Lummi Island Quarry Issued More Stop Work Orders

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

Part 7

On June 4, Whatcom County Planning and Development Services (PDS) issued a spate of new compliance orders to the Lummi Island quarry owned by Lummi Rock LLC (dba Aggregates West). This included two Stop Work Orders, a new shoreline violation, a penalty on a previous Stop Work Order, and a Corrective Action Notice.

The new shoreline violation and accompanying Stop Work Order are the result of investigation of an accessory moorage located in Smugglers Cove. Aerial photography revealed that this unpermitted development took place in 2008 or earlier, and is located in the area of documented eel grass habitat.

Eel grass beds are protected habitat conservation areas under Whatcom County law. They provide habitat for forage fish eaten by adult salmon, and shelter for juvenile salmon. Mapping of Smugglers Cove and associated conservancy shoreline has shown the presence of sand lance and herring forage fish species. Federally protected salmon are present throughout Hale Passage, which includes Smugglers Cove. Located on the eastern shoreline of Lummi Island, the cove is used by the Lummi Island quarry to load barges for the off-island transport of more than 95 percent of their rock and gravel production.

Since at least 2008, barges up to 180 feet long have been moored in the eel grass habitat for months and years at a time, shading the eel grass which requires light to live. Just since February 27 of this year, two oil spills originating in this moorage area have been reported. This marine contamination is in addition to the oil spills associated with the recent salvage operation attempting to remove two oil-soaked sunken barge hulls from the cove’s tidelands. (See Whatcom Watch May 2012).

The county’s Stop Work Order states that this unpermitted moorage has resulted in “an emergency situation with a significant threat to the environment.” The quarry operator has been ordered to remove all moored vessels within 14 days and to cease moorage of any vessels until permit approval has been received. If approval is denied, the moorage structures must be removed.

Stop Work Ordered on Pier/loading Facility

The second Stop Work Order is for a contested unpermitted commercial pier/loading facility. This order also states that continued use of the facility is creating “an emergency situation where there is a significant threat to the environment.” It requires Lummi Rock to cease all use of the facility and to remove all conveyor loading equipment from the county’s shoreline jurisdiction within 14 days.

Constructed sometime between September 2006 and August 2007, this unpermitted pier/loading facility is the subject of a Whatcom County PDS shoreline violation issued in November 2011. (See Whatcom Watch January 2012). Lummi Rock LLC was given the option of applying retroactively for the required shoreline conditional use and substantial development permits for the pier. The Washington State Department of Fish and Wildlife and the Army Corps of Engineers must also consider granting approval after-the-fact, and the state Department of Natural Resources must negotiate a lease for use of regulated state tidelands if the pier is to remain in place.

Pier Violates Federal Clean Water Act

The Army Corps of Engineers determined last November that this commercial pier violates Section 10 of the Rivers and Harbors Act, and the quarry owner was subsequently given the option of applying for after-the-fact approval. The Department of Fish and Wildlife has taken the same course of action, accepting an after-the-fact permit application from Lummi Rock LLC in December 2011. Only Whatcom County has a public process where citizens are able to comment on permit applications. Numerous comments were received by Whatcom County PDS earlier this year in opposition to approval of this retroactive shoreline permit, citing environmental concerns, violations of the county’s Shoreline Management Program, and harm to the neighboring residential community.

The quarry operators have continued to use this illegally-constructed pier to load barges, as many as two per week, destined for locations in Skagit, Snohomish and King counties in addition to their Bellingham yard. In the week leading up to the June 4 Stop Work Order, five barges were loaded and shipped out from the unpermitted pier facility. An older ramp loading dock remains available for barge transport use. Lummi Rock LLC has been told that review of their retroactive shoreline permit application will not resume until they are in full compliance with outstanding orders. To date, no monetary penalties have been issued for the shoreline violations.

Also issued by Whatcom County PDS on June 4 was a Notice of Required Corrective Action. The November 23, 2011 shoreline violation included an order to implement best management practices immediately to control sediment discharges to the marine shoreline resulting from their loading operations and stormwater run-off; also required was an engineered stormwater plan. The state Department of Ecology had ordered the same corrections in March 2011 as part of their stormwater and shoreline enforcement. A September 2011 deadline remains unmet, and for a third time, the quarry owner/operator has been ordered to comply. No monetary penalties for this have been levied to date.

Another Fine on Illegal Access Road

On another issue, a $1,000 penalty was included in the June 4 notice for failure to comply with an earlier Whatcom County Stop Work Order on an illegal access road. (See Whatcom Watch March 2012). Constructed to service an additional 9.5 acres permitted for mining operations in 2007, this road was cited by the county in December 2010 as one of several permit boundary violations. Quarry operators appealed the violations and continued use of the road and expanded equipment storage areas while presumably “working” with the county to resolve the issue. An intensified operation begun in 2008 to remove rock from the upper area of the quarry continued, blasting out several new benches. This greatly increased the noise and disturbance to the adjacent residential community. Withdrawing their appeal in October 2011 one week before the scheduled hearing, Lummi Rock LLC agreed to submit to the original 2010 compliance orders. These included creating a new access road on the opposite side of the pit, away from neighboring homes. They failed to do this, however, nor even to present a viable plan to do so. By January 2012, continued use of the road and storage areas led to an $800 fine and a Stop Work Order requiring them to physically block off the road to vehicles. Use of the road continued, however, in violation of their 2007 operating permit and the January Stop Work Order.

Lummi Rock LLC (Aggregates West) has taken full advantage of county process, using a pre-deprivation hearing (January 2012), and a post-deprivation hearing (March 2012) to delay stricter enforcement of the Stop Work Order. Both hearings upheld the county’s action and were attended by the Whatcom County Prosecuting Attorney. Lummi Rock LLC submitted an appeal (February 2012) but has yet to confirm a hearing date with the Whatcom County Hearing Examiner.

Although the Stop Work Order remains in effect, quarry operators have continued to use the contested road to access the upper levels of the quarry, blasting out an estimated nearly two million cubic yards of rock (according to their 2007 operating permit production estimate). A total of $1,800 in fines is ultimately little more than a cost of doing business.

Expansion Plans for Quarry on Hold

The larger background to all of this compliance activity is the proposed expansion of mining at the current quarry. Lummi Rock LLC (Aggregates West) submitted an application in December 2010 requesting county approval of a rezone to allow mining on an additional 27.5 acres of rural forestry property they own. This would increase the size of the current mining pit by 137 percent. (See Whatcom Watch Oct/Nov 2011). Processing of this application was suspended in January of this year until compliance on outstanding orders is achieved. This zoning change request will be subject to public process, including a hearing before the Whatcom County Planning Commission where the public will be able to submit comments.