Sierra Club Threatens Suit Against Lehigh For Permanente Creek Pollution

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. over the Feb. 8 Santa Clara County Board decision on vested rights. Two weeks ago 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 , 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 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.”

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 .

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.