ITEM 4 CONSIDERATION OF ADOPTION OF FINDINGS AND MITIGATION MONITORING PLAN REQUIRED BY THE CALIFORNIA ENVIRONMENTAL QUALITY ACT AND APPROVAL OF THE REMEDIATION PLAN UNDER WATER CODE SECTION 13397 ET SEQ., FOR THE PENN MINE SITE LONG-TERM SOLUTION PROJECT

DISCUSSION: East Bay Municipal Utility District (EBMUD) and the Central Valley Regional Water Quality Control Board (CVRWQCB) jointly submitted to the State Water Resources Control Board (SWRCB) on May 16, 1997 a proposal for remediation of the Penn Mine site pursuant to California Water Code (CWC) Section 13397 et seq., hereinafter referenced as the Remediation Plan. EBMUD and the CVRWQCB have identified themselves jointly as the remediating agencies. As such, the SWRCB shall be the oversight agency for the Remediation Plan. CWC Section 13398.5 requires the SWRCB as the oversight agency to do all of the following:

(a) Comply with the requirements of the California Environmental Quality Act (CEQA) Division 13 (commencing with Section 21000) of the Public Resources Code in connection with the review of the Remediation Plan;

(b) Provide an opportunity for public review of and comment with regard to the Remediation Plan; and

(c) Disapprove, approve, or modify and approve the Remediation Plan at a public meeting.

The SWRCB may approve the Remediation Plan if it finds there is substantial evidence in the record that it will substantially improve water quality affected by abandoned mine waste.

Penn Mine is an abandoned copper and zinc mine that operated intermittently from the 1860s to the mid-1950s. It is located in northwestern Calaveras County near the inlet to Camanche Reservoir on the Mokelumne River.

Under an Agreement to Stay Proceedings concerning actions before the U.S. District Court and the Sacramento Superior Court, EBMUD and the CVRWQCB jointly prepared an Environmental Impact Report (EIR) for the Penn Mine Site Long-Term Solution Project. Additionally, EBMUD, the CVRWQCB, the SWRCB, and the Committee to Save the Mokelumne (CSM) entered into a Settlement Agreement to resolve pending litigation. The intent of these parties has been to achieve a consensus-based solution that provides for the long-term protection of water quality at the site.

The SWRCB is a responsible agency with regard to the approval of the Remediation Plan for the Penn Mine Site Long-Term Solution Project. Accordingly, the SWRCB must mitigate or avoid any significant environmental effect that is within its authority that is caused by approval of the Remediation Plan. The SWRCB's authorities are limited to protection of water quality, including regulation of waste disposal to land and surface water, and protection of beneficial uses of water. There are no significant environmental effects under the Remediation Plan relating to the SWRCB's authority to regulate water rights. SWRCB staff has reviewed the Final EIR and concludes that the record supports findings of mitigation for significant environmental effects regarding landfill stability, water quality, and impacts of water quality on biological resources that likewise should be considered for adoption in connection with approval of the Remediation Plan.

Opportunity for public review of the Remediation Plan has been provided by circulation of agendas to all known interested parties for the SWRCB Workshop and Board Meeting. The agendas provide notification of the SWRCB's proposed action. A copy of the Remediation Plan, Settlement Agreement, and Final EIR, along with all other SWRCB files regarding Penn Mine, have been maintained for public review and comment to the SWRCB's proposed action.

The Remediation Plan incorporates by reference the Final EIR for the project and the Settlement Agreement. The Remediation Plan must satisfy requirements for submittal pursuant to CWC 13398.3(a) through (m). In reviewing the Remediation Plan, staff considered information in the SWRCB files regarding Penn Mine. SWRCB staff has reviewed the Remediation Plan and has concluded that it is in substantial compliance with these submittal requirements. A separate staff report on the approval of the Remediation Plan supports this determination.

POLICY ISSUE: Should the SWRCB adopt the findings and Mitigation Monitoring Plan required by CEQA and approve the Remediation Plan under CWC Section 13397 et seq., for the Penn Mine Site Long-Term Solution Project?

FISCAL IMPACT: By SWRCB Resolution No. 95-14, up to $5,000,000 was allocated from the State Water Pollution Cleanup and Abatement Account over a three-year period to the CVRWQCB to continue cleanup and abatement activities at Penn Mine. Such expenditure of funds shall be matched by an appropriate share from EBMUD pursuant to the Settlement Agreement. The Resolution directed the CVRWQCB to segment its efforts to the degree possible and, before entering any contract, to obtain approval from the Executive Director to ensure sufficient funds are in the Account to cover the contract. Under this Remediation Plan, actual expenditures will likely be extended through completion of construction, estimated to be in the year 2000. The CVRWQCB and EBMUD will have ongoing responsibility for the operation and maintenance of the landfill.

RWQCB IMPACT: The Remediation Plan will be implemented entirely within the Sacramento-San Joaquin Delta Basin that is under authority of the CVRWQCB. The CVRWQCB shall maintain its responsibilities as a remediating agency for this project. Other Regional Water Quality Control Boards will not be participating in this remediation effort.

STAFF RECOMMENDATION: That the SWRCB, through separate Resolutions:

1. Adopt the findings and Mitigation Monitoring Plan required by CEQA for the Penn Mine Site Long-Term Solution Project.

2. Approve the Remediation Plan under CWC Section 13397 et seq., for the Penn Mine Site Long-Term Solution Project.

Note: The Remediation Plan is not available electronically. For copies, contact: