The Loma Prietan - November/December 2011

Club to Sue Lehigh Cement over Pollution of Creek

by Diane DeNagel

Permanente Creek is beautiful but polluted and needs immediate attention to protect our local water supplies and our wildlife.   Photo: Lawrence Knutsson
Permanente Creek is beautiful but polluted and needs immediate attention to protect our local water supplies and our wildlife. Photo: Lawrence Knutsson

The Lehigh cement quarry in Cupertino has been dumping pollutants into Permanente Creek for years, poisoning the fish and, potentially, San Jose’s drinking water.  The Sierra Club has notified Lehigh that it intends to sue them over these practices.  

“Lehigh has been using Permanente Creek as its private disposal area for years,” says Chapter Chair Charles Schafer. “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 Sierra Club has notified the Lehigh Southwest Cement Company of its intent to sue over the pollution discharged into Permanente Creek from Lehigh’s Cupertino quarry. The Club’s August 24 letter to Lehigh accuses the company of dumping illegal and unpermitted toxic wastewater and mine tailings into Permanente Creek for at least the last five years. The letter cites Lehigh’s wastewater practices, the company’s own internal analyses of selenium and other toxin concentrations present in its wastewater, and the national and local laws pertaining to the disposal of contaminated wastewater. Under the federal Clean Water Act, Lehigh could be subject to civil penalties of between $32,500 and $37,500 per day should the Club win the suit.

Permanente Creek is listed at both the state and federal level as an “impaired water body” (read: polluted stream) due to the presence of the pollutants in Lehigh’s wastewater and tailings. These pollutants pose a significant risk to the creek’s aquatic life, such as steelhead trout, a federally listed threatened species. Because the creek also feeds Santa Clara County’s underground aquifer, this large drinking water reservoir is also potentially being polluted.

Lehigh’s own tests have shown that the concentrations of the pollutants downstream of the quarry discharges have been from three to over 10 times greater than those found upstream. In addition to releasing contaminated wastewater into the creek, Lehigh has also used the creek as a dumping ground for quarry mining wastes.

Lehigh contends that its practices are in compliance with local and federal laws under a permit that allows it to dump storm water into the creek. However, the state’s Regional Water Quality Control Board confirmed in February that Lehigh may not discharge quarry bottom water, wash-down water, and dust suppression water into the creek. Lehigh’s permit “specifically prohibits all three of these self-admitted discharges from the Lehigh facility,” wrote the Board. “Lehigh is grossly mistaken in its assertion that the Facility is permitted to discharge these three types of non-storm water flows.”

Concurrently, Lehigh is facing a number of legal issues related to other facets of its operation. In July California’s Office of Mining and Reclamation notified Lehigh that it would not be allowed to sell products to government entities because the company was operating outside, and in violation of, its reclamation plan. Lehigh is suing the state to maintain its eligibility to sell to government groups. And lastly, the citizen group Bay Area for Clean Environment has filed a lawsuit against both the Santa Clara County Board of Supervisors and Lehigh over the county’s recent determination that Lehigh is grandfathered from the county’s zoning laws.

The Club believes Lehigh’s cement products should only be produced in compliance with environmental law, and not at the cost of the Bay Area’s environment.

Diane DeNagel is a member of the Loma Prietan Editorial Board.