Lawsuits emerge over Lehigh operations: Cement plant sues air quality management district; Regional

Photo By: Town Crier File Photo
Photo Town Crier File Photo

Lehigh Southwest Cement Co. filed a lawsuit last week challenging newly adopted emission regulations for its cement plant. Three days later, the Midpeninsula Regional Open Space District filed a separate suit over the plant’s Environmental Impact Report.

A pair of legal battles concerning the Lehigh Southwest Cement Co. and its Permanente quarry in Cupertino came to the forefront last week.

Lehigh announced Nov. 26 that it filed a lawsuit in Santa Clara County Superior Court challenging the Bay Area Air Quality Management District (BAAQMD) and Bay District Board over recently adopted emission regulations slated to take effect next year.

Three days later, the Midpeninsula Regional Open Space District reported in a released statement that it filed a lawsuit Nov. 29 against Santa Clara County challenging the “adequacy” of an Environmental Impact Report (EIR) pertaining to the cement company’s Permanente Quarry Reclamation Plan.

The county Board of Supervisors approved Lehigh’s plan to expand its limestone quarry and certified its EIR in June despite stated concerns from several groups – including the open space district – that the report’s environmental analysis and mitigation measures were inadequate.

A call placed to county Supervisor Liz Kniss’ office seeking comment was not returned by the Town Crier’s press deadline.

The district specifically cited a “lack of sufficient analysis of air quality, water quality, biological resources, hazardous materials, baseline conditions, and visual impacts” in the certified EIR. Other concerns cited by the open space district include a lack of analysis over “potentially toxic soil” at the site, which previously served as a munitions and metal manufacturing plant.

Sections of popular trails in the district’s Rancho San Antonio Open Space Preserve are located within 1,300 feet of the quarry’s boundary, according to Midpeninsula Regional Open Space District officials. The open space preserve receives more than 500,000 visitors per year.

“Our deep concerns for the quarry’s air and water quality impacts, hazardous materials and related recreational impacts remain unaddressed,” said Curt Riffle, Regional Open Space District board president, in a prepared statement. “These issues affect us, our visitors, and the employees who work and live on our Preserve. We have therefore directed staff to seek the assistance of the courts.”

The open space district also announced that its board of directors approved independent air quality monitoring by district staff to “get a better understanding of pollutants that are in the air and the levels of these pollutants that staff and visitors are breathing at the Preserve.”

Other concerns cited by the district in announcing its legal action against the county include air quality and visual effects of “voluminous” quarry waste dumping at the site’s East Material Storage Area, as well as “deeply flawed assumptions” in Lehigh’s EIR that “appear aimed at minimizing its true environmental effects.”

BAAQMD lawsuit

The cement company’s lawsuit came after the BAAQMD in September adopted Regulation 9, Rule 13 – known as the Portland Cement Rule – to regulate harmful emissions from the company’s Cupertino site more stringently. The cement plant produces approximately 70 percent of the cement used in Santa Clara County.

The rule adopted by the BAAQMD calls for a compliance deadline of September 2013 by the company, even though similarly proposed federal regulations by the U.S. Environmental Protection Agency for cement plants nationwide won’t take effect until 2015.

In announcing its lawsuit, the company noted that the EPA’s 2015 deadline “recognizes the costs and complexities in testing, procuring and installing the equipment necessary to meet the (federal) rule.”

To that end, the company said its lawsuit centers on setting aside “the air regulation recently promulgated by BAAQMD that specifically targets emissions from the company’s cement manufacturing plant in Cupertino.”

A spokesman for BAAQMD declined to comment on the matter.

“If the BAAQMD regulation is allowed to go forward, Lehigh’s plant would be the only one in the country required to comply at this time, virtually two years earlier than other cement plants subject to the federal standards,” the company’s statement read. “This would put the Cupertino plant at a significant competitive disadvantage, which was communicated by the company to the BAAQMD.”

Lehigh officials also noted that the new regulation essentially modified its plant’s operating permit, requiring a public hearing by BAAQMD that it never received.

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