Christmas in Ojai from Daly Road Graphics
On February 1, 2008 "Stop the Trucks," filed the following formal complaint against the Ozena Mine with the head of the Ventura County Planning Division, Kim Rodriguez:
Please consider this letter on behalf of Ojai residents, John Broesamle, Howard Smith and the “Stop the Trucks” coalition a formal request to re-open the investigation of possible C.U.P violations on August 14, 2007 in the operation of gravel trucks in conjunction with the Ozena Valley Sand and Gravel Mine.
The Ojai “Stop the Trucks Coalition is comprised of the City of Ojai; Forestwatch; the Ojai Valley Chamber of Commerce; the Ojai Valley School District; the Ojai Valley Board of Realtors; and many hundreds of private citizens.
In your September 27, 2007 letter to Howard Smith (prepared by Pat Richards) and your January 8, 2008 letter to John Broesamle, the department denies both complaints of early morning and late afternoon CUP truck violations by citing the weigh tickets provided to the Planning Department by Ozena.
After an extensive forensic study of the weigh tickets turned over to the Planning Division by the agent for Ozena, John Hecht of West Coast Environmental & Engineering, “Stop the Trucks,” now firmly believes that the use of self-prepared weigh tickets, which appear to be the sole tool used by the division to monitor truck traffic, is not valid. It is a method in which the results can seemingly be manipulated at will by the mine operator; and/or the weigh master; the trucking contractor; and/or their designated drivers; and may result in fraud or misrepresentation of the facts. Clearly they fail the test as the evidentiary basis for any claims, pro or con.
Details of our review are in the “Analysis” provided both below and attached separately.
In your letter to “Stop the Trucks” on January 17, 2008, you declared that the Planning Division will enforce Condition 72 (Days and Hours of Operation) using a strict and literal reading of the conditions and that if Ozena was in regular and routine violation of the CUP that the Division would take appropriate action against the mine, beginning with a hearing before the Planning Commission to either modify, suspend, or revoke the permit for cause. If corrective action were not taken it is unlikely that the Planning dependent staff would recommend approval of the CUP Modification Request #2 that is currently under review by Division to the Planning Commission.
As part of this request, “Stop the Trucks,” is asking that:
1) Based on this analysis and prior to any Planning Division EIR of Modification #2, there should be a thorough, open and public investigation of whether or not Ozena has in fact complied with the existing CUP conditions.
2) The review should include at a minimum 2 continuous months worth of weigh tickets and billing records for the same time period. Preferably these tickets should be from July and August of 2007 and should specifically include the days immediately before and after the August 14th Complaints. Although we have raised serious questions about the credibility of the weigh tickets, obtaining two months worth along with financial data such as billing records for the same time period should enable a credible analyst to determine if in fact there was true compliance.
3) If in fact the operators are found to be out of compliance, proceedings should be initiated to immediately suspend their current permit and deny their request for Modification #2 and the Aquaculture CUP.
Additionally:
4) Given the recent death of Mike Virgilio, there should be a review by Planning Division staff and County Counsel, if needed, to assess the “Authority” of anyone who purports to represent Ozena. If testamentary documentation is found lacking, the permits should be denied. (Stephen Virgilo, Mike's son and a possible heir is now serving time in a Federal Prison)
5) There should be a review in conjunction with California Fish and Game to determine compliance with that agreement and again, if found lacking all permits should be terminated and/or denied.
“Stop the Trucks” salutes you and Pat Richards as well as the entire Planning Division for being courageous enough to stand up to this assault on the CUP.
The “Stop the Trucks” Coalition is prepared to take whatever steps are necessary, including legal action to insure that a full review as noted above occurs as soon as possible and prior to any other consideration of the Ozena permits.
Executive Summary:
Over the past few weeks we have received and reviewed numerous documents and reports relating to the Ozena Valley Mine Project that have a direct bearing on the viability and legal status of this C.U.P.
This analysis is aimed at giving a preliminary overview of the entire project as it impacts the citizens of the Ojai Valley.
It is the belief of this author based on the analysis that follows that the Ozena Valley Mine has been in repeated and regular non-compliance with the existing C.U.P. and that the documentation previously used to assess compliance fails to meet any legal standard of sufficiency.
This analysis concludes that based on this preliminary review there appears to be good cause to terminate the existing C.U.P. and deny the application for a further modification.
What we find is numerous inconsistencies in many of the following, including: 1) The application for a project modification; 2) The manner in which the Ozena Mine operators have interpreted the existing regulations and guidelines; 3) The manner in which the Ozena operators report compliance with those guidelines; 4) The documentation alleging compliance that has been provided to the Ventura County Planning Division; 5) And the analysis of that documentation provided by the mine operator in regards compliance.
There is also a question about ownership rights: 6) Does the current applicant, Tony Virgilio, have the legal right to make this application due to the death of the purported owner of the land and mine, Mike Virgilio. As of February 11, 2008, no one at the Planning Division had seen any legal documents indicating who might be the rightful heirs to the land to which the CUP is attached.
Without proper documentation there is no way to know who rightfully speaks for the new owner(s) and that owner(s) could theoretically be anyone, from the proverbial “Aunt Tilley in Topeka,” to Mike’s son, Stephen. Stephen Virgilio was arrested last year after an ATF raid on his father’s gun stores in Compton and Oak View on a federal criminal complaint that alleges Stephen sold firearms and ammunition to straw buyers who were purchasing the weapons on behalf of convicted felons and other prohibited persons.
Our legal consultants are of the opinion that the Planning Division should cease all communications with anyone who purports to represent the mine operation until such time as their legal authority to do so is established and properly confirmed in writing.
7) Has the applicant, who is also proposing to excavate a new pond, effectively tripling the size of their mining operation as part of an Aquaculture CUP, complied with both the existing 2005 agreement with the California Department of Fish and Game and the terms of the CUP? According to Natasha Lohmus of that department in a January 22, 2008 email, “We are going to go over the reveg plan and why they did not comply last year.”
A list of all the documents reviewed and/or referenced is at the end of this analysis.
Analysis:
In Kim Rodriguez’s response letter of January 17, 2008 to Scott Eicher of “Stop the Trucks,” she makes several key declarations and acknowledgements. First that although there was some past confusion among department staff as to the interpretation of the hours listed in the 2003 CUP Modification #1 of 2003, the Planning Division has determined that Condition 72 (Days and Hours of Operation) will be enforced using a strict and literal reading of the conditions which prohibit “All Project Related Travel on Highway 33 between Casitas Springs and the City of Ojai on weekdays at any time other than 6:00am to 7:00 am and 9:00 am to 3:00 pm and Saturdays from 6:00 am to 5:00 pm.
Ms. Rodriguez goes on further to indicate that if Ozena was in regular and routine violation of the CUP that the Department would take appropriate action against the mine, beginning with a hearing before the Planning Commission to either modify, suspend, or revoke the permit for cause. If corrective action were not taken it is unlikely that the Planning dependent staff would recommend approval of the CUP Modification Request to the Planning Commission.
The Planning Division implements reasonable and feasible conditions that can be enforced and uses techniques that are considered the best to fulfill that objective.
In Ms. Rodriguez’s September 27th letter to Howard Smith (prepared by Pat Richards) the department denies Mr. Smith’s complaint (and that of John Broesamle) of early morning and late afternoon CUP truck violations by citing the weigh tickets provided to the Planning Department by Ozena.
Weigh tickets, created and distributed by the mine operators appear to be the sole tool used by the department to monitor truck traffic.
The real question then is simply this: Are the weigh tickets a valid and reliable tool for this purpose?
After an analysis of the weigh tickets found in the Division’s Ozena Complaint File, we believe the use of self-prepared weigh tickets is not valid. It is a method in which the results seemingly can be manipulated at will by the mine operator and may result in fraud or misrepresentation of the facts.
For example: For August 14th, John Hecht of West Coast Environmental & Engineering working on behalf of the applicant provided the department with a list of 11 trips and their respective weigh tickets.
(It should be noted that Hecht and West Coast also prepared all the analysis of the Troesh Diamond Rock Mine Proposal in Santa Barbara.)
The first three tickets, items 11118, 11119 and 11120 had punch clock times indicating that all three 80,000 pound double hopper gravel trucks were: 1) All weighed empty; 2) Filled manually by a skip loader; 3) And then weighed again with in three minutes of each other. Even a casual observer would probably conclude this is a physical impossibility.
4) Also, the amount of gravel loaded in 11118 and 11119 was in both cases, exactly 57,540 pounds. Getting a skip loader to fill twin hoppers on two separate trucks down to the identical pound is also probably a physical impossibility.
5) In the afternoon we have the same issue with two trucks, tickets 11127 and 11128. Both had punch clock times indicating that both 80,000 pound double hopper gravel trucks were weighed empty; filled manually by a skip loader and then weighed again with in two minutes of each other. Both come up with an identical gross weight to the very pound, 80,000 each. Again the odds of this occurring are virtually impossible, especially given that one truck was supposedly loaded with 3/8ths gravel and the other with 1” rock.
6) On ticket 11122 we have the weights being “Hand Written” in instead of being punch stamped as on the other ten tickets.
7) It appears then that the information on these weigh tickets can be manipulated at will by the mine operator. Clearly they fail the test as the evidentiary basis for any claims, pro or con.
8) Furthermore, we have no evidence that these were all the tickets for that day. In his cover letter to Pat Richards, Mr. Hecht carefully parses his words to say “…please find attached weigh tickets from August 14, 2007.” Although Hecht then claims that all of the trips for the tickets he did enclose fall within the approved hours of operation, he makes no claim that these were the only tickets for that day.
9) We have no evidence from the day before or the day after to review the sequence of numbers and no way of confirming that these 11 trips were the only ones on August 14th.
10) Finally, a reasonable person might conclude that there is no way the Planning Division could have adequately determined whether the observations that Mr. Broesamle and Mr. Smith independently made that day were correct or not.
11) Despite the fact that the gravel truck issue is a highly contentious one, the dismissal of the complaints by two highly respected citizens was clearly unfounded and casts aspersion on their respective characters.
12) Given that the very fate of the Ozena permit and renewal rests in part upon the question of whether or not there are in violation of their existing CUP, the use of highly suspect weigh tickets is not only debatable but fails to meet any reasonable legal standard.
13) Concerns about the Ozena operation were previously raised by Howard Smith in his June letter to Chief Deputy DA Jeffrey Bennett when he asked for an investigation into possible criminal behavior.
In his response to Mr. Smith’s complaint, DA Bennett took the same position that Ms. Rodriguez stated above, that the schedule in item 72 was to be interpreted strictly. Trucks outside the stated times would clearly be in violation.
14) Although County officials have been rather clear about this to date, it appears from various correspondence and permit applications that Ozena continues to interpret these rules differently, so differently in fact that they may well have been operating in regular and continuous violation of the CUP all along.
15) Again, let’s go back to the weigh tickets of August 14, 2007. In his analysis of John Hecht’s letter of September 11, 2007, and the accompanying 11 weigh tickets, Mr. Richards astutely notices that four of the 11 trips that day (36% of the trips) likely had to pass through Ojai either coming or going to the mine during restricted hours.
(Again, think about this, 36% of the trips on a day when supposedly only 11 trips were made and documented, were in possible violation.)
This is in addition to the five truck trips going north that day between 3 am and 5 am, and the three truck trips witnessed that afternoon by Mr. Smith; and the two double hopper trucks witnessed by Mr. Broesamle near the mine between 3:30 am and 6:30 am on the 14th.
Mr. Richards writes to Mr. Hecht and asks for an explanation.
16) Mr. Hecht’s response of October 10, 2007, is not only enlightening into the thinking of the Ozena operators, he also lays the ground work for the proposals in the recently received CUP Modification Request #2 that essentially dismisses the existing guidelines. His remarks can only been seen as misguided and in clear violation of Condition #72.
16-a) In his first paragraph, Mr. Hecht asserts that in regards Condition 72, that he believes that the only conditions imposed are “are directional. (i.e. traffic is only restricted southbound between 7 and 9 in the morning and northbound after 3 pm.)
Hecht goes on in his next paragraph to assert this “directional” defense for both the possible morning and afternoon trips.
16-b) In the CUP Modification #2 that was just received, Hecht guts the old Condition #72 and replaces it with his “directional” language, which he describes as merely a “clarification.”
16-c) In his second defense of these probable violations, he also repeats another canard, that Ozena has no control over the truckers who come to the mine – this despite that fact that elsewhere Ozena acknowledges that most of its regular daily deliveries are transported by either Valley Bulk trucks to the batch plant in Oxnard or by Swader Trucking for local Ojai delivers. Given that these are regular ongoing contracts, it stretches credibility to say any business can not influence the firms that come and deliver it’s product on a daily basis for what is now almost seven straight years.
The applicant even directly contradicts himself and goes so far as to assert control over trucks when he states in Condition #5.1 of the Modification #2: “Therefore, the Applicant is proposing to limit AM deliveries through Ojai such that no more than 8 trucks will be loaded during that time that will pass through the Ojai Valley to the south. All trucks passing through Ojai during this time will be of a recent model year with low noise characteristics.”
16-d) In his third defense of Ozena’s possible violations, Hecht then, incredulously attempts to cite Google Maps as a source for the length of time it takes for an 80,000 double hopper gravel truck to travel the 46+ miles from the mine to the end of Casitas Springs (the restricted zone). Hecht uses a time of 1 hour and 11 minutes; which ignores the fact that you have huge trucks coming down a mountain road with over a dozen hairpin turns followed by heavy traffic and stop lights in the Ojai Valley itself.
This contradicts an internal Planning Division memo of January 25th, 2007 in which a member of the Planning Division actually drove up and down the mountain in a car – not a fully loaded truck – and ascertained that it would require a minimum of one hour and 30 minutes to make that same trip. The time differences are significant as it would have put those last two trips of August 14th in the Ojai Valley during restricted times – and that’s presuming the weigh tickets were accurate, a fact we can clearly no longer take for granted. Those may well have been the trips spotted that day by Mr. Smith.
16-e) That same memo of January 25th also notes that Tony Virgilio contracts with “Valley Bulk” to ship to a batch plant in Oxnard daily and that Valley Bulk typically assigns between 3 and 5 trucks to make THREE round trips between Ozena and Oxnard every day.
Do the math: If the run from Casitas Spring to Oxnard is another half hour, then one could safely calculate that travel alone one way from Ozena to the mine takes in excess of two hours with round trips taking four hours. Three trips a day per truck equates to 12 hours per day per truck and that does not include time to load, unload, lunch, refueling or even bathroom breaks. There is no way Ozena can legally be doing this day in and day out for many years without having trucks violating the restricted hours, which come to only seven per day.
16-f) Hecht’s fourth defense is to then claim that the Planning Department staff have agreed and approved his interpretation of his first defense, that of directional limits only. He tries to bolster this claim by citing “verbal concurrence from staff” and work on an early draft of the CUP Modification #2 that were discussed but – importantly – never approved that would have allowed trucks to travel north in violation of Condition #72.
16-g) Hecht’s fifth defense is also somewhat specious. He claims that when the mine was cited for violations in 2006, they were not cited for all the violations they had in fact incurred – which is a bit like a criminal committing “Assault and Battery” while committing a “Robbery” but only being charged for “Robbery” and acting as if laws against “Assault and Battery” no longer apply to him in the future.
16-h) Last but most important of all is Hecht’s sixth defense and here in lies the crux of the entire matter. He states in that October letter, “The applicant has relied on the county’s staff’s previous actions and interpretations in operating the project. If staff positions on Condition 72 changes and the limitations become absolute and bi-directional, it will severely harm the applicant and render this project un-economic.”
Conclusions & Action Steps:
A) Not only is Ozena trying to shift blame onto the department for any possible non-compliance, they have clearly put themselves in a double bind:
B) If Ozena has been running a successful and economically viable operation for seven years without violating the terms of the CUP, there is no need for them to expand the scope of their operations or change the limitations on hours as proposed in the new Modification #2.
C) If on the other hand they have been economically viable only because they have been interpreting the CUP in their own (and unjustified) manner), then it is clear that they have been in violation of the terms of the original CUP and Modification #1 and they should have their permit terminated and the request for Modification #2 denied.
D) Based on this analysis and prior to any Planning Division EIR of Modification #2, there should be a thorough, open and public investigation of whether or not Ozena has in fact complied with the existing CUP conditions.
E) The review should include at a minimum 2 continuous months worth of weigh tickets and billing records for the same time period. Preferably these tickets should be from July and August of 2007 and should specifically include the days immediately before and after the August 14th Complaints. Although we have raised serious questions about the credibility of the weigh tickets, obtaining two months worth along with financial data such as billing records for the same time period should enable a credible analyst to determine if in fact there was true compliance.
F) If in fact the operators are found to be out of compliance, proceedings should be initiated to immediately suspend their current permit and deny their request for Modification #2 and the Aquaculture CUP.
G) There should be a review by Planning Division staff and County Counsel, if needed, to assess the ownership rights of Tony Virgilio. If found lacking, the permits should be denied.
H) There should be a review by California Fish and Game to determine compliance with that agreement and again, if found lacking all permits should be terminated and/or denied.
I) Should the Mine be found in compliance then better means for reasonable and feasible monitoring of the mine operation must be implemented at the operator’s cost. This should include cameras not only at the mine but also in Casitas Springs, in Ojai and at the junction of Lockwood Valley Road and Route 33. Cameras should be accessible online by the public with digital back ups for every day archived by the County for later review. Under no circumstances should the cameras be under the control of the operator.
J) The “Stop the Trucks” Coalition should be prepared to take whatever steps are necessary, including legal action to insure that a full review as noted in B) – H) occur as soon as possible and prior to any other consideration of the Ozena permits.
Documents Review and those Cited Above:
1) Letter, January 17,2008, from Kim Rodriguez, Planning Director of the Ventura County Planning Department, to Scott Eicher, Chair of the “Stop the Trucks” in response to the Coalition’s 15 questions to the department.
2) Letter, October 10, 2007, from John Hecht, President of West Coast Environmental and Engineering on behalf of the Ozena Mine, to Patrick Richards, Manager of the Commercial Industrial Section of the Ventura County Planning Department in response to Mr. Richards letter of September 11, 2007.
3) Letter, September 11, 2007 from Patrick Richards to John Hecht asking for clarification of Hecht’s response to Alleged Violations of the CUP on August 14, 2007.
4) Letter, August 30, 2007 from Hecht to Richards in response to alleged violations of the CUP 5170.
5) Letter, September 27, 2007, from Kim Rodriguez but signed by Patrick Richards to Howard Smith in response to his complaint regarding the Ozena CUP on August 14, 2007.
6) Letter, August 19, 2007, from Howard Smith, Ojai resident, to Kim Rodriguez, complaining about possible CUP violations on August 14, 2008.
7) Complaint Form, August 17, 2007 by John Broesamle, Ojai resident to the Planning Department regarding possible CUP violations on August 14, 2008.
8) Letter, September 13, 2007, from Ventura County Chief Deputy District Attorney, Jeffrey Bennett to Howard Smith about allegations of possible criminal activities in regards the Ozena CUP.
9) Letter, June 23, 2007, from Howard Smith to Jeffrey Bennett, about allegations of possible criminal activities in regards the Ozena CUP.
10) CUP 5170 Modification Request Number 2, January 2, 2008, submitted by Tony Virgilio and prepared by West Coast Environmental & Engineering.
11) CUP 5170 Modification Number 1 of June 13, 2003.
12) Planning Division Memo, “January 25, 2007, “Early Morning Truck Runs Through the Ojai Valley,”
13) Agreement Memo, December 19, 2005, California Department of Fish and Game, 1600-2005-254-R5
14) CUP Request, January 2, 2008, Ozena Valley Ranch Aquaculture, LU04-0072
15) E-mail, January 22, 2008, from Natasha Lohmus, Environmental Scientist, CA. Dept of Fish & Game to Steve Offerman at the request of “Stop the Trucks”
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