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Sierra Club Files Suit Against Lehigh For Permanente Creek Pollution

Club asks court to impose hefty fines and force Lehigh to stop discharging elevated levels of selenium and other toxins into creek that flows through Cupertino, Los Altos and Mountain View.

Accusing of dumping thousands of gallons of untreated wastewater containing dangerous toxins into Permanente Creek daily, the Sierra Club filed a lawsuit in federal court on Monday, asking that the company be forced to stop, as well as pay multi-millions in fines for violating the Clean Water Act.

“After years of unchecked pollution, it’s time for Lehigh to clean up its act,” said Gary Latshaw of the club’s local Loma Prieta Chapter in a statement. “Its refusal to control its water pollution has no place in the heart of Silicon Valley. We intend to enforce the Clean Water Act to restore the health of this precious public stream in Santa Clara County.”

The club contends that high levels of selenium and other toxins from the cement plant and quarry—as recorded by the company’s own consultants—are endangering wildlife and damaging the creek, as well as percolating into underground aquifiers used for drinking water. Permanente Creek was listed as an "impaired" water body by the EPA in November 2010.

The creek flows through heavily used Rancho San Antonio County Park directly below the plant, then past residences in Cupertino, Los Altos and Mountain View on its way to the San Francisco Bay. The suit contends that water samples taken downstream show concentrations of dissolved pollutants such as arsenic, selenium, and others to be from three to 100 times greater than those tested upstream.

The lawsuit asks the court to declare that Lehigh and its parent company Heidelberg Cement are violating the Clean Water Act and must stop discharging pollutants without a permit. In addition, the suit asks the court to order the company to obtain a federal discharge permit, and demands Lehigh create a comprehensive plan for compliance and restoration of the creek.

Club officials also want the court to order Lehigh to pay the federal government millions in civil penalties—$37,500 a day for every day the company allegedly violated the Clean Water Act. The Sierra Club estimates the violations go back at least five years, which if the company were forced to pay the full amount, would total more than $68 million in fines.

Lehigh said it had no official response for the media regarding the lawsuit a company spokesman told Patch Monday evening.

for discharges into Permanente Creek, calling it out for violating its existing storm water discharge permit, and requiring that Lehigh apply for a more stringent General Sand and Gravel Permit. The company filed a notice of intent in October to acquire the permit. which company officials said in May they would pay.

However, the Sierra Club suit asserts that even the sand and gravel permit is not enough, because it does not cover toxins such as selenium, arsenic, molybdenum, nickel, chromium, manganese, ANFO (ammonium nitrate/fuel oil, an explosive used in mining), and other pollutants. The club asks that the company be required to apply for a more comprehensive National Pollutant Discharge Elimination System (NPDES) Permit from the water board.

In addition, the club contends that the company is using the banks and creek bed as a disposal area for quarry mine tailings, overburden, and other wastes from its mining and cement manufacturing, posing a “continuous and substantial risk” of discharging into the creek in the future. Because heavy equipment and trucks are dumping the wastes near the creek, each one becomes a “point source” for pollution, according to the lawsuit.

The filing comes nearly four months after the if the company did not cease discharging into the creek within 60 days.

It also comes on the heels of news from the Bay Area Air Quality Management District (BAAQMD) that Lehigh could be required to spend between $27 million and $32 million on new monitoring equipment to meet stricter emission standards proposed to take effect within two years.

The draft EPA standards, known as Regulation 9, Rule 13, are scheduled to go into effect in September 2013. However, the proposed rules are being contested by lobbyists for Portland cement manufacturers in Congress, and by litigation from manufacturers.

, BAAQMD Director of Engineering Brian Bateman said the district will pursue the new rules, regardless of whether the federal rules are enacted.

BAAQMD officials said public comments on the new regulations are due Jan. 3. 

kd December 21, 2011 at 07:44 PM
Thank you to the Sierra Club and all those involved for protecting our waterways. Most people are under the false assumption that the public agencies are monitoring and adequately enforcing the enviromental laws, but that's just not the case.
Neighbor NextDoor December 22, 2011 at 10:02 AM
This is long overdue! Lehigh Southwest has been contaminating our air and water for decades. None of the local, state or federal public agencies did anything substantial to rein in the corporate culprit. The "paper tigers" of the county and BAAQMD issued a number of Notices of Violation (NOV) against Lehigh, but never executed the penalty phase after the so-called 30-day or 45-day remedy time of each NOV was passed over and over without consequence. Instead of punishing for encroaching on public property, the SCC Board of Supervisors unanimously passed a resolution to reward the corporate polluter with a free gift of a public road, i.e. Permanente Road, worth over $200 million at the expense of the taxpayers.

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