Photo By: Jitze Couperus/SPecial to the Town Crier
Legal action by the Sierra Club prompted Lehigh Southwest Cement Co. to agree to install selenium filters and restore a stretch of Permanente Creek.
When a problem hits a roadblock, a new approach is often key to unlocking a solution.
In the case of environmental violations at Lehigh Southwest Cement Co.’s Permanente Plant in the foothills south of Los Altos, a Sierra Club lawsuit proved more effective than years of oversight by federal, state and local regulatory agencies.
“We were able to fix what others were not able to,” said Sierra Club attorney Reed Zars of how his team used the courtroom to hold Lehigh accountable for releasing selenium – a chemical byproduct toxic to fish and birds at elevated levels – into the 13.1-mile Permanente Creek, which bisects Lehigh property before moving downstream through Los Altos and Mountain View and eventually into the San Francisco Bay.
Ending a nearly 17-month legal battle against Lehigh for violating the federal Clean Water Act, Sierra Club officials April 24 announced that they had settled their suit, with Lehigh agreeing to reduce selenium discharge by 50 percent and to restore a 3.5-mile stretch of Permanente Creek so that it remains safe for fish passage.
A 2011 Santa Clara County Planning Department study estimated that creek restoration and installation of a permanent selenium treatment system could run Lehigh between $41 million and $139 million.
Something in the water
Over the years, the San Francisco Bay Regional Water Quality Control Board and the Sierra Club collected water samples in Permanente Creek that revealed selenium levels at nearly 10 times the allowable amount. Despite clear evidence of selenium deposits along the creek’s banks, local environmental advocates noted that oversight agencies did little to enforce regulations or compel Lehigh to find a solution that would satisfy both the company and environmentalists.
“While the Water Board issued multiple notices, warnings and extensions over the last three years, it was not until the Sierra Club acted, using Lehigh’s own test results, that Lehigh agreed to start treating the water before dumping it into the creek,” wrote Los Altos Hills environmental advocate Bill Almon in response to last month’s agreement.
Los Altos Hills Mayor Gary Waldeck, who served on the Los Altos and Los Altos Hills ad hoc subcommittee formed in 2010 to determine whether Lehigh emissions posed health risks, echoed Almon’s sentiment and wondered why it took a lawsuit to prompt Lehigh to take action.
Los Altos Hills in 2010 petitioned the water board, the Bay Area Air Quality Management District and the county for more stringent oversight of Lehigh and hired a consultant to study the impact of emissions. The study determined that Permanente Creek contained selenium. A U.S. Environmental Protection Agency water-quality assessment conducted at the time deemed the creek “impaired” for cold freshwater habitat and wildlife habitat due to the presence of pesticides, metals, toxins and trash.
A Draft Environmental Impact Report produced by Santa Clara County in 2011 confirmed the Lehigh plant as the source of the selenium. Although the county Board of Supervisors called for minimizing selenium runoff in 2012, the county Planning Commission determined at the time that there was “insufficient evidence to support the installation of a selenium treatment facility.”
“I don’t think they’ve intentionally violated anything,” Waldeck noted of Lehigh, which has operated under a use permit issued by the county since 1939 and currently produces approximately 70 percent of all cement for Santa Clara County. “Every time they’ve gotten chastised, they’ve done all the things that were required.”
In the public interest
Waldeck attributed the lack of enforcement in part to rules that are “hampering regulating agencies.”
When the Sierra Club filed suit in 2011, it was more than a slap on the wrist for Lehigh from the water board, air district, county or EPA. Lehigh would have to address the environmental complaints or face additional litigation and perhaps a federal trial.
Both Lehigh and the Sierra Club saw the showdown as an invitation to seek common ground and find a resolution that, according to the decree, is “fair, reasonable and in the public interest.”
“The work that we have been doing in that regard – which includes erosion and sediment controls, and frequent monitoring and testing – can now be accelerated and built upon,” said Kari Saragusa, president of Lehigh Hanson, West Region, which owns the Lehigh Southwest Cement Permanente Plant, in an April 23 press release.
According to Zars, both parties gained “a little more respect for the other” in the process of negotiations.
“Lehigh is a big winner in this,” he said. “I have respect for them. … I think ultimately they took the high road.”
After reaching a solution for curbing water pollution, reducing air pollution and preventing Lehigh’s expansion plans are the next challenges for local environmental advocates. According to Almon, more than 200 residents of Los Altos, Los Altos Hills and Mountain View are involved in his Quarry No campaign to thwart Lehigh’s proposed expansion.
Despite opposition from Quarry No and other groups, the county Planning Commission last summer approved a plan to allow the plant to use additional property for mining storage. The Midpeninsula Regional Open Space District subsequently filed a lawsuit against the county and air district, citing the potential health hazards the expansion could pose for those who work in or visit Rancho San Antonio Open Space Preserve.
The Los Altos Hills City Council also commissioned Breathe California of the Bay Area, a nonprofit organization dedicated to protecting lung health, to generate a report with recommendations on reducing the plant’s toxic air emissions. Lehigh officials agreed to review the report May 17, and the air district is scheduled to make a presentation May 20.
As with the Sierra Club’s settlement with Lehigh, councilmembers believe that a proactive approach could yield an agreement on air pollution control systems and monitoring that satisfies all involved.