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Lehigh May Lose Right To Sell Cement To Government

Department of Conservation says company will be removed from list of approved vendors if it cannot come into compliance in 30 days.

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.

Frank Geefay July 25, 2011 at 09:15 PM
AB 3098 gives the Office of Mine Reclamation tremendous regulatory leverage at little cost or effort. The threat of being removed from this list would cause most mining operators to shudder. This is likely the most powerful tool the Office of Mine Reclamation has for keeping mining operators honest because it is so easy to remove non-compliant operators, it being a privilege, not a right to be listed. By their own admission Lehigh Permanente Quarry has been dumping overburden in the East Material Storage Area without a Reclamation Plan since prior to 1997 when AB 3098 was enacted. The basis for Santa Clara County (SC County) granting Lehigh Vested Rights to the East Material Storage Area was based upon Lehigh’s claim that they had been engaged in mining operations there prior to 1948. They never should have qualified for AB 3098. They must have originally filed false claims to get on the AB 3098 list. In spite of two Notices Of Violations issued by the SC County for illegal stockpiling, dumping continues to this day with SC County’s blessing. The Office of Mine Reclamation needs to put together an effective policy for Reinstating operators onto AB 3098. It should include 1) a meaningful probation periods whereby 2) they are severely restricted on the amount of government business they can get which gradually loosens over the probation period and 3) that they be closely inspected by OMR. Such Reinstatement penalties must hurt to discourage future volition.
Se Park July 25, 2011 at 10:59 PM
Our county is so corrupt that it took the state to step in and take action. Shame on you Board of Supervisors and Lehigh lobbyists!
Paula Wallis July 25, 2011 at 11:25 PM
Finally some meaningful action to bring this facility into compliance. This action by the State Office of Mine Reclamation validates what residents have known for a long time. LEHIGH IS NOT IN COMPLIANCE WITH STATE MINING REGULATIONS, AND HAS ENJOYED AN UNFAIR ADVANTAGE FOR MANY YEARS. Lehigh’s response makes it seem like “roads, freeways, bridges, canals, schools, infrastructure, and innumerable other projects” won’t get built if the cement and aggregate doesn’t come from Lehigh, Cupertino. I'm sure the many mines around the state that are in compliance will be thrilled to pick up these lucrative contracts. The operators of this facility have no one to blame but themselves.
Rhoda Fry August 09, 2011 at 12:43 PM
It is disingenuous for the company to paint their self-inflicted regulatory problems as a threat to jobs. German-owned Heidelberg Cement does not care enough about their employees to be in compliance with the California State Mining and Reclamation Act or the United States Mining Safety and Health Administration (MSHA). MSHA’s December 2010 press release http://www.msha.gov/media/PRESS/2010/NR101221.pdf highlighted this Bay Area Cement company with 185 violations and 21 orders as one that considers “egregious violation records a cost of doing business.” The unrelenting safety issues among 106 miners were followed up by January, April, and June visits by this federal agency, which are described in this press release: http://www.msha.gov/media/PRESS/2011/NR110728.pdf. In 1990 the quarry bought a toxic manufacturing site and dumped mining waste there without seeking County permission. The neighboring Midpeninsula Open Space District decried: “While it is troubling that the County did not recognize that the Permanente Quarry had disturbed an area nearly three times the size allowed in the 1985 Reclamation Plan, all parties knew that the 1985 Reclamation Plan would sunset in 2010… We ask that the County take the steps needed to regain control of its quarry oversight responsibilities.” Their letters are posted here: http://losaltos.patch.com/articles/lehigh-to-lose-right-to-sell-cement-to-government#pdf-7158498

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