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Petition to Intervene Millcreek H. Michael Keller # 1784 Tanner J. Bean #17128 FABIAN VANCOTT 215 South State Street, Suite 1200 Salt Lake City, Utah 84111 [PHONE REDACTED] [EMAIL REDACTED] [EMAIL REDACTED] Counsel for Millcreek BEFORE THE BOARD OF OIL, GAS, AND MINING DEPARTMENT OF NATURAL RESOURCES STATE OF UTAH In the Matter of: Denial of Notice of Intention to Commence Small Mining Operations, Tree Farm LLC, Silver Mine, S/035/0053, Task ID# 10588, Salt Lake County, Utah Request for Agency Action CITY OF MILLCREEK’S PETITION TO INTERVENE Docket No. 2022-002 Cause No. S/035/0053 Filing Date: January 10, 2022 Pursuant to Utah Administrative Code § R641-103-100, the City of Millcreek (“Millcreek”), a Utah municipal corporation, submits this Petition to Intervene. Millcreek seeks to intervene for the purposes of supporting the December 7, 2021 denial by the Division of Oil, Gas and Mining (“Division”) of the Notice of Intention to Commence Small Mining Operations, Tree Farm LLC, Silver Mine, S/035/0053, Task ID# 10588, Salt Lake County, Utah, filed by Tree Farm LLC, (ii) and opposing Tree Farm LLC’s Request for Agency Action and any commencement of mining operations by Tree Farm LLC under a Notice of Intention to Commence Small Mining Operations. As set forth herein, Millcreek’s legal interests will be substantially affected by the formal adjudicative proceedings in the above-captioned case, and the interests of justice and the orderly and prompt conduct of the adjudicative proceedings will ---PAGE BREAK--- Millcreek’s Petition to Intervene January 10, 2022 2 not be materially impaired by allowing Millcreek’s intervention. This Petition is supported by the Declaration of Mayor Jeff Silvestrini in Support of City of Millcreek’s Petition to Intervene (“Mayor’s Declaration”), attached as Exhibit A. STATEMENT OF FACTS On November 12, 2021, Tree Farm LLC (“Tree Farm”) submitted to the Division both a Notice of Intention to Commence Small Mining Operations (“Small Mine NOI”) and a Notice of Intention to Commence Large Mining Operations (“Large Mine NOI”). On December 7, 2021, the Division denied Tree Farm’s Small Mine NOI. It explained that the “contemporaneous submittal of these NOIs indicates Tree Farm LLC’s long-term intent is to commence operations for a large mine,” and that in “the interest of administrative efficiency . . . [the Division] will turn all focus and attention to the expedient review and processing of Tree Farm LLC’s Large Mine NOI.” On December 10, 2021, Tree Farm filed a Request for Agency Action, seeking a declaratory ruling from the Board of Oil, Gas, and Mining (“Board”) regarding the completeness of Tree Farm’s Small Mine NOI and the sufficiency of its proposed reclamation surety in order to commence operations under its Small Mine NOI. Millcreek is a city of more than 63,000 residents located in Salt Lake County. Millcreek borders the mouth of Parleys Canyon, and a significant number of Millcreek’s residents live in an area on the south side of the rim of Parleys Canyon as it opens into the Salt Lake Valley, called the Canyon Rim neighborhood. See Mayor’s Declaration. Those residents have been adversely impacted by fugitive dust emissions emanating from the existing rock quarry mining operations just across I-80 from the site described in Tree Farm’s Small Mine NOI and Large Mine NOI. Id. That operation has been cited for excessive dust and other violations of air quality regulations by the Utah Division of Air Quality. Id. The dust from the existing quarry contributes ---PAGE BREAK--- Millcreek’s Petition to Intervene January 10, 2022 3 to poor air quality in the Salt Lake Valley by introducing particulates in addition to creating nuisance dust on cars, windows, porches, patios, and driveways in Canyon Rim and beyond. Id. These fugitive dust emissions are entrained by winds blowing down Parleys Canyon into the Salt Lake Valley and Millcreek community, posing a threat to the health, safety, and general welfare of Millcreek residents. Id. The new open pit mining operations proposed by Tree Farm in Parleys Canyon in proximity to Millcreek’s municipal boundary will likely cause similar impacts and harms. Id. ARGUMENT FOR INTERVENTION The Board should grant Millcreek’s intervention if Millcreek’s “legal interests may be substantially affected by the formal adjudicative proceedings, and [that t]he interests of justice and the orderly and prompt conduct of the adjudicative proceedings will not be materially impaired by allowing the intervention.” Utah Admin. Code r. R641-103-100. Millcreek has demonstrated that here. The legal interests of Millcreek in this matter are manifest in Millcreek’s legitimate concerns for the adverse impacts to the health, safety, and general welfare of its community and its residents posed by existing and the new proposed mining operations in Parleys Canyon, in particular, fugitive dust emanating from those operations and transported by canyon winds into the Millcreek community, and (ii) Millcreek’s right to participate in the public review and comment process provided under the Utah Mined Land Reclamation Act (Utah Code Ann. § 40- 8-1, et seq.) for the Division’s review of Large Mine NOIs prior to the commencement of any proposed mining operations. Both interests will be substantially affected by the formal adjudicative proceedings on Tree Farm’s Small Mine NOI. ---PAGE BREAK--- Millcreek’s Petition to Intervene January 10, 2022 4 Millcreek supports the Division’s denial of Tree Farm’s Small Mine NOI for the reasons stated herein and for the reasons asserted by the Division. Allowing Millcreek’s intervention is in the interest of justice and will not materially impair the orderly and prompt conduct of the adjudicative proceedings in this matter. The municipal boundaries of Millcreek extend along the mouth of Parleys Canyon. Millcreek and its residents have been adversely impacted by fugitive dust emanating from the existing quarry mining operation in Parleys Canyon and transported by the frequent strong canyon winds into Millcreek’s airshed and onto properties in Millcreek. The existing mining operation has not adequately controlled the fugitive dust it generates and prevented the dust from being blown by canyon winds into the Salt Lake Valley and Millcreek community. A new quarry across the canyon threatens to be as much or more of a source of fugitive dust that will be blown down Parleys Canyon and into the Millcreek community, adversely affecting Millcreek and the health, safety, and welfare of its residents. Millcreek also has a legally protected interest in participating in the public review and comment process provided under the Utah Mined Land Reclamation Act for review of Large Mine NOIs prior to the commencement of any proposed mining operations. Tree Farm’s intention is to undertake a large mining operation but to commence mining operations prior to the regulatory and public review required for large mining operations by filing a Small Mine NOI within the footprint of its Large Mine NOI. Tree Farm seeks to skirt the statutory and regulatory processes for review and approval of large mining operations. Millcreek is entitled to intervene in this matter and assert its legal interests in ensuring that the mandated regulatory and public review process under the Utah Mined Land Reclamation Act is followed and Millcreek is allowed to participate. ---PAGE BREAK--- Millcreek’s Petition to Intervene January 10, 2022 5 ARGUMENT IN SUPPORT OF DENIAL OF THE SMALL MINE NOI The Small Mine NOI was properly denied by the Division because Tree Farm’s clear intention is to undertake a large mining operation. The name of the mine – “Silver Mine” – is the same in both NOIs and the land affected by the Small Mine NOI is within the same area of land affected by the Large Mine NOI. Tree Farm’s proposed small mining operation is, in reality, the beginning of Tree Farm’s proposed large mining operation. Tree Farm’s Small Mine NOI proposes mining operations in the north end of the land affected by Tree Farm’s Large Mine NOI. The Large Mine NOI states: “The [large] mine is anticipated to be worked in stages from the north end leading south.” Large Mine NOI, at 106.2. It is clear that Tree Farm does not intend to conduct reclamation until the end of the large mine life. Although Tree Farm’s Small Mine NOI commits (apparently disingenuously) to reclamation of the proposed small mining operation, Tree Farm states, instead, in its Large Mine NOI, that the “size and nature of the site will not allow for concurrent reclamation….” Large Mine NOI, at 106.6. Tree Farm further states that reclamation “will be at the end of the [large] mine life” and “Tree Farm will bond to reclaim the entire site.” Large Mine NOI, at 106.3. In its Request for Agency Action, Tree Farm candidly acknowledges its long-term intent is to establish a large mining operation, yet Tree Farm seeks to circumvent the statutory and regulatory review process applicable to large mining operations by seeking approval to commence mining operations immediately under the rubric of a Small Mine NOI within the same area of its Large Mine NOI. The Utah Mined Land Reclamation Act provides that the Board and Division have authority to “require…that a notice of intention for all mining operations be filed with, and ---PAGE BREAK--- Millcreek’s Petition to Intervene January 10, 2022 6 approved by, the division, before the mining operation commences….” Utah Code Ann. § 40-8-7 It is noteworthy that the statute uses the terminology notice of “intention,” which plainly implies what one intends to do, and provides that the notice of intention be for “all mining operations.” Similarly, the Act provides “[b]efore any operator begins mining operations…the operator shall file a notice of intention for each individual mining operation,” including among other information, “identification of all owners of any interest in a mineral deposit, including any ownership interest in surface land affected by the notice,” “accurate maps of … proposed operations,” “information regarding the amount of material extracted, moved, or proposed to be moved relating to the mining operation.” Utah Code Ann. § 40-8-13(1)(a). The statute defines the term “land affected” as the “surface and subsurface of an area within the state where mining operations are being or will be conducted….” Utah Code Ann. § 40-8-4(15). The clear language of the Act requires that the proponent of mining operations give notice of the intended scope of its proposed mining operations. Nothing in the statute authorizes a proponent of a new, large mining operation to circumvent the review and approval process for a large mining operation by submitting a Small Mine NOI to allow commencement of mining operations within the footprint of the intended large mining operation before review and approval of the large mining operation has been completed. The Large Mine NOI process under the Utah Mined Land Reclamation Act and the non-coal mining regulations (Utah Admin. Code R647) of the Board is more robust than the process for a Small Mine NOI and requires detailed regulatory review and requires opportunity for public review and comment in which Millcreek is entitled to participate prior to commencement of any mining operations. Tree Farm should not be permitted to circumvent the statute and regulations to commence what is, in reality, a large mining operation, prior to completion of the required review and approval process for large ---PAGE BREAK--- Millcreek’s Petition to Intervene January 10, 2022 7 mining operations. The Division’s denial of the Small Mine NOI should be sustained, and Tree Farm should not be allowed to commence mining operations under the Small Mine NOI. CONCLUSION AND REQUEST FOR RELIEF Based on the foregoing, Millcreek respectfully requests that this Petition to Intervene be granted, that the Board consider Millcreek’s arguments set forth herein in support of the Division’s denial of Tree Farm’s Small Mine NOI, and that the Board sustain the Division’s denial of Tree Farm’s Small Mine NOI and not allow commencement of mining operations under the Small Mine NOI. Dated: January 10, 2022 H. Michael Keller # 1784 Tanner J. Bean #17128 FABIAN VANCOTT 215 South State Street, Suite 1200 Salt Lake City, Utah 84111 [PHONE REDACTED] [EMAIL REDACTED] [EMAIL REDACTED] Counsel for Millcreek ---PAGE BREAK--- Millcreek’s Petition to Intervene January 10, 2022 8 CERTIFICATE OF SERVICE On this 10th day of January 2022, the undersigned caused the foregoing PETITION TO INTERVENE to be filed and served accordingly: Filed, by email and mail, to: Division of Oil, Gas, and Mining Attn: Julie Ann Carter PO Box 145801 Salt Lake City, UT 84114 [EMAIL REDACTED] Secretary for the Board of Oil, Gas, and Mining Served, by email or mail, to: Stephen E.W. Hale Daniel A. Jensen Justin P. Matkin Kassidy J. Wallin Parr Brown Gee & Loveless, P.C. 101 S. 200 Suite 700 Salt Lake City, UT 84111 [EMAIL REDACTED] [EMAIL REDACTED] [EMAIL REDACTED] [EMAIL REDACTED] Attorneys for Tree Farm LLC Haley Sousa Assistant Attorney General Utah Attorney General’s Office, Natural Resources Division 1594 W. North Temple #300 Salt Lake City, Utah 84116 [EMAIL REDACTED] Attorney for Division of Oil, Gas, and Mining Michael E. Begley Assistant Attorney General Utah Attorney General’s Office, Natural Resources Division 1594 W. North Temple, Suite 300 Salt Lake City, UT 84116 ---PAGE BREAK--- Millcreek’s Petition to Intervene January 10, 2022 9 [EMAIL REDACTED] Attorney for the Utah Board of Oil, Gas and Mining United States of America c/o Forest Service 857 W South Jordan Pkwy South Jordan, UT 84095 United States of America c/o BLM 440 W 200 S # 500 Salt Lake City, UT 84101 Richards Family Partnership c/o Susan Trapp 2313 E. Creek Rd. Cottonwood Hts, UT 84093 Rulon Harper 6085 S Tolcate Woods Ln. Holladay, UT 84121 Immediately Adjacent Landowners Salt Lake County c/o Scott Baird, Director Public Works 2001 S State Street, #N3-600 Salt Lake City, UT 84190-3050 [EMAIL REDACTED] Greater Salt Lake Municipal Services District c/o Lupita McClenning, Planning and Development, Director c/o Greg Baptist, Stormwater Inspection Supervisor 2001 S State, #N 3-600 Salt Lake City, UT 84190 [EMAIL REDACTED] Other Known Interested Parties Tanner J. Bean Tanner J. Bean ---PAGE BREAK--- EXHIBIT A ---PAGE BREAK--- Declaration of Mayor Jeff Silvestrini H. Michael Keller # 1784 Tanner J. Bean #17128 FABIAN VANCOTT 215 South State Street, Suite 1200 Salt Lake City, Utah 84111 [PHONE REDACTED] mk:[EMAIL REDACTED] [EMAIL REDACTED] Counsel for Millcreek BEFORE THE BOARD OF OIL, GAS, AND MINING DEPARTMENT OF NATURAL RESOURCES STATE OF UTAH Millcreek In the Matter of: DECLARATION OF MAYOR JEFF SILVESTRINI IN SUPPORT OF CITY OF MILLCREEK'S Denial of Notice oflntention to Commence Small Mining Operations, Tree Farm LLC, Silver Mine, S/035/0053, Task ID# 10588, Salt Lake County, Utah Request for Agency Action PETITION TO INTERVENE Docket No. 2022-002 Cause No. S/035/0053 Filin Date: Janua 10, 2022 I, Jeff Silvestrini, being of lawful age, hereby swear and state as follows: 1. I am over 21 years of age. 2. I have personal knowledge of the facts stated herein. 3. I reside in Salt Lake County, Utah. 4. I am serving my second term as the Mayor of the City of Millcreek and as such I have an official concern for the health, safety, and welfare of the residents of Millcreek. 5. Millcreek is a city of more than 63,000 residents, located in Salt Lake County. 6. A significant number of Millcreek's residents live in the "Canyon Rim" neighborhood located on the south side of the rim of Parleys Canyon as it opens into the Salt Lake Valley. ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK---