By Sarah Pridgeon
By Sarah Pridgeon
Unexpected legal hurdles and a mountain of papers have brought the state’s investigation into Cindy Hill, Superintendent of Public Instruction, to a financial standstill. Tom Lubnau, Chairman of the Select Investigative Committee, has requested an additional $100,000 to sift through the information with the help of additional staff and special counsel.
The committee has now been investigating allegations of improprieties within the Wyoming Department of Education and the Office of the Superintendent of Public Instruction for two months. In response to its request for documents, Lubnau claims that hundreds of thousands of pages, not all of which appear to pertain to the investigation, have been sent over by Hill’s office.
“On the other hand, the Wyoming Department of Education has provided organized, searchable and useable responses to our requests. The contrast is stark,” he said.
“The Superintendent claims she is cooperating fully by burying the committee with reams of irrelevant documents, and only she knows her true motives.”
Though Lubnau anticipates that Hill’s supporters will “issue a hue and cry” about the funding request, he claims that staffing has become an issue. So far, the committee has relied solely on Legislative State Office staff, but according to the chairman has become overwhelmed by the complexity of the issue, the need to interview further witnesses and legal hurdles that it cannot address alone.
The documents include, for example, confidential information about school students, including medical data, which is protected through more than one privacy act. The committee has not reviewed this or any other information on the hard disk to prevent wrongful disclosure, restricting its own access to the documentation.
“The committee did not ask for any of this information in any way, shape or form,” said Lubnau.
“The committee has asked the superintendent to take another stab at production of documents, and according to news media reports, she will not do so. The committee finds itself in a complicated legal situation, created not of its own making, and needs experienced legal advice on how to proceed.”
The committee has hit additional problems during the inquiry, such as one employee’s threat to sue his peers if they share information about him. The same employee, said Lubnau, has made claims for defamatory communications.
This, along with the superintendent’s own demands for confidentiality, has created a “difficult legal scenario” that Lubnau claims will require the guidance of Special Council. As LSO staff cannot interview witnesses or provide opinions on witness testimony and the direction of the investigation, Lubnau claims that the committee has reached an impasse and cannot continue its investigation.
The committee has voted to retain the services of Bruce Salzburg, formerly the Wyoming Attorney General and now with Crowell and Moring, as Lead Special Counsel with the assistance of Rob Jarosh and other attorneys from Hirst Applegate LLP of Cheyenne.
To retain counsel, the committee has requested that the Management Council authorize an initial budget of $100,000. Lubnau noted that more may be needed as the investigation progresses.
By Sarah Pridgeon
With Rare Element Resources set to initiate its industrial siting permit application concurrently with the FEMA process, Kimber Wichmann of the Department of Environmental Quality’s Industrial Siting Division was last week asked to outline the process for the County Commissioners. Potential issues such as road agreements and division of impact assistance were brought up, but the answers may not be clear until the process is in full swing.
Securing an industrial siting permit is relatively swift for a state process, said Wichmann, explaining that it moves from initiation to decision within 135 days. This means that it can be vital for the county to understand the full implications of the project before the process begins.
“Once a facility gets an industrial siting permit, local government cannot require anything further,” said Wichmann.
“It’s very important that road agreements, mitigation agreements and so on are in writing before we get the application, or that you get a condition to be in the actual permit when issued. This is something we find a lot of counties scramble with at the last minute.”
In response to a question from County Attorney Joe Baron, Wichmann explained that a concern such as a disputed road maintenance agreement between the county and the permittee can be presented alongside the application.
“If it’s left unaddressed, it cannot be required later – and that’s a big issue for counties and municipalities,” she explained.
Decisions cannot be made regarding the access route for the mine, however, until the Forest Service has completed the NEPA process.
“How do we get a road agreement when we don’t know which road [they’re] using?” asked Commissioner Jim Hadley.
“Well, we’ll get one on every road that comes off the mountain,” joked County Attorney Joe Baron in response, adding that the only choice available may be to develop a formula that will work for any outcome.
To be involved in the process, the public will be able to submit comments in writing or can make limited appearance statements at hearings. To become an involved party requires requesting party status and attending both the pre-hearing and hearing.
The process also aims to ensure that counties and municipalities are aware of potential population increases and the impacts of operating staff, which can be significant. It is split into four steps, all of which are public except the initial jurisdictional meeting.
“The purpose of our office, as we go through this process, is to identify the positive, negative and net impacts,” Wichmann said. “We make sure that the counties and public have had sufficient time to work on these things and have mitigation in place for anything they think might impact their area.”
The jurisdiction meeting, which for RER has already taken place, identifies areas in which current resources are not sufficient and includes any environmental, social or economic stresses caused by sudden or prolonged population growth, said Wichmann, such as for law enforcement or county roads. This meeting can take place up to a year before the application and is the point at which a study area is set for the socio-economic analysis, identifying the locations that will be primarily affected.
“Right now, the status for us is that we have gone through the jurisdiction process and we are hoping to submit our application in the first quarter of 2014,” announced Linda Tokarczyk of Rare Element Resources.
As soon as the application is received, it will be sent to 18 state agencies for review, as well as to local governments who may wish to apply for impact assistance and to county clerk offices for public viewing. One county is also determined to be the locale where most of the construction will take place.
This county will be asked to host a meeting of all involved municipalities and counties at which every affected party must unanimously decide how the impact assistance will be dispersed. An agreement is achieved in 99 percent of cases, said Wichmann, but the department can do its own impact modeling if a unanimous decision cannot be reached.
Impact assistance is only available through the industrial siting permit process and is influenced by such things as construction location, housing plan, delivery points and tax exemptions. Whether rare earths are tax exempt remains unclear.
“I’m a little concerned about whether the mineral they are extracting is tax exempt, because that will make a big difference in the impact assistance funds,” pointed out Wichmann.
For RER’s rare earth mine project, mining in Crook County and processing in Weston County may also influence the siting permit process, because the project will be submitted as one but may have differing tax implications for each county. The division will not have full information until the application is received and cannot yet predict the intricacies of the process.
“It’s one of the challenges,” said Wichmann. “We know what’s going on here and we know that you each have a big piece of this project, and we also understand what the company is going through at a federal level to get it permitted, so they need to keep it as one project. So we’ll see how this turns out.”
Within 90 days of the application, the ISC hearing will be held. All testimony is heard regarding the completeness of the application and the comments and issues raised by the public and state agencies.
Within 45 days, a decision is distributed that serves as the final word. None of the issues that were brought up during the hearing can be contested again unless significant changes occur that affect the scope or design of the project.
Concern was expressed during the presentation about the two permits running concurrently.
“It’ll be the chicken and the egg: which comes first, the Forest Service or this?” commented Baron. “One of the arguments [that comes up] may be that you can’t issue this until you get that.”
Anything federal is considered to be outside the DEQ’s realm, explained Wichmann, which makes the FEMA and industrial siting processes completely separate. This is the first time in her experience, however, that a project has gone forward with its siting permit without having the federal process complete first.
By Sarah Pridgeon
The sixth grade students of Sundance Elementary School are the proud winners of a national contest sponsored by 3M, the makers of Post-It Notes. The contest rewards creative use of sticky notes in a lesson plan and was won by a combined fifth and sixth grade project in which, over the course of two months, the students covered a wall in Post-Its to shape an image with an outer space theme.
“We created a huge wall mural of Saturn out of Post-Its,” says teacher Heather Dryden, who initiated the project last year with the help of her fellow sixth grade teacher, Abbie Love. It was intended to be a creative, enriching activity for kids who were not involved with band.
“I took a picture of Saturn and digitalized it to blow up the pixels and the kids had to map out where the Post-Its were going to go,” she elaborates. “It was pretty intense coordinate mapping – it took them about two months to get it up. I think they learned a lot.”
To complete the image of Saturn, the students had to work out where on the wall each individual Post-It should be placed and then color those sticky notes that weren’t quite the correct shade. Most of the work was done by those students who were not absent for band activities, though the band members did participate when they were able.
None of the participants were aware that such a contest existed as they painstakingly added their sticky notes to the wall – that realization came just as Dryden was considering taking the mural down.
“We got done in about April and left it up for the rest of the school year. On the last day of school I told them to go out there and pull it down, and they had a heyday,” she laughs.
“It was like a Post-It war out there, it took about four minutes. I think they had even more fun tearing it down than they did putting it up.”
Fortunately, a week before torn Post-Its filled the air, Dryden discovered the 3M Post-It Inspiring Ideas Contest. She submitted her lesson plans and images of the finished planet and was notified this week that the project was one of four national winners of the grand prize.
“We won $5000 that we can either spend on Scholastic or Post-It products for the classroom. I figured I would sit down with Abbie and see what we need,” she says, noting with amusement that the students are equally excited to spend their winnings.
“The students have already asked for some things – they asked if they could make a list, it was like Christmas in here. I’m going to see if I can get something that they can all take, so they can remember it.”
Dryden plans to enter the contest again this year, though now she is aware of its existence she would like to involve the band members more. She has yet to decide, however, what this year’s project topic might be.
By Sarah Pridgeon
Re-assembling the Cole Water Storage Tank in its new location is a project that must wait until spring, following advice from Tammy Reed of Trihydro at this month’s regular meeting of the Sundance City Council. Just one bid was received for the project at an amount considerably higher than budgeted, due to the extra costs of construction during the winter.
“We received one bid and it came in close to $180,000 over our estimate, which would put the deficit for the entire project for the tank re-assemblage close to $450,000,” said Reed.
Mayor Brooks confirmed that, because the bid is considerably over the budget, the city has the right to reject it. Council Member Sheryl Klocker commented that waiting until spring is financially the best thing the city can do, to the agreement of all, and a motion was passed to not accept the bid and delay until spring.
The bidder’s references were glowing in terms of water line work performed for other clients in the past, she explained, and the subcontractors for rock excavations, rock anchors and grouting also checked out positively. But though qualified and responsive, the bidder was not willing to negotiate on price.
“He said that the prices he gave were a reflection of the extra processes he would have to have in place to perform winter construction and be able to keep water temperatures, mix concrete and so on at favourable temperatures. So he was not willing to negotiate on the items we felt were high,” Reed explained.
Accepting the bid would require the city to ask for additional money at the November meeting of the Wyoming Water Development Commission. This would be a risk because there is no guarantee that the funding would be approved, said Reed, which would necessitate finding an alternative mechanism to fill the deficit.
“We do believe that, if you were to bid in the spring, you would see more competition. The timeline we had for construction of the Cole tank was tight and didn’t allow for a lot of adverse weather days – it was pretty constrained,” she said.
“Some of the potential bidders did not bid because they were trying to button up other projects and felt that they could not meet the timeline.”
Clerk-Treasurer Kathy Lenz explained that $152,000 is left over from the city road project with WYDOT that was completed a couple of years ago but has now been paid in full. This could be put towards the project to pay the city’s share.
“If Water Development did award us money at the November meeting, it’s a 75-25 split and at this overage without any change orders, our part would be $148,000,” she said.
“If we didn’t get the extra money, we’d have to find an alternative because, by signing all these grant document papers we’re required to put that tank on the hill. And if we don’t put that tank on the hill, we would have to pay back the $950,000 that we’ve been awarded already.”
Mayor Paul Brooks explained that his major concern with awarding the bid would be that no money would remain in the event of a change order. If the contractor presented a change order, the city would be forced to take out a loan and raise the water rates to pay it.
“If he came in with a 10 percent overage for a change order, I can assure you we can’t make that,” he said.
“If there’s one mistake, one accident, we’re going for state revolving funds, which means we’re raising our water rates again and I don’t know how anxious the council is to do that. I know the mayor is not tremendously anxious to do that.”
Reed confirmed the mayor’s hypothesis that the bids are likely to come in much lower in the spring, by perhaps as much as a couple of hundred thousand dollars.
“The estimate we put together we thought was conservative – we were really surprised at how high the bid came in,” she said.
The conversation turned to the timeframe if the project is delayed until the spring and the bid re-issued in January or February.
“Moving into spring construction, they’re not heading into the winter but out of it. The big fear was that starting this in late October, they’re moving right into the dead of winter – though I do realize that spring weather can be unpredictable,” said Reed.
“The timeframe was 90 days to get the tank up as quickly as possible, but we could adjust that timeframe…we would want to get it up before the peak season hits in June.”
Reed went on to explain that members of the city staff believe that recent water quality issues were caused at least in part by the tank being offline, but that the city engineers do not agree with this suggestion.
“It really doesn’t make sense to us that that would be the case, it seems like a separate issue. Engineering and technical-wise, we can’t figure out how it would be connected,” she clarified.
She also explained that delaying the problem is unlikely to affect the physical condition of the transmission line and that a check valve has been installed to stabilize the pressure fluctuations.
Council Member Hugh Palmer abstained from the vote as he did not feel the council had access to sufficient information to make a decision due to the absence from the meeting of Public Works Director Larry Schommer.
By Sarah Pridgeon