Lummi Island: The Quarry is Served with Another Violation Notice

Meredith Moench is president of the Lummi Island Conservancy and has been a near neighbor of the Lummi Island quarry for eight years.

Part 3

For the second time in less than a year, the Lummi Island quarry has been served a Notice of Violation by Whatcom County Planning and Development Services. On November 23, 2011, a Notice of Violation was issued to Lummi Rock LLC (Aggregates West) for unauthorized shoreline development at the quarry they own and operate on the east shore of Lummi Island.

County staff has determined: “At a minimum, the development included construction of a commercial pier facility and installation of conveyor equipment, development of a vessel launch ramp, lack of proper storm water controls and discharge of sediment laden waters to the shoreline of Hale Passage, and the presence of a sunken barge on the bedlands of Hale Passage.”

This unauthorized pier facility was constructed sometime in 2006/07 and is a violation of the Shoreline Management Program which has strict permitting requirements. According to the Notice of Violation, two permit applications should have been submitted, one for shoreline substantial development and one for conditional use.

The Notice of Violation also orders Lummi Rock to implement best management practices “immediately” to control sediment discharges to the marine shoreline to be followed by engineered storm water mitigations. This should not have been news to the quarry operator/owner as the state Department of Ecology had already ordered this correction back in March 2011 in response to violations of their NPDES (National Pollutant Discharge Elimination System) storm water permit. The county had to reiterate the “immediate” need for this correction which remains unmitigated.

Boundary Violations

As noted, this is the second formal Whatcom County violation received by Lummi Rock (Aggregates West) since December 2010. (see Parts 1 and 2 in Oct/Nov and December 2011 issues of Whatcom Watch) The previous notice was for several boundary violations resulting in substantial unpermitted rock excavation estimated on the order of 200,000 tons outside of their current permitted MRL (Mineral Resource Land) boundary.

This violation also included construction of an unpermitted road and service areas next to the residential community of Lummi Island Scenic Estates. The 2010 Notice of Violations remains outstanding with compliance not yet achieved despite a November 21 deadline.

What incentives are there for companies like this to comply with the law? Is this a do what you want and ask forgiveness later if you get caught business model? If so, it appears to be an effective one in Whatcom County. Can it be changed? Will it be enough for citizens to begin demanding that significant penalties be levied or permits revoked for flagrant violations? Once the trees are gone, the shoreline fouled, the habitat dynamited, the roads built, what remedy should be applied? Surely not an after-the-fact permit approved penalty-free.

Should a company like this be rewarded with an additional 137 percent acreage to plunder for private gain? That is what is at stake here. The county is currently reviewing the Lummi Rock LLC (Aggregates West) application for a zoning amendment which would change an additional 27.5 acres of their Rural Forestry zoned property to a Mineral Resource Land (MRL). This is the first step toward expanding their mining operation to encompass nearly 50 acres of land on the scenic east flank of Lummi Mountain and its shoreline.

The site under consideration is adjacent to the current 20 acre pit and is located within an environmentally and biologically sensitive area according to the county’s Critical Areas Ordinance designations and it is in disturbing proximity to a densely populated residential community.

Since the current owner/operator Lummi Rock LLC(Aggregates West) took over the property in 2005, the quarry has had compliance problems with the Northwest Clean Air Agency, Washington State Department of Ecology, Washington State Department of Natural Resources and Whatcom County Planning and Development Services. These problems have led to various violations and orders for correction. Many and colorful have been the excuses for their bad behavior, but the fact is there has been little incentive for this mining company to comply with the law. Except for a measly $500 fine levied by the Northwest Clean Air Agency last year, there have been virtually no consequences for their repeated disregard for permit requirements and conditions. This most current Notice of Violation from Whatcom County for a serious shoreline violation only requires that Lummi Rock (Aggregates West) submit the required permit applications with the usual permit fees, within 30 days. Only if they fail to comply with this, might the “imposition of monetary penalties” result.

Look at the Record

1. 2007-2010 twice, rock crushing plants were constructed without permits;

2. Despite a notice in 2007, surface water has been continuously withdrawn, up to the present, from a local creek without a water right permit and without penalty;

3. Storm water permit violations have been cited, including illicit discharges;

4. A commercial pier facility was constructed without required approvals from local, state, and federal agencies;

5. Mining excavation and operations were conducted outside of legally permitted operating boundaries;

6. Dust emissions and industrial noise disturbances have been reported by nearby residents.

This list does not include the on-going devastation of a conservancy shoreline and the growing defacement of a scenic vista increasingly visible and disturbing to residents of Bellingham, the Lummi Nation, the Edgemoor and Chuckanut communities, and the boating communities who recreate in Hale Passage and Bellingham Bay.

Paid Less Taxes Than Average Homeowner

Incrementally expanding their operating capacity with unauthorized infrastructure improvements, Lummi Rock (Aggregates West) has increased its rock crushing capacity from 600 tons per hour to 800 tons per hour with the addition of an unpermitted crushing plant (discovered in April 2010 by a Northwest Clean Air inspector and subsequently permitted) and the construction of the second unpermitted pier facility which has enabled a dramatic increase in water transport capacity.

The added conveyor system can fill a standard barge with as much as 1500 tons of gravel in several hours time. The original ramp loading dock continues to use trucks to offload larger rock and gravel onto barges. As nearly 100 percent of production is barged off island, tugboats bring barges in and out of Smugglers Cove through the eel grass beds and forage fish habitat on a regular basis, sometimes within days of each other. When they leave, the barges may go into Bellingham, but often as not, they head further south to Aggregates West-owned yards in Anacortes and Everett.

While the company owner cuts corners and tallies his profits, the rest of us must endure the impacts: the environmental degradation, the disturbance to the peaceful enjoyment of our homes, the ruin of the beautiful shoreline of Lummi Island, and the offence to our sense of justice. (PS: For those who think the county must be getting a bunch of tax revenue from the quarry, consider this. According to county assessor records, the quarry paid a whopping total of $1,887 in property taxes this year. That’s right. Zoned rural forestry, the taxes are cheap.)