CEMEX Fights For Its Life

CEMEX is fighting on two fronts to continue mining in Tulare County. The first front is defending itself against allegations that it violated its conditional use permit. If found guilty, the company could lose its permit to mine gravel at Stillwell Mine in Lemon Cove.

On the second front, it is in danger of the Tulare County Board of Supervisors (TCBOS) declaring Stillwell Mine abandoned. CEMEX’ Stillwell Mine has been out of production for more than the allotted time allowed by its permit, and its consultants submitted a deficient Interim Management Plan (IMP) that was initially rejected by the Resource Management Agency (RMA). CEMEX has 30 days from the rejection letter to respond.

Public Hearing on Permit Violations

CEMEX Stillwell Project in Lemon Cove
CEMEX Stillwell Project in Lemon Cove

A public hearing will be held by the Tulare County Planning Commission in early December to address possible violations of CEMEX’ permit. Public response was to be submitted by September 30, and the hearing to take place no later than November, but it was delayed due to a request from CEMEX to collect more data. Public comment on all issues related to the Stillwell Mine and the Lemon Cove Facility, both operated by CEMEX, were accepted until October 31 and included in the peer review currently being put together by RMA Director Mike Spata.

CEMEX requested more time to collect the information being recorded on the dataloggers placed in domestic wells that line the east side of the Stillwell Mine. The dataloggers track the depth and quality of the groundwater in domestic wells around the mine. Residential wells began going dry late last year, when, in violation of their mining permit, CEMEX stopped pumping water from their ponds into the recharge or V-trench. Farmers who live near the Lemon Cove Facility, about a mile away, are having similar problems with their wells and struggle to irrigate their citrus groves.

Condition number 49 of CEMEX’ mining permit states that, “The project shall not affect the water level, yield or quality of any well.” Ironically, the dataloggers installed into residents’ wells in late August will be the definitive proof that CEMEX broke this condition. Information gleaned from the dataloggers shows that when CEMEX keeps the V-trench filled, residents’ wells return to normal; when they don’t, the wells go dry.

Yet in a hydrology report commissioned by CEMEX last February, the geohydrologist blamed the drought for the wells next to the Stillwell Mine going dry. In a peer review done by Tully and Young five months later, and commissioned by Tulare County’s RMA, CEMEX was found to be the culprit for the wells going dry. The peer review and public hearing in December will be the final judge whether the wells went dry because of the drought or because CEMEX stopped filling the recharge trench.
Notice of the Planning Commission’s Public Hearing will be given at least ten days in advance. All are welcome and encouraged to attend.

Stillwell Mine Might be Declared Abandoned

It was recently disclosed that CEMEX had stopped production at the Stillwell Mine on May 17, 2013. Until this October, Lemon Cove residents and neighbors were left to guess about the status of the mine. Because CEMEX stopped mining, it was required to submit an IMP by August 15, 2014 to prevent the county from declaring the mine abandoned. On exactly August 15, Benchmark Resources, a consulting company hired by CEMEX, submitted what Spata referred to as a draft IMP document. Despite the rules stating that CEMEX’ IMP should have already been pending in front of the TCBOS, the multinational did hand in something with “IMP” in the title. That sufficed to forestall the county from declaring the mine abandoned.

For a mine to be considered idle, three conditions must be met: 1) Production is curtailed in the last year of operation by 90% of the mine’s most productive year; 2) An IMP must be submitted by one year and 90 days after the last day of production; and 3) The operator intends to resume operations.

Spata reviewed Benchmark Resource’s 246-page document, containing missing and incorrect data, then cited three major reasons why RMA was rejecting CEMEX’ IMP. In Spata’s response letter, he stated that the appropriate application was not filled out and Benchmark did not pay the application fees. Secondly, CEMEX extracted more gravel than allowed in 2013 to be considered idle. Lastly, CEMEX did not provide a plan for maintaining residents’ water levels in their wells while the mine was idle. Benchmark has until November 13 to respond.

Knowing Spata wouldn’t tell me, I asked his opinion on the quality of Benchmark Resources’ document. “I can’t comment on the quality of the IMP. But we stated in our letter that it was deficient.”

Though hurriedly put together and of questionable quality, two glaring reasons stand out why CEMEX bothered to even submit an IMP. One was to attempt to circumvent the conditions of its mining permit. A second was to avoid the cost of reclamation.
CEMEX declared its intent in the IMP to resume mining at Stillwell. It won’t give a date, but says that the plan outlined in their IMP covers the initial five years allowed. A subsequent five-year extension may be requested by CEMEX, which would extend the idle designation until 2024.

Those living at ground zero are very skeptical that CEMEX will resume production again. In 2002, local mining experts looked at the Stillwell property and didn’t think there was enough gravel to be worth the effort in the first place. According to Tom Cairns, owner of a small mining operation in Lemon Cove, the last load of gravel out of Stillwell in May of 2013 only had 20% usable gravel.

If TCBOS declares the mine abandoned, CEMEX must start reclamation immediately–and that could cost hundreds of thousands of dollars. Not so, according to their Financial Assurances document. CEMEX claims in this document that reclamation will only cost $52,588.78. But that’s just Starbucks money for a corporation like CEMEX, and won’t even come close to making the property whole again.

I’m not an expert on gravel mining, so I don’t know how it is to their advantage to stretch Stillwell out 10 years–but CEMEX knows, and obviously has a plan.

Another reason CEMEX submitted an IMP was to get out of playing by the rules. Benchmark Resources wrote in their report, “The use permit includes 93 conditions of approval (COA). No COA’s apply to the site maintenance during idle periods.” Spata’s response to Benchmark’s assertions was a bit of a verbal smack down. He corrected the consultants by saying that, yes, in fact, CEMEX does have to comply with all of the Conditions of Approval, even when idle, as stated in California law, and as stated in its reclamation plan.

Benchmark Resources’ justification for idling Stillwell is the supposed reduced demand for construction aggregates. But according to the Business Journal, “Northern Tulare County was shown to have….27 million tons of permitted reserves. That represents 22% of the area’s 50-year demand of 124 million tons.” Claiming that the demand for aggregate materials has gone down, when Tulare County can only supply 22% of their need, might be a false pretence to idle/shutdown the mine without having to pay for reclamation.

The Document

When Spata’s only comment was that CEMEX’ IMP was “deficient,” he was being overly kind. Out of their 246-page document, approximately three pages were devoted to talking about its actual plan for the mine while idle. The tome did have an unintelligible table of contents, appendices A and B, tables, exhibits, irrelevant pictures of an old labor camp that has nothing to do with the mine, many duplicate maps, all with inaccurate boundary lines, and 86 pages printed straight from CA.Gov of prevailing wages and the price of equipment rentals. After reading through the document, I couldn’t tell you precisely what CEMEX’ plan was, but I could tell you that in 2008 the prevailing wage in Marin County was $10.12 an hour.

It’s important to point out the incestuous relationship between all the players involved with the Stillwell Mine, the Lemon Cove facility, and all the so-called independent professional firms CEMEX hires. EMKO Environmental, which did the original peer review, Resource Design, which wrote the reclamation plan, Mitchell Chadwick, the law firm, and Benchmark Resources, are all in bed with CEMEX–and with each other. The lawyer’s and consultant’s slick websites and big titles all give an air of impartiality and independence. But the Mexican-owned cement company says they “retain” each firms’ services. These firms are not hired to be impartial nor to aid the multinational in complying with the conditions of their permit. They are hired and paid to say what CEMEX tells them to say.

Residents’ Wells Returning to Normal? Yes and No

A recent letter from CEMEX’ lawyer to Spata states, “…as you know, CEMEX started filling the V-ditch starting September 2nd.” The letter goes on to say that one of the problems with filling the ditch is its porous material. But that doesn’t explain why it has taken two months. And if it does take two months or more, then CEMEX should never let the trenches go dry.

The Mortons, who own the first house to benefit from the V-ditch, got water in mid-October. Their well water level rose from 16.5 feet down to their pre-Stillwell level of 5 feet. They can now take showers and do laundry like any normal household. Elias Rodriguez’ well just returned to pre-Stillwell Mine levels during the last week of October, nearly two months after CEMEX tried to fill the V-trench. Their well went dry late December 2013, and for almost a year Rodriguez had to haul large containers of water to his house just to cover the bare minimum of his family’s needs. The two other homes, those of Josh Packard and Mary and Oroville Cloud, still do not have water.

In accordance with their permit, CEMEX is required to keep the V-trench full whether mining or not. When CEMEX stopped pumping water from the pits it created while mining to the recharge trench, it caused significant financial damage to the four families whose wells went dry as a result. Not only was it a financial and emotional burden on the families, but their homes lost all value. Rob Morton bought a home six years ago with a beautiful view and one of the most reliable wells in California. CEMEX changed everything and now the Mortons have neither. (An article in Valley Voice’s next issue will list the financial expenses and the lost value in their homes.)

The Tulare County Farm Bureau wrote a blistering critique of CEMEX that touched upon the idea of compensation. “We believe CEMEX should be accountable for the damages done to people and property near the Stillwell plant site operations, and be compelled to make them whole. Slanderous comments made by legal representation of the mining operation towards neighbors and their properties should be discontinued and the record corrected to the extent it contains falsehoods.”
I asked Cairns, who was himself slandered by CEMEX’ lawyers, what he thought the chances of an apology were. “I’m not holding my breath,” he said.

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