability. Very ruly yo rs, ohn Gioia Chair,Board of Supervisors JG:MMS:RMA:lz G:\Admin\Mitch\bo\2006\Miller support Itr.doc c: Congressional Delegation John Cullen,CAO Sara Hoffman,CAO Maurice Shiu,PW Dennis Barry,CDD Mitch Avalon,PW Greg Connaughton,PW John Kopchik,CDD The Board of Suerv>i-so rs Contra John sweeten p Clerk of the Board Costa and County Administration Building County Administrator 651 Pine-Street, Room 106 (925)335-1900 Martinez,CaliforniaCounty ia 94553-4068 C sE t John Gioia,District f Gayle B.Uilkema,District 11 Aj Mary N.Piepho,District III Mark DeSaulnier,District IV n; - s Federal D.Glover, District V �OST'4COi)r4'� C$' June 20, 2006 Senator Dianne Feinstein Hart Office Building, Room 331 Washington, DC 20510 Dear Senator Feinstein: Abandoned mines have a huge detrimental impact on the water quality of our creeks, rivers, and the San Francisco Bay. We support the efforts of Congress to legislatively or administratively eliminate liability exposure for local government in remediating these abandoned mines. The most prominent mine in Contra Costa County is the abandoned Mount Diablo Mercury Mine, located near the headwaters of Marsh Creek on the eastern slopes of Mount Diablo. The mine runoff has many negative environmental impacts on fish, wildlife and human health. Our Flood Control District owns a reservoir midway through the watershed that has extensive riparian, marsh and aquatic growth along the shoreline providing habitat for a variety of wildlife, including resident populations of fish. The reservoir has been fenced off for over 20 years and posted for no trespassing or fishing due to elevated levels of mercury in the flesh of the fish. The mine is a portion of a large 109 acre parcel that is bordered on three sides by Mount Diablo State Park. The current property owner purchased the property in 1974 as a bucolic site to raise their children and retire. The Regional Water Quality Control Board has issued the property owner a Cleanup and Abatement Order for the mine discharge, even though they did not create the problem. The owners do not have the resources to complete a full scale mine remediation project. As it is, they have spent over $300,000 of their retirement money in trying to address the Cleanup and Abatement Order. The Contra Costa County Flood Control District has been interested in helping to remediate the mine and improve water quality in the watershed for the last 15 years but have not been able to do so because of the substantial liability the District would assume if a project were built. Congress is currently reviewing legislation that would provide limited liability protection for local government, such as ourselves, who are interested in voluntarily assisting in the remediation of abandoned mines. In addition, we understand the Environmental Protection Agency (EPA) is developing a Good Samaritan Initiative, which attempts to provide liability protection for public agencies through an administrative order and consent process as used in the Trout Unlimited cleanup in Utah. Our understanding of this current administrative process, however, is that it is very time consuming, complex and costly. In its current form this process is not a viable alternative for us. This Senator Feinstein June 20, 2006 Page 2 administrative process may work well if it was changed so the agreement provisions were_known in advance, and the process streamlined. We are ready, willing and able to fix a source of pollution in our county and improve water quality for the San Francisco Bay Area. We support the efforts of the EPA and Congress to develop legislation or an effective, efficient and collaborative administrative process that will allow public agencies like ours to safely and responsibly remediate an abandoned mine without exposure to unlimited liability. Very truly yours, ohn Gioia Chair, Board of Supervisors JG:MMS:RMA:lz G:\Admin\Mitch\bo\2006\Feinstein support Itr.doc c: Congressional Delegation John Cullen,CAO Sara Hoffman,CAO Maurice Shiu,PW Dennis Bary,CDD Mitch Avalon,PW Greg Connaughton,PW John Kopchik,CDD The Board of Supervisors Contra J6hn`sweeten p Clerk of the Board Costa and County Administration Building County Administrator 651 Pine Street, Room 106 County (925)335-1900 Martinez,California 94553- 4068 John Gioia,District I Gayle B.Uilkema,District 11 Mary N.Piepho,District III Mark DeSaulnier.District IV a r;itlute' '� Federal D.Glover, District V e ooSaA coati c t June 20, 2006 Congresswoman Ellen Tauscher 1034 Longworth, Hart Office Building Washington, DC 20515 Dear Congresswoman Tauscher: Abandoned mines have a huge detrimental impact on the water quality of our creeks, rivers, and the San Francisco Bay. We support the efforts of Congress to legislatively or administratively eliminate liability exposure for local government in remediating these abandoned mines. The most prominent mine in Contra Costa County is the abandoned Mount Diablo Mercury Mine, located near the headwaters of Marsh Creek on the eastern slopes of Mount Diablo. The mine runoff has many negative environmental impacts on fish, wildlife and human health. Our Flood Control District owns a reservoir midway through the watershed that has extensive riparian, marsh and aquatic growth along the shoreline providing habitat for a variety of wildlife, including resident populations of fish. The reservoir has been fenced off for over 20 years and posted for no trespassing or fishing due to elevated levels of mercury in the flesh of the fish. The mine is a portion of a large 109 acre parcel that is bordered on three sides by Mount Diablo State Park. The current property owner purchased the property in 1974 as a bucolic site to raisetheir children and retire. The Regional Water Quality Control Board has issued the property owner a Cleanup and Abatement Order for the mine discharge, even though they did not create the problem. The owners do not have the resources to complete a full scale mine remediation project. As it is, they have spent over $300,000 of their retirement money in trying to address the Cleanup and Abatement Order. The Contra Costa County Flood Control District has been interested in helping to remediate the mine and improve water quality in the watershed for the last 15 years but have not been able to do so because of the substantial liability the District would assume if a project were built. Congress is currently reviewing legislation that would provide limited liability protection for local government, such as ourselves, who are interested in voluntarily assisting in the remediation of abandoned mines. In addition, we understand the Environmental Protection Agency (EPA) is developing a Good Samaritan Initiative, which attempts to provide liability protection for public agencies through an administrative order and consent process as used in the Trout Unlimited cleanup in Utah. Our understanding of this current administrative process, however, is that it is very time consuming, complex and costly. In its current form this process is not a viable alternative for us. This Congresswoman Tauscher - June 20, 2006 Page 2 administrative process may work well if it was changed so the agreement provisions were known in advance, and the process streamlined. We are ready, willing and able to fix a source of pollution in our county and improve water quality for the San Francisco Bay Area. We support the efforts of the EPA and Congress to develop legislation or an effective, efficient and collaborative administrative process that will allow public agencies like ours to safely and responsibly remediate an abandoned mine without exposure to unlimited liability. Ver truly yours, ohn Gioia Chair, Board of Supervisors JG:MMS:RMA:lz G:\Admin\Mitch\bo\2006\Tauscher support Itr.doc c: Congressional Delegation John Cullen,CAO Sara Hoffinan,CAO Maurice Shiu,PW Dennis Barry,CDD Mitch Avalon,PW Greg Connaughton,PW John Kopchik,CDD SEL TO: BOARD OF SUPERVISORS Contra-�� FROM: PUBLIC WORKS DIRECTOR . ;py,n fs Costa DATE: JUNE 20 2006 County srA-coaK'� SUBJECT: AMEND PRIOR BOARD OF SUPERVISORS ACTION ON JUNE 13,2006 REGARDING THE "GOOD SAMARITAN CLEAN WATERSHED ACT", TO SUPPORT BOTH FEDERAL LEGISLATIVE AND ADMINISTRATIVE EFFORTS TO ELIMINATE LIABILITY EXPOSURE FOR LOCAL GOVERNMENT IN REMEDIATING ABANDONED MINES (COUNTYWIDE) SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION RECOMMENDED ACTION: AMEND prior Board of Supervisors action on June 13,2006 regarding the"Good Samaritan Clean Watershed Act", to SUPPORT both federal legislative and administrative efforts to eliminate liability exposure for local government in remediating abandoned mines, and AUTHORIZE the Chair to execute the attached letter to Congress. CONTIATUED ON ATTACMIENT: [K SIGNATURE: RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE l APPRkKW OTHER SIGNATURE(S): / f ACTION OF BO ON APPROVED AS RECOMMENDED OTHER VOTE OF SUPERVISORS: I HEREBY CERTIFY THAT THIS IS A TRUE AND CORRECT COPY OF AN ACTION TAKEN AND ENTERED ON UNANIMOUS(ABSENT ) MINUTES OF THE BOARD OF SUPERVISORS ON THE AYES: NOES: DATE SHOWN. ABSENT: ABSTAIN: Contact: Mitch Avalon(313-2203) RMA:Iz C:\)OCUME-1\jeneaU.OCALS-1\Temp\c.lotus.notes.data\6-13-06 support fed leg ATTESTED good sam clean water act.doc JOHN CULLEN,CLERI OF THE BOARD OF SUPERVISORS cc: John Cullen,CAO Sara Hoffman,CAO Maurice Shiu,PW Dennis Barry,CDD BY: DEPUTY Mitch Avalon,PW Greg Connaughton,PW Steve Goetz,CDD John Kopchik,CDD SUBJECT: AMEND PRIOR BOARD OF SUPERVISORS ACTION ON JUNE 13,2006 REGARDING THE' "GOOD SAMARITAN CLEAN WATERSHED ACT", TO SUPPORT BOTH FEDERAL LEGISLATIVE AND ADMINISTRATIVE EFFORTS TO ELIMINATE LIABILITY EXPOSURE FOR LOCAL GOVERNMENT IN REMEDIATING ABANDONED MINES (COUNTYWIDE) DATE: JUNE 20,2006 PAGE: 2 of 3 FISCAL IMPACT: Congress and the Environmental Protection Agency(EPA)are working on legislative and administrative initiatives that would reduce the liability exposure for the Flood Control District or the County in remediating; abandoned mines that leach pollutants into the watersheds of the County. In the very near future,the Flood Control District and County will likely be required to eliminate these pollutants from the watershed through our National Pollutant Discharge Elimination System(NPDES)permit. This legislation will ultimately save the County and the District the cost of liability claims when the work is required to be done. REASONS FOR RECOMMENDATIONS AND BACKGROUND: Current legislative and administrative efforts by Congress and EPA to eliminate liability exposure would help the Flood Control District to remediate the Mt. Diablo Mercury Mine,and improve water quality in the Marsh Creek Watershed. 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. The Flood Control District has been interested for over a decade in assisting in the remediation of the abandoned mine,which is located on private property next to Mt. Diablo State Park. The mine was operational,on and off,from 1875 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 Board to clean up the mine site,even though they did not create the problem and don't have the resources to do the work. 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 90%of the mercury in the creek originated at the abandoned mine. The blood Control District is interested in helping cleanup the Mount Diablo Mercury Mine but liability concerns are the principal roadblock to the District's 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 is an attempt to address the liability concerns tied to CERCLA and the Clean Water Act through an administrative process. Congress is also reviewing legislation that is intended to address these same concerns. The Board supports these efforts that would ultimately allow us to voluntarily improve abandoned mine sites with EPA oversight and reasonable requirements without liability. Contra Costa County was requested to testify before the Senate Environment and Public Works Committee and discuss our experiences with the liability barriers for a local government agency to voluntarily assist in cleaning up SUBJECT: AMEND PRIOR BOARD OF SUPERVISORS ACTION ON JUNE 13,2006 REGARDING THE "GOOD SAMARITAN CLEAN WATERSHED ACT", TO SUPPORT BOTH FEDERAL LEGISLATIVE AND ADMINISTRATIVE EFFORTS TO ELIMINATE LIABILITY EXPOSURE FOR LOCAL GOVERNMENT IN REMEDIATING ABANDONED MINES(COUNTYWIDE) DATE: JUNE 20, 2006 PAGE: 3 of 3 an abandoned mine. Supervisor Gioia provided testimony on this subject last week. Attached is the written testimony submitted to the Senate Committee. CONSEQUENCES OF NEGATIVE ACTION The Boards position on current legislative and administrative efforts to allow voluntary clean up of abandoned mines would not be forwarded to Congress. June 20, 2006 Congressman George Miller 2205 Rayburn House Office Building Washington, DC 20515 Dear Congressman Miller: Abandoned mines have a huge detrimental impact on the water quality of our creeks,rivers, and the San Francisco Bay. We support the efforts of Congress to legislatively or administratively eliminate liability exposure for local government in remediating these abandoned mines. The most prominent mine in Contra Costa County is the abandoned Mount Diablo Mercury Mine, located near the headwaters of Marsh Creek on the eastern slopes of Mount Diablo. The mine runoff has many negative environmental impacts on fish, wildlife and human health. Our Flood Control District owns a reservoir midway through the watershed that has extensive riparian, marsh and aquatic growth along the shoreline providing habitat for a variety of wildlife,including resident populations of fish. The reservoir has been fenced off for over 20 years and posted for no trespassing or fishing due to elevated levels of mercury in the flesh of the fish. The mine is a portion of a large 109 acre parcel that is bordered on three sides by Mount Diablo State Park. The current property owner purchased the property in 1974 as a bucolic site to raise their children and retire. The Regional Water Quality Control Board has issued the property owner a Cleanup and Abatement Order for the mine discharge,even though they did not create the problem. The owners do not have the resources to complete a full scale mine remediation project. As it is,they have spent over$300,000 of their retirement money in trying to address the Cleanup and Abatement Order. The Contra Costa County Flood Control District has been interested in helping to remediate the mine and improve water quality in the watershed for the last 15 years but have not been able to do so because of the substantial liability the District would assume if a project were built. Senator June 20, 2006 Page 2 Congress is currently reviewing legislation that would provide limited liability protection for local government, such as ourselves, who are interested in voluntarily assisting in the remediation of abandoned mines. In addition,we understand the Environmental Protection Agency(EPA)is developing a Good Samaritan Initiative,which attempts to provide liability protection for public agencies through an administrative order and consent process. Cour understanding of this current administrative process, however, is that it is very time consuming and lengthy. In its current form this process is not a viable alternative for us. This administrative process may work well if it was changed so the agreement provisions were known in advance and the process streamlined. We are ready,willing and able to fix a source of pollution in our county and improve water quality for the San Francisco Bay Area. We support the efforts of the EPA and Congress to develop legislation or an effective,efficient and collaborative administrative process that will allow public agencies like ours to remediate an abandoned mine without exposure to unlimited liability. Very truly yours, John Gioia Chair, Board of Supervisors JG:MMS:RMA:lz G:\Adrmn\Mitcfi\bo\2006\6-l3-06 support mercury mine legislation ltr.doc c: Congressional Delegation John Cullen,CAO Sara Hof1'inan,CAO Maurice Shiu,PW Dennis Barry,CDD Mitch Avalon,PW Greg Connaughton,PW John Kopchik,CDD 5 i�SE nnrr sa_ s 00.0 4COU1 ` TESTIMONY OF JOHN GIOIA CHAIR OF THE BOARD OF,SUPERVISORS OF CONTRA COSTA COUNTY AND CONTRA COSTA COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT BEFORE THE SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE REGARDING LIABILITY BARRIERS TO CLEANING UP ABANDONED MINES June 14, 2006 651 Pine Street,Martinez,California 94553 255 Glacier Drive,Martinez,California 94553 Mr. Chairman, and members of the Committee, thank you for the opportunity to appear before you today to discuss an issue of great importance for the water quality of our County, the State of California, and other States of the Union - the cleanup of abandoned or inactive mines. I appear before you as Chair of the Board of Supervisors of Contra Costa County and the Contra Costa County Flood Control and Water Conservation District. I am pleased to provide you with our experiences and recommendations related to abandoned mine cleanups and the liability associated with a county agency involved in the clean up work. I would like to describe to the.Committee an example of a project in Contra Costa County that would greatly benefit water quality in the region, yet has not been able to be completed due to the lack of"Good Samaritan" legislation. Background Contra Costa County is located in the San Francisco Bay Area of California. The west portion of the County fronts on the Bay, while the northern portion fronts along the Sacramento River, and the east portion drains into the Sacramento-San Joaquin Delta. Mount Diablo, the most prominent and tallest mountain in the area, presides in the center of the County. Marsh Creek drains from its headwaters at the top of Mt. Diablo to the west towards the Delta and discharges into the Sacramento River. An abandoned mercury mine is located in the upper slopes of Mt. Diablo, near the headwaters of Marsh Creek. Rain water washing over the mine tailings transports mercury down into Marsh Creek and ultimately out into the San 2 Francisco Bay. Marsh Creek also flows through the communities of Brentwood and Oakley with a total population of 60,000 residents. In the early 1960's, our Flood Control District built flood protection improvements in the Marsh Creek watershed, channelizing the downstream reaches of Marsh Creek through the flat alluvial area near the City's of Brentwood and Oakley. In 1963 the Flood Control District built a dam across Marsh Creek approximately five miles upstream of the City of Brentwood for flood control purposes. The resulting Marsh Creek Reservoir impounds water year round, and has extensive riparian, marsh and aquatic growth along the shoreline, providing habitat for a variety of wild life including resident populations of fish. The Flood Control District owns the Marsh Creek Reservoir and most of the.downstream channel. Health Issue In 1980 the California Department of Fish and Game analyzed fish from the reservoir and found mercury levels in the fish flesh were above existing health standards. The reservoir has since been fenced off and noticed for no trespassing or fishing due to the mercury contamination. Mercury is a health problem in the San Francisco Bay Area and advisory notices are pasted for adults to not eat fish from the Bay more than twice every month (only once a month for children and pregnant women) due to elevated levels of mercury in the flesh of the fish. 3 The-Mercury Mine Mercury was first mined in this area in 1875 and continued on and off until 1971. In 1974, the current property owner purchased the abandoned mine and surrounding property. The property totaled 109 acres and is bordered on three sides by Mount Diablo State Park. The current owners were not looking to develop the property, but looked at the property as a beautiful spot to raise their children and retire. The owner and his wife intended to build their retirement home on the property, they had no plans not any desire to mine the property, or contract with others to mine the property. The State's Regional Water Quality Control Board (RWQCB) first issued waste discharge requirements (WDR) to prior,mine operators in 1952 and recommended corrective action be taken. Although waste discharge requirements were issued to the mine operators, contaminated discharges continued after the mine was abandoned. In 1978 the RWQCB issued the property owner a Cleanup and Abatement Order because of mercury discharging from the mine site, even though the property owner was not a mining operator and did not create the problem. In response, the property owner has taken efforts to clean up the property as best he can, but does not have the resources to complete a fu11 scale mine remediation project. The property owner recently said, "So far we have spent over $300,000 of our retirement money, in 1975 dollars, and the "well" is nearly dry." 4 Attempted Remediation In 1995 Contra Costa County contracted with a team from the University of California at Davis, lead by Dr. Darryl G. Slotten, to study and provide an assessment of mercury in the Marsh Creek watershed. The study showed that approximately 90% of the mercury in the watershed originates from the piles of tailings at the abandoned mercury mine. Based on the study, Contra Costa County applied for a Calfed grant in 1997 to remediate the mercury mine and reduce the mercury transported from the mine to the downstream watershed and into the Bay/Delta system. Our County Counsel and Risk Manager reviewed the grant in light of the lawsuit that the East Bay Municipal Utility District was facing with the remediation work they had done at the Penn Mine site and concluded that our county would be exposed to liability if the project was built. As a result, we withdrew the grant. Our sentiment was summed up in a staff memo that said, "It is sad that we can't try to help this problem, but we cannot risk getting into a situation that costs the County $5 million dollars plus huge attorney bills like it did the East Bay Municipal Utility District". The Flood Control District is still interested in remediating the mine and we are confident we can get the grant funds to do so. The local watershed council in the Marsh Creek watershed is a stakeholder group that includes several local environmental groups and is very supportive of our efforts to remediate the mine. The property owner is also very supportive of our efforts. The barrier to us implementing the project is liability. 5 Good Samaritan Initiative Understanding that liability exposure was the fundamental issue preventing us from participating in remediating the mine, Contra Costa County partnered with the Natural Heritage Institute and the cities of Oakley and Brentwood for a grant in 2000 that sought to solve the liability problem. This grant application was unsuccessful. Still interested in pursuing the remediation of the mercury mine, last year we partnered with Sustainable Conservation, a non-profit organization with experience in the arena of liability exposure with environmental projects. This has lead to discussions with EPA on their Good Samaritan Initiative and the prospect of emulating the Trout Unlimited cleanup project in the American Fork River watershed in Utah. The Good Samaritan Initiative is based on EPA's administrative authority to issue an Administrative Order and Consent. This is intended to be used in enforcement actions for liable parties. The difference is we are not a liable party. We are interested and willing to help clean up the mine site, but we don't legally have to. Since the Administrative Order and Consent is an enforcement.tool, it would take an inordinate amount of our staff time and resources to modify it to be used for voluntary work. The other concern we have is that throughout the negotiation process to draft the Administrative Order and Consent there is no public input. In our experience, projects that have no public input end up creating huge problems later on. When the public ultimately finds out about the project, we have to spend an inordinate amount of staff time and resources to change,the project design based upon 6 subsequent public input. As a result, we will not sponsorr-a project development process without public input. We support legislation specifically tailored to agencies cleaning up mines on a voluntary basis. This would be much better than the current attempt to modify an existing enforcement tool to achieve the same purpose. Liability Issue Our liability exposure occurs in at least two ways. One is under the Clean Water Act. This would be similar to the situation the East Bay Municipal Utility District (EBMUD) found themselves in after working on improving the Penn Mine drainage. EBMUD worked with the State's Regional Water Quality Control Board (RWQCB) in developing a remediation plan for the mine site. The remediation work, which was completed in 1978, reduced the pre-project copper discharge from an average�of 64,000 pounds per year to an average of 13 pounds per year. An environmental group sued claiming' that EBMUD should have taken out a National Pollutant Discharge Elimination System (NPDES) permit. The courts agreed and found that in . performing the remediation work EBMUD should have obtained a NPDES permit,then followed the NPDES requirements to improve the discharge to current water quality standards. After the court case, EBMUD and the RWQCB worked on a follow-up remediation,plan that brought the site back to pre-mining conditions at a cost of approximately $10,000,000. There is also liability exposure to the County under the Federal Comprehensive Environmental Response, Compensation and Liability Act 7 (CERCLA). This law imposes liability for response costs upon owners and operators for the release of hazardous materials from a facility. Summary California's State Water Resources Control 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. The San Francisco Bay Regional Water Quality Control Board is currently developing a total maximum daily load (TMDL) for mercury in the Bay Area. The TMDL will provide a long range plan and goals for reducing mercury in the watersheds that drain into San Francisco Bay. With the Mt. Diablo mercury mine being one of the important sources of mercury into the bay, it will be imperative to remediate the mine tailings and prevent further discharge of mercury from the abandoned mine site. Contra Costa County and the Contra Costa County Flood Control and Water Conservation District have been interested in remediating the mercury mine in our county for the last fifteen years. We are confident that we will be able to obtain the grant funding necessary to remediate the mercury mine. Every granting entity we have talked to is extremely excited about the prospects of the Flood Control District remediating the mercury mine. We are ready, willing and able to fix a source of pollution in our county once the issue of liability exposure is addressed. We strongly support the efforts of EPA and Congress to adopt legislation that would eliminate our liability exposure and 8 allow us to improve the water quality for the residents of Contra Costa County and downstream San Francisco Bay Area. 9 The Board of Supervisors Contra John S-A Keeten Y Clerk of the Board ®Std and County Administration Building Count}-Administrator 651 Pine Street.Room 106County (92')335-1900 Martinez.California 94553=1068 John Gioia,District I Gayle B.Uilkema,District Il 1 Marc N.Piepho,District III Mark DeSaulnier,District IV Federal D.Glover, District V d l ! K ( ie 20, 2006 JJ C �J Senator Barbara Boxer qq 112 Hart Senate Office Building Washington, DC 20510 A / Dear Senator Boxer: �b �S Abandoned mines have a huge detrimental impact on i ..�riivers, and the San Francisco Bay. We support the efforts of Congress to i aaministratively eliminate liability exposure for local government in remediating these ab&.uoned mines. The most prominent mine in Contra Costa County is the abandoned Mount Diablo Mercury Mine, located near the headwaters of Marsh Creek on the eastern slopes of Mount Diablo. The mine runoff has many negative environmental impacts on fish, wildlife and human health. Our Flood Control District owns a reservoir midway through the watershed that has extensive riparian, marsh and aquatic growth along the shoreline providing habitat for a variety of wildlife, including resident populations of fish. The reservoir has been fenced off for over 20 years and posted for no trespassing or fishing due to elevated levels of mercury in the flesh of the fish. The mine is a portion of a large 109 acre parcel that is bordered on three sides by Mount Diablo State Park. The current property owner purchased the property in 1974 as a bucolic site to raise their children and retire. The Regional Water Quality Control Board has issued the property owner a Cleanup and Abatement Order for the mine discharge, even though they did not create the problem. The owners do not have the resources to complete a full scale mine remediation project. As it is, they have spent over $300,000 of their retirement money in trying to address the Cleanup and Abatement Order. The Contra Costa County Flood Control District has been interested in helping to remediate the mine and improve water quality in the watershed for the last 15 years but have not been able to do so because of the substantial liability the District would assume if a project were built. As you are aware, Congress is currently reviewing legislation that would provide limited liability protection for local government, such as ourselves, who are interested in voluntarily assisting in the remediation of abandoned mines. In addition, we understand the Environmental Protection Agency (EPA) is developing a Good Samaritan Initiative, which attempts to provide liability protection for public agencies through an administrative order and consent process as used in the Trout Unlimited cleanup in Utah. Our understanding of this current administrative process, however, is that it is very time consuming, complex and costly. In its current form this process is not a viable alternative for us. Senator Boxer June 20, 2006 Page 2 This administrative process may work well if it was changed so the agreement provisions were known in advance, and the process streamlined. We appreciate your comments at the June 14, 2006 Senate Environment and.Public Works Committee hearing expressing your willingness to work with us on an administrative solution to our issue. We are ready, willing and able to fix a source of pollution in our county and improve water quality for the San Francisco Bay Area. We support the efforts of the EPA and Congress to develop legislation or an effective, efficient and collaborative administrative process that will allow public agencies like ours to safely and responsibly remediate an abandoned mine without exposure to unlimited liability. Very truly , Y. Chiair�, BoaZrdof Gioia Supervisors JG:MMS:RMA:lz G:\Admin\Mitch\bo\2006\Boxer support itr.doc c: Congressional Delegation John Cullen,CAO Sara Hoffman,CAO Maurice Shin,PW Dermis Barry,CDD Mitch Avalon,PW Greg Connaughton,PW John Kopchik,CDD The Board of Supervisors Contra John sweeten Clerk of the Board QSta and . County Administration Building County Administrator 651 Pine Street, Room 106 County (925)335-1400 Martinez,California 945534068 John Gioia,District 1 �• "'"'� ,o Gayle B.Uilkerna,District 11 1 Mary N.Piepho,District III Mark DeSsulnier,District IV Federal D.Glover, District V S oQsra iaon'C'; June 20, 2006 Congressman Richard Pombo 2411 Rayburn, Hart Office Building Washington, DC 20515 Dear Congressman Pombo: Abandoned mines have a huge detrimental impact on the water quality of our creeks, rivers, and the San Francisco Bay. We support the efforts of Congress to legislatively or administratively eliminate liability exposure for local government in remediating these abandoned mines. The most prominent mine in Contra Costa County is the abandoned Mount Diablo Mercury Mine, located near the headwaters of Marsh Creek on the eastern slopes of Mount Diablo, The mine runoff has many negative environmental impacts on fish, wildlife and human health. Our Flood Control District owns a reservoir midway through the watershed that has extensive riparian, marsh and aquatic growth along the shoreline providing habitat for a variety of wildlife, including resident populations of fish. The reservoir has been fenced off for over 20 years and posted for no trespassing or fishing due to elevated levels of mercury in the flesh of the fish. The mine is a portion of a large 109 acre parcel that is bordered on three sides by Mount Diablo State Park. The current property owner purchased the property in 1974 as a bucolic site to raise their children and retire. The Regional Water Quality Control Board has issued the property owner a Cleanup and Abatement Order for the mine discharge, even though they did not create the problem. The owners do not have the resources to complete a full scale mine remediation project. As it is, they have spent over $300,000 of their retirement money in trying to address the Cleanup and Abatement Order. The Contra Costa County Flood Control District has been interested in helping to remediate the mine and improve water quality in the watershed for the last 15 years but have not been able to do so because of the substantial liability the District would assume if a project were built. Congress is currently reviewing legislation that would provide limited liability protection for local government, such as ourselves, who are interested in voluntarily assisting in the remediation of abandoned mines. In addition, we understand the Environmental Protection Agency (EPA) is developing a Good Samaritan Initiative, which attempts to provide liability protection for public agencies through an administrative order and consent process as used in the Trout Unlimited cleanup in Utah. Our understanding of this current administrative process, however, is that it is very time consuming, complex and costly. In its current form this process is not a viable alternative for us. This Congressman Pombo June 20, 2006 Page 2 administrative process may work well if it was changed so the agreement provisions were known in advance, and the process streamlined. We are ready, willing and able to fix a source of pollution in our county and improve water quality for the San Francisco Bay Area. We support the efforts of the EPA and Congress to develop legislation or an effective, efficient and collaborative administrative process that will allow public agencies like ours to safely and responsibly remediate an abandoned mine without exposure to unlimited liability. Ver truly yours, ?John Gioia Chair,.Board of Supervisors JG:MMS:RMA:lz G:\Admin\Mitch\bo\2006\Pombo support ltr.doc c: Congressional Delegation John Cullen,CAO Sara Hoffman,CAO 1 Maurice Shiu,PW Dennis Barry,CDD Mitch Avalon,PW Greg Connaughton,PW John Kopchik,CDD The Board of Supervisors Contra John Sweeten Clerk of the Board Costaand County Administration Building County Administrator 651 Pine Street,Room 106 County (925)335-1900 Martinez, California 94553-4068 John Gioia,District 1 __' Gayle B.Uilkema,District 11 Mary N.Piepho,District III Mark DeSaulnier,District IV ni Federal D.Glover, District V --- ---vK'� June 20, 2006 Congressman George Miller 2205 Rayburn, House Office Building Washington, DC 20515 Dear Congressman Miller: Abandoned mines have a huge detrimental impact on the water quality of our creeks, rivers, and the San Francisco Bay. We support the efforts of Congress to legislatively or administratively eliminate liability exposure for local government in remediating these abandoned mines. The most prominent mine in Contra Costa County is the abandoned Mount Diablo Mercury Mine, located near the headwaters of Marsh Creek on the eastern slopes of Mount Diablo. The mine runoff has many negative environmental impacts on fish, wildlife and human health. Our Flood Control District owns a reservoir midway through the watershed that has extensive riparian, marsh and aquatic growth along the shoreline providing habitat for a variety of wildlife, including resident populations of fish. The reservoir has been fenced off for over 20 years and posted for no trespassing or fishing due to elevated levels of mercury in the flesh of the fish. The mine is a portion of a large 109 acre parcel that is bordered on three sides by Mount Diablo State Park. The current property owner purchased the property in 1974 as a bucolic site to raise their children and retire. The Regional Water Quality Control Board has issued the property owner a Cleanup and Abatement Order for the mine discharge, even though they did not create the problem. The owners do not have the resources to complete a full scale mine remediation project. As it is, they have spent over $300,000 of their retirement money in trying to address the Cleanup and Abatement Order. The Contra Costa County Flood Control District has been interested in helping to remediate the mine and improve water quality in the watershed for the last 15 years but have not been able to do so because of the substantial liability the District would assume if a project were built. Congress is currently reviewing legislation that would provide limited liability protection for local government, such as ourselves, who are interested in voluntarily assisting in the remediation of abandoned mines. In addition, we understand the Environmental Protection Agency (EPA) is developing a Good Samaritan Initiative, which attempts to provide liability protection for public agencies through an administrative order and consent process as used in the Trout Unlimited cleanup in Utah. Our understanding of this current administrative process, however, is that it is very time consuming, complex and costly. In its current form this process is not a viable alternative for us. This Congressman Miller June 20, 2006 Page 2 administrative process may work well if it was changed so the agreement provisions were known in advance, and the process streamlined. We are ready, willing and able to fix a source of pollution in our county and improve water quality for the San Francisco Bay Area. We support the efforts of the EPA and Congress to develop legislation or an effective, efficient and collaborative administrative process that will allow public agencies like ours to safely and responsibly remediate an abandoned mine without exposure to unlimited liability. Very ruly yo rs, ohn Gioia Chair, Board of Supervisors JG:MMS:RMA:lz G:\Admin\Mitch\bo\2006\Miller support Itr.doc c: Congressional Delegation John Cullen,CAO Sara Hoffman,CAO Maurice Shiu,PW Dennis Barry,CDD Mitch Avalon,PW Greg Connaughton,PW John Kopchik,CDD The Board of Supervisors Contra John Sweeten p Clerk of the Board Costa and County Administration Building County Administrator, 651 Pine Street,Room 106 County (925)33571900 Martinez,California 94553-4068 sE - John Gioia,District 1 Gavle B.Uilkema.District If Man,N.Piepho,District III 'a _ Mark DeSaulnier,District IV o' Federal D.Glover, District V % June 20, 2006 Senator Dianne Feinstein Hart Office Building,Room 331 Washington, DC 20510 Dear Senator Feinstein: Abandoned mines have a huge detrimental impact on the water quality of our creeks, rivers, and the San Francisco Bay. We support the efforts of Congress to legislatively or administratively eliminate liability exposure for local government in remediating these abandoned mines. The most prominent mine in Contra Costa County is the' abandoned Mount Diablo Mercury Mine, located near the headwaters of Marsh Creek on the eastern;',slopes of Mount Diablo. The mine runoff has many negative environmental impacts on fish, wildlife and human health. Our Flood Control District owns a reservoir midway through the watershed that has extensive riparian, marsh and aquatic growth along the shoreline providing habitat for a variety of wildlife, including resident populations of fish. The reservoir has been fenced off for over 20 years and posted for no trespassing or fishing due to elevated levels of mercury in the flesh of the fish. The mine is a portion of a large 109 acre parcel that is bordered on three sides by Mount Diablo State Park. The current property owner purchased the property in 1974 as a bucolic site to raise their children and retire. The Regional Water Quality Control Board has issued the property owner a Cleanup and Abatement Order for the mine discharge, even though they did not create the problem. The owners do not have the resources to complete a full scale mine remediation project. As it is, they have spent over $300,000 of their retirement money in trying to address the Cleanup and Abatement Order. The Contra Costa County Flood Control District has been interested in helping to remediate the mine and improve water quality in the watershed for the last 15 years but have not been-able to do so because of the substantial liability the District would assume if a project were built. Congress is currently reviewing legislation that would provide limited liability protection for local government, such as ourselves, who are interested in voluntarily assisting in the remediation of abandoned mines. In addition, we understand the Environmental Protection Agency (EPA) is developing a Good Samaritan Initiative, which attempts to provide liability protection for public agencies through an administrative order and consent process as used in the Trout Unlimited cleanup in Utah. Our understanding of this current administrative process, however, is that it is very time consuming, complex and costly. In its current form this process is not a viable alternative for us. This Senator Feinstein June 20, 2006 Page 2 administrative process may work well if it was changed so the agreement provisions were, known in advance, and the process streamlined. We are ready, willing and able to fix a source of pollution in our county and improve water quality for the San Francisco Bay Area. We support the efforts of the EPA and Congress to develop legislation or an effective, efficient and collaborative administrative process that will allow public agencies like ours to safely and responsibly remediate an abandoned mine without exposure to unlimited liability. Very truly yours, ohn.Gioia . Chair,Board of Supervisors JG:MMS:RMA:lz G:\Admin\Mitch\bo\2006\Feinstein support ltr.doc c: Congressional Delegation John Cullen,CAO Sara Hoffman,CAO Maurice Shiu,PW Dennis Barry,CDD Mitch Avalon,PW Greg Connaughton,PW John Kopchik,CDD Contra The Board of Supervisors ConJohn Clerk Clerk of the Board Costaand County Administration Building County Administrator 651 Pine Street,Room 106 County (925)335-1900 Martinez,California 94553-4068 l• 6E..L John Gioia,District 1 _' ,Q Gavle B.Uilkema.District II Mary N.Piepho,District III Mark DeSaulnier,District IV o; Federal D.Glover, District V x rA-covK`� June 20, 2006 Congresswoman Ellen Tauscher 1034 Longworth, Hart Office Building Washington, DC 20515 Dear Congresswoman Tauscher: Abandoned mines have a huge detrimental impact on the water quality of our creeks, rivers, and the San Francisco Bay. We support the efforts of Congress to legislatively or administratively eliminate liability exposure for local government in remediating these abandoned mines. The most prominent mine in Contra Costa County is the abandoned Mount Diablo Mercury Mine, located near the headwaters of Marsh Creek on the eastern slopes of Mount Diablo. The mine runoff has many negative environmental impacts on fish, wildlife and human health. Our Flood Control District owns a reservoir midway through the watershed that has extensive riparian, marsh and aquatic growth along the shoreline providing habitat for a variety of wildlife, including resident populations of fish. The reservoir has been fenced off for over 20 years and posted for no trespassing or fishing due to elevated levels of mercury in the flesh of the fish. The mine is a portion of a large 109 acre parcel that is bordered on three sides by Mount Diablo State Park. The current property owner purchased the property in 1974 as a bucolic site to raise their children and retire. The Regional Water Quality Control Board has issued the property owner a Cleanup and Abatement Order for the mine discharge, even though they did not create the problem. The owners do not have the resources to complete a full scale mine remediation project. As it is, they have spent over $300,000 of their retirement money in trying to address the Cleanup and Abatement Order. The Contra Costa County Flood Control District has been interested in helping to remediate the mine and improve water quality in the watershed for the last 15 years but have not been able to do so because of the substantial liability the District would assume if a project were built. Congress is currently reviewing legislation that would provide limited liability protection for local government, such as ourselves, who are interested in voluntarily assisting in the remediation of abandoned mines. In addition, we understand the Environmental Protection Agency (EPA) is developing a Good Samaritan Initiative, which attempts to provide liability protection for public agencies through an administrative order and consent process as used in the Trout Unlimited cleanup in Utah. Our understanding of this current administrative process, however, is that it is very time consuming, complex and costly. In its current form this process is not a viable alternative for us. This Congresswoman Tauscher June 20, 2006 Page 2 administrative process may work well if it was changed so the agreement provisions were known in advance, and the process streamlined. We are ready, willing and able to fix a source of pollution in our county and improve water quality for the San Francisco Bay Area. We support the efforts of the EPA and Congress to develop legislation or an effective, efficient and collaborative administrative process that will allow public agencies like ours to safely and responsibly remediate an abandoned mine without exposure to unlimited liability. Ver truly yours, ohn Gioia Chair, Board of Supervisors JG:MMS:RMA:lz G:\Admin\Mitch\bo\2006\Tauscher support Itr.doc c: Congressional Delegation John Cullen,CAO Sara Hoffman,CAO Maurice Shiu,PW Dennis Barry,CDD Mitch Avalon,PW Greg Connaughton,PW John Kopchik,CDD .TE L..a Contra TO: BOARD OF SUPERVISORS - -_-- FROM: PUBLIC WORKS DIRECTOR Costa DATE: JUNE 20, 2006 --- `� County SUBJECT: AMEND PRIOR BOARD OF SUPERVISORS ACTION ON JUNE 13,2006 REGARDING THE "GOOD SAMARITAN CLEAN WATERSHED ACT", TO SUPPORT BOTH FEDERAL LEGISLATIVE AND ADMINISTRATIVE EFFORTS TO ELIMINATE LIABILITY EXPOSURE FOR LOCAL GOVERNMENT IN REMEDIATING ABANDONED MINES (COUNTYWIDE) SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION RECOMMENDED ACTION: AMEND prior Board of Supervisors action on June 13,2006 regarding the"Good Samaritan Clean Watershed Act", to SUPPORT both federal legislative and administrative efforts to eliminate liability exposure for local government in remediating abandoned mines, and AUTHORIZE the Chair to execute the attached letter to Congress. CONTINUED ON ATTACHMENT: R1 SIGNATURE: RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATIONSOF BOARD COMMITTEE _ APPR014 OTHER SIGNATURE(S): -j f ACTION OF BO ON APPROVED AS RECOMMENDED OTHER VOTE OF SUPERVISORS: I HEREBY CERTIFY THAT THIS IS A TRUE AND CORRECT COPY OF AN ACTION TAKEN AND ENTERED ON UNANIMOUS(ABSENT ) MINUTES OF THE BOARD OF SUPERVISORS ON THE AYES: NOES: DATE SHOWN. ABSENT: ABSTAIN: Contact: Mitch Avalon(313-2203) C:iDOCUME-1ljenealLOCALS—ilTernplcJotus.notes.datal6-13-06 support fed leg ATTESTED good sam clean water act.doc JOHN CULLEN,CLE OF THE BO OF SUPERVISORS cc: John Cullen,CAO Sara Hoffman,CAO Maurice Shiu,PW Dennis Barry,CDD BY: Mitch Avalon,PW DEPL7T I Greg Connaughton,PW Steve Goetz,CDD John Kopchik,CDD SUBJECT: AMEND PRIOR BOARD OF SUPERVISORS ACTION ON JUNE 13,2006 REGARDING THE "GOOD SAMARITAN CLEAN WATERSHED ACT", TO SUPPORT BOTH FEDERAL LEGISLATIVE AND ADMINISTRATIVE EFFORTS TO ELIMINATE LIABILITY EXPOSURE FOR LOCAL GOVERNMENT IN REMEDIATING ABANDONED .MINES(COUNTYWIDE) DATE: JULIE 20, 2446 PAGE: 2 of 3 FISCAL IMPACT: Congress and the Environmental Protection Agency(EPA)are working on legislative and administrative initiatives that would reduce the liability exposure for the Flood Control District or the County in remediating abandoned mines that leach pollutants into the watersheds of the County. In the very near future,the Flood Control District and County will likely be required to eliminate these pollutants from the watershed through our National Pollutant Discharge Elimination System(NPDES)permit. This legislation will ultimately save the County and the District the cost of liability claims when the work is required to be done. .REASONS FOR RECOMMENDATIONS AND BACKGROUND: Current legislative and administrative efforts by Congress and EPA to eliminate liability exposure would help the Flood Control District to remediate the Mt. Diablo Mercury Mine and improve water quality in the Marsh Creek Watershed. 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. The Flood Control District has been interested for over a decade in assisting in the remediation of the abandoned mine,which is located on private property next to Mt. Diablo State Park. The mine was operational,on and off,from 1875 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 Board to clean up the mine site,even though they did not create the problem and don't have the resources to do the work. 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 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 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 is an attempt.to address the liability concerns tied to CERCLA and the Clean Water Act through an administrative process. Congress is also reviewing legislation that is intended to address these same concerns. The Board supports these efforts that would ultimately allow us to voluntarily improve abandoned mine sites with EPA oversight and reasonable requirements without liability. Contra Costa County was requested to testify before the Senate Environment and Public Works Committee and discuss our experiences with the liability barriers for a local government agency to voluntarily assist in cleaning up SUBJECT: AMEND PRIOR BOARD OF SUPERVISORS ACTION ON JUNE 13,2006 REGARDING THE "GOOD SAMARITAN CLEAN WATERSHED ACT"; TO SUPPORT BOTH FEDERAL LEGISLATIVE AND ADMINISTRATIVE EFFORTS TO ELIMINATE LIABILITY EXPOSURE FOR LOCAL GOVERNMENT IN REMEDIATING ABANDONED MINES{COUNTYWIDE} DATE: JUNE 20, 200b PAGE: 3 of 3 an abandoned mine. Supervisor Gioia provided testimony on this subject last week. Attached is the written testimony submitted to the Senate Committee. CONSEQUENCES OF NEGATIVE ACTION The Boards position on current legislative and administrative efforts to allow.voluntary clean up of abandoned mines would not be forwarded to Congress. June 20, 2006 Congressman George Miller 2205 Rayburn House Office Building Washington,DC 20515 Dear Congressman Miller: Abandoned mines have a huge detrimental impact on the water quality of our creeks,rivers, and the San Francisco Bay. We support the efforts of Congress to legislatively or administratively eliminate liability exposure for local government in remediating these abandoned mines. The most prominent mine in Contra Costa County is the abandoned Mount Diablo Mercury Mine, located near the headwaters of Marsh Creek on the eastern slopes of Mount Diablo. The mine runoff has many negative environmental impacts on fish, wildlife and human health. Our Flood Control District owns a reservoir midway through the watershed that has extensive riparian, marsh and aquatic growth along the shoreline providing habitat for a variety of wildlife,including resident populations of fish. The reservoir has been fenced off for over 20 years and posted for no trespassing or fishing due to elevated levels of mercury in the flesh of the fish. The mine is a portion of a large 109 acre parcel that is bordered on three sides by Mount Diablo State Park. The current property owner purchased the property in 1974 as a bucolic site to raise their children and retire. The Regional Water Quality Control Board has issued the property owner a Cleanup and Abatement Order for the mine discharge,even though they did not create the problem. The owners do not have the resources to complete a full scale mine remediation project. As it is,they have spent over$300,000 of their retirement money in trying to address the Cleanup and Abatement Order. The Contra Costa County Flood Control District has been interested in helping to remediate the mine and improve water quality in the watershed for the last 15 years but have not been able to do so because of the substantial liability the District would assume if a project were built. Senator June 20,2006 Page 2 Congress is currently reviewing legislation that would provide limited liability protection for local government, such as ourselves, who are interested in voluntarily assisting in the remediation of abandoned mines. In addition,we understand the Environmental Protection Agency(EPA)is developing a Good Samaritan Initiative,which attempts to provide liability protection for public agencies through an administrative order and consent process. Our understanding of this current administrative process, however, is that it is very time consuming and lengthy. In its current form this process is not a viable alternative for us. This administrative process may work well if it was changed so the agreement provisions were known in advance and the process streamlined. We are ready,willing and able to fix a source of pollution in our county and improve water quality for the San Francisco Bay Area. We support the efforts of the EPA and Congress to develop legislation or an effective,efficient and collaborative administrative process that will allow public agencies like ours to remediate an abandoned mine without exposure to unlimited liability. Very truly yours, John Gioia Chair, Board of Supervisors JG:MMS:RMA:Ia GAAdmin\Mitch\bo\200616-13-06 support mercury mine legislation hr.doc c: Congressional Delegation John Cullen,CAO Sara Ho€fman,CAO Maurice Shiu,PW Dennis Barry,CDD Mitch Avalon,PW Greg Connaughton,PW John Kopchik,CDD j TESTIMONY OF JOHN GIOIA' CHAIR OF THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY AND CONTRA COSTA COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT BEFORE THE SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE REGARDING LIABILITY BARRIERS TO CLEANING UP ABANDONED MINES June 14, 2006 651 Pine Street,Martinez,California 94553 255 Glacier Drive,Martinez,California 94553 Mr. Chairman, and members of the Committee, thank you for the opportunity to appear before you today to discuss an issue of great importance for the water quality of our County, the State of California, and other States of the Union - the cleanup of abandoned or inactive mines. I appear before you as Chair of the Board of Supervisors of Contra Costa County and the Contra Costa County Flood Control and Water Conservation District. I am pleased to provide you with our experiences and recommendations related to abandoned mine cleanups and the liability associated with a county agency involved in the clean up work. I would like to describe to the.Committee an example of a project in Contra Costa Countyy that would greatly benefit water quality in the region,yet has not been able to be completed due to the lack of"Good Samaritan" legislation. Background Contra Costa County is located in the San Francisco Bay Area of California. The west portion of the County fronts on the Bay, while the northern portion fronts along the Sacramento River, and the east portion drains into the Sacramento-San Joaquin Delta. Mount Diablo, the most prominent and tallest mountain in the area, presides in the center of the County. Marsh Creek drains from its headwaters at the top of Mt. Diablo to the west towards the Delta and discharges into the Sacramento River. An abandoned mercury mine is.located in the upper slopes of Mt. Diablo, near the headwaters of Marsh Creek. Rain water washing over the mine tailings transports mercury down into Marsh Creek and ultimately out into the San 2 1 Francisco Bay. Marsh Creek also flows through the communities of Brentwood and Oakley with a total population'of 60,000 residents. In the early 1960's, our Flood Control District built flood protection improvements in the Marsh Creek watershed, channelizing the downstream reaches of Marsh Creek through the flat alluvial area near the City's of Brentwood and Oakley. In 1963 the Flood Control District built a dam across Marsh Creek approximately five miles upstream of the City,of Brentwood for flood control purposes. The resulting Marsh Creek Reservoir impounds water year round, and has extensive riparian, marsh and aquatic growth along the shoreline, providing habitat for a variety of wild life including resident populations of fish. The Flood Control District owns the Marsh Creek Reservoir and most of the downstream channel. Health Issue In 1980 the California Department of Fish and Game analyzed fish from the reservoir and found mercury levels in the fish flesh were above existing health standards. The reservoir has since been fenced off and noticed for no trespassing or fishing due to the mercury contamination. Mercury is a health problem in the San Francisco Bay Area and advisory notices are posted for adults to not eat fish from the Bay more than twice every month (only once a month for children and pregnant women) due to elevated levels of mercury in the flesh of the fish. 3 The Mercury Mine Mercury was first mined in this area in 1875 and continued on and off until 1971. In 1974, the current property owner purchased the abandoned mine and surrounding property. The property totaled 109 acres and is bordered on three sides by Mount Diablo State Park. The current owners were not looking to develop the property, but looked at the property as a beautiful spot to raise their children and retire. The owner and hiswifeintended to build their retirement home on the property, they had no plans nor any desire to mine the property, or contract with others to mine the property. The State's Regional Water Quality Control Board (RWQCB) first issued waste discharge requirements (WDR) to prior mine operators in 1952 and recommended corrective action be taken. Although waste discharge requirements were issued to the mine operators, contaminated discharges continued after the mine was abandoned. In 1978 the RWQCB issued the property owner a Cleanup and Abatement Order because of mercury discharging from the mine site, even though the property owner was not a mining operator and did not create the problem. In response, the property owner has taken efforts to clean up the property. as best he can, but does not have the resources to complete a full scale mine remediation project. The property owner recently said, "So far we have spent over $300,000 of our retirement money, in 1975 dollars, and the "well" is nearly dry." 4 Attempted Remediation In 1995 Contra Costa County contracted with a team from,the University of California at Davis, lead by Dr. Darryl G. Slotten, to study and provide an assessment of mercury in the Marsh Creek watershed. The study showed that approximately 90% of the mercury in the watershed originates from the piles of tailings at the abandoned mercury mine. Based on the study, Contra Costa County applied for a Calfed grant in 1997 to remediate the mercury mine and reduce the mercury transported from the mine to the downstream watershed and into the Bay/Delta system. Our County Counsel and Disk Manager reviewed the grant in light of the lawsuit that the East Bay Municipal Utility District was facing with the remediation work they had done at the Penn Mine site and concluded.that our county would be exposed to liability if the project was built. As a result, we withdrew the grant. Our sentiment was summed up in a staff memo that said, "It,is sad that we can't try to help this problem, but we cannot risk getting into a situation that costs the County $5 million dollars plus huge attorney bills like it did the East Bay Municipal Utility District". The Flood Control District is still interested in remediating the mine and we are confident we can get the grant funds to do so. The local watershed council in the Marsh Creek watershed is a stakeholder group that includes several local environmental groups and is very supportive of our efforts to remediate the mine. The property owner is also very supportive of our efforts. The barrier to us implementing the project is liability. 5 Good Samaritan Initiative Understanding that liability exposure was the fundamental issue preventing us from participating in remediating the mine, Contra Costa County partnered with the Natural Heritage Institute and the cities of Oakley and Brentwood for a grant in 2000 that sought to solve the liability problem. This grant application was unsuccessful. Still interested in pursuing the remediation of the mercury mine, last year we partnered with Sustainable Conservation, a non-profit organization with experience in the arena of liability exposure with environmental projects. This has lead to discussions with EPA on their Good Samaritan Initiative and the prospect of emulating the Trout Unlimited cleanup project in the American Fork River watershed in Utah. The Good. Samaritan Initiative is based on EPA's administrative authority to issue an Administrative Order and Consent. This is intended to be used in enforcement actions for liable parties. The difference is we are not a liable party. We are interested and willing to help clean up the mine site, but we don't legally have to. Since the Administrative Order and Consent is an enforcement tool, it would take an inordinate amount of our staff time and resources to modify it to be used for voluntary work. The other concern we have is that throughout the negotiation process to draft the Administrative Order and Consent there is no public input. In our experience, projects that have no public input end up creating huge problems later on. When the public ultimately finds out.about the project,"we have to spend an inordinate amount of staff time and resources to change the project design based upon 6 subsequent public input. As a result, we will not sponsor a project development process without public input. We support legislation specifically tailored to agencies cleaning up mines on a voluntary basis. This would be much better than the current attempt to modify an existing enforcement tool to achieve the same purpose. Liability Issue Our liability exposure occurs in at least two ways. One is under the Clean Water Act. This would be similar to the situation the East Bay Municipal Utility District (EBMUD) found themselves in after working on improving the Penn Mine drainage. EBMUD worked with the State's Regional Water Quality Control Board (RWQCB) in developing a remediation plan for the mine site. The remediation work, which was°completed in 1978, reduced the pre-project copper discharge from an average of 64,000 pounds per year to an average of 13 pounds per year. An environmental group sued claiming that EBMUD should have taken out a National Pollutant Discharge Elimination System (NPDES) permit. The courts agreed and found that in performing the remediation work EBMUD should have obtained a NPDES permit, then followed the NPDES requirements to improve the discharge to current water quality standards. After the court case, EBMUD and the RWQCB worked on a follow-up remediation plan that brought the site back to pre-mining conditions at a cost of approximately $10,000,000. There is also liability exposure to the County under the Federal Comprehensive Environmental Response, Compensation and Liability Act 7 (CERCLA). This law imposes liability for response costs upon owners and operators for the release of hazardous materials from a facility. Summary California's State Water Resources Control 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. The San Francisco Bay Regional Water Quality Control Board is currently developing a total maximum daily load (TMDL) for mercury in the Bay Area. The TMDL will provide a long range.plan and goals for reducing mercury in the watersheds that drain into San Francisco Bay. With the Mt. Diablo mercury mine being one of the important sources of mercury into the bay, it will be imperative to remediate the mine tailings and prevent further discharge of mercury from the abandoned mine site. Contra Costa County and the Contra Costa County Flood Control and Water Conservation District have been interested in remediating the mercury mine in our county for the last fifteen years. We are confident that we will be able to obtain the grant funding necessary to remediate the mercury mine. Every granting entity we have talked to is extremely excited about the prospects of the Flood Control District remediating the mercury mine. We are ready, willing and able to fix a source of pollution in our county once the issue of liability exposure is addressed. We strongly support the efforts of EPA and Congress to adopt legislation that would eliminate our liability exposure and 8 allow us to improve the water quality for the residents of Contra Costa County and downstream San Francisco Bay Area. 9 The Board of ery Sib isors Contra John Sweeten [� Clerk of the Board Costaand County Administration Building County Administrator 651 Pine Street.Room 106 County (92>)335-1900 Martinez.California 9=1553-4068 1 John Gioia,District I Gayle B.Uilkema,District II Mare N.Piepho,District III Mark DeSaulnier,District IN Federal D.Glover, District V f I,��✓5 I l l K Nl ie 20, 2006 G r Senator Barbara Boxer k C qq 112 Hart Senate Office Building Washington, DC 20510 5 f,G�`ds� Dear Senator Boxer: 1 Abandoned mines have a huge detrimental impact on i .,,,ns, rivers, and the San Francisco Bay. We support the efforts of Congress to i , ,,� aaministratively eliminate liability exposure for local government in remediating these ab&.uoned mines. The most prominent mine in Contra Costa County is the abandoned Mount Diablo Mercury Mine, located near the headwaters of Marsh Creek on the eastern slopes of Mount Diablo. The mine runoff has many negative environmental impacts on fish, wildlife and human health. Our Flood Control - District owns a reservoir midway through the watershed that has extensive riparian, marsh and aquatic growth along the shoreline providing habitat for a variety of wildlife, including resident populations of fish. The reservoir has been fenced off for over 20 years and posted for no trespassing or fishing due to elevated levels of mercury in the flesh of the fish. The mine is a portion of a large 109 acre parcel that is bordered on three sides by Mount Diablo State Park. The current property owner purchased the property in 1974 as a bucolic site to raise their children and retire. The Regional Water Quality Control Board has issued the property owner a Cleanup and Abatement Order for the mine discharge, even though they did not create the problem. The owners do not have the resources to complete a full scale mine remediation project. As it is, they have spent over $300,000 of their retirement money in trying to address the Cleanup and Abatement Order. The Contra Costa County Flood Control District has been interested in helping to remediate the mine and improve water quality in the watershed for the last 15 years but have not been able to do so because of the substantial liability the District would assume if a project were built. As you are aware, Congress is currently reviewing legislation that would provide limited liability protection for local government, such as ourselves, who are interested in voluntarily assisting in the remediation of abandoned mines. In addition, we understand the Environmental Protection Agency (EPA) is developing a Good Samaritan Initiative, which attempts to provide liability protection for public agencies through an administrative order and consent process as used in the Trout Unlimited cleanup in Utah. Our understanding of this current administrative process, however, is that it is very time consuming, complex and costly. In its current form this process is not a viable alternative for us. Senator Boxer June 20, 2006 Page 2 This administrative process may work well if it was changed so the agreement provisions were known in advance, and the process streamlined. We appreciate your comments at the .June 14, 2006 Senate Environment and Public Works Committee hearing expressing your willingness to work with us on an administrative solution to our issue. We are ready, willing and able to fix a source of pollution in our county and improve water quality for the San Francisco Bay Area. We support the efforts of the EPA and Congress to develop legislation or an effective, efficient and collaborative administrative process that will allow public agencies like ours to safely and responsibly remediate an abandoned mine without exposure to unlimited liability. Very,truly , +Chair�, BoaZrdof Supervisors JG:MMS:RMA:lz G:\Admin\Mitch\bo\2006\Boxer support ltr.doc c: Congressional Delegation John Cullen,CAO Sara Hoffman,CAO Maurice Shin,PW Dennis Barry,CDD Mitch Avalon,PW Greg Connaughton,PW John Kopchik,CDD The Board of Supervisors Contra John Sweeten p Clerk of the Board Costa and County Administration Building County Administrator 651 Pine Street, Room 106 County (925)335-1900 Martinez,California 94553-4068 _ sE.L John Gioia,District I Gayle B.Uilkema,District ❑ ti Mary N.Piepho,District III �r Mark DeSaulnier,-District 1V of Ubu Federal D.Glover, District V yti sr't.COU11'� June 20, 2006 Congressman Richard Pombo 2411 Rayburn, Hart Office Building Washington, DC 20515 Dear Congressman Pombo: Abandoned mines have a huge detrimental impact on the water quality of our creeks, rivers, and the San Francisco Bay. We support the efforts of Congress to legislatively or administratively eliminate liability exposure for local government in remediating these abandoned mines. The most prominent mine in. Contra Costa County is the abandoned Mount-Diablo Mercury Mine, located near the headwaters of Marsh Creek on the eastern slopes of Mount Diablo. The mine runoff has many negative environmental impacts on fish, wildlife and human health. Our Flood Control District owns a reservoir midway through the watershed that has extensive riparian, marsh and aquatic growth along the shoreline providing habitat for a variety of wildlife, including resident populations of fish. The reservoir has been fenced off for over 20 years and posted for no trespassing or fishing due to elevated levels of mercury in the flesh of the fish. The mine is a portion of a large 109 acre parcel that is bordered on three sides by Mount Diablo State Park. The current property owner purchased the property in 1974 as a bucolic site to raise their children and retire. The Regional Water Quality Control Board has issued the property owner a Cleanup and Abatement Order for the mine discharge, even though they did not create the problem. The owners do not have the resources to complete a full scale mine remediation project. As it is, they have spent over $300,000 of their retirement money in trying to address the Cleanup and Abatement Order. The Contra Costa County Flood Control District has been interested in helping to remediate the mine and improve water quality in the watershed for the last 15 years but have not been able to do so because of the substantial liability the District would assume if a project were built. Congress is currently reviewing legislation that would provide limited liability protection for local government, such as ourselves, who are interested in voluntarily assisting in the remediation of abandoned mines. In addition, we understand the Environmental Protection Agency (EPA) is developing a Good Samaritan Initiative, which attempts to provide liability protection for public agencies through an administrative order and consent process as used in the Trout Unlimited cleanup in Utah. Our understanding of this current administrative process, however, is that it is very time consuming, complex and costly. In its current form this process is not a viable alternative for us. This Congressman Pombo June 20, 2006 Page 2 administrative process may work well if it was changed so the agreement, provisions were known in advance, and the process streamlined. We are ready, willing and able to fix a source of pollution in our county and improve water quality for the San Francisco Bay Area. We support the efforts of the EPA and Congress to develop legislation or an effective, efficient and collaborative administrative process that will allow public agencies like ours to safely and responsibly remediate an abandoned mine without exposure to unlimited liability. Ver truly yours, ?John Gioia Chair, Board of Supervisors JG:MMS:RMA:lz G:\Admin\Mitch\bo\2006\Pombo support Itr.doc c: Congressional Delegation John Cullen,CAO Sara Hoffman,CAO Maurice Shiu,PW Dennis Barry,CDD Mitch Avalon,PW Greg Connaughton,PW John Kopchik,CDD a The Board of Supervisors Contra John Sweeten p _ Clerk of the Board Costa and County Administration Building County Administrator 651 Pine Street,Room 106 ` County (925)335-1900 Martinez,California 94553-4068 John Gioia,District 1 Gayle B.Uilkema,District II Mary N.Piepho,District III ; Mark DeSaulnier,District IV n. � Federal D.Glover, District V °' spA.coiiri'�'t June 20, 2006 Congressman George Miller 2205 Rayburn, House Office Building Washington, DC 20515 Dear Congressman Miller: Abandoned mines have a huge detrimental impact on the water quality of our creeks, rivers, and the San Francisco Bay. We support the efforts of Congress to legislatively or administratively eliminate liability exposure for local government in remediating these abandoned mines. The most prominent mine in Contra Costa County is the abandoned Mount Diablo Mercury Mine, located near the headwaters of Marsh Creek on the eastern slopes of Mount Diablo. The mine runoff has many negative environmental impacts on fish, wildlife and human health. Our Flood Control District owns a reservoir midway through the watershed that has extensive riparian, marsh and aquatic growth along the shoreline providing habitat for a variety of wildlife, including resident populations of fish. The reservoir has been fenced off for over 20 years and posted for no trespassing or fishing due to elevated levels of mercury in the flesh of the fish. The mine is a portion of a large 109 acre parcel that is bordered on three sides by Mount-Diablo State Park. The current property owner purchased the property in;,1974 as a bucolic site to raise their children and retire. The Regional Water Quality Control Board has issued the property owner a Cleanup and Abatement Order for the mine discharge, even though they did not create the problem. The owners do not have the resources to complete a full scale mine remediation project. As itis, they have spent over $300,000 of their retirement money in trying to address the Cleanup and Abatement Order. The Contra Costa County Flood Control District has been interested in helping to remediate the mine and improve water quality in the watershed for the last 15 years but have not been able to do so because of the substantial liability the District would assume if a project were built. Congress is currently reviewing legislation that would provide limited liability protection for local government, such as ourselves, who are interested in voluntarily assisting in the remediation of abandoned mines. In addition, we understand the Environmental Protection Agency (EPA) is developing a Good Samaritan Initiative, which attempts to provide liability protection for public agencies through an administrative order and consent process as used in the Trout Unlimited cleanup in Utah. Our understanding of this current administrative process, however, is that it is very time consuming, complex and costly. In its current form this process is not a viable alternative for us. This Congressman Miller June 20, 2006 Page 2 administrative process may work well if it was changed so the agreement provisions were known in advance, and the process streamlined. We are ready, willing and able to fix a source of pollution in our county and improve water quality for the San Francisco Bay Area. We support the efforts of the EPA and Congress to develop legislation or an effective, efficient and collaborative administrative process that will allow public agencies like ours to safely and responsibly remediate an abandoned mine without exposure to unlimited liability. Very ruly ohn Gioia Chair, Board of Supervisors JG:MMS:RMA:lz G:\Admin\Mitch\bo\2006\Miller support ltr.doc c: Congressional Delegation John Cullen,CAO Sara Hoffman,CAO Maurice Shiu,PW Dennis Barry,CDD Mitch Avalon,PW Greg Connaughton,PW John Kopchik,CDD The Board of Supervisors Contra John Sweeten p Clerk of the Board Carta and County Administration Building County Administrator 651 Pine Street,Room 106 Count (925)335.-1900 Martinez,California 94553-4068 l• N...... .. John Gioia,District 1 Gavle B.t1ilkema,District 11 1 Mary N.Piepho,District III Mark DeSaulnier.District IV n; Federal D.Glover, District V , - sra co'ritj`� June 20, 2006 Senator Dianne Feinstein Hart Office Building, Room 331 Washington, DC 20510 Dear Senator Feinstein: Abandoned mines have a huge detrimental impact on the water quality of our creeks, rivers, and the San Francisco Bay. We support the efforts of Congress to legislatively or administratively eliminate liability exposure for local government in remediating these abandoned mines. The most prominent mine in Contra Costa County is the abandoned Mount Diablo Mercury Mine, located near the headwaters of Marsh Creek on the eastern slopes of Mount Diablo. The mine runoff has many negative environmental impacts on fish, wildlife and human health. Our Flood Control District owns a reservoir midway through the watershed that has extensive riparian, marsh and aquatic growth along the shoreline providing habitat for a variety of wildlife, including resident populations of fish. The reservoir has been fenced off for over 20 years and posted for no trespassing or fishing due to elevated levels of mercury in the flesh of the fish. The mine is a portion of a large 109 acre parcel that is bordered on three sides by Mount-Diablo State Park. The current property owner purchased the property in 1974 as a bucolic site to raise their children and retire. The Regional Water Quality Control Board has issued the property owner a Cleanup and Abatement Order for the mine discharge, even though they,did not create the problem. The owners do not have the resources to complete a full scale mine remediation project. As it is, they have spent over $300,000 of their retirement money in trying to address the Cleanup and Abatement Order. The Contra Costa County Flood Control District has been interested in helping to remediate the mine and improve water quality in the watershed for the last 15 years but have not been able to do so because of the substantial liability the District would assume if a project were built. Congress is currently reviewing legislation that would provide limited liability protection for local government, such as ourselves, who are interested in voluntarily assisting in the remediation of abandoned mines. In addition, we understand the Environmental Protection Agency (EPA) is developing a Good Samaritan Initiative, which attempts to provide liability protection for public agencies through an administrative order and consent process as used in the Trout Unlimited cleanup in Utah. Our understanding of this current administrative process, however, is that it is very time consuming, complex and costly. In its current form this process is not a viable alternative for us. This Senator Feinstein June 20, 2006 Page 2 administrative process may work well if it was changed so the agreement provisions were known in advance, and the process streamlined. We are ready, willing and able to fix a source of pollution in our county and improve water quality for the San Francisco Bay Area. We support the efforts of the EPA and Congress to develop legislation or an effective, efficient and collaborative administrative process that will allow public agencies like ours to safely and responsibly remediate an abandoned mine without exposure to unlimited liability. Very truly yours, Vohn Gioia Chair, Board of Supervisors JG:MMS:RMA:iz G:Wdmin\Mitch\bo\2006\Feinstein support ltr.doc c: Congressional Delegation John Cullen,CAO Sara Hoffman,CAO Maurice Shiu,PW Dennis Barry,CDD Mitch Avalon,PW Greg Connaughton,PW John Kopchik,CDD The Board of Su p ervisors Contra John sweeten Supervisors Clerk of the Board Costa and County Administration Building County Administrator 651 Pine Street, Room 106 County. (925)335-1900 Martinez,California 94553-4068 sE-t John Gioia,District I �' Gavle B.Uilkema,District 11 Mary N.Piepho,District III Mark DeSaulnier,District IV Federal D.Glover, District V e `9 COST------ eou June 20, 2006 Congresswoman Ellen Tauscher 1034 Longworth, Hart Office Building Washington, DC 20515 Dear Congresswoman Tauscher: Abandoned mines have a huge detrimental impact on the water quality of our creeks, rivers, and the San Francisco Bay. We support the efforts of Congress to legislatively or administratively eliminate liability exposure for local government in remediating these abandoned mines. The most prominent mine in Contra Costa County is the abandoned Mount Diablo Mercury Mine, located near the headwaters of Marsh Creek on the eastern slopes of Mount Diablo. The mine runoff has many negative environmental impacts on fish, wildlife and human health. Our Flood Control District owns a reservoir midway through the watershed that has extensive riparian, marsh and aquatic growth along the shoreline providing habitat for a variety of wildlife, including resident populations of fish. The reservoir has been fenced off for over 20 years and posted for no trespassing or fishing due to elevated levels of mercury in the flesh of the fish. The mine is a portion of a large 109 acre parcel that is bordered on three sides by Mount Diablo State Park. The current property owner purchased the property in 1974 as a bucolic site to raise their children and retire. The Regional Water Quality Control Board has issued the property owner a Cleanup and Abatement Order for the mine discharge, even though they did not create the problem. The owners do not have the resources to complete a full scale mine remediation,project. As it is, they have spent. over $300,000 of their retirement money in trying to address the Cleanup and Abatement Order. The Contra Costa County Flood Control District has been interested in helping to remediate the mine and improve water quality in the watershed for the last 15 years but have not been able to do so because of the substantial liability the District would assume if a project were built. Congress. is currently reviewing legislation that would provide limited liability protection for local government, such as ourselves, who are interested in voluntarily assisting in the remediation of abandoned mines. In addition, we understand the Environmental Protection Agency (EPA) is developing a Good Samaritan Initiative, which attempts to provide liability protection for public agencies through an administrative order and consent process as used in the Trout Unlimited cleanup in Utah. Our understanding of this current administrative process, however, is that it is very time consuming, complex and costly. In its current form this process is not a viable alternative for us. This Congresswoman Tauscher June 20, 2006 Page 2 administrative process may work well if it was changed so the agreement provisions were known in advance, and the process streamlined. We are ready, willing and able to fix a source of pollution in our county and improve water quality for the San Francisco Bay Area. We support the efforts of the EPA and Congress to develop legislation or an effective, efficient and collaborative administrative process that will allow public agencies like ours to safely and responsibly remediate an abandoned mine without exposure to unlimited liability. Ver truly yours, ohn Gioia Chair, Board of Supervisors JG:MMS:RMA:lz G:\Admin\Mitch\bo\2006\Tauscher support ltr.doc c: Congressional Delegation John Cullen,CAO Sara Hoffman,CAO Maurice Shiu,PW Dennis Barry,CDD Mitch Avalon,PW Greg Connaughton,PW John Kopchik,CDD a ' Dennis M.Barry,AICP Community Contra Community Development Director Development Costa Department County County Administration Building 651 Pine Street s 4th Floor, North Wing Martinez, California 94553-0095 (925)335-1203 Phone: n.. County File#CP06-45 General Services Department Attention: Terry Mann Dear Applicant: The Contra Costa County Community Development Department has completed an initial study of the environmental significance of the project represented by your pending application bearing County File Number CP0645.In conformance with Contra Costa County Guidelines for implementing the California Environmental Quality Act of 1970(CEQA),it has been determined that your project will not have a significant effect on the environment. Your project falls within the following category: (0) AN ENVIRONMENTAL IMPACT REPORT(EIR)IS NOT REQUIRED. (x) The project is categorically exempt(Class'la Section 15301 } { } The CEQA requirements are accommodated by the.EIR previously prepared for ( ) A statement that an EIR is not required(Negative Declaration of Environmental Significance has been filed by the Community Development Department(unless appealed). (' ) Other: General Rule of Applicability ( ) AN ENVIRONMENTAL IMPACT REPORT (EIR) IS REQUIRED. ( } The complexity of your project requires your submission of additional special reports or information(as outlined on the attached sheet)(which will be outlined in a forthcoming letter). ( ) A consultant will be'hired to prepare the environmental impact report. This procedure is explained on the attached sheet. Preparation of the EIR cannot be started until the fee and additional information requested is received by the Community Development Department. If you have questions concerning this determination or desire additional information relative to environmental impactxeport regulations,please call(925)335-1210 and ask for Catherine Kutsuris. Sincerely yours Dennis M.Barry,AICP Community Development Director By:Hiliana Li Office Hours Monda Friday:8:00 a.m.-5:00 p.m. GACurrent Planninglcurr-plankMA f e s or g� n RA, ?A 5th Fridays of each month _ AGREEMENT TO TRANSFER 45 CIVIC AVENUE, May 23, 2006 PITTSBURG (PITTSBURG-DELTA COURT)TO THE STATE OF CALIFORNIA AND TO LEASE BACK A PORTION OF THE PITTSBURG-DELTA COURT FACILITY FOR COUNTY USE(T00150) - FINANCIAL IMPACT - The Trial Court Facilities Act of 2002 requires the County to pay the State for annual maintenance costs for court facilities effective on the date of transfer of responsibility for each facility. The annual payment is based upon actual costs over a five-year period from FY 1995-96 to FY 1999-00,adjusted for inflation. The Court Facility Payment of$183,661 for 45 Civic Drive, Pittsburg has been approved by the State Department of Finance. This amount may be slightly different after adjusting for inflation for the past three months. Funding for this payment has been included in the FY 2006-07 County budget. The County currently occupies 810 square feet of the 23,118 square feet building. The AOC is buying the County's equity share for $85,000, and is leasing back that space to the County at a cost of$1,050 per month. BACKGROUND The Trial Court Facilities Act of 2002 was adopted to provide for the transfer of responsibility for funding and operation of trial court facilities from the counties to the AOC. The counties continue to be responsible for the historical funding of the trial court facilities, by way of an annual facilities payment to the AOC. Under this Act, all county court facilities must be transferred from the County to the State by June 30, 2007. The Pittsburg-Delta Court, 45 Civic Drive, Pittsburg, is the first of the thirteen court occupied facilities that will be transferred. The AOC will take full responsibility for the court facility upon approval of the Transfer Agreement. CADOCUME-1 yenea%LOCALS-1\Temp\c.lotus.notes.data\-9525739.doc Page 2of2 M382(10/88) COMMUNITY DEVELOPMENT DEPARTMENT CONTRA COSTA COUNTY DATE: April 27,2006 TO: General Services Department Terry Mann FROM: Dennis M. Barry,AICP, Community Development Director By: Catherine Kutsuris, CEQA Coordinator Via : Hiliana Li SUBJECT: CEQA REVIEW, PROJECT#CP#06-45 LEASE FOR 45 CIVIC DRIVE, PITTSBURG,CA Attached are the following environmental documents relative to the above-referenced project which have been reviewed by the Community Development Department. Please review the documents to determine if there are any posting periods and/or hearings required before the Board of Supervisors can take action on the project. These documents should be kept in the project file for future reference. (Y) Initial Study of Environmental Significance. { } Copy of the Notice of Exemption {wireceipt}. (The original Is: on file in Community Development Department; on file with the County Clerk; being returned for filing in project file.) ( } Copy of the Notice of Determination. (The original is: on file in Community Development Department; on file with the County Clerk; being returned for filing in project file.) ( } Notice of Negative Declaration-including mail out lista O Draft EIR. -(y) Mandatory Referral. ( } Proof of Publication (Y) Letter of CEQA determination O Comments: (Y) TWO,COPIES OF.THE NOTICE OF EXEMPTION/DETERMINATION ARE ATTACHED. WHEN YOU HAVE SCHEDULED THIS ITEM WITH THE BOARD, PLEASE SEND ONE COPY BACK TO ME WITH A NOTE STATING THE DATE THE BOARD OF SUPERVISORS IS TO HEAR THE ITEM. When the Board of Supervisors takes action on the project, it must "review" and "consider' the environmental impact report or negative declaration, together with any comments received during the public review process. They must then adopt the environmental document before approving the project. You must, therefore, provide copies for each member of the Board of the respective environmental impact report, notice of negative declaration, or the notice of exemption, along with any comments received during the review period. They must review and consider these items before approving the project. If they do not physically have the documents, they cannot consider them. In the.case of projects which are exempt from CEQA, the Board Order should concur in the determination that the project is categorically exempt, and direct the filing of the Notice of Exemption. PLEASE NOTIFY US, WITHIN 2 DAYS OF THE BOARD HEARING ON THIS PROJECT, WHAT ACTION THE.BOARD TOOK SO THAT WE CAN INITIATE THE FILING OF THE NOTICE OF EXEMPTION OR NOTICE OF DETERMINATION WITH THE COUNTY CLERK. THE FILING OF THESE NOTICES STARTS THE STATUTE OF LIMITATIONS ON COURT CHALLENGES TO THE APPROVAL UNDER CEQA. HENCE, THE FILING OF THESE NOTICES ARE IMPORTANT SINCE IT LIMITS THE COUNTY'S LIABILITY. If,you have any questions concerning the above documents or the CEQA process, please contact Catherine Kutsuris at 335-1210. G.\Current Planning\curr-pian\CEQA form letters\Forrns-n-Templates\CEQAcover.doc TO: BOARD OF SUPERVISORS »;-_=- � , ��-_�.,, Contras » FROM: PUBLIC WORKS DIRECTOR o, � ota m DATE- NNE 20, 2006 STA n County SUBJECT: AMEND PRIOR BOARD OF SUPERVISORS ACTION ON JUNE 13,2006 REGARDING THE "GOOD SAMARITAN CLEAN WATERSHED ACT", TO SUPPORT BOTH FEDERAL LEGISLATIVE AND ADMINISTRATIVE EFFORTS TO ELIMINATE LIABILITY EXPOSURE FOR LOCAL GOVERNMENT IN REMEDIATING ABANDONED MINES (COUNTYWIDE) SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION RECOMMENDED ACTION: » AMEND prior Board of Supervisors action on June 13,2006 regarding the"Good Samaritan Clean Watershed Act", to SUPPORT both federal legislative and administrative efforts to eliminate liability exposure for local government in remediating abandoned mines, and AUTHORIZE the Chair to execute the attached letter to Congress. CONTINUED ON ATTACHMENT: lR] SIGNATURE: RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE ;l APPBOVf OTHER SIGNATURES ACTION OF BO ON APPROVED AS RECOMMENDED OTHER VOTE OF SUPERVISORS: I HEREBY CERTIFY THAT THIS IS A TRUE AND CORRECT COPY OF AN ACTION TAKEN AND ENTERED ON _ UNANIMOUS(ABSENT ) MINUTES OF THE BOARD OF SUPERVISORS ON THE AYES: NOES: DATE SHOWN. ABSENT: ABSTAIN: Contact: Mitch Avalon(313-2203) RMA:Iz C:IDOCUME—Iljenea\LOCALS—I1Templc.lotus.notes.datal6-13-06 support fed leg ATTESTED J good sam clean water act.doc JOHN CULLEN,CLERIIOF THE BOAT OF SUPERVISORS cc: John Cullen,CAO Sara Hoffman,CAO Maurice Shin,PW Dennis Barry,CDD BY: 'DEPUTY Mitch Avalon,PW Greg Connaughton,PW Steve Goetz,CDD John Kopchik,CDD SUBJECT: AMEND PRIOR BOARD OF SUPERVISORS ACTION ON JUNE I3,2006 REGARDING THE "GOOD ` SAMARITAN CLEAN WATERSHED ACT", TO SUPPORT BOTH FEDERAL LEGISLATIVE AND ADMINISTRATIVE EFFORTS TO ELIMINATE LIABILITY EXPOSURE FOR LOCAL GOVERNMENT IN REMEDIATING ABANDONED MINES{COUNTYWIDE} DATE: JUNE 20, 2006 PAGE: 2 of 3 FISCAL IMPACT: Congress and the Environmental Protection Agency(EPA)are working on legislative and administrative initiatives that would reduce the liability exposure for the Flood Control District or the County in remediating abandoned mines that leach pollutants into the watersheds of the County. In the very near future,the Flood Control District and County will likely be required to eliminate these pollutants from the watershed through our National Pollutant Discharge Elimination System(NPDES)permit. This legislation will ultimately save the County and the District the cost of liability claims when the work is required to be done. REASONS FOR RECOMMENDATIONS AND BACKGROUND: Current legislative and administrative efforts by Congress and EPA to eliminate liability exposure would help the Flood Control District to remediate the Mt. Diablo Mercury Mine and improve water quality in the Marsh Creek Watershed. 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. The Flood Control District has been interested for over a decade in assisting in the remediation of the abandoned mine, which is located on private properly next to Mt. Diablo State Park. The mine was operational,on and off,from 1875 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 Board to clean up the mine site,even though they did not create the problem and don't have the resources to do the work. 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 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 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 is an attempt to address the liability concerns tied to CERCLA and the Clean Water Act through an administrative process. Congress is also reviewing legislation that is intended to address these same concerns. The Board supports these efforts that would ultimately allow us to voluntarily improve abandoned mine sites with EPA oversight and reasonable requirements without liability. Contra Costa County was requested to testify before the Senate Environment and Public Works Committee and discuss our experiences with the liability barriers for a local government agency to voluntarily assist in cleaning up SUBJECT: AMEND PRIOR BOARD OF SUPERVISORS ACTION ON JUNE 13,2006 REGARDING THE "GOOD SAMARITAN CLEAN WATERSHED ACT", TO SUPPORT BOTH FEDERAL LEGISLATIVE AND ADMINISTRATIVE EFFORTS TO ELIMINATE LIABILITY EXPOSURE FOR LOCAL GOVERNMENT IN REMEDIATING ABANDONED MINES{COUNTYWIDE} DATE: NNE 20, 2006 PAGE: 3 of 3 an abandoned mine. Supervisor Gioia provided testimony on this subject last week. Attached is the written testimony submitted to the Senate Committee. CONSEQUENCES OF NEGATIVE ACTION The Boards position on current legislative and administrative efforts to allow voluntary clean up of abandoned mines would not be forwarded to Congress. June 20, 2006 Congressman George Miller 2205 Rayburn House Office Building Washington, DC 20515 Dear Congressman Miller: Abandoned mines have a huge detrimental impact on the water quality of our creeks,rivers, and the San Francisco Bay. We support the efforts of Congress to legislatively or administratively eliminate liability, exposure for local government in remediating these abandoned mines. The most prominent mine in Contra Costa County is the abandoned Mount Diablo Mercury Mine, located near the headwaters of Marsh Creek on the eastern slopes of Mount Diablo. The mine runoff has many negative environmental impacts on fish, wildlife and human health. Our Flood Control District owns a reservoir midway through the watershed that has extensive riparian, marsh and aquatic growth along the shoreline providing habitat for a variety of wildlife,including resident populations of fish. The reservoir has been fenced off for over 20 years and posted for no trespassing or fishing due to elevated levels of mercury in the flesh of the fish. The mine is a portion of a large 109 acre parcel that is bordered on three sides by Mount Diablo State Park. The current property owner purchased the property in 1974 as a bucolic site to raise their children and retire. The Regional Water Quality Control Board has issued the property owner a Cleanup and Abatement Order for the mine discharge,even though they did not create the problem. The owners do not have the resources to complete a full scale mine remediation project. As it is,they have spent over$300,000 of their retirement money in trying to address the Cleanup and Abatement Order. The Contra Costa County Flood Control District has been interested in helping to remediate the mine and improve water quality in the watershed for the last 15 years but have not been able to do so because of the substantial liability the District would assume if a project were built. Senator June 20,2006 Page 2 Congress is currently reviewing legislation that would provide limited liability protection for local government, such as ourselves, who are interested in voluntarily assisting in the remediation of abandoned mines. In addition,we understand the Environmental Protection Agency(EPA)is developing a Good Samaritan Initiative,which attempts to provide liability protection for public agencies through an administrative order and consent process. Our understanding of this current administrative process, however, is that it is very time consuming and lengthy. In its current form this process is not a viable alternative for us. This administrative process may work well if it was changed so the agreement provisions were known in advance and the process streamlined. We are ready,willing and able to fix a source of pollution in our county and improve water quality for the San Francisco Bay Area. We support the efforts of the EPA and Congress to develop legislation or an effective,efficient and collaborative administrative process that will allow public agencies like ours to remediate an abandoned mine without exposure to unlimited liability. Very truly yours, John Gioia Chair, Board of Supervisors JG:MMS:RMA:iz G:1AdminlMitch\bo1200616-13-06 support mercury mine legislation ltr,doc c: Congressional Delegation John Cullen,CAO Sara Hoffinan,CAO Maurice Shiu,PW Dennis Bary,CDD Mitch Avalon,PW - Greg Connaughton,PW John Kopchik,CDD SEAl,`4� 3" >x TESTIMONY OF JOHN GIOIA CHAIR OF THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY AND CONTRA. COSTA COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT BEFORE THE SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE REGARDING LIABILITY BARRIERS TO CLEANING UP ABANDONED MINES June 14, 2006 651 Pine Street,Martinez,California 94553 255 Glacier Drive,Martinez,California 94553 Mr. Chairman, and members of the Committee, thank you for the opportunity to appear before you today to discuss an issue of great importance for the water quality of our County, the State of California, and other States of the Union - the cleanup of abandoned or inactive mines. I appear before you as Chair of the Board of Supervisors of Contra Costa County and the Contra Costa County Flood Control and Water Conservation District. I am pleased to provide you with our experiences and recommendations related to abandoned mine cleanups and the liability associated with a county agency involved in the clean up work. I would like to describe to the.Committee an example of a project in Contra Costa County that would greatly benefit water quality in the region, yet has not been able to be completed due to the lack of"Good Samaritan" legislation. Background Contra Costa County is located in the San Francisco Bay Area of California. The west portion of the County fronts on theBay, while the northern portion fronts along the Sacramento River, and the east portion drains into the Sacramento-San Joaquin Delta. Mount Diablo, the most prominent and tallest mountain in the area, presides in the center of the County. Marsh Creek drains from its headwaters at the top of Mt. Diablo to the west towards the Delta and discharges into the Sacramento River. An abandoned mercury mine is located in the upper slopes of Mt. Diablo, near the headwaters of Marsh Creek. Rain water washing over the mine tailings transports mercury down into Marsh Creek and ultimately out into the San 2 Francisco Bay. Marsh Creek also flows through the communities of Brentwood and Oakley with a total population of 60,000 residents. In the early 1960's our Flood Control District built flood protection improvements in the Marsh Creek watershed, channelizing the downstream reaches of Marsh Creek through the flat alluvial area near the City's of Brentwood and Oakley. In 1963 the Flood Control District built a dam across Marsh Creek approximately five miles upstream of the City of Brentwood for flood control purposes. The resulting Marsh Creek Reservoir impounds water year round, and'has extensive riparian, marsh and aquatic growth along the shoreline, providing habitat for a variety of wild life including resident populations of fish. The Flood Control District owns the Marsh Creek Reservoir and most of the downstream channel. Health Issue In 1980 the California Department of Fish and Game analyzed fish from the reservoir and found mercury levels in the fish flesh were above existing health standards. The reservoir has since been fenced off and noticed for no trespassing or fishing due to the mercury contamination. Mercury is a health problem in the San Francisco Bay Area and advisory notices are posted for adults to not eat fish from the Bay more than twice every month (only once a month for children and pregnant women) due to elevated-levels of mercury in the flesh of the fish. 3 The Mercury Mine Mercury was first mined in this area in 1875 and continued on and off until 1971. In 1974, the current property owner purchased the abandoned mine and surrounding property. The property totaled 109 acres and is bordered on three sides by Mount Diablo State Park. The current owners were not looking to develop the property, but looked at the property as a beautiful spot to raise their children and retire. The owner and his wife intended to build their retirement home on the property, they had no plans nor any desire to mine the property, or contract with others to mine the property. The State's Regional Water Quality Control Board (RWQCB) first issued waste discharge requirements (WDR) to prior mine operators in 1952 and recommended corrective action be taken. Although waste discharge requirements were issued to the mine operators, contaminated discharges continued after the mine was abandoned. In 1978 the RWQCB issued the property owner a Cleanup and Abatement Order because of mercury discharging from the mine site, even though the property owner was not a mining operator and did not create the problem. In response, the property owner has taken efforts to clean up the property as best he can, but does not have the resources to complete a full scale mine remediation project. The property owner recently said, "So far we have spent over'$300,000 of our retirement money, in 1975 dollars, and the"well" is nearly dry." 4 i Attempted Remediation In 1995 Contra Costa County contracted with a team from the University of California at Davis, lead by Dr. Darryl G. Slotten, to study and provide an assessment of mercury in the Marsh Creek watershed. The study showed that approximately 90% of the mercury in the watershed originates from the piles of tailings at the abandoned mercury mine. Based on the study, Contra Costa County applied for a Calfed grant in 1997 to remediate the mercury mine and reduce the mercury transported from the mine to the downstream watershed and into the Bay/Delta system. Our County Counsel and Risk Manager reviewed the grant in light of the lawsuit that the East Bay Municipal Utility District was facing with the remediation work they had done at the Penn Mine site and concluded that our county would be exposed to liability if the project was built. As a result, we withdrew the grant. Our sentiment was summed up in a staff memo that said, "It is sad that we can't try to help this problem, but we cannot risk getting into a situation that costs the County $5 million dollars plus huge attorney bills like it did the East Bay Municipal Utility District". The Flood Control District is still interested in remediating the mine and we are confident we can get the grant funds to do so. The local watershed council in the Marsh Creek watershed is a stakeholder group that includes several local environmental groups and is very supportive of our efforts to remediate the mine. The property owner is also very supportive of our efforts. The barrier to us implementing the project is liability. 5 Good Samaritan Initiative Understanding that liability exposure was the fundamental issue preventing us from participating in remediating the mine; Contra Costa County partnered with the Natural Heritage Institute and the cities of Oakley and Brentwood for a grant in 2000 that sought to solve the liability problem. This grant application was unsuccessful. Still interested in pursuing the remediation of the mercury mine, last year we partnered with Sustainable Conservation, a non-profit organization with experience in the arena of liability exposure with environmental projects. This has lead to discussions with EPA on their Good Samaritan Initiative and the prospect of emulating the Trout Unlimited cleanup project in the American Fork River watershed in Utah. The Good Samaritan Initiative is based on EPA's administrative authority to issue an Administrative Order and Consent. This is intended to be used in enforcement actions for liable parties. The difference is we are not a liable party. We are interested and willing to help clean up the mine site, but we don't legally have to. Since the Administrative Order and Consent is an enforcement tool, it would take an inordinate,amount of our staff time and resources to modify it to be used for voluntary work. The other concern we have is that throughout the negotiation process to draft the Administrative Order and Consent there is no public input. In our experience, projects that have no public input end up creating huge problems later on. When the public ultimately finds out about the project, we have to spend an inordinate amount of staff time and resources to change the project design based upon 6 subsequent public input. As a result, we will not sponsor a project development process without public input. We support legislation specifically tailored to agencies cleaning up mines on a voluntary basis. This would be much better than the current attempt to modify an existing enforcement tool to achieve the same purpose. Liability Issue Our liability exposure occurs in at least two ways. One is under the Clean Water Act. This would be similar to the situation the East Bay Municipal , Utility District (EBMUD) found themselves in after working on improving the Penn Mine drainage. EBMUD worked with the State's Regional Water Quality Control Board (RWQCB) in developing a remediation plan for the mine site. The remediation work, which was completed in 1978, reduced the pre-project copper discharge from an average:of 64,000 pounds per year to an average of 13 pounds per year. An environmental group sued claiming that EBMUD should have taken out a National Pollutant Discharge Elimination System (NPDES) permit. The courts agreed and found that in performing the remediation work EBMUD should have obtained a NPDES permit, then followed the NPDES requirements to improve the discharge to current water quality standards. After the court case, EBMUD and the RWQCB worked on a follow-up remediation plan that brought the site back. to pre-mining conditions at a cast of approximately $10,000,000. There is also liability exposure to the County under the Federal Comprehensive Environmental Response, Compensation and Liability Act 7 (CERCLA). This law imposes liability for response costs upon owners and operators for the release of hazardous materials from a facility. Summary California's State Water Resources Control 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. The San Francisco Bay Regional Water Quality Control Board is currently developing a total maximum daily load (TMDL) for mercury in the Bay Area. The TMDL will provide a long range plan and goals for reducing mercury in the watersheds that drain into San Francisco Bay. With the Mt. Diablo mercury mine being one of the important sources of mercury into the bay, it will be imperative to remediate the mine tailings and prevent further discharge of mercury from the abandoned mine site. Contra Costa County and the Contra Costa County Flood Control and Water Conservation District have been interested in remediating the mercury mine in our county for the last fifteen years. We are confident that we will be able to obtain the grant funding necessary to remediate the mercury mine. Every granting entity we have talked to is extremely excited about the prospects of the Flood Control District remediating the mercury mine. We are ready, willing and able to fix a source of pollution in our county once the issue of liability exposure is addressed. We strongly support the efforts of EPA and Congress to adopt legislation that would eliminate our liability exposure and 8 allow us to improve the water quality for the residents of Contra Costa County and downstream San Francisco Bay Area. 9