County Deficiencies

State Mining Board Review of the 45-day Notice to Correct Deficiencies Sent to Santa Clara County, Issued April 19, 2006

Original document:

The following are excerpts of this 25 page critical report issued by the State Mining Board after an examination of the Santa Clara County.  It found the County lacking in competency of enforcing the Surface Mining and Reclamation Act (SMARA) as lead agency for 9 mining operations under its jurisdiction.

Page 5 – 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 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.

Page 11 – 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.

Page 15 – 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.

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.

Page 11 – 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.

Page 13Permanente 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, theexisting 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.

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.

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