Lehigh May Lose Right To Sell Cement To Government

In a move the company says could be "devastating," the Lehigh Southwest Cement Permanente Quarry could lose its ability within the next 30 days to sell cement to some of its biggest customers—state and local governments—according to a notice sent to the company on July 20 by the state Office of Mine Reclamation (OMR).

Since Henry Kaiser bought the quarry in 1939, cement and rock from the Cupertino hillsides have helped build Shasta Dam, Highway 85, and scores of other public works projects throughout the region and state. The Lehigh website boasts that it provides more than 50 percent of the cement used in the Bay Area and Monday said 70 percent is used in Santa Clara County.

"We are in full compliance with the law," Lehigh said in a written statement Monday. "We have agreed to work with the Santa Clara County planning department—the lead agency in this matter—and have been doing so to their satisfaction for the duration the of the reclamation planning process."

That, apparently, has not been enough to meet the regulations of the state, however.

The letter took the county to task, for continuing to wait on Lehigh, five years past the compliance date.

According to the OMR notice, the quarry has been out of compliance with a reclamation plan since December 2007, as a result of unfixed landslides that occurred at the site more than 10 years ago.

It also asserts that during the period while Lehigh was supposed to be working on compliance, it has been dumping materials outside of its approved plan boundaries in the East Materials Storage Area, known as EMSA. That dumping has been at the center of controversy among citizen action groups for months.

Removal From AB 3098 List

The result, according to the OMR, is that Lehigh will be removed from the “AB 3098 List”, named for the 1992 legislation that established it if it cannot comply within the 30-day period. Quarries on the list can sell mined materials, including cement, to government agencies. The quarries must have approved reclamation plans, as well as financial assurances that they can pay for the reclamation of lands once mining is over.

The copy of the OMR notice is found on the pdf section of this page.

The company said in its written statement, "The Department’s action could have devastating impacts. Materials produced by the quarry
and cement plant are used for roads, freeways, bridges, canals, schools, infrastructure, and innumerable other projects. Past projects include the San Jose Airport expansion and Bay Bridge reconstruction. In fact, 70% of the Cement used in Santa Clara County comes from
Lehigh's Permanente Quarry. Equally important, this action threatens the operation of the quarry and the livelihood of those who depend on it for their jobs and business."

At a March 30 environmental impact report scoping meeting held in Cupertino by Santa Clara County planning staff, members of Bay Area Clean Environment, previously known as No Toxic Air, told planners that they believe Lehigh is not in compliance with its reclamation plan and should not be on the AB 3098 list.

After the meeting Lehigh’s director of land use planning and permitting, Marvin Howell, disputed the group’s assertions that the company should be excluded from the list. He told Patch “we’re in compliance,” and added, “we have complied with every regulation we were required to meet.” He contended at that time that as long as the company was working with the county to amend the reclamation plan, Lehigh would remain on the AB 3098 list. But that was not the case.

Lehigh pointed out, in its written statement Monday that the county issued the facility an order and a schedule for compliance in October 2006, "which required the proprietor to update the reclamation plan and include all areas of disturbance within the amendment. The county has periodically updated the Order; the most recent update was dated May 21, 2008. Lehigh has fully complied with the order’s requirements, and Lehigh’s reclamation plan amendment is currently being processed."

County management criticized

Despite Howell’s assertion of the company’s compliance, in the July 20 letter the OMR criticizes both Lehigh and Santa Clara County.

The county is the lead agency charged with ensuring that quarries comply with the State Mining and Reclamation Act (SMARA), and the state criticized it for taking more than five years to bring Lehigh into compliance with its reclamation plan.

The OMR letter points to Public Resources Code Section 2770 that requires companies have approved permits and reclamation plans with lead agencies in order to mine. It goes on to say, “any surface mining operations conducted without an approved reclamation plan is a violation of SMARA.”

The letter also states that Lehigh is in violation of California Code of Regulations Section 3501, because the county is currently considering two reclamation plans, one for EMSA and another more comprehensive plan for the entire quarry. The code requires that there be only one reclamation plan.

“When you read it, it’s a pretty valid criticism of the county’s management of the quarry,” said Bill Almon, the Los Altos Hills leader of another citizen group, Quarry No.

Members from groups like Quarry No and Bay Area Clean Environment have been speaking out for months at meetings of the county Board of Supervisors and city council meetings in Cupertino, Los Altos and Los Altos Hills, contending the county’s oversight of the quarry is too lax. 

Bay Area Clean Environment has collected nearly 26,000 signatures in the last month on an online Change.org petition demanding that Lehigh be removed from the AB 3098 list.

Reactions to Notice

Cupertino City Councilman Barry Chang called the notice “long overdue.” Chang, a founder of Bay Area Clean Environment, said he believes the quarry should have been removed from the list as long as 10 years ago when the landslides were first discovered. He sharply criticized the county for “not doing its job” in holding Lehigh to the mining regulations.

Los Altos Hills Town Councilman Gary Waldeck, a member of a joint committee with the Los Altos City Council investigating Lehigh’s impact on the local environment, said he was not surprised at the OMR’s decision.

“I’m a little dismayed it’s come to this,” he said. Waldeck said the company has known for some time about the issue. He said he was disappointed that Lehigh officials didn’t act to rectify the issue “when they saw the handwriting on the wall.” 

Waldeck told the Los Altos Hills Town Council Thursday that the two cities' joint committee had just contracted with a consultant to analyze environmental data from Lehigh. Waldeck said he expected a report around December. The two city councils hope this would give officials more information about the environmental issues by citizens groups. The cities appropriated $25,000 and took the action in part because there were questions about the county's oversight and whether the health and environmental concerns of residents of Los Altos Hills and Los Altos were being safeguarded.

Lobbying Efforts Fail

Chang told Patch that Lehigh attempted to lobby Governor Jerry Brown's office to stop the OMR action within the last two weeks. He said the company retained California Strategies for its lobbying efforts. Former Assemblyman Jim Cuneen (R-San Jose), a fixture at recent Lehigh events locally, is one of the firm's principals.

Despite the lobbying efforts, the Governor's office declined to intercede, Chang said he was told by one of its staff members.

- Los Altos Patch Editor L.A. Chung contributed to this report.