Simitian Pushes Greater Accountability for Lehigh Cement Plant and Quarry

SAN JOSE – Santa Clara County Supervisor Joe Simitian is asking County officials to produce a 10-year record of violations involving Lehigh Cement Plant and Quarry (2012-2021), in an effort to provide more transparency, and help clarify whether violations involving Lehigh’s facilities necessitate additional regulatory and/or legal action. Simitian’s proposal will be heard by the Board of Supervisors at its January 25 meeting.

Simitian is requesting that the report include assessments from roughly a dozen regulatory agencies with regulatory authority over Lehigh. Among those agencies are the Bay Area Air Quality Management District; San Francisco Regional Water Quality Control Board; California Fish & Wildlife; U.S. Fish & Wildlife; U.S. Environmental Protection Agency; California Occupational Health and Safety Administration; U.S. Mine Safety and Health Administration; California Division of Mine Reclamation; and the cities of Cupertino and Palo Alto.

The list of entities where violations would be identified would also include the two County departments with oversight authority—Planning and Development, and Consumer & Environmental Protection Agency. While the Planning and Development Department is responsible for oversight of land use related matters, it is through the Consumer and Environmental Protection Agency that the County enforces both hazardous waste regulations and its noise ordinance.

Simitian also asked that any standing consent decrees or other court actions be reviewed to ensure that Lehigh is compliant with existing laws and regulations, as well as court mandates.

Simitian, who represents Los Altos, Los Altos Hills, Cupertino, and other cities near the site, expressed concern that a fragmented regulatory system has resulted in a lack of transparency with respect to Lehigh’s operations. He noted, “there is no one place the public can go to fully understand how operations at Lehigh Cement Plant and Quarry are being conducted” and whether the plant and quarry are in compliance.

If significant violations are identified, the Santa Clara County Board of Supervisors could conceivably consider suspending Lehigh from operating the plant pursuant to the conditions outlined in a 1939 use permit that regulates activity at the cement plant.

“It appears this provision has never been invoked in the history of the permit,” said Simitian. “The obvious question, of course, is: ‘How would we, or the public, know if Lehigh were in violation?’ Unfortunately, there doesn’t appear to be a good answer for activities that extend beyond the boundaries of our County’s authority. That’s why I’m asking for a comprehensive report of violations pertaining to all of Lehigh’s facilities.”

Simitian’s request for information includes a list of all noticed violations, the date of the violation, the enforcement agency, the penalty and/or consequence (if any), the status of the violation, and other relevant data.

"We've had concerns about Lehigh's operations for quite some time," said Cupertino Mayor Darcy Paul. "Frankly, the result of this dispersed oversight is disjointed efforts at transparency and accountability. We have an opportunity now to get a really comprehensive overview of the activities taking place at the Lehigh site.

Green Foothills, an environmental advocacy nonprofit focusing on San Mateo and Santa Clara counties, supported Simitian’s call for greater accountability. "This is an opportunity for the County to signal that it intends to hold Lehigh accountable for its actions," Green Foothills Executive Director Megan Fluke said. 

Simitian’s push for increased transparency pertaining to operations at Lehigh follows earlier efforts to ensure increased transparency and accountability at the site.

“Shortly after taking office, I worked with the Planning Department to institute annual check-ins among the agencies with environmental regulatory authority, as well as an annual report-out to the public by those agencies,” said Simitian. “Since assuming office in 2013, I have held six town hall-type meetings with panels of experts from the various oversight agencies. These meetings provide an opportunity for the public to hear from a range of oversight agencies without having to reach out to each government agency independently.”

Additional efforts to increase transparency include moving to a system of monthly inspections; a review of the Cement Plan Use Permit for compliance with Conditions of Approval; and a public disclosure process for notices of violation (NOVs).

Simitian’s office also requested an update of the Lehigh portion of the Planning Department’s website with more quarry-related resources, and more frequent discussion of quarry issues at the County’s Housing, Land Use, Environment, and Transportation Committee (HLUET), on which Simitian serves as vice chair.

Simitian recently proposed that the County retain an outside consultant to assist the County in reviewing the estimated costs to clean up the quarry site and restore the land when the quarry eventually closes. Simitian said he wanted to be sure Lehigh has sufficient financial guarantees in place to cover the cost of reclamation and cleanup, and that “the public’s not on the hook for cleanup costs when that time comes.” The results of that review are expected in the first few months of 2022 when the County formally responds to Lehigh’s Financial Assurances Cost Estimate.

The cement plant and quarry are both part of the Lehigh property, which encompasses 3,510 acres, 2,656 of which are in unincorporated Santa Clara County. The remaining land is within the cities of Cupertino and Palo Alto.

The County has oversight over the quarry and all activities at that facility are regulated by a Reclamation Plan approved by the Board of Supervisors in 2012, and by a vested rights decision made by the Board in 2011, which identified a portion of the property that could be mined without a use permit.

In 2019, Lehigh applied to substantially expand its mining operations by digging a second pit at the Cupertino site, triggering an environmental review, which is on hold pending expected revisions.

Simitian is asking County Administration and County Counsel to bring forward the Lehigh violations report first to the Board’s HLUET Committee, and then to the Board of Supervisors, by May of this year.

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