As a very brief history, the Quarry site has included an operating brickyard since the late 1800’s. Rock quarrying began in the 1920’s, and in 1941 the site was zoned “heavy industrial.” The owners of the Quarry obtained a “legal use” operating permit to quarry in 1972 and, pursuant to the requirements of the Surface Mining and Reclamation Act (or “SMARA”), the Quarry submitted a reclamation plan in 1976. (A reclamation plan is a written plan that describes how a mining operator intends to clean up the mining site after mining has concluded.)
In 1981, the County of Marin adopted the General Plan governing land use, including the Peacock Gap Neighborhood Plan which covered the Quarry property. In response, the Quarry owners submitted an amended reclamation plan in 1982 that contemplated residential usage as the eventual end use of the site. Later that year, to accommodate the 1982 amended reclamation plan, the County rezoned the Quarry property from heavy industrial to residential commercial. This rezoning caused the Quarry operation to become a legal “nonconforming use” (generally meaning that the Quarry could continue to use the property in a manner inconsistent with its new residential zoning status only to the extent that it had used property at the time of the rezoning). In 1986, the Dutra family purchased the Quarry property. For more in-depth information, see the Quarry History page.
The Coalition did not file the lawsuit alone. In 2001, the State of California, the County of Marin, the Coalition and several individual neighbors of the Quarry filed a lawsuit against the Quarry alleging that the Quarry was operating outside the scope of its legal nonconforming use. That is, the Quarry had illegally expanded Quarry operations beyond the operations level that was established when the site was rezoned in 1982.
In 2004, a trial was held and the Court found the following:
- That, as of the time of the 1982 rezoning, the previous Quarry owners intended to mine the property so long as it was profitable.
- The previous Quarry owners relinquished their right to mine South Hill beyond the point at which South Hill would lose certain natural features and scenic qualities.
- The previous Quarry owners agreed to the rezoning of its property to residential and benefited from the rezoning because it enhanced the property’s long-term value.
- The previous Quarry owners knew that Quarry operations had a negative impact on its neighbors and took effective steps to mitigate the problems caused by mining operations, such as blasting and truck traffic.
- Dutra, the subsequent and current Quarry owners, should have known all of the above.
- In contrast to the prior owners’ operation that mitigated impacts on neighbors, Dutra has conducted mining operations that have failed to comply with SMARA, Marin County ordinances and the Peacock Gap Neighborhood Plan.
- In contrast to the prior owners, mining operations under Dutra have changed substantially since 1982 so as to make life unbearable and unhealthy for a number of its neighbors and others living along the Pt. San Pedro Road corridor through increased truck traffic and expanded operating hours.
- Mining operations have, apparently, not been conducted in conformity with the 1982 amended reclamation plan, though it is not possible to say what effect this might have on the end use of the property.
- Dutra should have submitted a reclamation plan updating the 1982 plan, but hasn’t, thus violating SMARA.
- The County failed in its responsibility to monitor the Quarry for the purpose of ensuring that it was operating consistent with SMARA and County law.
The Court then concluded that it (the Court) was not the proper forum to determine what to do about all of these problems, and that many competing interests needed to be weighed.
For more details, see the Court Findings of 1/7/2004 and the Court Order of 4/6/2004) in the Committee’s Library/Archive within the “Pre-September 2010 Archives” section (scroll down to the LEGAL DOCUMENTS INDEX).
The Order by Judge Sutro on July 15, 2004, (as amended on August 9, 2004), provides for “interim operating conditions” that will apply at least until the Quarry’s operating permit is amended. The Court’s order included the following:
- The Quarry is enjoined (prohibited) from conducting further mining operations, though this injunction was suspended for the purpose of giving the Quarry time to correct the illegal aspects of its mining operation and to submit an updated reclamation plan (in effect, allowing the Quarry to continue operations so long as it proceeds to clean up its act).
- While the Quarry cleans up its act, it must restrict truck trips to 125 round trips per day only between the hours of 7 a.m. and 5 p.m.
- For other restrictions, see Interim Operating Conditions in the Committee’s Archive/Library under “Pre-September 2010 Archives”.
The stated purpose of the Court’s order was to encourage (effectively force) the Quarry and the County to review Quarry operations and get the Quarry operating in compliance with the law. The Court’s decision finished with the following statement:
If the people who are supposed to be policing operations of the quarry do not do so, and the quarry operator continues to operate beyond the law, this court will shut down the quarry, regardless of its being a regionally significant mineral resource for the North Bay Area.
Since the 2004 court decision, the Quarry has submitted a proposed Amended Reclamation Plan and a proposal for an Amended Surface Mining and Quarrying Permit (i.e., operating permit) to Marin County authorities. The Quarry has been required to operate in accordance with the Court’s “interim operating conditions” until the public process for the amended reclamation plan and operating permit have concluded. The County determined that, in light of the nature of the Quarry’s business and the surrounding residential communities, an environmental impact report on the Quarry’s submittals was required.
Four years later, on February 13, 2008, Marin County released a draft environmental impact report (“DEIR”) on both the amended reclamation plan and the proposed operating permit. Leading up to this release, the County held two public meetings on the proper scope of the EIR, and accepted written comments.
After the release of the DEIR, the Coalition analyzed it extensively and produced a thorough review of the issues and concerns found in that document that should be addressed in revisions to the final environmental impact report (“FEIR”). A summary of those issues and concerns was provided to the County Supervisors.
The Final EIR was released on January 29. 2009. The Coalition’s comments on this FEIR that were submitted to the County can be found in the Library/Archive within the “Pre-September 2010 Archives” section (scroll down to the FINAL ENVIRONMENTAL IMPACT REPORT DOCUMENTS INDEX section). The Coalition submitted a thorough response to the Board of Supervisors that stated our objections to certifying the FEIR as well as recommendations for changes that would resolve our issues.
On October 27, 2009 the Board of Supervisors voted to certify the Final EIR. The County then proceeded with what is called the “Merits of the Project” during which they will determine what conditions and restrictions will be imposed on the operations permit and reclamation plan submitted by the Quarry. The Final EIR provided input to their deliberations and the result was an Operating Permit that contained 172 conditions.
Briefly, what are the primary concerns of the Coalition with the Quarry's submissions and the content of the EIR?
The Coalition had fundamental and serious concerns about the adequacy of the EIR, which are discussed at length in the Coalition’s response to the EIR. They can be summarized as follows:
The Draft EIR applies an overstated 1982 production baseline. This is significant because the Final EIR has ignored environmental impacts of any Quarry activity that is determined not to exceed the 1982 baseline level of activity.
The DEIR assumes that the Amended Quarrying Permit (AQP) proposes relatively little or no increase over 1982 production levels. A significant reason that the DEIR overstates the 1982 production baseline is that it ignores important information contained in a 1984 Merrill Lynch Capital Markets report and, instead, uses an estimate personally made by an employee within the County’s Planning Department.
The Merrill report (which is reproduced in the Coalition’s April 14, 2008 response to the DEIR) was prepared and used as a prospectus, which makes it fairly likely that it was prepared with far more consideration and attention to accuracy than a mere personal estimate by a County employee. This personal estimate is simply inadequate as the principal source of the 1982 production baseline determination (and thus the scope of the entire EIR), considering that far more documentable information is readily available.
The County determined not to use the most pertinent information contained in the Merrill report because, the County claims, it contains proprietary information. The Merrill report, however, cannot be proprietary since the San Rafael Rock Quarry neither owned the Quarry facility in 1984 nor owned the Merrill report. In any event, if the Quarry insists that the Merrill report is proprietary or otherwise confidential, the Quarry should be asked to waive any objection to using the report. If it refuses, the burden should be on the Quarry to demonstrate, in court, why information that is so important to the outcome of the final EIR, yet so old, is unsuitable for determining the conditions of their own permit.
Aesthetics of South Hill
The DEIR contains old photographs and depictions of South Hill that are remarkably benign, tending to disarm readers to the effects of open pit mining in the midst of a residential community. However, people have a right to view the SRRQ site from whatever angle they wish, including from a home sited northwest of the Quarry or a kayak in the Bay. The DEIR photos and depictions should be balanced with the reality of what a viewer from all angles will see. Therefore, photos of the current state of all angles of South Hill should be included in the final EIR.
Over the past 3 years or so, South Hill has been transformed into a full-blown open-pit mine. Some residents may not notice what has occurred on South Hill just beyond the view from Pt. San Pedro Road. This gives the site a Hollywood movie-set façade character, looking unremarkable from a passerby view, but quite different when one peeks from a slightly off-the-path angle. To residents of homes to the northwest of the Quarry, the blight is stark, and presumably permanent.
We note this because area residents are largely unaware of what has happened to South Hill. They should know. Some residents who rarely or never see South Hill has become may not care that it has become a strip mine. Certainly, many others will, and the blight should not be whitewashed.
However, people have a right to view the Quarry site from whatever angle they wish, including from a home sited northwest of the Quarry or a kayacker in the Bay. The DEIR photos and depictions should be balanced with the reality of what a viewer from all angles will see. Therefore, we ask that photos of the current state of all angles of South Hill be included in the final EIR.
For close to 2 years, the Coalition has attempted to educate County Health Department officials about the possible airborne health risks created by the Quarry. We even accepted the County’s suggestion that we engage an air quality expert, and hired Dr. Paul Damian, a board-certified toxicologist in the Sacramento office of SCS Engineers. (Read more on Dr. Damian and a brief summary of SCS’ findings) We have provided the Department with evidence, lab reports and scientific background material, suggesting it has reason to be skeptical of the Quarry’s claims that it presents no airborne health risk. Yet the DEIR seems to give little weight to this serious health issue.
We asked Dr. Damian to review the DEIR as it relates to air quality. Here are a few of his and our observations contained in our April 14, 2008 submission:
- C-Silica Chronic REL and DPM Not Stated. The chronic reference exposure level established by the California Office of Environmental Health Hazard Assessment for c-silica (3 µg/m³) and diesel particulate matter (DPM) (5 µg/m³) is not stated anywhere in the DEIR. This prevents readers from drawing their own conclusions about the critical health risk benchmarks for air contaminants. (A chronic reference exposure level or REL is an airborne level of a chemical at or below which no adverse health effects are anticipated in individuals indefinitely exposed to that level.)
- Carcinogenicity of C-Silica Not in Dispute. The DEIR implies that the carcinogenicity of c-silica is indeterminate or in dispute. This question has been settled by the leading international agency for classifying the carcinogenicity of compounds. The EIR should plainly state the International Agency for Research on Cancer (IARC) conclusions with respect to the carcinogenicity of C-silicaIn 1997, the International Agency for Research on Cancer (IARC). [NOTE: In 1997, the IARC changed the classification of crystalline silica from 2A (probable human carcinogen) to 1 (known human carcinogen). The change to IARC Type 1 means that occupational silica dust exposure is considered like other known human carcinogens such as asbestos, vinyl chloride, radon daughters, smoking, and DES. Other health risks of crystalline silica also exist, such as silicosis.]
- Community Has Very High Exposure to C-Silica. Dr. Damian states that many nearby residents of the Quarry are effectively experiencing occupational exposure to C-silica at an exposure level of 196 µg/m³ (versus the ambient benchmark of 3 µg/m³ and the occupational benchmark of 25 µg/m³) for periods longer than 30 days. The DEIR should state clearly the health risks posed by exposure at these levels.
- Crystalline vs. Amorphous Silica. The DEIR recognizes the toxicity of silica in its crystalline form, but equates the two crystalline and amorphous forms. Independent testing confirms that the area surrounding the Quarry is blanketed in dust that is comprised of over 25% crystalline silica, which is the dangerous type. The DEIR should make this point clearly.
- Improper Averaging of Annual Emission Rates. The DEIR’s Health Risk Assessment (HRA) improperly averages annual exposure to toxic air contaminants. Although the calculations were not provided in the DEIR’s appendix, Dr. Damian requested and received the backup data for the exposure calculations. He discovered, to his surprise, that annual average exposure levels over an individual’s presumed 70-year life assumed that the Quarry would shut down after 17 years and emit zero toxic air contaminants upon shutdown. In other words, the HRA averaged 17 years of substantial exposure to toxic air contaminants with 53 years of zero exposure. This is improper, and understates an individual’s exposure by more than 4-fold.
- Health Risk Calculations Systematically Understate Risk. The DEIR’s health risk assessment systematically and substantially understates the Quarry’s health risks to individuals (in addition to the averaging error discussed above). For example, one variable in the calculation estimating toxic air contaminants requires inputting the number of wheels on the trucks transporting materials from the Quarry (the more wheels, the greater the emissions). The calculation assumed that Quarry trucks have 6 wheels. Virtually all of them in fact have 18. Dr. Damian describes many other examples of risk understatement, and could find no significant example of risk overstatement.
- 2001 Study Ignored. The DEIR summarizes the results of site-specific air quality monitoring tests performed by Sonoma Technologies, Inc. (STI) in 2004 and 2005, which failed to pick up much PM-10 material at all, and went on to conclude that, generally, Quarry air is cleaner than non-Quarry air. These testing results are inconsistent with the DEIR’s air quality modeling predictions and with residents’ widely documented experience with the fine, gray dust that settles on their properties The DEIR ignores the results of a County-commissioned study performed by Onsite Environmental Laboratories, Inc., which was finalized in a report dated March 15, 2001, and which was pointed out in our Initial Study comment letter. That report found loads of excessive PM-10 and PM-2.5 material. It would have been prudent and sensible, at a minimum, for the DEIR to have made some attempt to reconcile these studies.
- Enclosure Alternative. The DEIR considers no fundamental changes to the Quarry’s operations that would substantially reduce the emission rates of C-silica. The most obvious change would be the enclosure of the most offensive aspects of the operation, such as the barge loading operation and the rock crushers. We encourage you to read an article from Pit & Quarry, April 1, 2008. The Quarry has historically resisted making substantial capital investments that would make their operation more tolerable to nearby residents, asserting that such measures would be too costly. They instead take credit for modest operational changes, such as increased watering of trucks, encouragement of truck tarping and an improved sweeper. Though these measures may be modestly helpful, they do not come close to making the Quarry a “best practices” operation. The EIR should conduct a best practices study on how quarries have dealt with residential encroachment, beginning with the South Dakota quarry featured in the Pit & Quarry article described above.
- No Continuous Monitoring of Air Quality. The DEIR provides for no continuous independent monitoring of toxic air contaminants, an obvious mitigation step.
Noise and Vibration
Noise and blast vibration from the Quarry is a well-documented problem, and the Coalition made several comments on noise and vibration in our April 14, 2008 submission. Again, the DEIR seems to give little weight to this issue of serious concern to those living in neighboring homes.
We have repeatedly urged the County to measure blast vibration on homes themselves, and not simply measure the ground effect of the blast. The blast effect on a structure is potentially much greater than the effect on the ground, and the DEIR is seriously flawed when it considers only ground effects.
More generally, the DEIR fails to consider a number of sensible, practical steps that the Quarry can take to mitigate significantly the noise effects on residents, such as reducing maximum truck speed, rubberizing the asphalt on Pt. San Pedro Road, spacing out the trucks more than is currently required, reducing the amount of explosives used so as to lighten the effects of blasting on nearby homes and requiring that more material be barged out of the Quarry site in order to reduce truck trips.
Transportation and Traffic
Related to the Baseline Determination discussion above, and an issue that greatly impacts the noise problem, is the number of truck trips allowed to and from the Quarry each day. (For this discussion, a truck coming into and leaving the Quarry is a single truck trip.) The DEIR greatly underestimated the 1982 baseline for truck trips.
The DEIR makes no serious attempt to determine the number of daily truck trips in 1982, and merely adopts what is effectively a guesstimate by the same County Planning Department employee mentioned before. Evidence in the form of court testimony suggests that this employee greatly understated the percentage of Quarry material shipped by barge, with the result being that the percentage shipped by truck is overstated.
The final EIR should address this issue, and come to a far more supportable basis for estimating 1982 truck trips for the purpose of establishing an EIR baseline.
Regarding baseline production levels, which directly impact baseline truck trips, the DEIR arrives at a 1982 estimated production average by averaging 1980 through 1982 production levels. However, failing to include 1979’s production figures in the calculation results in a 15% higher average. There is no good reason to ignore 1979.
A full review of the Merrill report (discussed in the Baseline Determination section), relevant court testimony, and a reasonable application of this informatio, would support truck traffic levels of only about half the 120 truck trips that the DEIR assumes is the baseline.
No. We are however, seeking to ensure that the Quarry operates within the constraints imposed by its existence as a legal nonconforming business.
If you could copy your complaint and paste it into the Message field of the Quarry Committee’s Contact Form, that would be appreciated so we can keep track. If you mail your complaint, please send us a copy at our mailing address.