County Issues Ten-Year Compilation of Lehigh Violations

SAN JOSE – At the request of Santa Clara County Supervisor Joe Simitian the County has compiled and issued a ten-year review of local, state, and federally recorded violations taking place at the Lehigh Southwest Cement property in unincorporated Cupertino. The Housing, Land Use, Environment and Transportation (HLUET) Committee reviewed the report today and forwarded it to the Board of Supervisors for its consideration.

“Transparency is what I had in mind when I asked for this review,” remarked County Supervisor Joe Simitian, in whose district the facility is located. “With both a cement plant and a quarry on site, there’s an alphabet soup of regulatory agencies that oversees operations. The public needs a one-stop shop where they can find the information about violations they’re looking for. Nobody was stepping up to provide that information, so I raised my hand on behalf of the County,” concluded Simitian.

The County’s report reviewed records from fifteen different local, state, and federal agencies, as well as the record of pending and past litigation, between January 1, 2012 and December 31, 2021. More than 2,135 violations resulting in millions of dollars in fines and penalties were identified.

Specific regulatory authorities included in the report are the Bay Area Air Quality Management District; California Air Resources Board; San Francisco Bay Regional Water Quality Control Board; California Department of Fish & Wildlife; U.S. Fish & Wildlife Service; 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 are identified also includes 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 the County 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.

With respect to the report findings, Simitian noted, “This report documents more than 2,000 violations over a ten-year period at a single site. Do I wish there were fewer violations? Of course. Am I glad to see that oversight agencies are doing a vigorous job identifying violations? Absolutely.” 

While not all violations were serious, Simitian noted more than one hundred were, and he found this, “deeply disturbing.” “I can only conclude that if this record of violations is simply considered to be the cost of doing business, then we can’t afford to have these uses continue for another decade,” he said.

A partial list of violations includes:

• Bay Area Air Quality Management District: 37 violations with fines totaling $524,250.
• California Air Resources Board: Settlement agreement resulting in a $10,000 fine.
• San Francisco Bay Regional Water Quality Control Board: 809 violations with total penalties of $2.5 million.
• US Environmental Protection Agency: 3 enforcement actions with a total value of more than $8 million.
• California Occupational Safety and Health: 20 non-deleted violations with a total of $161,640 in penalties.
• US Mining Safety and Health Administration: 761 citations and 30 orders with a total of $1.6 million in penalties.
• City of Cupertino: 1 violation with 4 counts with an administrative citation fee of $100.
• Santa Clara County Planning: 2 violations with no fines.
• Santa Clara County Department of Environmental Health: 3 noise-related citations for 5 separate violations with no fines. 461 hazardous waste-related notices of violation issued with no fines.

Simitian’s request for this summary report had support from quarry neighbors and the environmental community where there have long been concerns about fragmented oversight.

“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 transparency and accountability. This report provides a comprehensive overview of the activities taking place at the Lehigh site.”

Simitian expressed concerns that information requested of Lehigh by County staff was not forthcoming when requested, and probed as to whether Lehigh’s deflection served as a basis for constituting a violation of their current Reclamation Plan. Staff will report back to the Committee and full Board with more information in response to this request.

Since assuming office in 2013, Simitian has taken several steps to increase transparency and County oversight at Lehigh, including:

• Annual coordinated check-ins among the agencies with environmental regulatory authority;
• Reporting out at annual public meetings;
• Moving to a system of monthly inspections;
• Updated website with more quarry-related information/resources;
• Review of the Cement Plan Use Permit for compliance with Conditions of Approval; and
•  A public disclosure process for notices of violation (NOVs).

Simitian recently proposed that the County retain an outside consultant to assist 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 preliminary results of that review were also heard by the HLUET Committee today and Simitian indicated that he is “pleased to see the consultant seems to be on the right track.” He noted that, “the revised financial assurances look like they will be somewhat higher than first thought. I look forward to hearing from staff when the financial assurance numbers are finalized.”

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; 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.

Read the full report on violations.

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