The Santa Clara County Board of Supervisors unanimously decided Feb. 8 that Lehigh Southwest Cement Plant, located in unincorporated county land near Cupertino and Los Altos, maintains a vested right to operate certain portions of its several-thousand-acre facility purchased before 1948. The notion had been hotly debated among local opposition and cement plant officials, both of whom attended the standing-room only hearing.
The ruling means the 100-year-old mining company will not have to apply for a use permit on those portions of land, which could have brought it into modern-day compliance. Instead it will hold a legal non-conforming use designation, otherwise known as being "grandfathered."
The company's cement plant already has a use permit for its operations, supervisors noted.
"Vested rights doesn't mean it can break the law," said District 1 Supervisor Mike Wasserman, echoing one Lehigh supporter who spoke during the public hearing. "Any approval by the county is subject to compliance by the applicant to state and federal regulations."
In recognizing grandfathered rights, supervisors acknowledged that the whole property had been mined consistently since the 1930s. While there had been a transfer of ownership on one part of the land in the late 40s, supervisors said activity, including material transport, and intent to mine on the land hadn't been abandoned.
"What the county did ... was to once again certify that our use on those parcels was legally nonconforming," Lehigh's land use specialist Marvin Howell said in an interview Wednesday. "We look forward to working with the public on our (comprehensive) reclamation plan."
A separate hearing on the cement company's plans to expand mining operations to a new mining pit south of its existing quarry is scheduled for some time this spring and summer, District 5 Supervisor Liz Kniss said. The quarry will need to seek a use permit for that because, according to Howell, the company does not currently have a legal nonconforming use for areas slated for expansion.
"All the supes did was kick the can down the road," said Los Altos Hills resident Bill Almon, founder of watchdog group QuarryNo, after Tuesday's hearing. "With vesting, the county gave away its ability to monitor (the facility). ... the problems are still there."
The Environmental Protection Agency last year accused Lehigh of violating parts of the Clean Air Act, stemming from equipment changes made in the late 90s that allegedly increased sulfur and nitrogen dioxide emissions. Lehigh officials said they would work to assess the violation.
Since then, the company announced it had reduced mercury emissions by 25 percent and had plans to implement new technology to further reduce it. Plant Manager Henrik Wesseling said the actions would bring it into compliance with more stringent EPA regulations.
Still, opponents remain concerned about mercury, benzene, arsenic and chromium emissions.
Lehigh officials said the facility is regulated by several state and federal agencies, including the Bay Area Air Quality Management District, which has said the facility doesn't exceed federally-advised public notification thresholds. Quarry officials reported last year that the plant emitted more than 300 pounds of mercury.
An environmental impact report regarding a material storage area on the property is scheduled to be released in 40 to 60 days, Howell said.
Los Altos Mayor Ron Packard and councilman David Casas and newly-elected Los Altos Hills Councilman Gary Waldeck are currently in the process of gathering information about the quarry and cement plant's emissions. Waldeck said the county's ruling doesn't affect the councilmen's fact-finding initiative, which is largely focused on the environmental and health impacts of the facility.
Ed Reed, who spoke in opposition to the facility at the hearing, said, "if there's anything that's grandfathered, it's the right to breathe fresh air."
Read more about the quarry's and opponents' next steps in the Town Crier Feb. 16.