Sierra Club Threatens Suit Against Lehigh For Permanente Creek Pollution
Club alleges elevated levels of selenium and other toxins are threatening wildlife; will sue under Clean Water Act if discharges don't stop within 60 days.
Charging that Lehigh Southwest Cement is dumping elevated levels of selenium and other toxins into Permanente Creek and San Francisco Bay, the Sierra Club stepped into the legal fray against the company, saying it will sue under the Clean Water Act if discharges do not stop within 60 days.
In one specific instance, the club said that Lehigh’s own documentation shows “that quarry pit wastewater that Lehigh discharges in the creek has been a staggering 16 times higher than Clean Water Act stream standards,” for certain toxins, according to a statement released Wednesday.
The statement added that in popular Rancho San Antonio County Park, immediately downstream from the plant, pollution is “especially dangerous” where selenium concentrations have been measured at five times more than state and federal standards.
“Lehigh has been using Permanente Creek as its private disposal area for years,” said Charles Schafer, chair of the local Loma Prieta Chapter of the Sierra Club. “We intend to enforce the Clean Water Act to restore this public stream in Santa Clara County so that it will be safe again for kids and fish.”
The company declined to comment on the Sierra Club’s allegations. In the past company officials maintained that they comply with a long list of local, state and federal regulations concerning Lehigh’s limestone mining and cement-producing operations just outside Cupertino.
If the Sierra Club chooses to file suit in 60 days, it will join other legal battles involving Lehigh. The company is being sued by Bay Area Clean Environment (BACE) over the Feb. 8 Santa Clara County Board decision on vested rights. Two weeks ago Lehigh filed suit against the California State Department of Conservation to stop its removal from the AB 3098 list of approved quarries to sell cement to the government.
Sierra Club officials maintain that Lehigh has been dumping elevated levels of selenium, as well as other toxins into the creek, for at least five years. In elevated levels selenium can harm fish, birds and other wildlife, and in high levels it can pose a risk to human life.
Permanente Creek flows through Lehigh’s quarry site, winding its way past private homes and through public parks in Cupertino, Los Altos and Mountain View, before depositing into the bay.
According to an Aug. 24 letter from Sierra Club attorneys to Lehigh plant manager Henrik Wesseling, and chairman of German parent company, Heidelberg Cement, Dr. Bernd Scheifele, the elevated selenium levels and other toxins led the EPA to list the creek as “impaired” for those pollutants in November, 2010.
They also charge that the company is disposing of tons of crushed rock and other quarry waste, clogging the creek and disrupting habitat for aquatic life, including two species on the federal government’s threatened list, the California red-legged frog and steelhead trout.
Lehigh is currently under a notice of violation from the California Regional Water Quality Control Board, issued in February. In the notice, water board officials said Permanente Creek was not being adequately protected under the current storm water permit the company holds.
The notice specifically points out a problem with silt and other debris entering the creek, and notes elevated selenium test findings.
In an email response in March, Lehigh’s director of environmental affairs, Tim Matz, said the creek was being protected.
“Several systems are in place as part of our Stormwater Pollution Prevention Plan (SWPPP) to protect the Permanente Creek, including erosion controls, a series of sedimentation basins, frequent inspections and regular water quality monitoring and testing.”
On April 29 the water board ordered Lehigh officials to apply for a more stringent sand and gravel permit, and levied an administrative civil liability fine of $10,000. Lehigh officials announced in May they would seek the new permit, as well as pay the fine.
At the time, Matz told Patch that the company immediately repaired a discharge problem cited by the water board. He blamed old, underground plumbing for the problem.
“The majority of it, we believe, was storm water,” he said. “We do believe it had minimal impact on the creek.”
The case remains open, a water board attorney told Patch on Thursday. Cris Carrigan said the agency continues to collect data, and the permitting process will continue through winter 2012. He said the agency needs to study discharge conditions in the creek through the rainy season.
Sierra Club attorney Reed Zars said that by taking the step to sue the company under the Clean Water Act, it will enhance government agencies’ efforts to regulate Lehigh.
“The water board has been quite active in its efforts to get Lehigh into compliance, but it’s a big job, and I think it could help to have some additional assistance in enforcing the law,” Zars said. “It’s a significant problem, daunting for any agency, and certainly for us.”
Officials from Los Altos and Los Altos Hills have been working together since January to collect information and verify test data from Lehigh’s operations. The joint committee of Los Altos Hills Councilmember Gary Waldeck, Los Altos Mayor Ron Packard and Councilmember David Casas, have put together a voluminous online library of related documents, and sponsored a public information meeting.
A main goal was to hire an independent expert to study data from air monitoring and water testing, but the search process has been slower than expected, Los Altos Hills Councilmember Gary Waldeck said Thursday.
He said the committee was close to signing one consultant, but the expert took himself out of the running just prior to signing the contract. The committee is in negotiations with another candidate.
When asked about the Sierra Club notice, Waldeck said, “It looks like there’s a lot of people who are lining up in favor of either getting them on all the appropriate regulations, or getting them shut down.”
He added, “If they aren’t following the rules then maybe they shouldn’t be in business,” but if they are, then they should be, he said.
“I do think we have our rules in place for a reason,” and they should be enforced, said Waldeck.
Editor's Note: The reporter has contributed to the Sierra Club in the past, but does not participate in voting or activities, and is not a member.
Susan
2:26 pm on Friday, August 26, 2011
Reminder: County planners are conducting a public hearing on Tuesday, Aug. 30 to discuss the environmental impact report related to Lehigh's grossly overdue reclamation plan (the completion date was Dec. 30, 2007). Cupertino Quinlan Center, 10185 N. Stelling Road, 7 pm.
Anne Ernst
5:45 pm on Friday, August 26, 2011
Excellent reminder, Susan. Thanks!
Barry Chang
7:09 pm on Friday, August 26, 2011
Another serious problem is the selenium polluted Permanete water also seeping into our drinking water supply: "....Pollutants illegally discharged by Lehigh into Permanente Creek also enter Santa Clara County’s underground drinking water supply as they flow across the unconfined areas of the Santa Clara Subbasin aquifer. The Santa Clara Subbasin aquifer is the primary reservoir of drinking water
for San Jose and surrounding cities..."
Rick Lanman
7:37 am on Sunday, August 28, 2011
Residents on the creek is Los Altos and Mountain View have photographically recorded dramatic changes in Permanente Creek flows all summer - on roughly a two day on then off cycle. It's hard to imagine any explanation for this other than discharges from the quarry. Is this illegal?
Ignatius Y. Ding
2:45 am on Saturday, August 27, 2011
While Lehigh files a lawsuit to hold the state regulator at bay, the Sierra Club threatens it with a suit for its decades of brazen and ceaseless polluting of Permanente Creek.
The intersection of the two cases, however, brings attention to a third important issue.
The County Supervisors ignored the pleas from residents attending the 8/23 hearing and passed a resolution to turn the Permanente Road from a public road to a private one. One of the reasons cited by the residents was that it is illegal to make a public road private if it is an access road to public land or waterway. Sierra Club’s suit clearly brings out the fact that the Permanente Creek, severely contaminated by Lehigh pollutants, intersects with the road at least twice.
The County Supervisors must reverse their decision and keep Permanente Road public before it’s too late or another unnecessary lawsuit would be on the horizon.
Lehigh claims in its suit that the 30-day Notice from Office of Mine Reclamation (OMR) didn’t give it sufficient time to make corrective actions and due process before removing its name from the state’s list of suppliers (a.k.a. AB3098).
Ignatius Y. Ding
2:47 am on Saturday, August 27, 2011
The fact is that Lehigh has dragged its feet to comply with the state environmental and safety laws for more than 5 years. In September 2007, I personally discovered all geology survey maps included in its submitted amendments to the 1985 Reclamation Plan to be 5 years out of date and without any required signatures and stamped by a state-certified engineering firm. I turned the evidence to the state SMGB Commissioners at a public hearing. In addition, the Financial Assurance Cost Estimate (i.e. FACE or bond money deposited with the county) for grading disturbed areas was based on a nearly minimum wage rate. It also requested to add a new mine pit of more than 200 acres in size.
Ignatius Y. Ding
2:48 am on Saturday, August 27, 2011
If anyone in the county agency ever actually reviewed the document, he/she would have found the falsification portion of it and reject the application outright. Given the high cost of grading operators in the Valley, the FACE should have been at least 8 times higher than the dismal amount. An environmental impact report, public review/hearings and approval process should have been required for a new mine of that size as required by the state law. The County did none of that. Since the 2007 hearing was a bust for Hanson (Lehigh’s predecessor), it received an official 45-day Notice of Violation and was ordered to resubmitted its application. What the County gave to the quarry operator --not 60, or 90, or 120 days -- a TWO-YEAR extension to fix the problems and resubmit the reclamation application.
Instead of getting its house in order after 4 years (NOT 2), Lehigh sues the state for not giving it enough time and lack of due process! In its complaint, it stated “the DOC’s action is arbitrary and capricious. The Facility has operated in the present manner for decades, without any changes to justify AB 3098 List Removal at this time.” In other words, it has never been called out or punished for unlawful operations so it should never ever be held accountable.
Ignatius Y. Ding
2:49 am on Saturday, August 27, 2011
The leaders of the unions joined the suit complaining the potential loss of jobs. They neglected other facts for the rising and existence of their organizations: protecting the wage/benefits, the health from threats by the toxic conditions and the safety of their members. They should have worried about the dire consequences when Lehigh quarry eventually became a Superfund clean-up site.
Lehigh Hanson and its various plants were found guilty of air/water pollution and fined for illegal dumping industrial waste in Sacramento ($42.2M fine in 2007, for instance), Santa Clara, (Opelika-Auburn) Alabama, (Maricopa) Arizona, (Allegheny/Westmoreland & Bullskin) Pennsylvania, (Baltimore) Maryland and (Vancouver) British Columbia, but none has happened in Germany where its parent company Heidelberg is located. One wonders whether it’s because of lack of adequate environmental laws and regulations, failure of law enforcement in North America, our federal, state and local officials and regulators being more susceptible to undue influence, or the corporate giant has more passion and respect for the public interest at home or simply Germans are better in reining in the culprits than our bureaucrats.
Ignatius Y. Ding
2:49 am on Saturday, August 27, 2011
Lehigh Hanson and its allies in congress blame EPA for overreaching to make the cement industry to cut the deadly mercury pollution and fine-particulate emissions by 92%, hydrochloric acid by 97% and sulfur dioxide by 78% by 2013. Twenty House members have introduced legislation to block the implementation of the new rules or put EPA out of business all together. In fact, the EPA regulations were the result of a court decree after the prominent Natural Resources Defense Council won its case against polluting Portland cement companies in the federal district court in the District of Columbia. It seems our unpopular congress is not good in making laws to protect the public, but only the ones to benefit corporate interest at the expense of the American citizens.
Anne Ernst
10:11 am on Sunday, August 28, 2011
Rick Lanman, you or any of your neighbors can post those photos here on Patch so that everyone can see what you are talking about.
Susan
12:12 pm on Monday, August 29, 2011
Let's play 'connect the dots,' shall we? On August 24, 2011, two historically significant events happened in Cupertino: Steve Jobs, a cancer and liver transplant survivor, announced his retirement from the love of his life, and 2) the Sierra Club delivered a Notice of Intent to Sue Lehigh Cement.
The Leonardo da Vinci of tech grew up in South Los Altos, a stone's throw away from this politically connected air, land, and water gross polluter. The Sierra Club's allegation is, "Pollutants illegally discharged by Lehigh into Permanente Creek [including 'chronically elevated levels of selenium'] also enter Santa Clara County’s underground drinking water supply … The Santa Clara Subbasin aquifer is the primary reservoir of drinking water for San Jose and surrounding cities."
"Selenium… can also be toxic to humans, causing kidney and liver damage…”
They are poisoning us. Why hasn't Supervisor Liz Kniss taken action to red flag and shut down this public health menace?