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Exhibit CC 12-21-2010 No. 11 Lehigh Cement East Materials Storage Area (EMSA)
Cc- /a -a1 -/o it !l Grace Schmidt From: Susan Sievert [spsievert@gmail.corn] Sent: Tuesday, December 21, 2010 1:41 PM To: City Council; City Clerk Subject: Written Communication 12/21/2010 Written Communication 12/21/2010 11. Lehigh Cement East Materials Storage Area (EMSA) Consider what letter or resolution, if any, the City Council may wish to send to the Santa Clara County Board of Supervisors regarding Lehigh Cement East Materials Storage Area (EMSA) Dear City Council, I support sending a resolution to the Santa Clara County Board of Supervisors condemning their lackadaisical handling of Lehigh's illegal East Materials Storage Area. The EMSA is very close to where many of us hike, so we have an urgent need to know exactly what is in the fine particulate matter blowing off that unregulated waste dump and into our lungs. Below are three related items for your review: 1) Mercury Measurements near the Lehigh Hanson Cement Plant: http: / /www.youtube.com /watch ?v= sbdGULPQT3o 2) An except from an email exchange I had with one of the authors of the above study: "From the human health side I would probably worry more about airborne carcinogens- like you mentioned, benzene wouldn't be good if they emit a lot, and I also wonder about fine particulate matter. [...] relayed some stories on her sites' homeowners complaints of ash "snow" landing on their property. If you've ever read a bag of cement you'll notice they have all sorts of warnings about inhalation etc. Microfine mineral /ash /soot particles are not good for the lungs. Hopefully in the air district monitoring planned they are going to be looking at total particulate matter TPM /PM10 /PM2.5, and not just mercury. Mercury is what impact the Bay, the ecosystem we work on, but from the community's side there will be other questions." 3) A timely SJ Mercury News editorial that concludes the county has not "earned our trust." <begin editorial> More sunshine badly needed on county decisions Posted: 12/19/2010 12:01:00 AM PST. The failure of three Santa Clara County supervisors and Country Executive Jeff Smith to shed sufficient Tight on the new ambulance contract proves the urgent need for a county sunshine law. Supervisor Dave Cortese says he will make that a priority in 2011. We certainly hope so. The county's business is being transacted with too little opportunity for public scrutiny, informed discussion or debate. It was maddening Tuesday to watch Cortese himself, with Supervisors George Shirakawa and Mike Wasserman, ignore pleas for more public scrutiny of the contract from the two supervisors who are the most experienced and informed on the issue, health and hospital committee chairwoman Liz Kniss and co- chairman Ken Yeager. That's no way to build public trust. Cortese, Shirakawa, Wasserman and Smith made a big show of saying the ambulance issue had been studied for more than two years. Its true that the county worked for that: amount of time to put together the request for proposals, giving different cities and the public opportunities to contribute. But when the actual bids came in -- inexplicably far apart -- it was an entirely different matter. If county staff had had its way, the contract with low bidder Rural Metro would have been approved by the board with as little as four days notice. Smith said it was only a last- minute glitch in negotiations that led to postponing the vote, which in turn allowed time to post the final version on the Web for 10 days before last week's meeting. It was not any commitment to sunshine. At the board meeting, comments were limited to the usual two minutes, with no real opportunity to resolve questions -- and the contract raises plenty. Neither Smith nor board members could be bothered to answer anything in detail. Staff's response generally was: Trust us, we've looked at this, it's all good. 1 They may truly believe that, but the public has too little information to see for itself. "Trust us" decisions are becoming a pattern for the county. Smith hired the firm of Alvarez & Marsal for $100,000 last March without a public bid to supposedly review the hospital's cash flow. As widely predicted, that quickly morphed into a review of the entire hospital operation, and the amount jumped to $1.5 million. Then Smith got the board to add an additional $3.5 million in September "to keep things running" at VMC -- all without public input, let alone competitive proposals. Cortese, a former San Jose councilman, supported sunshine in city government. He plans to ask staff to examine San Jose and San Francisco sunshine laws, and he agrees that the county should require that any staff reports or proposed contracts be posted on the county website at least 10 days before they are taken up at a meeting. That would be a start. But in the case of a life- and -death decision like how to provide ambulance service, you can bet San Jose would have conducted a public study session to make sense of the competing proposals for entirely different systems of operating the service. Now we just have to hope the county knows what it's doing. Ii: has not earned our trust. <end editorial> Thank you. Susan Sievert • 2 cc_ i a - ..-I - / // OFFICE OF THE MAYOR � 1 CITY HALL i DS � 10300 TORRE AVENUE • CUPERTINO. CA 95014 -3255 CU P E RT N O (408 777-3212 • FAX ( 4081 777 -3366 November 10, 2010 Dear Resident, There is no more important job for local government than to protect the welfare of our community. It is for this reason that city councils. both past and present, in Cupertino have advocated for measures that protect the quality of life in our city. This is especially true for concerns relating to the Kaiser /Hanson /Lehigh cement plant and quarry which has been immediately adjacent to Cupertino for many years. Since I became mayor in December of last year. our city Council has held study sessions with representatives from the United States Environmental Protection Agency. the San Francisco Regional Water Quality Control Board, the Bay Area Air Quality Management District. and with the County of Santa Clara. While progress has been made with improvements in federal air quality standards, the City Council continues to push for the strictest possible standards and highest levels of safety for our community. The installation of a new air monitoring station as well as an active exchange of information with all regulators has helped to establish a confirmed body of information to which all can refer. This has proven an important step to cut through the many contradictory claims. fears and accusations that seem to circulate this facility. For information on the most recent confirmed data about Lehigh, please visit our city website at www.Cupertino.org/Lehigh. This site contains documentation from all regulatory agencies including notices of violation, video of hearings held in Cupertino on this subject, and correspondences that have been sent to and from the city and various regulators regarding the cement plant. Attached please find information on an important upcoming hearing on Tuesday, November 23, at 1:30 PM at the Santa Clara County Board of Supervisors. As the governmental entity that regulates land use for the quarry, this County hearing is an important opportunity .o weigh in on the use of 89 acres immediately adjacent to our city. Also attached please also find a recent letter from our ci y manager to the County of Santa Clara planning director encouraging every possible opportunity for public participation and to pursue every opportunity to reduce environmental impacts. I hope you can use the attached information to help direct your concerns in a timely and appropriate fashion where it can be of the greatest benefit. Sincerely, rr Kris Wang Mayor GL /. -i -la .tf lI Linda Lagergren From: Ben Cooper [bicooper @yahoo.coml Sent: Tuesday, December 21, 2010 9:31 AM To: Gilbert Wong Subject: Permanente Quarry Issue Gilbert, I am a Cupertino resident. I ask that you do everything in your power to stop the proposed new 200 acre open pit mine, and prevent the serious on -going violations of SMARA by not letting mining operations in the EMSA continue. -Ben Ben Cooper 23645 Oak Valley Road Cupertino, CA 95014 1 CC /a -a1 - /o .4 /1 Linda Lagergren From: Ben Cooper [bicooper @yahoo.com Sent: Tuesday, December 21, 2010 9:24 AM To: Barry Chang Subject: Permanente Quarry Issue Barry, I am a Cupertino resident, I attended your presentation on Saturday 12/18/2010 at the Cupertino City Center. I support your position, please do everything in your power to stop the proposed new 200 acre open pit mine, and prevent the serious on -going violations of SMARA by not letting mining operations in the EMSA continue. Regards, -Ben Ben Cooper 23645 Oak Valley Road Cupertino, CA 95014 1 `x„ '° a L'4 rt �, a i fl -L S y ._ (--(---(--( —C/ ( ---et--( ) ,,,, ,,,,,, I. ,010 . ;4,, , ')' ( 2 1 ( ( b 0 tom, 1 V V (,C 1 ,,,, - �^ . ' y r- - , ..ti ", ti :d k 1 f i i , , :4' ' i y fr Set ',4.f. , ta, '. . I . ' ix 3ia1', 1, } rye Y 1 41., i ^ b ,F . Es t , �f 1r1° 3 ` 1 ; s djt, - Y. �' f f 3 fi : 3 t.4 .. 't .. . 't4 it'''. � � a . ' 4.41' , ''' :',' . ' 4, V , , , '.' all Autism Mimics The Exact Same Symptoms As Mercury Poisoning! Page 3 of 6 Summar y Comparison arison of Characteristics CC ( 10 of Autism & Mercury Poisoning I Mercury Poisoning Autism Psychiatric Social deficits, shyness, social withdrawal Social deficits, social withdrawal, shyness Disturbances Depression, mood swings; mask face Depressive traits, mood swings; flat affect Anxiety Anxiety Schizoid tendencies, OCD traits Schizophrenic & OCD traits; repetitiveness Lacks eye contact, hesitant to engage others Lack of eye contact, avoids conversation Irrational fears Irrational fears Irritability, aggression, temper tantrums Irritability, aggression, temper tantrums Impaired face recognition Impaired face recognition Speech, Loss of speech, failure to develop speech Delayed language, failure to develop speech Language & Dysarthria; articulation problems Dysarthria; articulation problems Hearing Speech comprehension deficits Speech comprehension deficits Deficits Verbalizing & word retrieval problems Echolalia; word use & pragmatic errors Sound sensitivity Sound sensitivity Hearing loss; deafness in very high doses Mild to profound hearing loss Poor performance on language IQ tests Poor performance on verbal IQ tests Sensory Abnormal sensation in mouth & extremities Abnormal sensation in mouth & extremities 4bnormalities Sound sensitivity Sound sensitivity Abnormal touch sensations; touch aversion Abnormal touch sensations; touch aversion Vestibular abnormalities Vestibular abnormalities Wotor Disorders Involuntary jerking movements - arm Stereotyped movements - arm flapping, flapping, ankle jerks, myoclonal jerks, jumping, circling, spinning, rocking; choreiform movements, circling, rocking myoclonal jerks; choreiform movements Deficits in eye -hand coordination; limb Poor eye -hand coordination; limb apraxia; apraxia; intention tremors problems with intentional movements Gait impairment; ataxia — from Abnormal gait and posture, clumsiness and incoordination & clumsiness to inability to incoordination; difficulties sitting, lying, walk, stand, or sit; loss of motor control crawling, and walking Difficulty in chewing or Difficulty chewing or swallowing Unusual postures Unusual postures Cognitive Borderline intelligence, mental retardation - Borderline intelligence, mental retardation - Impairments some cases reversible sometimes "recovered" Poor concentration, attention, response Poor concentration, attention, shifting inhibition attention Uneven performance on IQ subtests Uneven performance on IQ subtests Verbal IQ higher than performance IQ Verbal IQ higher than performance IQ Poor short term, verbal, & auditory memory Poor short term, auditory & verbal memory Poor visual and perceptual motor skills, Poor visual and perceptual motor skills, impairment in simple reaction time lower performance on timed tests Difficulty carrying out complex commands Difficulty carrying out multiple commands Alexia (inability to comprehend the meaning Hyperlexia (ability to decode words while of written words) lacking word comprehension) Deficits in understanding abstract ideas & Deficits in abstract thinking & symbolism, symbolism; degeneration of higher mental understanding other's mental states, powers sequencing, planning & organizing http: / /www.heart- disease - bypass- surgery.com/data/articles /44.htm 12/21/2010 Autism Mimics The Exact Same Symptoms As Mercury Poisoning! Page 5 of 6 Unusual Behaviors ADHD traits ADHD traits Agitation, unprovoked crying, grimacing, Agitation, unprovoked crying, grimacing, staring spells staring spells Sleep difficulties Sleep difficulties Eating disorders, feeding problems Eating disorders, feeding problems Self injurious behavior, e.g. head banging Self injurious behavior, e.g. head banging Visual Poor eye contact, impaired visual fixation Poor eye contact, problems in joint attention impairments "Visual impairments," blindness, near- "Visual impairments "; inaccurate /slow sightedness, decreased visual acuity saccades; decreased rod functioning Light sensitivity, photophobia Over - sensitivity to light Blurred or hazy vision Blurred vision Constricted visual fields Not described Physical Increase in cerebral palsy; hyper- or hypo - Increase in cerebral palsy; hyper- or Disturbances tonia; abnormal reflexes; decreased muscle hypotonia; decreased muscle strength, strength, especially upper body; especially upper body; incontinence; incontinence; problems chewing, swallowing, problems chewing and swallowing salivating Rashes, dermatitis /dry skin, itching; burning Rashes, dermatitis, eczema, itching Autonomic disturbance: excessive sweating, Autonomic disturbance: unusual sweating, poor circulation, elevated heart rate poor circulation, elevated heart rate Castro- intestinal Gastroenteritis, diarrhea; abdominal pain, Diarrhea, constipation, gaseousness, constipation, "colitis" abdominal discomfort, colitis Disturbances Anorexia, weight loss, nausea, poor appetite Anorexia; feeding problems /vomiting Lesions of ileum & colon; increases gut Leaky gut syndrome permeability Inhibits dipeptidyl peptidase IV, which Inadequate endopeptidase enzymes needed cleaves casomorphin for breakdown of casein & gluten 4bnormal Ties up -SH groups; blocks sulfate Low sulfate levels Biochemistry transporter in intestines, kidneys Has special affinity for purines & Purine & pyrimidine metabolism errors lead pyrimidines to autistic features Reduces availability of glutathione, needed in Low levels of glutathione; decreased ability cells & liver to detoxify heavy metals of liver to detoxify heavy metals Causes significant reduction in glutathione Abnormal glutathione peroxidase activities peroxidase and glutathione reductase in erythrocytes Disrupts mitochondrial activities, especially Mitochondria) dysfunction, especially in in brain brain rmmune Sensitivity due to allergic or autoimmune More likely to have allergies and asthma; Dysfunction reactions; sensitive individuals more likely to familial presence of autoimmune diseases, have allergies, asthma, autoimmune -like especially rheumatoid arthritis; IgA symptoms, especially rheumatoid -like ones deficiencies Can produce an immune response in CNS On -going immune response in CNS Causes brain/MBP autoantibodies Brain /MBP autoantibodies present Causes overproduction of Th2 subset; Skewed immune -cell subset in the Th2 kills /inhibits lymphocytes, T- cells, and direction; decreased responses to T -cell monocytes; decreases NK T -cell activity; mitogens; reduced NK T -cell function; induces or suppresses IFNg & IL -2 increased IFNg & IL -12 CNS Structural Selectively targets brain areas unable to Specific areas of brain pathology; many Pathology detoxify or reduce Hg- induced oxidative functions spared stress Damage to Purkinje and granular cells Damage to Purkinje and granular cells http: / /www.heart- disease - bypass- surgery.com/data/articles /44.htm 12/21/2010 Autism Mimics The Exact Same Symptoms As Mercury Poisoning! Page 4 of 6 (ii) Stereotyped sniffing (rats) Stereotyped, repetitive behaviors http: / /www.heart- disease - bypass - surgery .com /data/arti:cles /44.htm 12/21/2010 Autism Mimics The Exact Same Symptoms As Mercury Poisoning! Page 6 of 6 Accummulates in amygdala and Pathology in amygdala and hippocampus hippocampus Causes abnormal neuronal cytoarchitecture; Neuronal disorganization; increased disrupts neuronal migration & cell division; neuronal cell replication, increased glial reduces NCAMs cells; depressed expression of NCAMs Progressive microcephaly Progressive microcephaly and macrocephaly Brain stem defects in some cases Brain stem defects in some cases 4bnormalities in Prevents presynaptic serotonin release & Decreased serotonin synthesis in children; Veuro- chemistry inhibits serotonin transport; causes calcium abnormal calcium metabolism disruptions Alters dopamine systems; peroxidine Possibly high or low dopamine levels; deficiency in rats resembles mercurialism in positive response to peroxidine (lowers humans dopamine levels) Elevates epinephrine & norepinephrine Elevated norepinephrine and epinephrine levels by blocking enzyme that degrades epinephrine Elevates glutamate Elevated glutamate and aspartate Leads to cortical acetylcholine deficiency; Cortical acetylcholine deficiency; reduced increases muscarinic receptor density in muscarinic receptor binding in hippocampus hippocampus & cerebellum Causes demyelating neuropathy Demyelation in brain EEG Causes abnormal EEGs, epileptiform Abnormal EEGs, epileptiform activity 4bnormalities/ activity Epilepsy Causes seizures, convulsions Seizures; epilepsy Causes subtle, low amplitude seizure activity Subtle, low amplitude seizure activities Population Effects more males than females Male:female ratio estimated at 4:1 Characteristics At low doses, only affects those genetically High heritability - concordance for MZ twins susceptible is 90% First added to childhood vaccines in 1930s First "discovered" among children born in 1930s Exposure levels steadily increased since Prevalence of autism has steadily increased 1930s with rate of vaccination, number of from 1 in 2000 (1940s) to 1 in 500 (1990s) vaccines Exposure occurs at 0 - 15 months; clinical Symptoms emerge from 4 months to 2 years silent stage means symptom emergence old; symptoms emerge gradually, starting delayed; symptoms emerge gradually, with movement & sensation starting with movement & sensation http: / /www.heart- disease - bypass - surgery .com/data/articles /44.htm 12/21/2010 c c r zi g w UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION IX `PriW 75 Hawthorne Street San Francisco, CA 94105 -3901 WAR :!02010 CERTIFIED MAIL NO. 7003 31 10 0006 2000 8625 RETURN RECEIPT REQUESTED IN REPLY: AIR-5 REFER TO: Docket No. R9 -10 -02 David Vickers President Lehigh Southwest Cement Company 12667 Alcosta E3lvd, Bishop Ranch San Ramon. CA 94583 Dear Mr. Vickers: Re: Lehigh Southwest Cement Conipany Notice and Finding of Violation Dear Mr. Vickers: Enclosed is a copy of a Notice of Violation and Finding of Violation ( "NOV /FOV ") issued pursuant to sections 1 13(a)(1), 113(a)(3) and 167 of the Clean Air Act, 42 U.S.C. §§ 7401 -7671q (the "Act "), notifying you that the United States Environmental Protection Agency ( "IPA "), Region IX, finds that Lehigh Southwest Cement Company ( "Lehigh ") has violated certain sections of the Act's Prevention of Significant Deterioration of Air Quality and "Title V Operating Permit Program, at its Portland cement plant located in Cupertino, California (the "Facility "). You should be aware that section 113(01). 113(a)(3) and 167 of the Act authorizes EPA to issue an order requiring compliance with the requirements of the Act, issue an administrative penalty order, or continence a civil action seeking an injunction and /or a civil penalty. Furthermore, section 113(c) of the Act provides for criminal penalties in certain cases. In addition, section 306 of the Act, 42 U.S.C. 7606, the regulations promulgated thereunder (2 C'.1=.R. Part 180). and Executive Order 1 1738 provide that facilities to be utilized in federal contracts. grants and loans must be in full compliance with the Act and all regulations promulgated pursuant to it. A violation of the Act may result in the Cupertino Plant being declared ineligible for participation in any federal cont.: :acL grant, or loan. Pruned on Rr _re led Paper if you wish to discuss the enclosed NOV /FOV, you may request a conference with EPA within ten (10) working days of receipt of this NOV /FOV. The conference will afford Lehigh an opportunity to present information bearing on the finding of violation, the nature of the violations. and any efforts it may have taken or proposes to take to achieve compliance, lfyou have any questions pertaining to this : /FOV, please contact Charles Aldred of the Air Lnforcemcnl Office at (41 5) 972 - 3986. or have your attorney contact Ivan Lichen of the Office of Regional Counsel at (41 5) 972 -3914. Thank you for your cooperation in this matter. Sincerely, I1 Deborah Jorda Director, Air Division Enclosure cc w /enc: BAAQIVID CARB • • 2 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY x 'E � '�' REGION IX .U' rr 44 P140' 75 Hawthorne Street San Francisco, CA 94105 -3901 PAR I 0 2010 IN REPLY: A1R -5 REFER TO: Docket No. R9 -10 -02 Jack Broadbent Air Pollution Control Officer Bay Area Air Quality Management District 939 Ellis St. San Francisco, CA 94109 Dear 17, roadbent: ''nclosed for your information is a copy ofa Notice of Violation and Finding of Violation ( "NOV /FOV ") that the United States Environmental Protection Agency ("EPA "), Region IX, issued to the Lehigh Southwest Cement Company ( "Lehigh ") for violations of the Clean Air Act ("Act ") at Lehigh's Portland cement plant in Cupertino. California (the "Facility "). The purpose of the NOV /FOV is to notify Lehigh that EPA finds that it has violated the Prevention of Significant Deterioration and Title V Operating Permit Program requirements of the Act at the Facility. The violations are set forth more specifically in the enclosed NOV /FOV. The NOV/1'0V has been issued pursuant to sections 113(a)(1). 1 13(a)(3) and 167 of the Act, 4. U.S.C. § 7401 The Act also provides that after 30 days from the issuance of an NOV, EPA may determine if any action will be taken pursuant to Section 113 of the Act. 1f you have any questions concerning this NOV /FOV. please contact Charles Aldred of the Region 9 Air Enforcement Office at (415) 972-3986, or IIn.�LcliarI's rr Cha.coV. Sincerely. 6/ Deborah Jordan Director, Air Division Enclosure Printed on Recycled d Paper J , p } Eu UNITED STATES ENVIRONMENTAL PROTECTION AGENCY G fi r (.; REGION IX p H0 74 � 75 Hawthorne Street San Francisco, CA 94105-3901 f R 1 0 2010 IN REPLY: AIR -5 REFER TO: Docket No. R9 -10 -02 .linl Ryden Enforcement Division Chief California Air Resources Board P.O. Box 2815 Sacramento, CA. 9 812 Dear Mr. Ryden: Enclosed for your information is a copy of a Notice of Violation and Finding of Violation ( "NOV /FOV ") that the United States Environmental Protection Agency ("EPA "). Region IX, issued to the Lehigh Southwest Cement Company ( "Lehigh") for violations of the Clean Air Act ("Act ") at Lehigh's Portland cement plant in Cupertino, California (the "Facility "). • The purpose of the NOV /FOV is to notify Lehigh that EPA finds that it has violated the Prevention of Significant Deterioration and Title V Operating Permit Program requirements of the Act at the Facility. The violations are set forth more specifically in the enclosed NOV /FOV. The NOV /FOV has been issued pursuant to sections 113(a)(I ), 1 13(a)(3) and 167 of the Act. 42 U.S.C. § 7401-7671q. The Act also provides that after 30 days from the issuance of an NOV, EPA may determine if any action will be taken pursuant to Section 113 of the Act. ifyou have any questions concerning this NOV /FOV, please contact Charles Aldred of the Region 9 Air Enforcement Office at (415) 972 -3986, or Sincerely, . I Deborah .lord, n Director. Air Division Enclosure Printed on Recycled 1'uper UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION IX In the Matter of: ) LEHIGH SOUTHWEST CEMENT COMPANY ) Docket No. R9 -10 - 02 NOTICE OF VIOLATION Proceeding under Section 113(a) ) AND FINDING OF of the Clean Air Act, ) VIOLATION 42 U.S.C. § 9613(a) ) ) NOTICE OF VIOLATION /FINDING OF VIOLATION This Notice of Violation and Finding of Violation ( "NOV /FOV ") is issued to the Lehigh Southwest Cement Company ( "Lehigh ") for violations of the Clean Air Act ( "CAA" or the "Act "), as amended, 42 U.S.C. §§ 7401- -7671q, at its Portland cement manufacturing facility locates. in Cupertino, California. (the "Facility "). Lehigh violated the Prevention of Significant Deterioration ( "PSD ") and Title Operating Permit Program requirements of the Act at the Facility. This NOV /FOV is issued pursuant to Sections 113(a)(1), 113(.)(3) and 167 of the Act. Section 113(a)(1) requires the Administrator of the United States Environment Protection Agency ( "EPA ") to notify any person she finds in violation of an applicable implementation plan or a permit. The federal PSD regulations also clarify that failure to comply with the PSD provisions renders a source subject to enforcement under Section 113 of the Act. See 40 C.F.R. § 52.23. The authority to issue this NOV has been delegated to the Regional Administrator of EPA Region 9 and further re- delegated to the Director of the Air Division in EPA Region 9. 1 ( ( SUMMARY OF VIOLATIONS The Facility is a Portland cement manufacturing plant comprised of one kiln, and associated equipment used to produce clinker, including a preheater tower, precalciner, clinker cooler, induced draft ( "ID ") and other fans, cement finish mills, and extensive sections of ductwork. This NOV /FOV concerns a series of physical modifications made to the Facility from 1996 through 1999. Lehigh subsequently operated the Facility with the mod:.fied equipment which resulted in significant net emission increases. As a result, the projects, either individually or in the aggregate, caused an increase in production of cement and an increase in emissions of air pollutants to the atmosphere from the Facility. The Facility is located in an area that has at all relevant times been classified as attainment for nitrogen dioxide ( "N07 ") and sulfur dioxide ( "S0 "). Accorc.ingly, the PSD provisions of Part C, Title I. of the Act apply to operations at the Facility for oxides of nitrogen ( "NO ") 1 and SO, emissions. EPA has determined that the physical or operational changes identified in this NOV /FOV, either individually or in the aggregate, were major modifications for PSD purposes since the Facility significantly increased both actual and potential emissions of NO, and SO as a result of the changes. Moreover, Lehigh failed to apply for one or more PSD permits for the modifications covering NO and SO2 1r as the r ; `iiLe^ pollutant ant _ . r t-t HO standard. 2 emissions. Lehigh's failure to apply for a PSD permit or install and operate additional emissions controls meeting best available .control technology ("BACT ") covering these pollutants when it . constructed and began operating the physical or operational changes was a violation of the PSD requirements of the Act. Lehigh has also violated the Title V Operating Permit Program requirements of the Act set forth at 42 U.S.C. §S 7461 - 7661f, the federal Title V regulations set forth at 40 C.F.R. Part 70, sand the approved Bay Area Air Quality Management District ( "BAAQMD ") Title V program set forth at Regulation 2 Rule 6. BAAQMD has administered an approved Title V Operating Permit Program since November 29, 1994. Lehigh's failure to identify PSD requirements in its application submitted to BAAQMD for a Title V permit, supplement or correct that application to include PSD requirements, or obtain a Title V permit that contains the PSD requirements after the construction and operation of the physical or operational changes are violations of Title V requirements. See 42 U.S.C. §§ 7661b(a) - (b) and 7661c(a); 40 C.F.R. §§ 70.5(a)(c); BAAQMD Regulation 2 Rule 6. As a result, Lehigh obtained a deficient Title V permit, i.e., one that did not include all applicable requirements, and therefore is operating the Facility without a valid Title V permit in violation of 42 U.S.C. §SS 7661a, 7661b, and 7661c; 40 C.F.R. §§ 70.1, 70.5 and 70.6; and BAAQMD Regulation 2 Rule 6. 3 STATUTORY & REGULATORY BACKGROUND National Ambient Air Quality Standards 1. The Administrator of EPA, pursuant to authority under Section 109 of the Act, 42 U.S.C.. § 7409, has promulgated National Ambient Air Quality Standards ( "NAAQS ") for certain criteria pollutants relevant to this NOV /FOV, including NO_and SO. See 40 C.F.R. §§ 50.4, 50.5, 50.7, 50.8, 50.9, and 50.10. 2. Pursuant to Section 107(d) of the Act, 42 U.S.C. § 7407(d), the Administrator promulgated lists of attainment status designations for each air quality control region ( "AQCR ") in every state. These lists identify the • attainment status of each AQCR for each of the criteria pollutants. The attainment status designations for the California AQCRs are listed at 40 C.F.R. §§ 81 .305. Prevention of Significant Deterioration 3. Section 110 of the Act, 42 U.S.C. § 7410, requires each state to adopt and submit to EPA a plan that provides for the implementation, maintenance and enforcement of primary and secondary NAAQS in the state. Upon approval by EPA, the plan becomes part of the applicable state implementation plan ( "SIP ") for that state. 4. Section 110(a) (2) (C) of the Act, 42 U.S.C. § 7410(a)(2)(C), requires that each SIP include a PSD permit program as provided in Part C of Title I of the Act, 42 U.S.C. §§ 7470 -7491. Part C sets forth requirements for SIPs for attainment areas to ensure maintenance of the NAAQS. 4 ( I 5. On June 19, 1978, pursuant to Sections 160 through 169 of the Act, 42 U.S.C. §§ 7470 -7479, EPA promulgated federal PSD regulations at 40 C.F.R. § 52.21. 43 Fed. Reg. 26,402. 6. The federal PSD program was incorporated into all applicable implementation plans nation -wide and contains the applicable PSD program requirements for each plan until EPA approves into an individual SIP a replacement program. See 40 C.F.R. § 52.21(a); 42 U.S.C. § 7410(a)(2)(C). 7. Pursuant to Section 107(d) of the Act, 42 U.S.C. § 7407(d), the Administrator promulgated lists of attainment status designations for each AQCR in every state. These lists identify the attainment status of each AQCR for each of the criteria pollutants. The NO2 and SO_ attainment status designations for the California AQCRs are listed at 40 C.F.R. § 81.305. 8. The BAAQPID has primary jurisdiction over major stationary sources of air pollution sources in the San Francisco Bay Area Intrastate AQCR. 40 C.E.R. § 81.21. This jurisdiction includes the Facility. 9. Section 161 of the Act, 42 U.S.C. § 7471, requires that each SIP contains provisions to implement the Act's PSD program for areas of that state which are designated as being in attainment with any NAAQS for a criteria pollutant. The PSD program applies to major new sources of air pollution. 10. The PSD permitting program for the San Francisco Bay Area Intrastate AQCR is the federal PSD program, which is set forth at 40 C.F.R. § 52.21. 5 ( 11. Subsequent to 1978, the PSD regulations have been periodically revised. As the PSD violations identified in this NOV /FOV first commenced from 1991 through 2003, the 1992 amendments to the PSD regulations contain the applicable provisions pertaining to the alleged violations identified in this NOV /FOV. See 57 Fed. Reg. 32 :314 (July 21, 1992). 12. 40 C.F.R. § 52.21 (b)(1)(i)(a) (1992) defined a "major: stationary source" as any stationa: :y source within one of 28 source categories which emits, or has the potential to emit, 100 tons per year ( "tpy ") or more of any air pollutant subject to regulation under the Act. Portland cement plants are included among the 28 source categories. 13. The PSD Regulations defined a "major modification" as "any physical change in or change in the method of operation of a major stationary source that would result in a significant net emissions increase of any pollutant subject to regulation under the Act." 40 C.F.R. § 52.21(b)(2)(1) (1992). 14. 40 C.F.R. § 52.21 (b) (3) ( :i) (1992) defined "net emissions increase" as the "amount by which the sum of the following exceeds zero: a. Any increase in actual emissions from a particular physical change or change in the method of operation at a stationary source; and b. Any other increases and decreases in actual emissions at the source that are contemporaneous with the particular change and otherwise creditable." 1 40 C.F.R. § 52.21 (b) (21) (1992) d "actual • 6 ( emissions" as follows: "In general, actual emissions as of a particular date shall equal the average rate, in tons per year, at which the unit actually emitted the pollutant during a two - year period which precedes the particular date and which is representative of normal source operation." The PSD regulations also provide that "[f]or any emissions unit ... which has not )begun normal operations on the particular date, actual emissions shall equal the potential to. emit on that date." 40 C.F.R. 52.21(b)(21)(IV) (1992). 16. 40 C.F.R. § 52.21(b)(4) (1992) defined "potential to emit" as the "maximum capacity of a stationary source to emit a pollutant under its physical or operational design. Any physical or operational limitation on the capacity of the source to emit a pollutant, including the air pollution control equipment and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, shall be treated as part of its design if the limitation or the effect it would have on emissions is federally enforceable." 17. As such, the PSD regulations utilize an actual -to- potential test to determine whether an emissions increase occurred. Moreover, 40 C.F.R. § 52.21(b)(23)(i) (1U92) defined "significant" and states that, in reference to N0. and S0 significant net emissions increase means an increase that would equal or exceed 40 tons or more per year. 18. An applicant for a PSD permit to modify a stationary source is required to submit all information necessary to allow the permitting authority to perform any analysis or make any 7 determination required in order to issue the appropriate permit. 40 C.F.R. § 52.21(n) (1992). 19. 40 C.F.R. § 52.21(1) (1992) prohibited commencement of actual construction of a major modLfication to which the PSD requirements apply unless the source had a permit stating that the rjequirements of 40 C.F.R. §§ 52.21(j) -(r) had been met. 20. The PSD permitting process required, among other things, that for pollutants emitted in significant amounts, the owner or operation of a major source apply PACT to control emissions, 40 C.F.R. § 52.21(j) (1992) ; model air quality, 40 C,F.R. § 52.21(1) (1992); and perform a detailed impact analysis regarding both the NAAQS and allowable increments, 40 C.F.R. § 52.21(k) (1992). 21. Any owner or operator of a source or modification subject to 40 C.F.R. § 52.21 who commenced construction after the effective date of the PSD regulations without applying for and receiving a PSD permit is subject to appropriate enforcement action by SPA. 40 C.F.R. § 52.21(r)(1) (1992); Sections 113 and 167 of the Act, 42 U.S.C. §§ 7413 and 7477. Title V Operating Permit Program 22. Title V of the Act, 42 U.S.C. §§ 7661- 7661f, establishes an operating permit program for "major sources," including any source required to have a PSD permit. See Section 502(a) of the Act, 42 U.S.C. § 766:a(a). Regulations implementing the Title V permit program are set forth in 40 8 C.F.R. Part 70. 23. Pursuant to Title V, it is unlawful for any person to violate any requirement of a permit issued under Title V or to operate a major source except in compliance with a permit issued by a permitting authority under Title V. Section 502(a) of the Act, 42 •U.S.C. § 7661a(a). 24. Under Section 502(d)(1) of the Act, states were required to develop and obtain approval to administer Title V programs. 42 U.S.C. § 7661a(d)(1). EPA granted interim approval of BAAQMD's Title V Operating Permit Program effective July 24, 1995, and final full approval was effective November 30, 2001. See 40 C.F.R. Part 70 Appendix A. 25. Sources subject to Title V and falling under BAAQMD's jurisdiction are required to submit to BAAQMD timely and complete Title V applications that identify, among other things, all "applicable requirements," including PSD requirements. See 40 C.F.R. § 70.5(a); BAAQMD Rule 2 -6 -404 and 2 -6 -405. 26. Sources subject to Title V and falling under BAAQMD's jurisdiction who have submitted an a ?plication are required to supplement or correct the application to include applicable requirements that were not included i.Z the original application. 40 C . F . R . § 70.5(h); BAAQMD Rule 2 -6- 405.10. 27. Sources subject to Title V and falling under BAAQMD jurisdiction must obtain a Title V permit that: 1) contains such conditions necessary to assure compliance with the applicable 9 requirements; 2) identifies all applicable requirements the source is subject to; and 3) certifies compliance with all applicable requirements, and 4) where a source is not meeting requirements, contains a plan for corning into compliance. Sections 503 and 504 of the Act, 42 U.S.C. §§ 7661b and 7661c(a); 40 C.F.R. §§ 70.1, 70.5 and 70.6; BAAQMD Rule 2 -6 -409. 28. Failure of a source subject to Title V to submit a complete application; supplement that application when new requirements become applicable, or to obtain a Title V permit that contains all applicable requirements, such as PSI) requirements, are violations of the Act. FINDINGS OF FACT 29. The Facility is a Portland cement manufacturing facility, which is located at 24001 Stevens Creek Boulevard, Cupertino, Santa Clara County, California. 30. The San Francisco Bay Area Air Basin, which includes Santa Clara County where the Facility is located, was designated as attainment /unclassifiable at all times for NO2 and SO_ by operation of law under Sections 107(d)(1)(C) and 186(a) of the Act, 42 U.S.C. §§ 7407(d)(1)(C) and 7486(a). See 56 Fed. Reg. 56694 (Nov. 6, 1991); 40 C.F.R. § 81.305. 31. Lehigh is the current owner and operator of the Facility. The Facility was formerly owned by Hanson Permanente Cement and Kaiser Cement Cdrporation. 32. The Facility includes one kiln, and associated 10 ( i equipment used. to produce clinker, including a preheater tower, precalciner, clinker cooler, induced draft ( "1D ") and other fans, cement finish mills, and extensive sections of ductwork. 33. The combustion of coal, petroleum coke, and natural gas at the kiln at the Facility produces emissions of NO ;; and SO2, which are released to the atmosphere through a collection of 32 individual mini- stacks exiting from the baghouse. 34. Between 1996 and 1999, Lehigh commenced construction of various physical and /or operational changes at the Facility, and has continued to operate the Facility with these modifications, including, but not limited to, the following: a. • Upgrades to the finish mill; and b. Various other modifications, upgrades, and operational changes (Note: The underlying dccuments identifying these. other projects have been claimed by Lehigh as confidential business information, and therefore are not being specifically identified in this NOV /FOV. Regardless, as the NOV /FOV raises allegations relating to all physical or operational changes commencing from 1996 through 1999, these other projects are covered within the scope of the NOV /FOV.1. 35. Lehigh intended that these physical or operational changes, either individually or in the aggregate, would increase the production capacity of the Facility. 36. These physical or operational changes, either 11 • individually or in the aggregate, resulted in an increase in annual clinker production at the Facility. Prevention of Significant Deterioration 37. The Title V Permit issued by BAAQMD included, among other conditions, the following annual emissions limits for NO and SO_ emissions from the Kiln at the Facility: NO SO2 Emissions limit (t 5,072 2,106.8 38. As the limits in the Title V Permit for the Facility • are federally enforceable, they constitute the Facility's • Potential to Ernit ( "PTE "). 39. Based upon a comparison of pre- construction actual emissions to post- construction PTE, the physical or operational changes identified in Paragraph 34, either individually or in the aggregate, resulted in net emissions increases from the Facility of NO and SO 40. The net emissions increases of NO and SO2 as a result of the physical or operational charges identified in Paragraph 34, either individually or in the aggregate, constitute a PSD significant net emissions increase since the increases were above 40 tpy for NO, and SO2. 41. Each of the physical or operational changes identified in Paragraph 34 constituted, either individually or in the aggregate, a "major modification" to the Facility for PSD purposes, as defined by 40 C.F.R. s 52.21 (b) (2) (i) . 42. Lehigh did not apply for a PSD Permit covering NO, and 12 SO_ emissions for any of the physical or operational changes identified in Paragraph 34. 43. Lehigh failed to install and operate BACT -level emission controls for NO„ and SO, emissions from the Facility either at the time each of the physical or operational charges identified in Paragraph 34 were commenced or any time since their completion and operation. Title V Operating Permit Program 44. As alleged in Paragraphs 39 through 43, Lehigh commenced one or more major modifications at its Facility commencing from 1996 through 1999, ar.d the modifications triggered the requirements to obtain a PSD permit, undergo a PSD BACT analysis, and operate in compliance with the PSD permit. Lehigh failed to satisfy these requirements. 45. Lehigh .first submitted a Title V application to BAAQMD on June 21, 1996. The final permit was issued by BAAQMD on November 5, 2003. 46. Prior to issuance of the Title V permit, Lehigh failed to supplement and /or correct its Title V permit application to identify all applicable requirements, including PSD requirements for NO and SO2, a plan to come into compliance with those PSD requirements, and an updated certification of compliance that included the PSD requirements. 47. As a result of Lehigh's failure to provide complete information in its application or to supplement and /or correct 13 its application to include PSD requirements, Lehigh obtained a deficient Title V operating permit that did not contain all applicable requirements. 48. Pursuant to Section 502(a) of the CAA, 42 U.S.C. 7661a(a), it is unlawful for any person to operate a source required to have a PSD permit except in compliance with a permit issued by a permitting authority under Title V. Similarly, 40 C.F.R. §§ 70.1(b), 70.6(a) and BAAQMD Rule 2 -6 -409 require sources subject to Title V to have an operating permit that assures compliance with all applicable requirements. 49. Lehigh has operated and continues to operate the Facility without a valid Title V operating permit in violation of Sections 502, 503 and 504 of the Act, 42 U.S.C. §§ 7661a, 7661b, and 7661c; 40 C.F.R. §§ 70.1, 70.5 and 70.6; and BAAQMD Regulation 2 Rule 6. FINDING OF VIOLATION Prevention of Significant Deterioration 50. Pursuant to Section 113(a)(1) of the Act, notice is hereby given to Lehigh that the Administrator of the EPA, by authority duly delegated to the undersigned, finds that Lehigh is in violation of federal PSD requirements at the Facility described in this NOV /FOV. EPA reserves the right to amend this NOV /FOV or issue a new NOV /FOV based on additional information obtained through Section 114 of the Act or any other source available to the Administrator at any point. 14 Title V Operating Permit Program 51. Notice is also given to Lehigh that it failed to supplement or correct its Title V application submitted to BAAQIVID to include PSD requirements or obtain a Title V permit that contained PSD requirements, and therefore is in violation of Title V of the Act. ENFORCEMENT 52. For any violation of a SIP, such as for PSD violations, Section 113(a)(1) of the Act, 42 U.S.C. § 7413(a)(1), provides that at any time after the expiration of 30 days following the date of the issuance of a notice of violation, the Administrator may, without regard to the period of violation, issue an order requiring compliance with the requirements of the SIP, issue an administrative penalty order, or bring a civil action pursuant to Section 113(b) for injunctive relief and /or civil penalties of not more than $25,000 per day for each violation that occurs on . or before January 30, 1997, not more than $27,500 per day for each violation that occurs after January 30, 1997, not more than $32,500 per day for each violation that occurs after March 14, 2004; and not more than $37,500 per day for each violation that occurs after January 12, 2009. 42 U.S.C. § 7413(a)(1); Federal Civil Penalties Inflation Adjustment Act of 1990, Pub. L. 101 -410, as amended; 40 C.F.R. Part 19. 53. Sections 113(a)(3) and 167 of the Act, 42 U.S.C. §§ 7413(a)(3) and 7477, provide additional authority for EPA to enforce against violators of the Act. 15 • 54. Section 113(c) of the Act, 42 U.S.C. § 7413(c), provides for criminal penalties, imprisonment, or both for persons who knowingly violate any federal regulation or permit requirement. For violations of the SIP, a criminal action can be brought 30 days after the date of issuance of a Notice of Violation. 55. Section 306 of the Act, 42 U.S.C. § 7606, the regulations promulgated thereunder (2 C.F.R. Part 180), and • Executive Order 11738 provide that facilities to be utilized in federal contracts, grants and loans roust be in full compliance with the Act and all regulations promulgated pursuant to it. A violation of the Act may result in Lehigh and /or the Facility being declared ineligible for participation in any federal contract, grant, or loan. • PENALTY ASSESSMENT CRITERIA 56. Section 113(e) (1) of the Act, 42 U.S.C. § 9613(e)(1), states that the Administrator or t: :ie court shall determine the amount of a penalty to be assessed by taking into consideration such factors as justice may require, including the size of the business, the economic impact of the penalty on the business, the violator's full compliance history and good faith efforts to comply, the duration of the violation as established by any credible evidence (including evidence other than the applicable test method), payment by the violator of penalties previously assessed for the same violations, the economic benefit of • noncompliance, and the seriousness of the violation. 57. Section 113(e)(2) of the Act, 42 U.S.C. § 9613(e)(2), 16 allows the Administrator or the cour'.� to assess a penalty for each day of violation. This section further provides that for purposes of determining the number o:= days of violation, where EPA makes a prima facie showing that the conduct_ or events giving rise to the violation are likely to have continued or recurred past the date of an NOV, the days of violation shall be presumed to include the date of the NOV and each and every day thereafter until the facility establishes that continuous compliance has been achieved, except to the extent that the facility can prove by the preponderance of the evidence that there were intervening days during which no violation occurred or that the violation was not continuing in nature. 17 OPPORTUNITY FOR CONFERENCE 58. Lehigh may confer with EPA regarding this NOV /FOV if it so requests. A conference would enable Lehigh to present evidence bearing on the finding of violation, on the nature of violation, and on any efforts it mEy have taken or proposes to take to achieve compliance. If Lehigh seeks such a conference, it may choose to be represented by counsel. If Lehigh wishes to confer with EPA, it must make a request for a conference within 10 working days of receipt of this NOV /FOV. Any request for a conference or other inquiries concerning the NOV /FOV should be made in writing to: Ivan Lieben Office of Regional Counsel. U.S. EPA (ORC -2) 75 Hawthorne Street San Francisco, CA 94105 (415)972 -3914 Dated: 34,119 AU/ Deborah Jor -an Director, Air Division 18 EMSA Resolution Page 1 of 3 C C Pte. 2 110 Home > Categories > Environment and Wildlife > EMSA Resolution ` EMSA Resolution Sign Blog Signatures Email friends Like One like. Sign Up to see what your friends like. Sponsor The Petition NoToxicAir.org classid= "clsid: 38481807- CA0E- 42D2- BF39- B33AF135CC4D" id= ieooui> Contact Petition Sponsc Links To the Cupertino City Council Members. NoToxic Air www.NoToxicAir.org The residents of Cupertino are concerned about the Lehigh Sponsored links Southwest Cement Plant's violations. We the undersigned ask that the Cupertino City Council Members pass this resolution. "°°b' G°° S le San Francisco Coupons A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF 1 ridiculously daye coupon a CUPERTINO ASKING THE SANTA CLARA COUNTY BOARD day. It's like doing OF SUPERVISORS TO DIRECT THE PLANNING The Bay at 90% DEPARTMENT TO CEASE ALLOWING THEE SERIOUS off! ONGOING VIOLATIONS OF THE SURFACE MINING AND www.Groupon.com /Sa... GEOLOGY ACT (SMARA) BY LEHIGH SOUTHWEST CEMENT COMPANY, OWNER OF PERMANENTE QUARRY, BY NOT LETTING MINING OPERATIONS IN THE NORTHEASTERN PORTION OF THE QUARRY, REFERRED TO AS THE EAST MATERIALS STORAGE AREA (EMSA), TO CONTINUE. WHEREAS Permanente Quarry is located in near Cupertino, The views expressed in th outside and adjacent to the city limits solely those of the petition do not in any way reflect fl iPetitions. iPetitions is sole WHEREAS Lehigh has been operating outside the permitted of technical services to the boundaries both in the EMSA since at least March, 2008; and in sponsor and cannot be he any damages or injury or addition, since 2006 in other areas. The June 20, 2008, NOV arising from this petition. li states, "The [October 10, 2006] NOV effectively placed Hanson adequate sponsor is name will consider the individual on notice that work outside the reclamation plan boundary is not holder with which the petit authorized. For this reason, the County views this additional created as the lawful spon stockpiling as an intensification of an existing violation" WHEREAS this non - compliant operation had previously been included and withdrawn in an application dated March 2007, indicating that Lehigh had full knowledge and understanding that the operation was non - compliant but continued the operation �1+r• / %zn:nv ir.n +i +;.° / i ') ')1 /7n1 n EMSA Resolution Page 2 of 3 ignoring SMARA and the CEQA comments from concerned residents on the [subsequently withdrawn] March 2007 plan WHEREAS Santa Clara County has also stated in the 2008 NOV, "(1) cease depositing the material in the location described above [EMSA], and (2) submit a proposal for either (a) removing the materials, or (b) providing for interim erosion control and re- vegetation of the stockpile in order to retain the material while the reclamation plan amendment continues to be processed" WHEREAS Santa Clara County did not state in the 2008 NOV that the piling of materials was allowed to continue WHEREAS Santa Clara County Planning Department subsequently is allowing mining operations to continue in the EMSA despite these NOVs, agreeing to allow the SMARA violations to continue pending a reclamation plan amendment to redraw the boundaries to include the disturbed areas and accommodate the violations WHEREAS Santa Clara County has not issued a determination of vested interest in these areas, nor a reclamation plan nor a Use Permit WHEREAS the Board of Supervisors has indicated they plan to schedule a Public Hearing early in 2011 to consider whether and to what extent the Owner and Operator have a legal and non- conforming use for the portion of the quarry referred to as the EMSA WHEREAS the Planning Department of Santa Clara County has stated they intend to continue to allow mining operations which violate SMARA and then, in the case of determination of non - vested rights, a Use Permit being necessary to continue operations, use a CEQA process after the fact to "mitigate" the violations. NOW THEREFORE BE IT RESOLVED that the City of Cupertino does hereby ask Santa Clara County to cease allowing Lehigh Southwest Cement Company to violate SMARA, to cease allowing stockpiling of materials in the EMSA and to determine and issue the maximum allowable fine that can be brought against Lehigh for the violations listed in the NOVs of 2006 and 2008. Sign petition EMSA Resolution Page 3 of 3 Fields marked with are required Name * Email (not * displayed) Comments (not displayed) City (not displayed) Address (not * displayed) Display options F Show my name in the online signature list Let iPetitions notify me on similar petitions SIGN! iPetitions is owned and operated by Angle Three Associates, LLC - All material © Copyright Angle Three Associates, LLC, 1998 -2010 - in inn ',"CJICE C9UNT:lz. This petition has collected 97 signatures using the online tools at iPetitions.com Printed on 12-22-2010 EMSA Resolution Sponsored by: NoToxicAir.org About the petition To C.Pmm COT Coon. LW*. r.. ent•aC... Em Doman. a ...P.n0s....est Cement Plaa..m.oe.W.b. miner. d.40 m.Cup.thm CAT Council ,.0...vw..n,ato 01 OFnCM' UNCta C C U THE CRY O F IT1140 nn DIE SANTA a.w GOWN Iw11O OF 0 0ElMVgIS TO DIRECT THE RAMP. 0ECwlru8R TO 0000 - nuawn ME SHUOUSonoowcvrounoxs 00 s..w THE.a.vun MO GEOLOGY ACT t 8.l DV IFncN rt 00 SOUTHWESrco.r 0000. OWNER OF 10 PERWWENE W.wRV, S0 HOTIETPG 0111..10 OFEIIAAA1roNs WINE NORMFA9THM PpRp0OF THE tl..MV. REFERRED TO A.9 THE EASTMATERWS STOMCE 004 0 (EMSA), TO COMM.. WHr EAswm.,a.0 'sm 8andad*m.axmarwm WHEREAS Rimy .Rs Wan opmaE1pm..emp.mm W8.....NEPne.E0SA *co s 8..s .00.20,11: n.4e.p... soo 2008:7.0...s. TM Ache 20. Zak NM atm The 10110.0. 10. WA NOV .Imesy10.7.0 Homan n8.8. 08.08.. 801000.. nee... pm boundary s not who ea. 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Msaa8m0rsu ...ad V.y plenb o10Ma Pat Nwr.q 8.y In m8. 008. 1.1m.r.r..J bwa 0AU a.o. ,8.d0O..br now• 8.y and m.mMmbp 1m e. 0010n 01 Ns puny 887.40.08 EPA wr9Ews 0. pr0.ywp..rosaara 080 Coup ...Waq *al be....emm..p op..nn• Mich v101. AURA and 8208 0. ma of K.... of nen+.napmt •U• Pam. 0•100 n••••820080. cos. , ...CE. pnms.180osab HOW THEIEFwE eE R ROaO.VED ens Vi. coy aC.PNOam0.201048 S.• Clow 7 .. 0 y m arm arming C.fr4fr Sauna.. C.rsH Coop, to ve•. S.. m cow .MenO.uOp vq am..nFS.11. 06A••10 0.00*/.10.0 M mM.m.eYS 00.040 unto BmyN.eMMU.rp18b em vs88n 11•1.118820 NOW 0,1000 v. 00,00. Signatures 1. Name: Vicky Ho on Dec 19, 2010 2. Name: Steve Dauber on Dec 19, 2010 3. Name: Anonymous on Dec 19, 2010 4. Name: Debbie Hu on Dec 20, 2010 5. Name: Timothy K Brand on Dec 20, 2010 6. Name: Mary lin Mccarthy on Dec 20, 2010 7. Name: Patrick Y. Ho on Dec 20, 2010 8. Name: Dick T Lee on Dec 20, 2010 9. Name: Tom Slee on Dec 21, 2010 10. Name: Nancy Wojtas on Dec 21, 2010 11. Name: Anya M Kroth on Dec 21, 2010 12. Name: Norelle Tavrow on Dec 21, 2010 13. Name: Mark R Sherwood on Dec 21, 2010 14. Name: Daisy Poon on Dec 21, 2010 15. Name: Barbara Mein on Dec 21, 2010 16. Name: Anonymous on Dec 21, 2010 17. Name: Teresa Cheng on Dec 21, 2010 18. Name: Ben Cooper on Dec 21, 2010 19. Name: Maureen Draper on Dec 21, 2010 20. Name: Tammy Schuring on Dec 21, 2010 21. Name: Barbara Mein on Dec 21, 2010 22. Name: Cindi Choi on Dec 21, 2010 23. Name: Pam Lilly on Dec 21, 2010 24. Name: Sanjay Tandon on Dec 21, 2010 25. Name: Jayendra Patel on Dec 21, 2010 26. Name: ANH NGUYEN on Dec 21, 2010 27. Name: Sanjay Tandon on Dec 21, 2010 28. Name: Harita Patel on Dec 21, 2010 29. Name: Leigh Stevens on Dec 21, 2010 30. Name: Sophie Lee on Dec 21, 2010 31. Name: Kathryn Houghton on Dec 21, 2010 32. Name: Alissa Tran on Dec 21, 2010 33. Name: Manu Changotra on Dec 21, 2010 34. Name: Manish Dhamija on Dec 21, 2010 35. Name: Kathryn Houghton on Dec 21, 2010 36. Name: Don And Rhonda Dunn on Dec 21, 2010 37. Name: Bill Erdman on Dec 21, 2010 38. Name: Frances Grinels on Dec 21, 2010 39. Name: Anonymous on Dec 21, 2010 40. Name: Anonymous on Dec 21, 2010 41. Name: Will Tam on Dec 21, 2010 42. Name: Julie Lin on Dec 21, 2010 43. Name: Srinivas Ketavarapu on Dec 21, 2010 44. Name: Mette Christensen on Dec 21, 2010 45. Name: Ury Priel on Dec 21, 2010 46. Name: Feline Gee on Dec 21, 2010 47. Name: Anonymous on Dec 21, 2010 48. Name: Rajul Avalani on Dec 21, 2010 49. Name: Lewis Fraser on Dec 21, 2010 50. Name: Suman Ganapathy on Dec 21, 2010 51. Name: Michael Enescu on Dec 21, 2010 52. Name: Britta Sinks on Dec 21, 2010 53. Name: Bob Gottlieb on Dec 21, 2010 54. Name: Kalyani Tandon on Dec 21, 2010 55. Name: Calvin Do on Dec 21, 2010 56. Name: Alissa Tran on Dec 21, 2010 57. Name: Anonymous on Dec 21, 2010 58. Name: Peter Schatz on Dec 21, 2010 59. Name: Kay Lau on Dec 21, 2010 60. Name: Johnson Lau on Dec 21, 2010 61. Name: Helen Morris on Dec 21, 2010 62. Name: Keith Moms on Dec 21, 2010 63. Name: Amy Migdal on Dec 21, 2010 64. Name: Anil Godbole on Dec 21, 2010 65. Name: Phil Olsen on Dec 21, 2010 66. Name: Anonymous on Dec 21, 2010 67. Name: Sanjeev Mahalawat on Dec 21, 2010 68. Name: Richard J. Jacquet on Dec 21, 2010 69. Name: Sanjeev Mahalawat on Dec 21, 2010 70. Name: George De Urioste on Dec 21, 2010 71. Name: Robert Gee on Dec 21, 2010 72. Name: Becca Partridge on Dec 21, 2010 73. Name: Eileen K Carlyle on Dec 21, 2010 74. Name: Arlene Chan on Dec 21, 2010 75. Name: Kelly Hsiao Klocker on Dec 21, 2010 76. Name: Max Josselyn on Dec 21, 2010 77. Name: Bazil Josselyn on Dec 21, 2010 78. Name: Kenneth Bamum on Dec 21, 2010 79. Name: Christina Kougiouris on Dec 21, 2010 80. Name: Nita Bapat on Dec 21, 2010 81. Name: Linda Starkey on Dec 21, 2010 82. Name: James Ho on Dec 21, 2010 83. Name: Chad Carson on Dec 21, 2010 84. Name: Chia -hung Wang on Dec 21, 2010 85. Name: Elizabeth Chen on Dec 21, 2010 86. Name: Raghuveer Tarra on Dec 22, 2010 87. Name: Ravita Saluja on Dec 22, 2010 88. Name: Yasaman Ameri on Dec 22, 2010 89. Name: Shayan Farahvash on Dec 22, 2010 90. Name: Grace Nadolny, MD on Dec 22, 2010 91. Name: Grace Nadolny, MD on Dec 22, 2010 92. Name: Greg L Hilbrich on Dec 22, 2010 93. Name: Suresh Babu on Dec 22, 2010 94. Name: Joy Barrett And Joe Buchanan on Dec 22, 2010 95. Name: Marianne Mehuys on Dec 22, 2010 96. Name: Hari Sankar on Dec 22, 2010 97. Name: Meera Sankar on Dec 22, 2010 # Name Date IComments (not displayed) City (not displayed) l (not displayed) _ 1 Vicky Ho 12/19/201010:27; Cupertino 22600 Alpine Dr Cupertino, CA 95014 2 Steve Dauber 12/19/2010 10:41 Cupertino, CA 10367 Heney Creek PI 3 Karen Del Compare 12/19/2010 11:50 Cupertino 10136 Camino Vista Dr 4 Debbie Hu 12/20/2010 1:42 Cupertino 1 10230 Anthony Place 5Timothy K Brand 12/20/2010 2:02 Cupertino 10161 Lebanon Drive 6 Patrick Y. Ho 12/20/2010 4:39 Cupertino 22600 Alpine Drive it is time for city council members to put the health and well being of the residents first and their own economic agendas aside. What else are residents to think except that some city council members are protecting some type of economic income that Leigh provides the city or their own personal campaign windfall. ' 10159 cass place 7 marylin mccarthy 12/20/2010 2:04 Follow the money. cupertino I fully endorse that the Cupertino city concel to push that: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO ASKING THE cANTA ri ARA COUNTY BOARD OF SUPERVISORS TO DIRECT I THE PLANNING DEPARTMENT TO CEASE ALLOWING THE SERIOUS ONGOING VIOLATIONS OF THE SURFACE MINING AND GEOLOGY ACT (SMARA) BY LEHIGH SOUTHWEST CEMENT 8 Dick. T Lee _ 12/20/2010 11:05 COMPANY Cupertino,CA 10471 Heney Creek PI, Cupertino.CA 95014 9 Chia -hung Wang 12/21/2010 12:43 i San Jose ! 1036 S. Blaney Ave. 10 Elizabeth Chen 12/21/2010 12:481 (Cupertino � 10039 Minaker Ct. I A similar petition should be made for the 11 Norelle Tavrow i 12/21/2010 4:14ISunnyvale City Council. Sunnyvale 1491 Flamingo Way, Sunnyvale, CA 94087 12 Teresa Cheng 12/21/20104:48 Cupertino +10968 Sycamore Dr 13 Sophie Lee 12/21/2010 5:16' Cupertino 10471 Heney Creek PI Their air pollutants have destroyed the paint j surfaces on several of my cars over the last 10 14 Bill Erdman 12/21/2010 5:32 years. I wonder how t is effecting people's lungs. Cupertino iJuniper Court 15 Kay Lau 12/21/2010 7:47 I supported the above drafted resolution Cupertino 110829 Sycamore Ct. Cupertino, CA 95014 16 Johnson Lau 12/21/2010 7:501 Cupertino 110829 Sycamore Ct. Cupertino, CA 95014 17 Tom Slee 12/21/2010 2:35 Cupertino 110399 Merriman Rd I � This should not be a difficult decision to make. The health and safety of Cupertino residents are 18 Nancy Wojtas 12/21/2010 3:07 at stake. Please do the right thing. Cupertino 21131 Canyon Oak Way, Cupertino, CA I support the petition and I request that the city ( council represent the interests of it's 19 Anya M Kroth ! 12/21/2010 3:36 constituents and not those of Lehigh Cupertino 15042Montebello Rd 20 Mark R Sherwood 12/21/2010 4:15 Cupertino 1 15040 Montebello Road 21 Daisy Poon 12/21/2010 4:37 Los Altos 2067 Eugenia Way It is critical to the health of all who live and breath in Santa Clara valley and the Bay Area to 22 Barbara Mein 12/21/2010 4:46 close Lehigh Cement plant in the hills Cupertino. Cupertino 10978 Sycamore Dr. Cupertino, Ca I ! I will not be able to make it to the meeting but I want to express my support to the petition and my disappointment for the lack of proactive action by the Council as a whole. Now there is 23 Panagiotis Kougiour, 12/21/2010 4:48 one more chance to act!!! Cupertino 10828 Sycamore As a Cupertino resident this concerns me greatly. Please do your duty as my representative, and I I Ne» 'alb i cSuiiiiiGii. � I Thank you, 24 Ben Cooper 12/21/2010 4:49 -Ben Cooper Cupertino 23645 Oak Valley Road, Cupertino, CA 95014 25 Maureen Draper 12/21/2010 4:49 _ Cupertino _ 18800 26 Tammy Schuring 12/21/2010 4:58 Cupertino 10475 Madrone Ct., Cupertino, CA 95014 � I I For the health of all who live in the Santa Clara ( Valley and the greater Bay Area, please do not allow Lehigh Southwest Cement Company to violate SMARA, to cease allowing the stockpiling of materials in the EMSA and to determine and issue the maximum allowable fine that can be brought against Lehigh for the violations listed in 27 Barbara Mein 12/21/2010 5:00 the Novs of 2006 and 2008. Cupertino 110978 Sycamore Dr. Cupertino, Ca 28 Cindi Choi 12/21/2010 5:03 _ Cupertino 110366 Heney Creek Place 29 Pam Lilly 12/21/2010 5:07 (Cupertino 21100 canyon oak way We are very concerned about the health impact resulting from Lehigh's activities i.e. stockpiling 30 sanjaytandon 12/21/2010 5:081and emissions. Cupertino 23637 Black Oak Way 31 Jayendra Patel 12/21/2010 5:08 Cupertino 110480 Serra St 32 ANH NGUYEN 1 12/21/2010 5:10 1Cupertino 123666 Black Oak Way, Cupertino CA 95014 Very concerned about this issue and its _ 33 sanjay tandon 12/21/2010 5:11 environmental and health impacts Cupertino 1 23637 Black Oak Way 34 Harita Patel 12/21/2010 5:131 Cupertino 10480 Serra St 35 Leigh Stevens 12/21/2010 5:16 Cupertino 10460 Serra St. 36 Kathryn Houghton 12/21/2010 5:221 Cupertino 122248 Hammond Way —_ Please stop Hanson's Mining to protect our environment and health for the community in 37 Alissa Tran 12/21/2010 5:23 the Bay Area. (Cupertino 10507 Manzanita Court, Cupertino, CA 95014 38 Manu changotra 12/21/2010 5:241 Cupertino ' 23644 oak valley rd 39 Manish Dhamija 12/21/2010 5:26 'Cupertino 23644 oak valley rd 40 Kathryn Houghton 12/21/2010 5:261 !Cupertino 22248 Hammond Way 41 Don and Rhonda Du 12/21/2010 5:311 'Cupertino 110481 Manzanita Ct. 42 Frances Grinels 12/21/2010 5:431 _ 'Cupertino 10461 Scenic Blvd. Cupertino, CA 95014 43 Claudia Morgan 12/21/2010 5:461 Cupertino 1 21190 Canyon Oak Way 44 Simon Lian 12/21/2010 5:58! Cupertino 10133 Camino Vista Drive 45 Will Tam 12/21/2010 5:58 Cupertino 23525 Oak Valley Rd, Cupertino 46 Julie Lin 12/21/2010 6:001 Cupertino 11539 Poppy Way 47 Srinivas Ketavarapu 12/21/2010 6:091 Cupertino 1 10556 Manzanita Ct, Cupertino, CA 95014 I � 1 I ' I am really concerned with this plant being so close to residents, kids, school children from preschool to college age kids.1 sincerely hope that the city council members will use all your power and persuasion to get the county to stop I the production while they are running without permission. Your city's residents need your help 1 working the political scene. The people is behind you and need your help. We elected you to protect and run the city - this is one of the most important things to be taken care of this term of your presence on the council.1 am counting on you and doing all that I can to help out persuading people and elected representatives 48 mette christensen 12/21/2010 6:24 to take this seriously and do something about it. Cupertino 10095 judy avenue, cupertino 49 Ury Priel 1 12/21/2010 6:26. 'Cupertino _ 10838 Sycamore Ct. 50 Faline Gee 12/21/20106:281 (Cupertino 10506 Manzanita Court , Cupertino CA 51 Ming Chiang 12/21/2010 _ 6:33 Saratoga 118809 Cabernet Drive, 52 Rajul avalani 12/21/2010 6:341 Cupertino ,10384 Melissa ct 53 Lewis Fraser 12/21/2010 6:35 Cupertino _Juniper Ct Breaking the law for profit, at the cost of ;people's health and the environment, and is just 54 Suman Ganapathy 12/21/2010 6:37 (not acceptable. Cupertino 10125, Parkwood Dr, #5 We are very affected by the dust, debris and chemicals we get from this Cement factory. We lived here for more than 11 years and our air filters, dust in the house, dust in the air and the horific sights, sounds and smells we see emanating from the factory are really concerning. Please help us save the cities surrounding this factory and the thousands of 55 Michael Enescu _ 12/21/2010 6:39 lifes already affected by it. Cupertino 23616 Oak Valley Road 56 Britta Sinks 12/21/2010 6:48 Cupertino 10949 Maria Rosa Way 57 Bob Gottlieb 12/21/2010 6:52 _ Cupertino 10998 Sycamore Drive Cupertino, CA 58 Kalyani Tandon 12/21/2010 7:08 Cupertino 23637 Black Oak Way 59 Calvin Do 12/21/2010 7:16 Cupertino 10507 Manzanita Ct., Cuperrtino, CA 60 Alissa Tran 12/21/2010 7:16 Cupertino 10507 Manzanita Ct., Cuperrtino, CA 61 Farro Agdassi 1 12/21/2010 7:19; Cupertino 10938 Sycamore Drive, Cupertino CA 95014 62 Peter Schatz 12/21/2010 7:29 Cupertino 110949 Sycamore Dr 63 Helen iyiorris 1 12/21/2010 7:52L Cupertino j 10514 iviadrone Ct. Cupertino 64 Keith Morris 12/21/2010 7:53 (Cupertino 10514 Madrone Ct. Cupertino I 65 Amy Migdal 12/21/2010 8:00 ;Cupertino 111009 Sycamore Dr. 1 1 support the above petition whole heartedly. This because Lehigh plant has some permit to operate they have no right to slowly kill people by opening violating the EPA laws. These laws have been tightened over years as scientist realized that what used to be considered okay levels of emission are really not okay. But the permit process does not seem to take into 66 Anil Godbole 12/21/2010 8:03 account of this. ;Cupertino 10209 Byerly Ct, Cupertino, CA 67 Phil Olsen 12/21/2010 8:37 Cupertino 23655 Oak Valley Road I wholeheartedly agree that the poisoning of our i 68 Eva Kashkooli 12/21/2010 8:45; environment by this cement plant has to stop. 1 Cupertino 10830 Santa Teresa Dr. I ' This is the most pressing isssue for the residents of Cupertino, who, suffer directly and the most from pollution from a factory which is breaking all the EPA laws and rules. This Cement factory only does harm to Cupertino with no benefit of any kind. As a resident, voter and taxpayer of Cupertino, I'd like the City of Cupertino Council to hear and 69 Sanjeev Mahalawat 12/21/2010 8:47 act upon the concerns of Cupertino's residents. Cupertino 10245 Scenic Blvd. 70 Richard J. Jacquet 12/21/2010 8:48 Cupertino 23555 Oak Valley Road, Cupertino, CA 95014 I This is is the most pressing isssue for the residents of Cupertino, who, suffer directly and the most from pollution from a factory which is breaking all the EPA laws and rules. This Cement factory only does does harm to Cupertino with no benefit of any kind. As a resident, voter and taxpayer of Cupertino, I'd like the City of Cupertino Council to hear and 71 Sanjeev Mahalawat 12/21/2010 8:48 act upon the concerns of Cupertino's residents. Cupertino j 10245 Scenic Blvd. 72 George de Urioste 12/21/2010 9:08 Cupertino 21140 Canyon Oak Way From all the reports of safety and environmental violations at Lehigh Permanente Quarry, I'm shocked that so little has actually been done to ensure compliance, and to stop plans for expansion. It's like cour city council is rewarding 73 Robert Gee 1 12/21/2010 9:18 bad behavior! Cupertino _ 23667 Black Oak Way 74 Becca Partridge 12/21/2010 9:24 Cupertino 115030 Montebello Rd 75 Eileen K Carlyle 12/21/2010 9:25 Los Altos 1231 Thurston Ave j ! We need to stop this pollution and the impact on the future health of our community and our children. It is not acceptable and unconscionable for our community government to knowingly allow such public health threats to continue unabated and in such a flagrant manner. We are outraged as a community not only at the business practices of the cement plant but also at the lack of ethics and indecisiveness and lack of action on the behalf of the community and residents that our local government is purported to represent and protect. Please protect our children and their future -- stop the plant from 76 Arlene Chan 12/21/2010 9:35 egregious pollution violations! 'Cupertino 23667 Black Oak Way, Cupertino CA 95014 77 Kelly Hsiao Klocker 12/21/2010 9:40 Cupertino 10268 Bandley Dr. #108, Cupertino, CA 95014 78 Max Josselyn 12/21/2010 9:49 Cupertino 116301 Stevens Canyon Road 79 Bazil Josselyn 12/21/2010 9:50 Cupertino 116301 Stevens Canyon Road 80 kenneth barnum , 12/21/201010:041 cupertino ixxxxx xxxxxxx xxxxx — 81 Christina Kougiouns, 12/21/2010 10_15' }Cupertino 110828 Sycamore Court, Cupertino, CA 95014 82 Nita Bapat 12/21/201010:381 Cupertino 23646 Black Oak Way 83 Linda Starkey 12/21/201011:16; Cupertino 23545 Oak Valley Rd The residents of Cupertino are concerned about the Lehigh Southwest Cement Plant's violations. We the undersigned ask that the Cupertino City 84 James Ho 12/21/2010 11:34 Council Members pass this resolution. Cupertino 21617 Rosario Avenue 85 Chad Carson 12/21/201011:371 Cupertino }Black Oak Way I am a geriatric doctor that has specialized in alzheimer's disease over the last 20 years. I am quite certain that these emissions are neurotoxic, and will cause increased rates of dementia and other brain impairments to existing nearby populations, (not to unborn, future generations, or exotic animals). How is the city council representing us and our interests, yet IGNORING these issues? Are there I 1 more important issues? Which ones? I would love to talk to these people and help them 86 Grace Nadolny, MD 12/22/2010 12:20 reassess their (and our) priorities! 'Cupertino 1 10547 Manzanita Court 87 Greg L Hilbrich 12/22/2010 12:21 This is not tolerable !Cupertino 1 10547 Manzanita Court 88 Suresh Babu 12/22/2010 12:34 'Cupertino 23535 Oak Valley Road 89 Joy Barrett and Joe 12/22/2010 12:44 (Cupertino 10969 Northshore Sq Please take the strongest possible action to li prevent Lehigh from polluting our air, damaging 90 Marianne Mehuys 12/22/2010 12:47 our health, and lowering our property values Cupertino 10878 Sycamore Court 911 Hari Sankar 12/22/2010 12.521 runartino 10455 M a d rene Ct cit ocm ! 92 Meera Sankar 12/22/2010 12:54 Cupertino 10465 Madrone Ct, CA 95014 I � I wanted to attend the council meeting today in person to air my concerns. Unfortunately I am not able to make it because of travel. I am 1 extremely concerned about the environmental damage the Lehigh Cement Company is � I contributing to. I request the City Council to take strong actions to prevent the blatant violations 93 Raghuveer Tarra 12/22/2010 1:03 this company is engaged in Cupertino 10512 Peralta Ct, Cupertino, CA 95014 We are very concerned about the future health 94 Ravita Saluja 12/22/2010 1:06 of our children and the air that they breathe. 'Cupertino 23584 Oak Valley Road We are very concerned about about the Lehigh iSouthwest Cement Plant's violations, ask the 95 Yasaman Ameri 12/22/20101:32 Council to act swifftly to put stop on it. Cupertino 10019 Minaker Ct, Cupertino 96 Shayan Farahvash 12/22/2010 1:33 Please put an end to thesse violations ASAP. Cupertino 10019 Minaker Ct, Cupertino The Lehigh plant has been shown to be in non - j jcompliance on the basis of air pollution, and (water pollution. The county must do whatever 97 Gary Latshaw 12/22/2010 1:42 they can to protect the health of its citizens. Cupertino 11054 La Paloma Drive c c ( /2 / / (6 / • STATE' MINING AND GEOZ:OGY EXECUTI '✓E OFFICER'S REPORT For Meeting Date: July 13, 2006 Agenda Item No. 2 In the Matter of: Review of the 45 -day Notice to Correct Deficiencies Sent to Santa Clara County, Issued April 19, 2006 Executive Officer's Report With (Exhibits Executive Officer's Report Agenda Item No. 2 — Santa Clara County Review of 45 -Day Notice July 13, 2006 Page 2 of 25 Table of Contents Title Page Executive Summary Background Regulatory Authority Identified Deficiencies in SMARA Compliance Executive Officer's Analysis of Responses from the County Findings of the Executive Officer Determination of the Board Suggested Motion Language Exhibits Exhibit No. 1: Board's Notice to Correct Deficiencies within 45 Days, Compliance with the Surface Mining and Reclamation Act of 1975, dated April 19, 2006. Exhibit No. 2: County of Santa Clara Response to Notice to Correct Deficiencies within 45 Days in Compliance with the Surface Mining and Reclamation Act of 1975, and Action Plan to Address Deficiencies in Conformance with SMARA Exhibit No. 3: Testa Environmental Corporation's Assessment of Environmental Compliance of Mining Operations at Lexington Quarry, Santa Clara County, dated March 18, 2005. Exhibit No. 4: Office of Mine Reclamation power point presentation titled "SMARA Lead Agency Administrative Review, Preliminary Findings, April 2006" presented at the Board's regular business meeting held on April 13, 2006. G /fie Executive Officer's import Agenda Item No. 2 — Santa Clara County Review of 45 -Day Notice July 13, 2006 Page 3 of 25 Exhibit No. 5: Office of Mine Reclamation power point presentation titled "SMARA Lead Agency Administrative Review, Performance of Annual Inspections, June 2006" presented at the Board's regular business meeting held on June 8, 2006. Exhibit No. 6: Office of Mine Reclamation Correspondence pertaining to Financial Assurance Cost Estimates, dated May 27 through June 9, 2006. Exhibit No. 7: 2005 SMARA Surface Mine Inspection Reports as prepared by the County's Consultant, Resource Design Technology, dated November 30, 2005, through January 4, 2006. Exhibit No. 8: Documents Provided to the SMGB Pertaining to Lexington Quarry (CA ID #91 -43 -0006) Exhibit No. 9: Documents Provided to the SMGB Pertaining to Stevens Creek Quarry (CA ID #91 -43 -0007) Executive Officer's Zport Agenda Item No. 2 — Santa Clara County Review of 45 -Day Notice July 13, 2006 Page 4 of 25 EXECUTIVE SUMMARY: At its April 13, 2006, regular business meeting, the State Mining and Geology Board (SMGB) determined to issue to the County of Santa Clara (County) a 45 -day Notice to Correct Deficiencies (Notice). This determination was made pursuant to the provisions contained in Public Resources Code (PRC) Section 2774.4(c) of the Surface Mining and Reclamation Act (SMARA). This action by the SMGB commenced with the receipt of complaints by neighbors and interested parties pertaining to the Lexington Quarry, and receipt of information and numerous documents over a sixteen -month period from the Department of Conservation Office of Mine Reclamation (OMR), residents of the County, and the County's administrative staff. On April 19, 2006, the 45 -Day Notice to Correct Deficiencies was issued to the County [Exhibit 1]. In that Notice, the County was informed that the SMGB had identified deficiencies with nine of the surface mines under the County's lead agency jurisdiction. These deficiencies included the County's failure to enforce the provisions of SMARA. The nine surface mines with deficiencies cited in the Notice were: Curtner Products (CA Mine ID # 91 -43 -0001) Serpa Pit (CA Mine ID #91 -43 -0002) Azevedo Quarry (CA Mine ID #91 -43 -0003) Permanente Quarry (CA Mine ID #91 -43 -0004) Polak Pit Quarry (CA Mine ID # 91 -43 -0005) Lexington Quarry (CA Mine ID #91 -43 -0006) Calaveras Quarry (CA Mine ID #91 -43 -0007) Freeman Quarry (CA Mine ID #91-43-0008) Stevens Creek (CA Mine ID #91 -43 -0010) On June 9, 2006, the County responded to the SIVIGB's Notice [Exhibit 2]. The County concluded that: 1. The County did not undertake annual inspections for all the mines within their jurisdiction in 2000 and 2001; 2. The County has taken certain steps tc remedy their previous shortcomings via contracting with a third party in 2003 to assist in conducting inspections and financial assurance estimates, stating that "As a result of these changes, the quality of the inspections have improved significantly. ", and "the amount of funding posted through increased financial assurance mechanisms on file by the mine operators was significantly increased. "; and 3. The County's continued process will include partnering with Office of Mine Reclamation (OMR) staff, improved fully trained County staff, and use of technical consultants. In review of the administrative record, mine files, and documents provided by the County, information and files maintained by OMR, and information and documents provided by interested parties and mine operators, among other sources, several conclusions are reached. The County has corrected some deficiencies by simply conducting a mine inspection, requiring submittal of annual written calculations of financial assurance amounts, and reviewing the financial assurances for all mine sites (1 Executive Officer's 1 port Agenda Item No. 2 — Santa Clara County Review of 45 -Day Notice July 13, 2006 Page 5 of 25 within their jurisdiction. However, of the original 9 surface mines cited as having deficiencies, a minimum of five are considered to be significantly out -of- compliance with SMARA, with their noted deficiencies as cited in the Notice having not been adequately addressed by the County. In review of the administrative record, the County has not shown a working knowledge of the requirements of SMARA. This lack of understanding did not allow the County to be in a position to understand or review its consultant's work product. In essence, the County does not recognize what is an adequate work product or what is not. Simply performing an inspection is not equivalent to the inspection being performed in an adequate and comprehensive manner. If the State is to rely on the adequacy of the County's inspection process to determine whether a surface mining operation is in compliance with SMARA, then the County must ensure that the inspection reports are accurate and represent a true description of the mine site's SMARA activities. Without some knowledge of what is required under SMARA, and some means of recognizing and measuring the adequacy of their consultant's work product, it makes it impossible For the State to rely on the adequacy of the County's inspection process. To gain an accurate and adequate picture as to what the site specific conditions actually are at each site within Santa Clara Counl :y with an appreciable degree of confidence, someone knowledgeable in the requirements of SMARA must perform the inspections. Poorly performed and inadequate inspections lead to adverse ramifications, that being the existing and recently adjusted financial assurances for all nine sites being unreliable. The financial assurance amounts do not reflect existing site conditions in respect to performance standards, criteria set forth in the site - specific approved reclamation plan and conditions of approval, nor corrective measures required in light of the violations, among other issues. --> Furthermore, there is little evidence in the administrative record demonstrating that the County has the understanding, or will, to enforce SMARA. This is clearly documented by the the County serving as a lead agency unwillingness to issue Notices of Violation, Orders to Comply, or Administrative Penalties, when appropriate, for any of the sites in all the years leading up to 2005. Furthermore, the County has not demonstrated that it understands the administrative process in getting surface mine operations into compliance. Administrative procedures and proceedings are time consuming and require diligence and continued monitoring. The County has provided no documentation, nor demonstrated by its actions, that it has developed an administrative process to administer and monitor SMARA enforcement actions. It is the conclusion of the Executive Officer that the County's SMARA program is deficient and has not been corrected so that it meets the intent of the Legislature, as expressed in Article 1 of the Act. The Executive Officer thus recommends that the SMGB find that the County has not satisfactorily met the statutory conditions of PRC 2774.4, in that it has not corrected in a timely manner the deficiencies cited in the 45 -Day Notice. The SMGB will determine if the County has, to the SMGB's satisfaction, corrected within the 45 days provided in statute the deficiencies cited in the 45 -Day Notice to Correct Deficiencies, or satisfied the SMGB that no deficiency existed at the time the Notice was issued. BACKGROUND: On March 22, 2005, the office of the State Mining and Geology Board (SMGB) received correspondence and documentation from the Los Gatos Hillside Preservation League, a group of Los Gatos citizens and residents, expressing concern about environmental threats to their surrounding area as a result of surface mining operations being performed by Western Aggregates at 1 Executive Officer's &port Agenda Item No. 2 — Santa Clara County Review of 45 -Day Notice July 13, 2006 Page 6 of 25 the Lexington Quarry, Santa Clara County, California [Exhibit 3]. Issues were raised pertaining to the surface mining operation being out of compliance with its approved reclamation plan, and whether the lead agency, Santa Clara County, was administering SMARA in an appropriate manner. Following receipt of the report prepared by Testa Environmental Corporation dated March 18, 2005 [Exhibit 3], from the Los Gatos Preservation League, the office of the SMGB on March 22, 2005, inquired from the Office of Mine Reclamation (ON1R) whether there were any outstanding compliance issues with the Lexington Quarry, and that it would welcome any comments on the matter. The report prepared by Testa Environmental Corporation raised a number of compliance — related issues, and also questioned the lead agency's ability to administer SMARA in an appropriate manner. OMR subsequently performed two site visits of the Lexington Quarry, and summarized their results in a draft report dated July 12, 2005. Three violations were readily apparent, along with several corrective measures being noted. The violations included: 1) the operator was conducting operations outside of the approved reclamation plan, with over - steepened slopes, 2) the operator intercepted groundwater and there were no provisions for encountering groundwater in the approved reclamation plan, and 3) the operator failed to adjust the financial assurances for new lands disturbed and changes in site conditions. The issues noted in the report prepared by OMR raised other issues pertaining to the County's performance as a lead agency. As a result, OMR provided a preliminary assessment of the County's overall performance at the SMGB regular business meeting held on September 22, 2005. At the regular business meeting of the SMGB held on November 10, 2005, the SMGB requested that OMR compile information regarding the County's overall performance as a lead agency, and to update the SMGB at its January 2006 regular business meeting. In addition, OMR indicated that it would finalize the Lexington Quarry inspection report, with consideration of additional information provided by the Los Gatos Preservation League. At the SMGB's regular business meeting held on April 13, 2006, OMR staff summarized the results of their review of files and other pertinent documentation [Exhibit 4]. OMR presented their final conclusions of their review and monitoring of the lead agency's mine inspection activities, and analysis of overall lead agency performance in accordance with SMARA at the SMGB's regular business meeting held on June 8, 2006 [Exhibit 5]. REGULATORY AUTHORITY: Article 1, General Provisions, of the Surface Mining and Reclamation Act provides in Section 2712 the following: It is the intent of the Legislature to create and maintain an effective and comprehensive surface mining and reclamation policy with regulation of surface mining operations so as to assure that: (a) Adverse environmental effects are prevented or minimized and that mined lands are reclaimed to a usable condition which is readily adaptable for altemative land uses. (b) The production and conservation of minerals are encouraged, while giving consideration to values relating to recreation, watershed, wildlife, range and forage, and aesthetic enjoyment. 44441 Executive Officer's 4-port Agenda Item No. 2 — Santa Clara County Review of 45 -Day Notice July 13, 2006 Page 7 of 25 (c) Residual hazards to the public health and safety are eliminated Article 5 of SMARA, Reclamation of Mined Lands and the Conduct of Surface Mining Operations, provides in part, in Section 2774.1(f) that: The lead agency has primary responsibility for enforcing this chapter and Section 2207. PRC Section 2774.4 (SMARA) provides that if a lead agency fails to perform specific responsibilities to enforce the Act, or performs those responsibilities deceptively, then the responsibility for enforcing the Act shall be assumed by the SMGB. Prior to any assumption of a lead agency's SMARA authority by the SMGB, the Board must first notify the lead agency of any identified deficiencies, and allow the lead agency 45 days to correct the deficiencies to the satisfaction of the Board. Pursuant to Public Resources Code (PRC) Section 2774.4(a): "If the board finds that a lead agency either has (1) approved reclamation plans or financial assurances which are not consistent with this chapter, (2) failed to inspect or cause the inspection of surface mining operations as required by this chapter, (3) failed to seek forfeiture of financial assurances and to carry out reclamation of surface mining operations as required by this chapter, (4) failed to take appropriate enforcement actions as required by this chapter, (5) intentionally misrepresented the results of inspections required under this chapter, or (6) failed to submit information to the department as required by this chapter, the board shall exercise any of the powers of the lead agency under this chapter, except for permitting authority." IDENTIFIED DEFICIENCIES IN SMARA COMPLIANCE: There are six categories of violations listed in PRC Section 2772.2(a) under which the SMGB may find a lead agency needs to take corrective actions. These six categories are as follows: Category f 1 1 A le: Category f 21 A lead agency has failed to inspect or cause the inspection of surface mining operations as required by SMARA; Category 1 31 A lead agency has failed to seek forfeiture of financial assurances and to carry out reclamation of surface mining operations as required by SMARA; Category f 41 A lead agency has failed to take appropriate enforcement actions as required by SMARA; Category f 51 A lead agency has intentionally misrepresented the results of inspections required under SMARA; l%N Executive Officer's 4eport Agenda Item No. 2 — Santa Clara County Review of 45 -Day Notice July 13, 2006 Page 8 of 25 Category [ 61 A lead agency has failed to submit information to the Department of Conservation as required by SMARA. The SMGB is to determine if the County has corrected, to the Board's satisfaction, within the 45- days provided in statute the deficiencies cited in i 45 -Day Notice to Correct Deficiencies, or satisfied the SMGB that no deficiency existed at the time the Notice was issued. EXECUTIVE OFFICER'S ANALYSIS OF RESPONSES FROM THE COUNTY: The following deficiencies in the County's administration of SMARA are identified with respect to all nine surface mines within the County's jurisdiction: Nature of Notice Deficiency 1: During the period from 2000 through 2005, the County failed to perform an annual review, adjustment or recalculation of the financial assurance amounts for eight mine sites in 2001, and all nine sites for the years 2002, 2003 and 2004 (Category 1 violation pursuant to PRC Section 2774.4; deficiency pursuant to PRC Sections 2773.1(a)(3) and 2774(b)): Azevedo Quarry Calaveras Quarry Curtner Products Freeman Quarry (Mine activity commenced in 2002) Permanente Quarry Lexington Quarry Polak Pit Quarry Serpa Pit Stevens Creek County's Response: The County acknowledges that it did not conduct financial assurances estimate reviews as part of the annual SMARA inspections from 2000 through 2003. The County states that such lack of administrative action reflected work Toad and staff resource issues, notably, lack of expertise implementing inspections and administrating SMARA compliance among in -house staff. Since 2004, the County has taken steps to retain a consultant who conducted the SMARA inspections with staff, and prepared the annual report that was subsequently reviewed and approved by County staff. The County claims that the use of a third party consultant was instrumental in the County increasing its technical ability to adequately advise the mine operators of their SMARA obligations. SMGB Staff Analysis: The County increased the financial assurance mechanisms for six of nine mines during the 2005 calendar year. Financial assurance amounts for the remaining three mines were decreased (Curtner Quarry, Permanente Quarry and Polak Pit Quarry), and possibly reduced in the case of the Hanson Permanente Quarry. OMR correspondence dated May and June of 2006 [Exhibit 6], reviewed the adjusted FACEs, and requested that the financial assurances for eight sites be re- evaluated and adjusted appropriately. The County contends that any potential problems with the FACE could be addressed during the 2005 mine inspections and annual financial assurance review, and "that a separate response to the Executive Officer's import Agenda Item No. 2 — Santa Clara County Review of 45 -Day Notice July 13, 2006 Page 9 of 25 OMR correspondence was not necessary The County continues to state "County staff has since teamed that the obligation to provide such response regarding the FACEs cannot be deferred to the next inspection. As part of the improvements to our inspection program, all such correspondence will be addressed within the 45 day time frame mandated by SMARA." The County may have expressed good intentions in utilizing third -party consultants in conjunction with County staff to review and adjust FACEs in a timely manner; however, adjustments to the FACE reflecting comments made by OMR in their May 27, June 1 and June 9, 2005, correspondences, has not been received by OMR at the time this Executive Report was prepared. Curtner Products (CA ID #91 -43- 0001): The 2003 Mining Operation Annual Report, dated June 30, 2004, noted that the operator claimed 47 acres of disturbed land during 2003. This value was apparently used as a credible number by the County's consultant in the 2005 Surface Mining Inspection Report. However, the inspection performed by the County's consultant on December 17, 2004, and noted in the Surface Mine Inspection Report signed April 12, 2005, notes 80 acres of disturbed land. The latest County consultant noted in the inspection performed on December 6, 2005, and Surface Mining Inspection Report signed January 4, 2006, "47, per Operator Annual Report." Based on the site visit performed by OMR staff, and further discussed under Deficiency No. 4, it is clear that 47 acres is a significant understatement as to the amount of disturbed land as a result of surface mining operations. Permanente Quarry (CA ID #91 -43- 0004): In the case of the Permanente Quarry, the FACE was reduced from $627,255 to $382,040. This reduction as determined by the County's consultant and supported by the County, ignored the significant slope stability issues along the mine pit rim, encroachment onto adjacent property, and mitigative efforts to comply with the existing approved reclamation plan (refer to Deficiency No. 4). The enforcement actions that should have been implemented for this site are discussed under Deficiency No. 4; however, if an adequate inspection had been performed, and corrective measures and violations noted, the financial assurance cost estimate for this site would have been significantly increased, not decreased. Lexington Quarry (CA ID #91- 43- 0006): The financial assurance for the Lexington Quarry was recently adjusted from $67,960, which was established on May 12, 1999, to $532,381 in November 2005. No adjustments were made between the period of May 1999 and November 2005. This financial assurance amount is based on 26 acres of disturbed land "per Operator Annual Report' as stated in the 2005 Surface Mining Inspection Report. This amount of disturbed acreage is absurd, as noted in the report prepared by Testa Environmental Corporation dated March 18, 2005 [Exhibit 3], and does not accurately reflect the significant increase in disturbed land at this site. In addition, the adjusted financial assurance amount does not adequately reflect encroachment beyond the approved reclamation plan boundaries, over - steepened intervening cut walls, excessive heights of intervening cut walls, groundwater quantity issues, among other factors. Executive Officer's import Agenda Item No. 2 — Santa Clara County Review of 45 -Day Notice July 13, 2006 Page 10 of 25 Stevens Creek Quarry (CA ID #91 -43 -000/1: The financial assurance amount for the Stevens Creek Quarry was established at $829,435 on May 16, 2005, and was deemed adequate by OMR in their correspondence to the County dated June 9, 2005. However, this FACE did not take into account several violations as reported during a site visit performed by OMR in 2006. These violations included encroachment (beyond the boundary of the approved reclamation plan, inadequate revegetation of final slopes, and disturbed areas not reported during inspection by the County's consultant. As in the case of the Permanente Quarry, the enforcement actions that should have been implemented for this site are discussed under Deficiency No. 4; however, if an adequate inspection had been performed, and corrective measures and violations noted, the financial assurance cost estimate for this site would have been significantly increased. Remaining Surface Mine Sites: OMR noted numerous site - specific deficiencies upon review of the financial assurance cost estimates provided by the County for the remaining five mine sites. The quality of the inspections performed by the County's consultant, as exemplified in the examples above, raises significant doubt, and causes one to question the validity and adequacy of the financial assurance cost estimates for all the sites within the jurisdiction of the County. Nature of Notice Deficiency 2: The County failed to take steps to make adjustments to the financial assurance mechanisms promptly following increases in the financial assurance amounts for two mine sites (Category 1 violation pursuant to PRC Section 2774.4; deficiency pursuant to PRC Sections 2773.1(a)(3) and 2774(b)): Calaveras Quarry Azevedo Quarry County's Response: In regards to the Calaveras Quarry and Azevedo Quarry, the County contends "The consultant (the County's consultant) estimated that the existing bond posted by the operator was sufficient, and that a new or adjusted financial assurance is not required." SMGB Staff Analysis: OMR's 45 -day review as presented in their May 27, 2005, correspondence noted several issues, with only one requiring an immediate response. In regards to the Calaveras and Azevedo Quarries, OMR rioted that production rates, machine time and labor costs provided in the FACE could not be verified without a known quantity of material to work with. Without such information, OMR assumed that all soils for topsoil or overburden must be imported, resulting in substantially higher reclamation costs. Furthermore, issues relating to absence of supporting documentation for certain reclamation activity, and general form and layout were also identified. OMR requested in their May 27, 2005, correspondence that their comments be incorporated in the FACE, and resubmitted to OMR for further review. The County has not responded to OMR to date. Nature of Notice Deficiency 3: The County failed to require mine operators to submit amended reclamation plans as a result of observed SMARA violations for at least two mine sites (Category 1 violation pursuant to PRC Section 2774.4; deficiency pursuant to PRC Section 2774(b) and 2774.1 (a)): l fit Executive Officer's 2;port Agenda Item No. 2 — Santa Clara County Review of 45 -Day Notice July 13, 2006 Page 11 of 25 Lexington Quarry Permanente Quarry County's Response: In the case of the Lexington Quarry, the County was aware of several out -of- compliance actions. Notably, the County was aware that the operator had located their scale house and office outside of the Use Permit area, moved material and expanded a sediment pond outside the Use Permit area, and obtained materials for expansion of the sedimentation pond from an area outside its Use Permit and reclamation plan boundary. The County also acknowledges that its staff did not realize that SMARA mandated a process to cite the operator for a violation. Instead, the County incorrectly required the operator to simply modify its Use Permit and Reclamation Plan applications to include the area where the additional disturbances had occurred. In the case of the Permanente Quarry, the County claims it has been working with the operator for approximately four years to address unstable slopes, and other issues. The County is waiting for modifications to the reclamation plan anticipated some time in 2006 to address the existing landslide issues. SMGB Staff Analysis: Lexington Quarry (CA ID #91- 43- 0006): The County, despite the acknowledgement noted above, has not issued any violations for the Lexington Quarry. The County has provided a timeline for completion of CEQA requirements, but has not adequately addressed the nature of the violations noted by OMR. Although numerous issues have been identified and presented to the County by Testa Environmental Corporation [Exhibit 3], and the Los Gatos Preservation League, these issues have rot been adequately addressed, including their impact on the current version of the amended reclamation plan and the FACE. No violations have been issued to the operator, nor has the FACE been adequately adjusted to reflect these issues. Permanente Quarry (CA ID #91 -43- 0004): The County did not request that the operator amend its reclamation plan for the Permanente Quarry since "The County believed that the boundary encroachments that the State observed are actually landslides at the rim of the mine pit. These slides are not located in areas actively being mined." The County was wrong in this determination. The landslides along the rim of the mine pit were caused in part, if not in whole, by the mining operation, and thus, the County had a responsibility and obligation to request that the operator amend its reclamation plan. The County did, however, recognize that the slopes required repair, and such mitigative activities would extend beyond the existing reclamation plan boundary. The County claims this process has taken longer than anticipated due to potential adverse impacts to a ridgeline easement and slope stability issues for a hillside adjacent to certain mined areas of the quarry. The County contends that the operator will file for modification of the reclamation plan in 2006 to address these issues; however no violation has been issued to the operator, nor has the FACE been modified to address these issues. fecutive Officer's Rport Agenda Item No. 2 — Santa Clara County Review of 45 -Day Notice July 13, 2006 Page 12 of 25 Nature of Notice Deficiency 4: The County failed to perform SMARA mine inspections for the following eight of the nine mine sites in 2001, although the County performed annual SMARA inspections for all nine mine sites from the years 2002 through 2005. However, the quality of the inspections is uncertain. Notably, the County failed to issue any violations from 2001 through 2005 (Categories 2 and 4 violations pursuant to PRC Section 2774.4; deficiency pursuant to PRC Section 2774(b) and 2774.1(a)). Azevedo Quarry Calaveras Quarry Curtner Products Permanente Quarry Lexington Quarry Polak Pit Quarry Serpa Pit Stevens Creek County's Response: SMGB Staff Analysis: Pursuant to PRC Section 2774(b), "The lead agency shall conduct an inspection of a surface mining operation within six months of receipt by the lead agency of the surface mining operation's report submitted pursuant to Section 2207, solely to determine whether the surface mining operation is in compliance with this chapter. In no event shall a lead agency inspect a surface mining operation less than once in any calendar year. The operator shall be solely responsible for this reasonable cost of the inspection." The SMGB provides guidelines for the conduct of surface mine inspections, which were adopted by the SMGB on November 14, 2002. In review of the 2005 Surface Mining Inspection Report for all nine sites, it is noted that the County's consultant issued no violations for any of these sites. Between November 30, 2005, and January 4, 2006, the County's consultant performed the SMARA mine inspections for all nine sites within the jurisdiction of the County [Exhibit 7]. OMR accompanied the County's consultant in its performance of the inspections, and performed an assessment of the County's performance of SMARA inspections, notably, for Curtner Products, Permanente Quarry, Lexington Quarry and Stevens Creek, in the spring of 2006. These four sites are further discussed below. Curtner Products (CA ID #91- 43- 0001): No violations were noted by the County's consultant, although a minimum of three violations should have been noted. A preliminary site reconnaissance of Curtner Products by OMR revealed three violations: status of reclamation in the Phase 1 area; control of noxious weeds; and maintenance of the sedimentation basins. The 2004 Mine Operation Inspection Report states "Phase 1 [hJas been reclaimed." The 2005 Mine Operation Inspection Report states 'Reclamation previously completed in Phase 1 ". However, current site observations clearly show the presence of equipment, stockpiles and structures. Abundant growth of noxious weeds such as black mustard, tree tobacco, purple G /fit Executive Officer's import Agenda Item No. 2 — Santa Clara County Review of 45 -Day Notice July 13, 2006 Page 13 of 25 loosestrife, poison hemlock and milk thistle was observed throughout the site, although the Mine Operation Inspection Report noted that revegetation was "OK," with no mention of the abundant growth of noxious weeds. The 1997 Reclamation Plan Modification also states "All sedimentation basins and other drainage facilities, such as catch basins and slope drainage benches, shall be periodically maintained. Maintenance work shall include...removing sediment when it reaches the cleanout level in the riser and depositing the sediment in a suitable area." As of May 2006, the two sedimentation basins were observed not to be maintained; this condition was not mentioned, nor the need for maintenance in accordance with the requirements of the approved 1997 Reclamation Plan Modification. Permanente Quarry (CA ID #91 -43- 0004): No violations were noted by the County's consultant, although a minimum of four violations should have been noted. A minimum of four violations were noted by OMR staff: disturbed areas beyond the boundary of the approved reclamation plan; total disturbed acreage reported; unstable slopes along the North Pit Main Wall; and situation of the cement plant and other surface mining related activities beyond the boundary of the approved reclamation plan. The County's consultant's 2005 Surface Mining Inspection Report only indicated that the operator has "exceeded reclamation boundary on south slope." It did not identify other disturbed areas that appear to be outside the reclamation plan boundary. And although the inspection report did indicate that the reclamation plan should be amended to adjust the reclamation plan boundary, update the financial assurance, and bring the operation up to current reclamation standards, no violation was issued. The 1984 approved reclamation plan states "For the next 25 years, the existing and planned excavation and storage areas will encompass approximately 330 acres." OMR staff estimated that the area within the approved reclamation plan boundary is approximately 337 acres. The 2005 Surface Mining Inspection Report indicates that the total disturbed acreage is approximately "411 acres, (per Operator Annual Report)." OMR staff estimates that the total disturbed acreage for the site is about 424 acres, which exceeds that of the approved reclamation plan by approximately 90 acres, or 28 percent. The cement plant is situated beyond the approved reclamation plan boundary, although it does fall within the meaning of "mined lands" as defined pursuant to PRC Section 2729 which states "includes the surface, subsurface, and ground water of an area in which surface mining operations will be, are being, or have been conducted, including private ways and roads appurtenant to any such area, land excavations, workings, mining wastes, and areas in which structures, facilities, equipment, machines, tools, or other materials or property which result from, or are used in, surface mining operations are located." Should the cement plant be included in this estimate, then the total disturbed acreage amount increases to approximately 400 acres,[don't you mean the exceeded acreage amount ?] or 120 percent. The 2005 Surface Mining Inspection Report does not mention the significant surface disturbance in excess of the 330 acres which encompasses the approved reclamation plan, nor the cement plant. //Aft Executive Officer's Weport Agenda Item No. 2 — Santa Clara County Review of 45 -Day Notice July 13, 2006 Page 14 of 25 Along the North Pit Main Wall, active slope failures and slides were observed. Failure of this area of the pit wall was reported in 1987 and additional failure was noted in 2002. The head scarp of these failures have exceeded beyond the reclamation plan boundary; whereas, the 2005 Surface Mining Inspection Report states only that "Some historic instability near the top of pit," with no mention of such failures existing beyond the approved reclamation plan boundary. Lexington Quarry (CA ID #91- 43- 0006): No violations were noted by the County's consultant, although a minimum of three violations should have been noted. Three violations were reported by OMR in their July 2005 inspection report for the site. The County's inspector referenced such violations in the July 2005 report prepared by OMR, but did not note nor provide quantification or description of the violations, and the County has not issued any violations to date. These violations reflect disturbance of land beyond the reclamation plan boundary, possible adverse impact on groundwater availability, which in turn would adversely impact adjacent homeowners who depend on well water, and no revised financial assurance has been provided. The County indicates that it was the mine operator and County staff that recognized that the scale house and office was situated outside of the Use Permit area, and the mine operator also disclosed that it had moved material and expanded a sediment pond outside of the Use Permit boundary using material also derived from outside of the Use Permit boundary. Regardless, the County continues to allow the operator to operate outside the approved Use Permit and reclamation plan boundary, while a new permit application is being processed. OMR staff showed through the use of an aerial photograph with an overlay of the reclamation plan boundary, that the operator had disturbed land outside of the approved Use Permit and reclamation plan boundary. The County has also allowed the operator to continue certain activities and works with the applicant (operator) in order to achieve compliance. The County thus has allowed the operator to continue certain activities, notably, continued excavation of the cut wall with appreciable groundwater seepage without satisfactorily confirming whether significant adverse impact exists to groundwater availability to the adjacent residences. The County did have the operator post a revised financial assurance; however, no mention is made in the inspection reports of over - steepened walls, height of intervening cut walls, and other factors that may significantly impact the FACE; although, the County has been provided periodic correspondence by concerned parties noting such issues and requesting assistance from the County in assuring that these concerns are adequately addressed. Stevens Creek (CA ID #91 -43- 0007): No violations were noted by the County's consultant, although a minimum of three violations should have been noted. A preliminary site reconnaissance of Stevens Creek by OMR revealed three violations: encroachment of disturbed land beyond the boundary of the approved reclamation plan, encroachment of quarry slopes beyond the boundary of the approved reclamation plan, and inadequate revegetation measures implemented on finial slopes. Significant encroachment of disturbed land beyond the boundary of the approved reclamation plan exists, yet there is no mention of such encroachment in the 2005 inspection report. According to the approved reclamation plan, the toe of the proposed final slope should be about 375 feet due west of the transmission tower; however, the toe is about 260 feet due west of the tower. OMR staff 44 t Executive Officer's Weport Agenda Item No. 2 — Santa Clara County Review of 45 -Day Notice July 13, 2006 Page 15 of 25 observed excavations and quarrying activities parallel to or extending beyond the northern boundary; however, no mention of such encroachment is mentioned in the 2005 Surface Mining Inspection Report. The approved reclamation plan ( Revegetation Notes, Sheet 5) states "In areas to be revegetated, planting and hydroseeding shall commence as soon as possible upon completion of quarry operations in the immediate area and as seasonal constraints allow." Condition of Approval (COA) No. 9(a), December 1996, states "The revegetation process shall be commenced as soon as that particular phase of excavation is completed and shall be carried out in accordance with plans approved." OMR staff observed that some natural revegetation was occurring on these final slopes, however, planting per the revegetation plan was not completed on portions of the property where quarrying operations have concluded. In review of the County's 2005 Surface Mine Inspection Report, no mention is made as to the status of these final slopes, nor indication of timing requirements for their revegetation. Adequacy of the Lead Agency to conduct surface mining inspections under SMARA: The SMARA mine inspection is crucial to the determination as to whether a surface mining operation is in compliance with SMARA and the operation's approved reclamation plan. During the conduct of inspections, the inspector must: • Know what is required by SMARA; • Review and know what is required by the approved reclamation plan, conditions of approval, applicable environmental documents, permits, etc.; • Determine and record all actions and conditions deemed out of compliance; • Assess the progress of all required reclamation efforts; • Determine whether the existing financial assurance requires re- evaluation and revision; • Accurately reflect findings in the inspection report; • Recommend appropriate corrective measures to mitigate and resolve any compliance issues; and • Note all violations for administrative action, when appropriate. The lead agency is responsible for assuring that the inspector is performing inspections in an appropriate manner. The lead agency is also responsible for: • Issuance of notices of violations, orders to comply, and administrative penalties, if warranted; and • Review and adjust the financial assurance amount to reflect current labor and equipment rates, and overall costs to reclaim the site in a manner consistent with the approved reclamation plan, among other responsibilities. It would appear that the County has been sincere in its efforts to administer SMARA in an appropriate manner; however, it is clear from review of the 2005 Surface Mining Inspection Reports and the County's enforcement history that there is an overall lack of understanding of SMARA. Executive Officer's R. port Agenda Item No. 2 — Santa Clara County Review of 45 -Day Notice July 13, 2006 Page 16 of 25 It is clear from review of the 2005 Surface Mining Inspection Reports that there is an overall lack of understanding as to the purpose and objective of a SMARA surface mine inspection. As a result, implementation of the inspection failed to identify significant corrective measures and violations on a site - specific basis. In fact, inspection reports for all nine surface mining sites recognize only one violation (Permanente Quarry; in which case the financial assurance amount was recommended to be decreased), in addition to the three violations cited only by reference for the Lexington Quarry; the inspection report simply stated that the operator should "complete corrective measures cited in the DOC report." No Notices of Violations were recommended. Based on the findings summarized above, the County has not shown a working knowledge of the requirements of SMARA. Such lack of understanding hindered the County in review of its consultant's work product. In essence, the County does not recognize what is an adequate work product or what is not, and thus, simply performing an inspection is not equivalent to the inspection being performed in an adequate and comprehensive manner. If the State is to rely on the adequacy of the County's inspection process to determine whether a surface mining operation is in compliance with SMARA, then the County must ensure that the inspection reports are accurate and represent a true description of the mine site's SMARA activities. Without some knowledge of what is required under SMARA, and some means of recognizing and measuring the adequacy of their consultant's work product, it is impossible for the State to rely on the adequacy of the County's inspection process. To achieve an accurate and adequate picture as to the site - specific conditions at each site within Santa Clara County with an appreciable degree of confidence, someone knowledgeable in SMARA must perform the inspections. Adequacy of financial assurances: In addition, there are adverse ramifications to poorly performed inspections. Existing and recently adjusted financial assurances remain unreliable since the financial assurance amounts do not reflect corrective measures required in light of the violations. Adequacy of the Lead Agency to enforce SMARA: In addition, there is little evidence in the administrative record demonstrating that the County has the understanding, or will, to enforce SMARA. This is clearly documented by the issuance of no Notices of Violation, Orders to Comply or Administrative Penalties, when appropriate, in all the years the County has served as a lead agency. Furthermore, the County has not demonstrated that it understands the administrative process and is reluctant to enforce compliance of surface mining operations. Administrative procedures and proceedings are time consuming and require diligence and continued monitoring. The County has provided no documentation, nor has demonstrated by its actions, that it has developed an administrative process to administer and monitor SMARA enforcement actions. Nature of Notice Deficiency 5: The County failed to enforce and seek forfeiture of the financial assurances of the Calaveras Quarry upon its abandonment by the operator (Category 4 violation pursuant to PRC Section 2774.4; deficiency pursuant to PRC Section 2773.1(b)). Executive Officer's &port Agenda Item No. 2 — Santa Clara County Review of 45 -Day Notice July 13, 2006 Page 17 of 25 County's Response: The County states in its response to Notice that the operator of the Calaveras Quarry was notified during conduct of the 2004 and 2005 SMARA mine inspection that the operator had an obligation to commence reclamation, or pursue a Use Permit to re- commence operations. The operator indicated that there was no intent to resume mining and thus would seek a modification to the reclamation plan to reflect a change in reclamation strategy. The operator proved delinquent in developing final reclamation performance criteria, and was issued a Notice of Violation by the County on April 12, 2006. The operator has since complied with the Notice of Violation with the submittal of a modification to its reclamation plan on May 25, 2006, albeit, the adequacy of the response is uncertain. SMGB Staff Analysis: The County believes that this deficiency has been corrected with the operator's submittal of a modification to its reclamation plan. Although the adequacy of the operator's response is uncertain, SMGB staff concurs with the County's belief that this deficiency has been remedied. Nature of Notice Deficiency 6: The County failed to enforce and require from the operator of the Calaveras Quarry commencement of reclamation activities upon expiration of the Interim Management Plan (IMP) in August 2003 (Category 3 and 4 violations pursuant to PRC Section 2774.4; deficiency pursuant to PRC Section 2770(h)(6)). County's Response: As addressed under Deficiency No. 5, the County believes that this deficiency has been corrected with the operator's submittal of a modification to its reclamation plan. SMGB Staff Analysis: The County acknowledges that it failed to enforce and require surface mining operators to submit annual written calculations of the financial assurance amount for all eight mine sites in 2001, and all nine mine sites for years 2002, 2003 and 2004. The County believes that this deficiency has been corrected by retaining a consultant for technical assistance with fulfilling this requirement for 2004 and 2005. Although the adequacy of the operator's response is uncertain, SMGB staff concurs with the County's belief that this deficiency has been remedied. Nature of Notice Deficiency 7: The County failed to enforce and require surface mining operators to submit annual written calculations of the financial assurance amount for all eight mine sites in 2001, and all nine mine sites for years 2002, 200:3 and 2004 (Category 4 violation pursuant to PRC Section 2774.4; deficiency pursuant to CCR Section 3805). Azevedo Quarry Calaveras Quarry Curtner Products Permanente Quarry Lexington Quarry Polak Pit Quarry Serpa Pit Stevens Creek 1/14f t Executive Officer's Weport Agenda Item No. 2 — Santa Clara County Review of 45 -Day Notice July 13, 2006 Page 18 of 25 County's Response: The County acknowledges that it failed to enforce and require surface mining operators to submit annual written calculations of the financial assurance amount for all eight mine sites in 2001, and all nine mine sites for years 2002, 2003 and 2004. The County believes that this deficiency has been corrected by retaining a consultant for technical assistance with fulfilling this requirement for 2004 and 2005. SMGB Staff Analysis: SMGB staff does not concur with the County's belief that this deficiency has been remedied, since the adequacy of the inspections performed even as recently as the fall of 2005 were deemed inadequate as discussed under Nature of Notice Deficiency Nos. 1, 3 and 4. Since financial assurance amount calculations are directly linked to and depend on the quality of the surface mine inspection, inadequate surface mine inspections lead to inadequate and questionable financial assurance amounts. SMGB staff thus concurs with the County's belief that this deficiency has been remedied in that written financial assurance calculations have been generated, but all calculations generated to date are deemed unreliable. Nature of Notice Deficiency 8: The County failed to submit copies of proposed financial assurances and calculations of financial assurance amounts for eight mine sites in 2001, and all nine sites for the years 2002, 2003 and 2004 (Category 6 violation pursuant to PRC Section 2774.4; deficiency pursuant to CCR Section 3805). Azevedo Quarry Calaveras Quarry Curtner Products Freeman Quarry (Mine activity commenced in 2002) Permanente Quarry Lexington Quarry Polak Pit Quarry Serpa Pit Stevens Creek County's Response: The County acknowledges that it failed to submit copies of proposed financial assurances and calculations of financial assurance amounts for eight mine sites in 2001, but that this deficiency has been corrected with retaining a consultant for technical assistance and a thorough review of the financial assurance estimates. The consultant presented the results of such review to the County, as provided in their Surface Mining Inspection Reports. The County notes in their response to Notice that five of the nine mine operations have been required to increase their financial assurance mechanisms, three mine operations are deemed to have adequate financial assurance mechanisms, and one mine (Permanente Quarry) was allowed to decrease its financial assurance. SMGB Staff Analysis: The County's consultant only notes in one case the need for a financial assurance to be adjusted (in this case, decreased for the Permanente Quarry), and makes note that four have been increased per recommendations by the County in 2004 or 2005. Notwithstanding the recommended decrease in the financial assurance for the Permanente O/ Executive Officer's import Agenda Item No. 2 — Santa Clara County Review of 45 -Day Notice July 13, 2006 Page 19 of 25 Quarry, the consultant, as a result of the inspection performed in 2005, recommended no independent adjustments. SMGB staff concurs with the County's belief that this deficiency has been remedied. Refer to SMGB staff response to Deficiency Nos. 3, 7 and 10 as to the quality of the review of financial assurances performed by the County's consultant, but such financial assurances are unreliable. . Nature of Notice Deficiency 9: The County failed to submit copies of inspection reports for eight mine sites in 2001 (Category 6 violation pursuant: to PRC Section 2774.4; deficiency pursuant to CCR Section 3504.3). Azevedo Quarry Calaveras Quarry Curtner Products Permanente Quarry Lexington Quarry Polak Pit Quarry Serpa Pit Stevens Creek County's Response: The County acknowledges that it failed to submit copies of inspection reports for eight mine sites in 2001, but that this deficiency has been corrected with retaining a consultant for technical assistance as fulfilling this requirement. SMGB Staff Analysis: SMGB staff concurs with the County's belief that this deficiency has been remedied, but that the inspection reports provided since 2001 are unreliable. Refer to SMGB staff response to Deficiency No. 3 as to the quality of the inspections performed by the County, Nature of Notice Deficiency 10: The County failed to respond in a timely manner to OMR's request for the resubmission of financial assurance cost estimates for eight out of nine mine sites (Category 6 violation pursuant to PRC Section 2774.4; deficiency pursuant to CCR Section 3805.5, and PRC Section 2774(d)): Azevedo Quarry Calaveras Quarry Curtner Products Freeman Quarry Permanente Quarry Lexington Quarry Polak Pit Quarry Serpa Pit County's Response: As of 2005, all reporting mine operations had approved financial assurance instruments. By June 2005, OMR informed the County that financial assurances for eight of nine Executive Officer's Rport Agenda Item No. 2 — Santa Clara County Review of 45 -Day Notice July 13, 2006 Page 20 of 25 sites within the County's jurisdiction required re- evaluation. The County's consultant performed inspections of all sites, accompanied by OMR staff (OMR staff did not conduct the formal SMARA inspection) in November and December 2005. The County believes that any identified problems have been or would be rendered moot based on the revised financial assurances, and also that outstanding issues remain, and reliance on the subsequent round of financial assurance estimate review is not appropriate. SMGB Staff Analysis: Pursuant to PRC Section 2773.1, "Lead agencies shall require financial assurances of each surface mining operation to ensure reclamation is performed in accordance with the surface mining operation's approved reclamation plan...The amount of financial assurance required of a surface mining operation for any one year shall be adjusted annually to account for new lands disturbed by surface mining operations, inflation, and reclamation of lands accomplished in accordance with the approved reclamation plan." Pursuant to CCR Section 3805.5, "...the lead agency shall submit a copy of the proposed Financial Assurance and the Calculation of Financial Assurance Amount submitted by the operator...to the Director of the Department of Conservation for review...the lead agency shall...indicate to the Director that the Financial Assurance Amount is adequate...to conduct and complete reclamation on the mined lands in accordance with the approved reclamation plan." The County has indicated in its response to the Notice that in the future it will promptly respond to any comments from OMR to ensure the County has addressed any concerns. Regardless, the County has not formally responded to OMR's request in their correspondences dated May 27 and June 1, 3 and 9, 2005, requesting that eight out of nine 2005 financial assurances be re- evaluated. FINDINGS OF THE EXECUTIVE OFFICER: The Executive Officer recommends that the SMGB find that Santa Clara County has not satisfactorily met the statutory conditions of PRC Section 2774.2 in that it has not corrected in a timely manner the deficiencies cited in the 45- Day Notice. Deficiencies concerning the adequacy of reclamation plans, financial assurances and mine inspections, and the ability of the County to enforce SMARA, as contained in the 45- Day Notice, have existed for several years. The County has not taken sufficient and timely actions to correct these deficiencies. Since 2000 and through 2005, the County failed, and continues to fail, in demonstrating an overall working knowledge of SMARA, and implementing SMARA. Specific findings are summarized below: Executive Officer's Report Agenda Item No. 2 — Santa Clara County Review of 45 -Day Notice July 13, 2006 Page 21 of 25 With respect to Deficiency No. 1: Finding No. 1(a): The County did fail to preview and adequately adjust the financial assurance amounts from 2000 through 2005 pursuant to PRC Section 2773.1, 2774(b) and 2774.4, and CCR Section 3804. [Category 1 — failed to review and adjust financial assurance amounts in a manner consistent with SMARA]. Finding No. 1(b): The County did fail to adequately adjust and increase the FACE in the case of Curtner Products. The inadequate financial assurance amount failed to reflect any costs associated with the un- reclaimed Phase 1 area, control of noxious weeds, maintenance of sedimentation basins and an increased amount of land disturbance. [Category 1 — approved financial assurance amount in a manner not consistent with SMARA]. Finding No. 1(c): The County did fail to adequately adjust and increase the FACE in the case of Permanente Quarry. In regards to the Permanente Quarry, the financial assurance amount was, in fact, reduced from $627,255 to $382,040, and did not reflect any costs to address significant slope stability issues along the mine pit rim, encroachment onto adjacent property, and mitigative efforts required to comply with the existing approved reclamation plan. [Category 1 — approved financial assurance amount in a manner not consistent with SMARA]. Finding No. 1(d): The County did fail to adequately adjust and increase the FACE in the case of Lexington Quarry. The inadequate financial assurance did not reflect any costs to address significant slope configuration issues, encroachment onto adjacent property, identified water availability issues and potential slope mitigative efforts. [Category 1 — approved financial assurance amount in a manner not consistent with SMARA]. Finding No. 1(e): The County did fail to adequately adjust and increase the FACE in the case of the Stevens Creek Quarry. The inadequate financial assurance amount did not reflect any costs to address significant slope stability issues along the mine pit rim, encroachment onto adjacent property, and mitigative efforts required to comply with the existing approved reclamation plan. [Category 1 — approved financial assurance amount in a manner not consistent with SMARA]. With respect to Deficiency No. 2: Finding No. 2: The County did fail to make adjustments to the financial assurance mechanisms promptly following increases in the financial assurance amounts for the Calaveras Quarry and Azevedo Quarry pursuant to PRC Sections 2773.2(a) and 1774.4. [Category 1 — approved financial assurance amounts in a manner not consistent with SMARA]. Executive Officer's 1eport Agenda Item No. 2 — Santa Clara County Review of 45 -Day Notice July 13, 2006 Page 22 of 25 With respect to Deficiency No. 3: Finding No. 3(a): The County did fail to enforce correction of substantial deviations that should have been identified during the 2005 SMARA mine inspection performed by the County's consultant, and previous inspections performed under the authority of the County, for the Permanente Quarry pursuant to PRC Sections 2774.4, 2774.1(a) and 2774(b). [Category 1 — approved reclamation plans which are not consistent with SMARA]. Finding No. 3(b): The County did fail to adjust the financial assurance amount to reflect noted violations and their impact on the current version of the amended reclamation plan and existing FACE, for the Permanente Quarry pursuant to PRC Sections 2773.1(a)(3), 2774.4, 2774.1(a) and 2774(b). [Category 1 — approved financial assurances which are not consistent with SMARA]. Finding No. 3(c): The County did fail to enforce correction of substantial deviations that should have been identified during the 2005 SMARA mine inspection performed by the County's consultant, and previous inspections performed under the authority of the County, and identified during the inspection performed by OMR and by the Los Gatos Preservation League, for the Lexington Quarry pursuant to PRC Sections 2774.4, 2774.1(a) and 2774(b). [Category 1 — approved reclamation plans which are not consistent with SMARA]. Finding No. 3(d): The County did fail to adjust the financial assurance amount to reflect noted violations and their impact on the current version of the amended reclamation plan and existing FACE for the Lexington Quarry pursuant to PRC Sections 2773.1(a)(3), 2774.4, 2774.1(a) and 2774(b). [Category 1 — approved financial assurances which are not consistent with SMARA]. With respect to Deficiency No. 4: Finding No. 4(a): The County did fail to perform SMARA mine inspections for eight of the nine mine sites in 2001, although the County performed annual SMARA inspections for all nine mine sites from the years 2002 through 2005 pursuant to PRC Section 2774(b). Notably, the County failed to issue any violations from 2001 through 2005 pursuant to PRC Section 2774.1(a). [Category 2 — failed to inspect or cause inspection of surface mining operations as required by SMARA; Category 4 — failed to take appropriate enforcement actions as required by SMARA]. Finding No. 4(b): Inspections conducted under the authority of the County did fail to accurately report on conditions at Curtner Products, Permanente Quarry, Lexington Quarry, Calaveras Quarry and Stevens Creek Quarry. [Category 2 — failed to inspect or cause inspection of surface mining operations as required by SMARA; Category 4 — failed to take appropriate enforcement actions as required by SMARA]. l//c Executive Officer's Weport Agenda Item No. 2 — Santa Clara County Review of 45 -Day Notice July 13, 2006 Page 23 of 25 Finding No. 4(c): The County did fail to determine whether observations made during conduct of the mine inspections met the requirements of the approved reclamation plan, Conditions of Approval, or permit requirements (i.e., Curtner Products, Permanente Quarry, Lexington Quarry and Stevens Creek Quarry). [Category 2 — failed to inspect or cause inspection of surface mining operations as required by SMARA; Category 4 — failed to take appropriate enforcement actions as required by SMARA]. Finding No. 4(d): The County did fail to assess the progress of reclamation efforts at specific mine sites (i.e., Curtner Products and Stevens Creek Quarry). [Category 2 — failed to inspect or cause inspection of surface mining operations as required by SMARA; Category 4 — failed to take appropriate enforcement actions as required by SMARA]. Finding No. 4(e): The County did fail to accurately reflect findings in the inspection report and recognize potential SMARA compliance issues (i.e., Curtner Products, Permanente Quarry, Lexington Quarry and Stevens Quarry). [Category 2 — failed to inspect or cause inspection of surface mining operations as required by SMARA; Category 4 — failed to take appropriate enforcement actions as required by SMARA]. Finding No. 4(f): The County did fail, and continues to fail, in recommending and enforcing corrective measures and violations in a timely manner (i.e., Curtner Products, Permanente Quarry, Lexington Quarry and Stevens Creek Quarry). The County has issued no violations as a result of findings or recommendations presented in the 2005 inspection reports, albeit, the County has issued one violation in regards to the Calaveras Quarry since completion of the inspections, and at the recommendation of OMR staff. [Category 2 — failed to inspect or cause inspection of surface mining operations as required by SMARA; Category 4 — failed to take appropriate enforcement actions as required by SMARA]. With respect to Deficiency No. 5: Finding No. 5: The County did fail to enforce and seek forfeiture of the financial assurances of the Calaveras Quarry upon its abandonment by the operator pursuant to PRC Sections 2773.1(b) and 2774.4. [Category 4 — failed to take appropriate enforcement actions as required by SMARA]. With respect to Deficiency No. 6: Finding No. 6: The County did fail to enforce and request from the operator of the Calaveras Quarry commencement of reclamation activities upon expiration of the Interim Management Plan (IMP) in August 2003 pursuant to PRC Sections 2770(h)(6) and 2774.4. [Category 3 — failed to seek forfeiture of financial assurances and carry / Executive Officer's import Agenda Item No. 2 — Santa Clara County Review of 45 -Day Notice July 13, 2006 Page 24 of 25 out reclamation; Category 4 - failed to require and take appropriate enforcement action as required by SMARA]. With respect to Deficiency No. 7: Finding No. 7: The County did fail to enforce and require surface mining operators to submit annual written calculations of the financial assurance amount for all eight mine sites in 2001, and all nine mine sites for years 2002, 2003 and 2004 pursuant to PRC Section 2774.4 and CCR Section 3805. [Category 4 - failed to require and take appropriate enforcement action as required by SMARA]. With respect to Deficiency No. 8: Finding No. 8: The County did fail to submit copies of proposed financial assurances and calculations of financial assurance amounts for eight mine sites in 2001, and all nine sites for the years 2002, 2003 and 2004 pursuant to PRC Section 2774.4 and CCR Section 3805. [Category 6 - failed to submit information to the Department of Conservation as required by SMARA]. With respect to Deficiency No. 9: Finding No. 9: The County did fail to submit copies of inspection reports for eight mine sites in 2001 pursuant to 2774.2 and CCR Section 3504.3. [Category 6 - failed to submit information to the Department 01 Conservation as required by SMARA]. With respect to Deficiency No. 10: Finding No. 10: The County did fail to respond in a timely manner to OMR's request for the resubmission of financial assurance cost estimates for eight out of nine mine sites pursuant to PRC Section 2774.4(d) and CCR Section 3805. [Category 6 — failed to submit information to the Department of Conservation as required by SMARA]. DETERMINATION OF THE BOARD: The SMGB may make the following determinations: (131. The SMGB may determine that the County has, to the SMGB's satisfaction, corrected the deficiencies cited in the 45 -Day Notice within the statutorily permitted 45 -day period, or that no deficiencies existed at the time the Notice was issued. If the SMGB makes this determination, then the issue of the County's SMARA compliance for the purposes of this Notice shall be removed from further SMGB consideration. [or] f2 2. The SMGB may determine that the County has not corrected, to the SMGB's satisfaction, the deficiencies cited in the SMGB's 45 -Day Notice within the statutorily permitted 45 -day period. If the SMGB makes this determination, then l// Executive Officer's 1port Agenda Item No. 2 — Santa Clara County Review of 45 -Day Notice July 13, 2006 Page 25 of 25 statute provides that the SMGB shall hold a public hearing within the County's jurisdiction to receive oral and written evidence from interested parties as to which of the County's SMARA authorities (except for permitting) the SMGB should assume as authorized under PRC Section 2774.4(a). SUGGESTED MOTION LANGUAGE: The Board may use the following motion language: [Should the SMGB determine that, to its satisfaction, no deficiencies or violations remain uncorrected] Motion No. 1: Mr. Chairman, I move that the Board, in light of the evidence presented before the Board today and contained in the Administrative Record of this meeting, find that those violations and deficiencies contained in the Board's 45 -Day Notice to Correct Deficiencies issued to Santa Clara County on April 19, 2006, have been corrected to the satisfaction of this Board, and that no further action is required by this Board as a result of the April 19, 2006, Notice. [or] [Should the SMGB determine that it is not satisfied, and that deficiencies and violations remain uncorrected, then the following two motions are required] Motion No. 1: Mr. Chairman, in light of the evidence presented before the Board today and contained in the Administrative Record of this meeting, I move that the Board adopt the findings and analyses contained in the Executive Officer's Report, and that the Board find that those violations and deficiencies contained in the Board's 45 -Day Notice to Correct Deficiencies issued to Santa Clara County on April 19, 2006, have not been corrected to the satisfaction of this Board. Motion No. 2: Mr. Chairman, in light of the Board's adoption of the previous motion, and pursuant to Public Resources Code Section 2774.4, I move that the Board hold a Public Hearing to determine to what extent the Board will assume Santa Clara County's lead agency authority at the Board's September 14, 2006, meeting. #1_ Executive Officer's 44port CC I_/ziJ)p -x'11 Reclamation Plan Amendment for Permanente Quarry State Mine ID t 91 -43 -0004 Submitted to: GOD IV Tp �4 AaP'� Vin: Santa Clara County Prepared for: Lehigh Southwest Cement Company Permanente Quarry 24001 Stevens Creek Blvd. Cupertino, CA 95014 Prepared by: Ems„ - of //�,P Inc. 3511 Camino Del Rio South, Suite 403 San Diego, CA 92108 (619) 284 -8515, Fax (619) 284 -0115 May 2010 Volume I ,: ..,,,-;: Legend . . .„ „ .. 1 tr. !:'Z''. -' ,f, . 'y'..'k"'140., ..-: . :,,''' ■', RPA Footprint , -- •-,_, -. ''''',7. .- '',..T.A • ' 4 T-..... ‘`'::!• RPA Area Figure 1.0-6 ,. ...er , '%,:,re, - . . 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' 1 .. 6t ', .... ....1 ... rO, \ i SO. .. .- ' ' . - 1-1=- . , , # -;.—Inc. . . . . , ..: „ ......... 44 - - , ir .. - . , . ... ..., ..„. • _ ,„z• - ‘....;..-_,..., -... ,, 6 n v i r o . ' ,. . , .:..,. - ;.....,., . . X. . •' ' . ' ' .. ':'..'. ' '. ' ' 4''''4•1' ' . . '' t'.... ' ' 0 .. ,. • - ' e a sPRD n urPa i r v etAe P p a eea o i ad . 1_ 2 : y a , 2ueln Leh 11 ; 0ug - 5 1 - h !u a F r i v : e iw y sp Cc 1)-4-110 NOTICE OF PREPARATION OF AN ENVIRONMENTAL IMPACT REPORT FOR THE HANSON QUARRY RECLAMATION PLAN AMENDMENT Project Owner /Applicant: Hanson Permanente Cement Inc File Number: 2250- 13- 66- 07P -.07EA Assessors Parcel Number(s): 3.51 -09 -011, -012, -013; 351 -10- 005,033,037,038; 351 -11 -001. As the Lead Agency, the County of Santa Clara will prepare an Environmental Impact Report (EIR) for the proposed amendment to an existing reclamation plan, and expansion, and would like your views regarding the scope and content of the environmental information to be included in the EIR. The EIR may be used by your agency when considering approvals for the project. A brief description of the proposed project, its site boundary, and a summary of the potential environmental effects are attached. According to the California Environmental Quality Act (CEQA) the deadline for your response is 30 days after receipt of this notice. However, an earlier response, if possible, would be appreciated. Please identify a contact person and send your response to: County of Santa Clara Planning Office Attention: Mark J. Connolly County Government Center 70 West Hedding St., 7 Floor, East Wing San Jose CA 95110 (408) 299 -5786 Prepared by: Mark Connolly, Planner III Signature Date Approved by: Rob Eastwood, Senior Planner, AICP Signature Date 1 Introduction The purpose of an Environmental Impact Report (EIR) is to inform decision - makers and the general public of the environmental effects of a proposed project that an agency may implement or approve. The EIR process is intended to provide information sufficient to (a) evaluate a proposed project and it's potential for significant impacts on the environment; (b) to examine methods of reducing adverse (significant) impacts; and (c) to consider alternatives to the project. The EIR for the proposed project will be prepared and processed in accordance with the California Environmental Quality Act (CEQA) of 1970, as amended. In accordance with the requirements of CEQA, the EIR for the Hanson Quarry Reclamation Plan Amendment will include the following: • A summary of the project description, impacts and mitigation measures, and alternatives; • A project description; • A description of the existing environmental setting, environmental impacts, and proposed mitigation measures; • Cumulative Impacts; • Alternatives to the proposed project; and • CEQA required environmental consequences, including (a) any significant environmental effects which cannot be avoided if the project is implemented; (b) any significant irreversible and irretrievable commitments of resources; (c) the growth - inducing impacts of the proposed project; and (d) effects found not to be significant. Project Location • The overall project site is located in an upland area, approximately two miles west of the City of Cupertino in western Santa Clara County, at 24001 Steven Creek Blvd in the Santa Cruz Mountains, near the intersection of Interstate 280 and Highway 85. The Hanson Permanente Quarry site includes four main areas: The main mining pit, the west material storage area, the east material storage area, and the proposed pit 2. Mining on the site dates back to the 1880's, the quarry's present location stems from the 1939 purchase of approximately 1300 acres along Permanente Creek by Hanson's predecessor. The site is currently operating under a Reclamation Plan established in 1985, which was approved by the County of Santa Clara for 25 years and will expire in March 2010. The 1985 Reclamation Plan included an area of approximately 330 acres, representing the main mining area and some material storage areas. Excluded from the 1985 Plan were areas that had been disturbed prior to the adoption of the Surface Mining and Reclamation Act (SMARA) in 1975, and the Kaiser-eeinenr - Corporation's cement plant facilities. The site also contains a rock plant and aluminum plant, w ich along with the cement plant are separately permitted and will not be cover the propo e:d reclamation plan amendment. Project Description The "project site" encompasses 917 acres of a 3,200 -acre property. The proposed project entails a Reclamation Plan Amendment that will modify the previous 330 -acre area covered by the 1985 Reclamation Plan, to include an additional 917 acres of mining and reclamation activity and extend the termination date to 2033 (2007 +25 years = 2C33). In addition, approximately 200 acres of un- 7 mined land would be included in the Reclamation Plan Amendment, some of which would be mined, but the majority would form buffer areas The Reclamation Plan Amendment addresses disturbed areas outside of the 1985 Reclamation Plan limits, in about 30 acres of new mining area in the southeast portion of the site (Pit 2), and the buffer areas. The existing and on -going activities involved are drilling, blasting, extraction of blasted rock, processing to size and sort the raw materials, stockpiling of construction aggregate and excess materials, and the transportation of processed materials from the site to customers. The EIR will provide a project -level evaluation of the potential environmental impacts caused by the implementation of the proposed Reclamation Plan Amendment. Practical mitigation measures will be developed and presented for all direct, indirect and cumulative impacts that are found to be potentially significant. The following describes the environmental aspects of the project, and how they are potentially affected: Potential Environmental Effects of the Project The EIR will identify the significant environmental effects anticipated to result from implementation of the proposed project. The environmental baseline for the proposed Reclamation Plan Amendment is the post - mining site conditicn and includes ongoing mining and processing operations. The primary environmental topics addressed will include: A. Visual Resources The project site is located in a Zoning District with a Design Review overlay (di). The landscape and final design of the reclamation area identified in the proposed Reclamation Plan Amendment will present the existing visual environment, describe the anticipated changes to the environment as the proposed mining operation proceeds, and assess any potentially negative aesthetic impacts. Visual simulations of the Droject site will be prepared. B. Biological Resources Portions of the project site contain dense, mature tree cover of Chaparral / Oak Woodlands. Also, water features such as springs; ponds, drainage swales, and Permanente Creek present on the site. Permanente Creek runs along the lower portion of the proposed Pit 2, and includes a Riparian Corridor along that area. The creek continues along the southern boundary of the project area, generally running west to east. While much of the site is currently disturbed, the EIR will describe impacts to biological resources that are anticipated to occur as a result of the proposed project. Mitigation measures will be identified for significant impacts, as warranted. C. Cultural Resources The EIR will present findings of a cultural resources evaluation that will identify and describe how the proposed project would impact cultural resources (both historical and prehistorical). Mitigation measures will be identified for significant impacts, as warranted. D. Geology & Soils A geologic and slope stability analysis will be performed. The EIR will describe geology and soil conditions of the site with respect to the proposed reclamation activities causing increased slope instability or erosion potential by the mining and reclamation activities. Mitigation measures will be identified for significant impacts, as warranted. E. Groundwater The EIR will examine the potential effects of the proposed mining and reclamation activities on groundwater and any significant long -term water supply impacts. F. Surface Hydrology, Drainage & Water Quality Permanente Creek runs along the site's southerly boundary. The project site is outside the 100 - year floodplain. The potential for stream capture from the excavation and reclamation of the pits is not probable. The EIR will describe hydrology and storm water quality impacts from the mining and reclamation process. Mitigation measures will be identified for significant impacts, as warranted. G. Hazardous Materials The EIR will describe the availability of services to serve the project site and identify, at a programmatic level, potential utilities and services impacts from future development. Mitigation measures will be identified for significant impacts, as warranted. H. Traffic and Noise The EIR will characterize existing traffic conditions and evaluate traffic conditions with the proposed Reclamation Plan Amendment. The environmental baseline for the proposed project is the post - mining site condition and includes ongoing mining and processing operations as part of the baseline for the reclamation activities. Therefore, the impact of the evaluation of traffic and noise will be limited to the movement of equipment and personnel onto the project site to carry out reclamation activities relative to the post mining baseline condition. The City of Cupertino is within a half a mile of the East Material Storage Area. Because of the nature of the site, and the heavy equipment used, the EIR will analyze the amount of traffic and noise generated by the proposed reclamation project. 1. Land Use Final use, appearance and stability of the expanded mining and reclamation area will be examined to assess whether the reclamation area would conflict with any County General Plan Policy or Zoning Ordinances. J. Air Quality Impacts of the proposed project on local air quality will be related specifically to dust generation from mining activities and emissions from heavy equipment. Modeling will do a predominant amount of the analysis. If the modeling results in the prediction of significant impacts, mitigation measures will be included. K. Alternatives The EIR will describe a range of reasonable alternatives to the proposed project. However, the (mine is a vested mirfeTWEia means there is a right to mine on the project site Therefore, the "No Project Alternative ", and "Alternate Location aitefnative wi not e analyzed. L. Growth Inducing Impacts The EIR will discuss methods by which the proposed project will directly or indirectly induce economic, population, or housing growth. M. Cumulative Impacts The EIR will include a Cumulative Impacts section which will address the potential significant or irreversible cumulative impacts of the proposed Reclamation Plan Amendment when considered with past, present, and probable future projects producing related or cumulative impacts, or projections contained in applicable land use documents of regional or area -wide conditions contributing to the cumulative impact. 4 cc 1- ft *it ..f ° " Hanson Permanents Cement Inc, HANSON PERMANENTE CEMENT PERMANENTE QUARRY California Mine ID # 91 - 43 - 0004 LALE env A 5 rER ■ 1 _ (2,250_4,46_ 07P( Application for Reclamation Plan Amendment March 2007 For Submittal to: Santa Clara County Prepared by: EnvholVMINE Inc. 3511 Camino Del Rio South, Suite 403 San Diego, CA 92108 619-284-8515 :figure a . Permanente Quarry Site Overview 't� t r 'f' - # v a tr S, - i+ . - ,7.4 ' iY T +7 ;r •.€- x . •fi 4 k- ,,,:a F .N+�'"N ....:...A i. .0 < , f . s . a ' 3 r p,{ .• at ,`ro "{,. `.:» Legend , ,..", 1 `, , , '' a . `w �. ,y • .. . ,T+ t ; q p : '., °_ �I Main Pit • Pit 2 � t+ • ;rti _ ,. .. • :, tai (—� West Mtrls Storage a " , j '•" 1 ! ., r--------. ` < !j . a 1 East Mtrls Storage ... 's - • r • r ' + _ .;( r '^tt 1 _. + ;4 -.r "ti t ' . . ,. .7,'"I'', ,t , • .y."-.... i. Rock Plant 1 " : ) \ ya 'S� i Ira 4: ' . ! ____ , . , ^;• i Cement Plant _. ' -. f i4 , La t ,� } ' a fit` � t r Aluminum Plant ti 1 * ' �k , T .0%4' t r y Expanded RP Bndry . F rx y • j� 4'...,‘'.' a x, . •� , i l ,a "`. � �' iE • ; 1 : . "rrk , f • ! pi *,. fx �i.. ,- �. '' 1 'A .:1 i ; „a .L` ;:...t `t`xq ' of f , $ w *K:.- .vvt...- - ',) ,,. `t�' a 1 • 6v ,';'• �. yam_ .vsi "a ,,it. { ( Yi' y, > vi �f f i t ri '1,.:',,'' a^v 4‘, ; .may 1 � � , 1. 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Feet P I r< ti R { .. -- . . fi' r ? 0 600 1,600 { r t , i..r ,• t 1 inch equals 1,600 feet P„ y r `,• r „ _ 1 . a . „ rte I — * - ' w f r '1' to 1 � 4 x .. ri { 7 }j a _ \ , r � t • , .' lye + „ y� H 3 J ', • , ' 1 t .,Q ry . .i� i j � { ! tyK { .' /7l///'09 �'A t .ra3` - k. t#�x 7 ! ! t 4 .,. . ! t rt,..r,� ,a X'', . t , a `� ' 7 r ' • 1 ^ 4 Date: December 2006 ,k , i 2 'l += Aerial: 2005, USDA NAP