A Clark County hearings examiner will soon issue a final decision regarding alleged code violations at a Washougal rock mining operation, in a case Friends of the Columbia Gorge representatives have said is “perhaps the largest ongoing land-use violation ever in the Columbia River Gorge.”
At issue is the legality of a rock quarry located off Southeast 356th Avenue in Washougal and within the Columbia River Gorge National Scenic Area. Owned by Judith Zimmerly, of Ridgefield, the quarry is currently being mined by the Vancouver-based Nutter Corporation.
In late March, the county’s code enforcement office issued a cease-and-desist order to Zimmerly and Jerry Nutter, of the Nutter Corporation, outlining violations that included the owner’s and operator’s failures to obtain site plan approval for surface mining and maintain Columbia River Gorge Commission approval for a mining operation.
“You are hereby ordered to cease all mining activities within 10 days from the date of this notice and order,” stated the March 29 letter signed by Clark County Code Enforcement Coordinator Kevin Pridemore and then-director of the county’s community development, Marty Snell.
Two months prior to this, in January 2018, Snell had sent another notice, warning Zimmerly and Nutter that his office had concluded the mine had “no valid (Gorge Commission) permit to operate the quarry and … no conditional use permit to allow rock crushing or other activities within the quarry.”
The only valid permit seemed to be, according to Snell, a DNR permit for reclamation issued in 2007.
“If you wish to pursue the legal operation of mining in this quarry, my office will provide you with assistance regarding the applications and the permitting process,” Snell stated in his letter dated Jan. 24, 2018.
Neighbors living near the mine, as well as Nathan Baker, the senior attorney for the Friends of the Columbia Gorge group, say the mine owner and operators have not obeyed the county’s orders.
“Four times over the past year, the county has notified them that they are illegally mining,” Baker told The Post-Record on July 20, just one day after a truck driver hauling mining material away from the Washougal quarry lost brake control while crossing Evergreen Highway and crashed onto Burlington Northern Santa Fe railroad tracks, disrupting train traffic throughout the evening of July 19.
“The incident yesterday was a perfect example of how dangerous the (mine’s) truck traffic is,” Baker said. “There is a hill there, so it is inherently dangerous for trucks going downhill … and neighbors say trucks are violating the posted 10 miles per hour speed limit.”
Baker said there are about 200 trucks a day coming through the area, en route to and from the rock quarry.
Neighbors: truck traffic disrupting quality of life
Several Washougal residents who live near the quarry submitted declarations to the hearings examiner saying the trucks have made life difficult in their neighborhood.
Rachel Grice lives halfway up Southeast 356th Avenue, between the quarry and Evergreen Highway. She and her family, which includes the Grice’s four homeschooled children, ages 8 to 12, moved to the property in February.
Although she was aware that the quarry was up the road from her family’s new house when they bought the property, Grice said she understood the mine rarely operated and was not legally permitted to do the type of work happening today.
Within two months of their move, however, the Grices realized operations at the rock quarry had unexpectedly kicked into high gear. Since mid-April, Grice says, trucks coming to and from the quarry have gone past her house all day, starting around 6:45 a.m. and ending after 6 p.m., Monday through Saturday.
“Sadly, we no longer have nice, quiet days, except for Sundays,” Grice stated in her declaration to the hearings examiner. “Six days a week we have to deal with a noise nightmare.”
She said some of the trucks’ brakes are so loud her family can hear the noise inside their home, through closed windows.
“(The noise) routinely wakes up my family each morning,” Grice stated, adding dust from the trucks has “completely coated” her home and vehicles.
“Although Nutter has recently been trying to control the dust by watering the road, that is a trade off, because the water trucks themselves introduce another obnoxious amount of noise.”
In an interview with The Post-Record on July 24, a few days after the truck accident, Grice said truck traffic has slowed slightly since the incident, but that trucks are still routinely rolling through her neighborhood.
“They’re all nice people,” Grice said of the drivers coming to and from the mine. “But certain trucks have squeaky brakes and they’re just really loud. The volume and dust are the biggest problems.”
Grice said she would love to open her children’s bedroom windows at night, to help cool the house — especially during this month’s heat wave — but she fears the truck noise would wake her young children too early in the morning.
Even if the county hearings examiner decides the quarry is operating legally, Grice said she believes a company gaining profits from a site within the national scenic area should have to conform to the same stringent development, environmental and noise/sight pollution requirements homeowners like herself abide by.
“We knew that, as property owners living in the national scenic area, we would have to get everything permitted and that it would take longer, and cost more,” Grice said. “I think it’s only right that a company making money from (the quarry site) follow the same rules.”
If the Nutter Corporation continues to mine the site, Grice said she hopes the company’s leaders can come to a more reasonable arrangement for the sake of the nearby property owners, perhaps limiting truck traffic to weekdays only and between the hours of 7:30 a.m. and 5 p.m.
“It’s an active mine, but I think being aware of the number of trucks and limiting the days to five days a week, starting after 7:30, would help,” she said.
Jody and Paul Akers have lived in the Columbia River Gorge National Scenic Area since 1997. Their home is the closest to the Washougal rock quarry.
“There was no mining on the Zimmerly property for many years in a row until mining resumed in 2017,” Jody stated in her declaration to the hearings examiner. “The noise level is so horrible … lately, this noise is constant, all day long. The posted speed limit on Southeast 356th Avenue is 10 miles per hour. Less than half of the gravel trucks comply with this speed limit (and) 356th Avenue has become unsafe to walk along because of the heavy gravel truck traffic.”
Friends worry about ‘environmental disaster’ repeat
Baker said the Friends have found several issues and violations related to the mining operations.
“The biggest issue is safety from the truck traffic,” Baker said. “Families won’t even let their kids walk on their road because it’s so dangerous.”
He added that the Friends have heard stories about near-accidents at the state Route 14 (SR-14) and Evergreen Highway intersection due to the double-load trucks, and pointed to the July 19 crash as an example of the dangers.
“There was a similar incident back in the ’80s, when a truck (from the mine) driving down 356th went off the road and almost crashed into the southernmost house on the west side,” Baker said.
The Friends’ second concern is connected to nearby Gibbons Creek and the Steigerwald wildlife refuge.
“There was a major environmental disaster at this site 20 years ago,” Baker said. “The Zimmerly family created ditches on the site, and during multiple high-rain events, the settling ponds overflowed millions of gallons of sediment-laden runoff … into Gibbons Creek and Steigerwald.”
The Washington Department of Ecology fined the mine’s owners and operators close to $200,000 for the violation, and Baker said operations at the Washougal rock quarry died down after that.
“There were probably five companies that leased (the mine) between 1997 and 2017, but most didn’t do any mining,” Baker said, adding that mining operations restarted in 2017, after the Nutter Corporation took over the lease.
“The second most concerning impact is the potential for another serious discharge into either Gibbons Creek or Steigerwald,” Baker said. “It’s not so much of an issue right now, but once the rain starts up again, it could be an issue.”
The Friends’ attorney said the gorge protection group also is concerned about the mine’s dust, noise and scenic impacts.
Attorneys argue rock mine is permitted, legal
At the county’s code enforcement appeal hearings in late June and again last week, attorneys for the Zimmerly family and the Nutter Corporation argued the mine is operating under a perfectly legal permit, first granted in 1972.
At code enforcement appeal hearings held June 28 and July 17, Clark County Hearings Examiner Joe Turner heard arguments from Clark County Deputy Prosecuting Attorney Bill Richardson as well as attorney Jamie Howsley, representing the Zimmerly family, and Steven Horenstein, representing the Nutter Corporation.
Totalling nearly six hours in length, the two hearings set up one main question for Turner to decide: Is the Washougal rock quarry operating legally?
Richardson argued the mine may have started out with a valid permit, but didn’t have one now due to periods of inoperation.
Pointing to several years’ worth of documents owner Judith Zimmerly presented to the state’s Department of Natural Resources (DNR) stating that there was no mining activity at the site as well as reports from DNR inspectors stating the site had been dormant with “significant overgrowth of noxious weeds,” Richardson said the mine had clearly not been in operation for at least a year, and was not in operation for the five years preceding the creation of the National Scenic Area Management Plan in the early 1990s, and therefore was not, Richardson argued, “grandfathered in” under its 1972 permit.
“We argue that they may have had a valid permit before, but they don’t have one now,” Richardson told Turner at the hearing.
Howsley and Horenstein said that argument was too narrow and not taking into account all of the other mining-related activities occurring on the site in between the active hauling operations occurring throughout 2017.
Howsley said Zimmerly was “flabbergasted and perplexed” after hearing Richardson describe her rock quarry as “a non-regulated site” during the June 28 hearing.
“That is not true,” Howsley said, pointing to the mine’s original DNR approved 1972 permit as well as several other plans and inspections conducted by state and regional agencies that regulate such things as air quality, stormwater and scales at Washington State mining sites. “It’s really disingenuous for the county to state that.”
Howsley and Horenstein argued that, under Washington law, the county would have to prove the mine owner had intent to abandon the mine. They say Zimmerly has never shown any overt signs of abandoning the Washougal rock quarry. Instead, they argued, the mine owner and various operators have been active at the site, even if they were not actively crushing and hauling rock due to economic factors.
Horenstein said the mine has been active, but that its activity was not as visible to the public before the trucks started hauling material in 2017.
“Mining activity is a lot more (than) just trucks running up and down the road carrying mining (material),” Horenstein said.
Turner said he hoped to have a decision within two weeks of July 19.
“This decision would be the county’s final decision, and we’re hoping he clarifies the county’s decision (that the mine is operating illegally),” Baker said.
Of course, Turner’s decision may not be the last chapter in this story.
“After the county’s decision, there are any number of appeals that could be filed,” Baker said, explaining that the mine’s owner and operators face not just the county’s code enforcement battles but also the alleged violations involving the national scenic area ordinances.
The Post-Record had not heard back from Jerry Nutter and was unable to reach the mine’s owner, Judith Zimmerly, by this publication’s deadline.