Lummi Island Quarry Is "Out of Control"

Meredith Moench is president of the Lummi Island Conservancy. For updates and additional information go to www.lummiislandquarry.com

Part 10

“This is an organization totally out of control. They do whatever they want whenever they want … all without permits.” Whatcom County Hearing Examiner Michael Bobbink had finally lost patience. He continued, saying he would seriously consider completely closing down the Lummi Island quarry operation and asked the county to research his legal authority to do so.

The angry outburst took place during a February 13 briefing for Lummi Rock LLC and Whatcom County Planning and Development Services. The owner of the Lummi Island quarry was appearing before the Hearing Examiner as a follow-up to their October 2012 appeal hearing. Mr. Bobbink opened the questioning by saying to Lummi Rock’s attorney, Lesa Starkenburg-Kroontje, “You know me, I don’t usually get angry.” Adding further to his displeasure, Mr. Bobbink had just received notice of new permit violations taking place at the quarry during the time they were supposed to be working on coming into compliance.

At issue was a letter sent by Lummi Rock to the county and Mr. Bobbink following the missed deadline for a shoreline protection plan he had ordered. Referring to the letter, Mr. Bobbink scolded, “I am extremely displeased with what I consider to be almost a rude document” and twice asked Ms. Starkenburg if she had seen the offending document before it was sent.

Three Stop Work Orders Upheld

To back up a bit, on November 20, 2012, the Hearing Examiner delivered his decision on Lummi Rock’s appeal of three stop work orders in place at the rock quarry they own and operate on the eastern shore of Lummi Island. In his decision Mr. Bobbink found appropriate the county’s enforcement actions resulting in three stop work orders for unpermitted development at the quarry site. He ordered Whatcom County Planning and Development Services (PDS) to expedite the processing of pending permit applications submitted by Lummi Rock in an effort to bring the mining operation into compliance. The underlying violations at the quarry were not the subject of the appeal and were not contested by the owner.

Stormwater Plan

Concerned about the on-going environmental damage cited in the two shoreline stop work orders, the Hearing Examiner had ordered “a proposed drainage plan which includes appropriate restoration of the mining site along the shoreline, where restoration is possible without substantially interfering with the process of loading barges and transporting materials offsite.” Lummi Rock was given forty days to comply.

After the deadline had passed, the county and Mr. Bobbink received instead a brief letter and copy of the operator’s 50-page state Department of Ecology NPDES pollution prevention permit. The county’s public works engineer found this unacceptable as did Mr. Bobbink. Upon questioning, Ms. Starkenburg argued that her client was confused because the word “engineered” had not been mentioned in Mr. Bobbink’s decision. She claimed the Ecology permit is “engineered” because her client had an engineer review it.

At the October 2012 appeals hearing Mr. Bobbink had determined that Whatcom County has jurisdiction over the shoreline environment under the Whatcom County SMP (Shoreline Management Program) and that it was therefore appropriate for them to order the design and construction of an engineered stormwater plan as they did in November 2011. The plan was not submitted, however. This was not the first time quarry operators had been told they needed such a plan.

Repeated Requests for Engineered Stormwater Plan

In March 2011, a Department of Ecology inspector responded to a citizen complaint of turbid stormwater running off into Hale Passage at the quarry in December 2010. In his report, he cited the need to “quickly” correct what he observed as an on-going problem of sediment at the site entering marine waters. Quarry operators were given six months to develop a plan which would “likely” require some “engineering analysis/design” and “permitting from local, state, and federal agencies.” This was required in addition to best management practices in their NPDES permit.

By the time Whatcom County PDS stepped in eight months later, no plan was in place and the county reiterated the need to Lummi Rock for an “engineered” plan in their November 2011 violation notice.

On June 4, 2012 the county repeated the requirement for a “stormwater plan prepared by an engineer certified in the State of Washington,” to be submitted within 30 days.

No plan was forthcoming and on July 23, 2012, Whatcom County PDS issued a penalty for continued failure to submit the required engineered stormwater plan.

It is difficult to believe that Lummi Rock did not understand what the Hearing Examiner was requiring of them. When Mr. Bobbink emphasized that he had seen photos of dust and sediment going into the marine waters at the quarry site, Lummi Rock’s attorney told him “a picture is not always what it appears to be.”

Discovery of the Unpermitted Road

Sometime in 2007/2008 Lummi Rock constructed a new mining service road on rural forestry property they own outside of their permitted mining boundaries and adjacent to the Lummi Island Scenic Estates community. In 2010, an investigation by county and state Department of Natural Resources officials revealed that Lummi Rock had conducted mining excavations outside of their permit and lease boundaries, both into their own forestry property and on a neighbor’s property.

It was also discovered that there was a new road accessing the expanding upper levels of the quarry. Construction of this road included blasting rock out to create repair/service and storage areas. The road bed was substantially built to handle the transport of huge mining haul trucks, excavators, blasting and drilling equipment as well as employee vehicles.

As a result of this investigation, Whatcom County issued a permit violation in December 2010. Lummi Rock appealed the violation. The out-of-bounds excavation was halted but the new mining service road remained in place and quarry personnel continued to use it regularly throughout 2011. The appeal was later withdrawn and corrections were agreed to. However, quarry personnel continued to use the unpermitted service road and service areas.

Finally, in January 2012 after meeting with Lummi Rock representatives, Whatcom County PDS issued a penalty and stop work order on the unpermitted road. The stop work order required operators to “physically restrict access … to make it impassable to vehicles.” A restriction method was required within ten days.

Employees Not informed

The road was not blocked off, no plan for doing so was proposed, and quarry personnel continued to use the road. In May 2012, a quarry employee told an irate neighbor that they had never been told that there was a stop work order on the road.

On June 4 and again on June 21, 2012, Whatcom County PDS levied additional penalties for continued use of the road in violation of the stop work order.

Unpermitted Shoreline Development

Sometime in 2006/2007, a commercial pier was constructed on the shoreline of Smugglers Cove where Lummi Rock conducts barge loading operations. This pier came into regular use as part of a conveyor loading system for the next several years. Early in 2011 it became apparent to regulating agencies that no permitting had been obtained for the construction of this pier. In May, the Department of Natural Resources issued a U&O for Unauthorized Use and Occupation of state aquatic lands. In November, the Army Corps of Engineers determined that the construction was in violation of federal law and Whatcom County PDS issued a notice for violation of the Shoreline Management Program. In July 2012, the Lummi Nation notified the Army Corps that the facility interferes with the exercise of their treaty rights.

Threat to the Environment

In June 2012, continuing problems at the quarry site led to the issuance by Whatcom County of two more stop work orders, one for the commercial pier/conveyor system and another for an unpermitted accessory moorage discovered at the site. In issuing these orders, county staff cited “an emergency situation where there is a significant threat to the environment.” Use of the facilities continued despite the stop work orders which led to penalties in July 2012.

Lummi Rock Defends Position

Regarding the new mining service road and service/storage areas, while admitting to the need for a permit, Lummi Rock justifies construction outside of their mining permit boundaries as providing legitimate access. Prior to applying for their 2007 operating permit, they claimed they had historically used another road which lies outside of their mining permit boundaries. County staff argued that use of this earlier road was not stated in their 2007 operating permit application and that the only approved access road was the one coming from the nearest public road into the quarry site. The county surface mining administrator made it very clear that he considered use of this new road an ancillary mining activity and therefore according to county ordinance must be constructed within the mining permit boundaries.

The Hearing Examiner was inclined to be more lenient on this matter of “access” and allowed that employees might legitimately be able to use such a road outside of permit boundaries to get to work.

Lummi Rock Confused

Regarding the shoreline stop work orders, Lummi Rock expressed confusion regarding the various permit requirements and implied that they were simply replacing pre-existing shoreline facilities, in some cases “from decades ago.” The retroactive shoreline permit application they have submitted for these facilities is still pending. The Lummi Island Conservancy maintains that the archival photographic and other records do not support “grandfathered” claims.

Violations Continue After Warning

Despite a June 4, 2012, warning regarding after-hours operations, quarry operators conducted afterhours operational activities from December 19, 2012, through January 2013 in violation of their permitted hours of operation: 6:30 a.m.–5:30 p.m. These activities involved tugs bringing in and positioning barges, as well as taking out loaded barges from the loading area on the shoreline. Residents living nearby were often startled awake in the middle of the night with bright lights shining into their bedroom windows and the sound of loud diesel engines nearby. Some of these operations lasted for nearly four hours as barges were shuttled about in the cove area and close to the shoreline in front of people’s homes.

A New Violation

After seven documented afterhours incidents were reported, Whatcom County PDS notified Lummi Rock in writing that they intended to issue a Notice of Violation if the after hours operations did not stop. Following receipt of this letter, three more incidents were documented and county staff proceeded to issue a Notice of Violation on February 1, 2013. Lummi Rock has appealed.

Proposed Road Outside Mine Boundaries

On February 12, 2013, public notice was made by Whatcom County PDS for a revised Lummi Rock operating permit application. The application proposed a new mining service road and service/repair/storage areas to be built on the eastern edge of the quarry site. Once again, construction of this road and associated service areas would be completely outside of Lummi Rock’s permitted mining boundaries.

Stealth Mining Expansion

During the public written comment period which ended February 26, the Lummi Island Conservancy was among those opposed to this proposal. They feel it represents expansion of mining activity without proper regulatory process. Only a new Mineral Resource Lands (MRL) designation can expand mining activity into rural forestry zoned land. Lummi Rock’s application for an MRL expansion is pending and has not yet been through the proper public process for approval or denial, including review by the County Planning Commission and the Whatcom County Council.

Poor Planning?

At one time, these internal mining service roads at the Lummi Island quarry were incorporated within the mining area boundaries. What happened to them? Have greed and poor planning led to the current problem? Even Lummi Rock’s own 2012 GeoEngineers report proposed an option wherein a road could be constructed almost entirely within the mining permit boundaries but for a short loop outside. Why does this current proposal ask for a road constructed entirely outside of the current mining boundary if not to expand the area of mining activity and potential production?

The proposed storage/repair and “laydown” areas are on a bluff just above the shoreline where they could potentially expose sensitive shoreline habitat to pollution from sediment-laden run-off, dust, and oil from leaking equipment. As part of the application, the county surface mining administrator is requiring Lummi Rock to submit hydrogeological, geotechnical slope stability and wetland, stream and habitat studies by qualified professionals.