To the Cupertino City Council Members.

The residents of Cupertino are concerned about the Lehigh Southwest Cement Plant's violations. We the undersigned ask that the Cupertino City Council Members pass this resolution.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO ASKING THE SANTA CLARA COUNTY BOARD OF SUPERVISORS TO DIRECT THE PLANNING DEPARTMENT TO CEASE ALLOWING THE SERIOUS ONGOING VIOLATIONS OF THE SURFACE MINING AND 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, outside and adjacent to the city limits

WHEREAS Lehigh has been operating outside the permitted boundaries both in the EMSA since at least March, 2008; and in addition, since 2006 in other areas. The June 20, 2008, NOV states, “The [October 10, 2006] NOV effectively placed Hanson on notice that work outside the reclamation plan boundary is not authorized. For this reason, the County views this additional 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WHEREAS this non-compliant operation had previously been included and withdrawn in an application dated March 2007, indicating that Lehigh had full knowledge and understanding that the operation was non-compliant but continued the operation ignoring SMARA and the CEQA comments from concerned residents on the [subsequently withdrawn] March 2007 plan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.