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Objection of 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 DIVISION OF OIL, GAS, AND MINING DEPARTMENT OF NATURAL RESOURCES STATE OF UTAH In the Matter of: NOTICE OF INTENTION TO COMMENCE SMALL MINING OPERATIONS OF GRANITE CONSTRUCTION COMPANY MILLCREEK’S OBJECTION TO NOTICE OF INTENTION TO COMMENCE SMALL MINING OPERATIONS OF GRANITE CONSTRUCTION COMPANY AND REQUEST FOR INFORMAL HEARING DOGM File No. S/035/0055 Filing Date: June 27, 2022 Millcreek, a Utah Municipal Corporation, (“Millcreek”), pursuant to Utah Administrative Code R647-5-104-2.15.114, R647-5-106-4, and R647-5-107-2, hereby submits its Objection to Notice of Intention to Commence Small Mining Operations, S/035/0055 (“Subject NOI”) of Granite Construction Company (“Granite”) and requests an informal hearing before the Division of Oil, Gas, and Mining (“Division”) to address the concerns raised by Millcreek. Millcreek’s legal interests and that of its citizens will be substantially affected by the Subject NOI. STATEMENT OF FACTS ---PAGE BREAK--- Objection of Millcreek June 27, 2022 2 I. Underlying Procedural History of Tree Farm’s Simultaneous Small and Large Mine NOIs. On November 12, 2021, Tree Farm LLC (“Tree Farm”) submitted to the Division of Oil, Gas and Mining (“Division”) a Notice of Intention to Commence Small Mining Operations, Tree Farm LLC, Silver Mine, S/035/0053 (“Small Mine NOI”) and a Notice of Intention to Commence Large Mining Operations, Tree Farm LLC, Silver Mine, M/035/0054 (“Large Mine NOI”). The proposed mining operations had the same name, “Silver Mine,” and the land affected by the Small Mine NOI was within the larger area of land affected by the Large Mine NOI. By letter dated December 7, 2021, the Division denied Tree Farm’s Small Mine NOI and 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.” Thereafter, 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 the Small Mine NOI and the sufficiency of its proposed reclamation surety in order to commence operations under the Small Mine NOI. This commenced the Matter of the Request for Agency Action of Tree Farm, LLC for a Declaratory Ruling Regarding the Completeness of Tree Farm's NOI- SMO s/035/0053; and the Sufficiency of Tree Farm’s Proposed Reclamation Surety, Docket No. 2022-002, Cause No. S/035/0053 (the “BOGM Proceeding”). In the BOGM Proceeding, the Board granted the intervention requests of several parties, including Millcreek. See Order Granting Intervention. However, before the Board could rule, Tree Farm and the Division filed a Stipulated Motion to Dismiss (“Stipulated Motion”), which stated that Tree Farm would no ---PAGE BREAK--- Objection of Millcreek June 27, 2022 3 longer contest the Division’s denial of the Small Mine NOI, Tree Farm would withdraw the Large Mine NOI, and Tree Farm would re-file a small mine NOI. Although the Board granted the Stipulated Motion, it continued to address the merits issues regarding the Division’s and Board’s authority, given the issue Tree Farm had created by filing a small and large mine NOI simultaneously. See Combined Order Granting Stipulation and Denying Motion for Policy Guidance (“Board Order”). In the Board Order, the Board affirmed its statutory authority under Utah Code § 40-8-7(1)(j) to require “that mining operations be conducted to minimize or prevent hazards to public health and safety” and that “the approval of any permit that may be required from sister regulatory agencies be of record prior to the commencement of mining operations.” Id. at 10-11. The Board concluded that “[b]ased on the proximity of Tree Farm’s proposed mining operations to the citizens of Salt Lake City, the additional protections contemplated by Utah Code Ann. § 40-8-7(1)(j) are likely warranted.” Id. at 11. And given Tree Farm’s stated intent to refile its small mine NOI, the order required that “any evaluation of a re-submitted small mine NOI from Tree Farm be performed consistent with this opinion.” Id. at 13. II. Tree Farm’s Small Mine NOI Is Refiled Under Granite’s Name. On June 15, 2022, Granite filed the Subject NOI. The project location for the Subject NOI is the same as for the prior Small Mine NOI filed by Tree Farm. Compare Small Mine NOI, at 3-4, with Subject NOI, at 3-4. In addition, although the Subject NOI was filed by a different entity, Tree Farm is listed on the Subject NOI as the owner of the land surface and minerals. Subject NOI, at 3. For all intents and purposes, the Subject NOI represents the re-filing of Tree Farm’s Small Mine NOI that was at issue in the BOGM Proceeding. Given that Tree Farm candidly acknowledged in the BOGM Proceeding that its long-term intent was to establish a ---PAGE BREAK--- Objection of Millcreek June 27, 2022 4 large mining operation on the same land, the Subject NOI presents much of the same issues as were present in the BOGM Proceeding. III. Millcreek’s Interests in Parleys Canyon. 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, attached as Exhibit A. 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 Granite’s Small 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 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 Granite in Parleys Canyon in proximity to Millcreek’s municipal boundary will likely cause similar impacts and harms. Id. OBJECTION Millcreek makes the following objections to the Subject NOI: the Subject NOI and proposed mining operation would have adverse impacts upon the health, safety, and general welfare of Millcreek’s community and residents, the Subject NOI seeks to evade Millcreek’s ---PAGE BREAK--- Objection of Millcreek June 27, 2022 5 right to public participation, and the Subject NOI seeks to commence mining operations on July 16, 2022, and prior to obtaining all required regulatory permits. Applicable regulations permit Millcreek’s objection. Under the Utah Administrative Code, a “Notice of Intention to Commence Small Mining Operations” is an “[a]djudicative proceeding which shall commence informally before the Division in accordance with this Rule R647-5.” Utah Admin. Code R647-5-101-2. The Code further states that “all adjudicative proceedings that commence in the informal phase shall be commenced by … Request for Agency Action, if proceedings are commenced by persons other than the Board or Division.” Utah Admin. Code R647-5-104-1.12. On a Request for Agency Action, “any affected person may file with the Division … a written objection and request for informal hearing before the Division.” Utah Admin. Code R647-5-106-4; see also Utah Admin. Code R647-5-107-2 (“In any informal proceeding before the Division, there is an opportunity given to request an informal hearing before the Division. If a timely request is made, the Division will conduct an informal hearing and issue a decision thereafter.”). The term “person” is defined to include a “political subdivision or its units” or a “governmental subdivision or its units.” Utah Admin. Code R647-1-106. “[F]ailure to make such a request may preclude a person from further participation, appeal or judicial review in regard to the subject adjudicative proceeding.” Utah Admin. Code R647-5-106-4; see also Utah Admin. Code R647-104-2.15.114, R647-5-107-2. Millcreek is an “affected person” within the meaning of Utah Admin. Code R647-5-106- 4 and, thus, submits its objections to the Subject NOI and requests an informal hearing before the Division. Millcreek’s legal interests will be impacted if the Subject NOI is approved. These interests include Millcreek’s legitimate concerns for the adverse impacts to the health, safety, ---PAGE BREAK--- Objection of Millcreek June 27, 2022 6 and general welfare of its community and its residents posed by existing and proposed mining operation in Parleys Canyon stated in the Subject NOI, in particular, fugitive dust emanating from those operations and transported by canyon winds into the Millcreek community. Millcreek’s interests also include ensuring its right of public participation in the Division’s review of large mining operations provided under the Utah Mined Land Reclamation Act, see Utah Code § 40-8-13(6), for review of Large Mine NOIs prior to the commencement of any proposed mining operations. Tree Farm, in conjunction with Granite, intends 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 the Subject NOI within the footprint of the Large Mine NOI at issue in the BOGM Proceeding. By doing this, Tree Farm and Granite seek to skirt the statutory and regulatory processes for review and approval of large mining operations. Both of these interests will be substantially affected by the proceedings on the Subject NOI. These interests are the same interests which the Board found were sufficient to support Millcreek’s petition to intervene in the BOGM Proceeding. The Board concluded that “Millcreek has alleged potential injury to Millcreek and its citizens from contemplated mining activities which may have a causal relationship with Tree Farm’s challenged action. The relief Millcreek requests may prove likely to redress the injury for which Millcreek seeks intervention.” See Order Granting Intervention, at 2. Millcreek’s interests and the Board’s conclusion apply here with equal force. The Division should strongly consider Millcreek’s legal interests that affect public health and safety. As the Board previously ruled on May 23, 2022, based on Utah Code § 40-8-7(1)(j), the Division should consider these public health and safety issues in the renewed small mine ---PAGE BREAK--- Objection of Millcreek June 27, 2022 7 NOI, which is now before the Division. See Board Order, at 9-10, 13. The Division should also strongly consider Millcreek’s legal interest in public participation. The Board indicated the BOGM Proceeding “generated significant public comment and opposition” to the point where the Board was “unaware of another matter that has generated that level of public concern or public interest.” See Board Order, at 2. Foreclosing public comment, where the interest from the public is the highest it has ever been, would deprive the Division of the appropriate considerations to be evaluated on the Subject NOI. Beyond the interests Millcreek presented in the DOGM Proceeding, Millcreek now has an additional interest in ensuring adherence to the Board Order as applied to the Subject NOI. With respect to public health and safety compliance, the Board also interpreted the Utah Mined Land Reclamation Act, and in particular Utah Code Ann. §40-8-7(1)(j), “as requiring the approval of any permit that may be required from sister regulatory agencies to be of record prior to commencement of mining operations.” See Board Order, at 11. The Subject NOI does not indicate it has obtained or recorded the required permits or approvals from sister agencies, and it appears Granite may not be able to do so. See Salt Lake County’s Objections and Request for Hearing, at 4-6. The Division should require record proof of each necessary permit prior to approving the Subject NOI. Given the above, Millcreek asserts that the proposed mining operations are more appropriately dealt with not in the current Subject NOI, but rather in a large mining notice of intention, which Granite, acting in concert with Tree Farm, has strategically not filed. Alternatively, Millcreek asserts that it is appropriate to convert the informal proceedings on the Subject NOI into formal proceedings. Doing so is in the public interest and it will not unfairly prejudice the rights of any party. See Utah Admin. Code R647-5-105. ---PAGE BREAK--- Objection of Millcreek June 27, 2022 8 CONCLUSION For the foregoing reasons, Millcreek respectfully requests that the Division consider its objections to the Subject NOI. These objections are precisely the type of health and safety and public participation concerns the Board previously stated should be considered. Furthermore, Millcreek requests the Division set a hearing so Millcreek may be heard on its objections. Dated: June 27, 2022 H. Michael Keller Tanner J. Bean FABIAN VANCOTT Counsel for Millcreek ---PAGE BREAK--- Objection of Millcreek June 27, 2022 9 CERTIFICATE OF SERVICE On June 27, 2022, the undersigned caused the foregoing MILLCREEK’S OBJECTION TO NOTICE OF INTENTION TO COMMENCE SMALL MINING OPERATIONS OF GRANITE CONSTRUCTION COMPANY AND REQUEST FOR INFORMAL HEARING to be served by email on: DIVISION OF OIL, GAS, AND MINING P.O. Box 145801 Salt Lake City, UT 84114 [EMAIL REDACTED] [EMAIL REDACTED] [EMAIL REDACTED] [EMAIL REDACTED] [EMAIL REDACTED] [EMAIL REDACTED] Elizabeth Harris Trevor Gruwell Assistants Attorney General UTAH ATTORNEY GENERAL’S OFFICE, NATURAL RESOURCES DIVISION 1594 W. North Temple #300 Salt Lake City, Utah 84116 [EMAIL REDACTED] [EMAIL REDACTED] Attorneys 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 #300 Salt Lake City, Utah 84116 [EMAIL REDACTED] Attorney for Board of Oil, Gas, and Mining 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 & Granite Construction Company GRANITE CONSTRUCTION COMPANY c/o CT Corporation System 585 West Beach Street Watsonville, CA 95007 [EMAIL REDACTED] GRANITE CONSTRUCTION COMPANY c/o Mike Tatusko 1000 North Warm Springs Road Salt Lake City, UT 84116 [EMAIL REDACTED] Mark E. Kittrell Michael M. Lee SALT LAKE CITY CORPORATION P.O. Box 145478 451 South State Street, Suite 505A Salt Lake City, UT 84114-5478 [EMAIL REDACTED] [EMAIL REDACTED] Attorneys for Salt Lake City Corporation ---PAGE BREAK--- Objection of Millcreek June 27, 2022 10 Michael A. Zody Samantha Hawe PARSONE BEHLE & LATIMER 201 South Main Street, Suite 1800 Salt Lake City, Utah 84111 [EMAIL REDACTED] [EMAIL REDACTED] Attorneys for Salt Lake County Sim Gill District Attorney for Salt Lake County Ralph Chamness Timothy Bywater Zachary Shaw OFFICE OF THE SALT LAKE COUNTY DISTRICT ATTORNEY 35 East 500 South Salt Lake City, Utah 84111 [EMAIL REDACTED] [EMAIL REDACTED] [EMAIL REDACTED] Attorneys for Salt Lake County SALT LAKE COUNTY c/o Scott Baird, Director, Public Workds 2001 South State Stree, #N 3-600 Salt lake City, Utah 84190 [EMAIL REDACTED] Janelle Bauer Timothy Smith PARSONE BEHLE & LATIMER 201 South Main Street, Suite 1800 Salt Lake City, Utah 84111 [EMAIL REDACTED] [EMAIL REDACTED] Attorneys for Save Our Canyons Evan S. Strassberg Steven J. Joffee MICHAEL BEST & FRIEDRICH, LLP 2750 East Cottonwood Parkway, Suite 560 Cottonwood Heights, UT 84121 [EMAIL REDACTED] [EMAIL REDACTED] Attorneys for Richards Family Partnership UNITED STATES OF AMERICA C/O FOREST SERVICE c/o Rebecca Hotze c/o Roger Kesterson 857 West South Jordan Parkway South Jordan, UT 84095 [EMAIL REDACTED] [EMAIL REDACTED] UNITED STATES OF AMERICA C/O BLM c/o Greg Sheehan 440 West 200 South, #500 Salt Lake City, UT 84101 [EMAIL REDACTED] RULON HARPER c/o Amber Harper 6085 South Tolcate Woods Lane Hollday, UT 84121 [EMAIL REDACTED] Immediately Adjacent Landowners GREATER SALT LAKE MUNICIPAL SERVICES DISTRICT c/o Lupita McClenning, Planning and Development, Director c/o Greg Baptist, Stormwater Inspection Supervisor 2001 South State Street, #N 3-600 Salt Lake City, UT 84190 [EMAIL REDACTED] Other Known Interested Parties ---PAGE BREAK--- Objection of Millcreek June 27, 2022 11 Tanner J. Bean Tanner J. Bean ---PAGE BREAK--- EXHIBIT A ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK---