Law Offices of
Stuart M. Flashman
5626 Ocean View Drive
Oakland, CA 94618-1533
(510) 652-5373 (voice & fax)
e-mail: Stu@stuflash.com
Memo
Re:
Amicus Brief in Support of Appeal by Bay Area Clean Environment of Challenge to Santa
Clara County’s Approval of a Reclamation Plan Amendment for Permanente Quarry
BACKGROUND
Lehigh Southwest Cement Company (“Lehigh”), a wholly-owned subsidiary of Heidelberg
Cement Company, a multinational conglomerate based in Germany, operates both a limestone
quarry and a cement factory at Permanente Quarry. The quarry has existed for over 100 years,
but has expanded greatly in the past fifty years, and is now the largest cement producer in the
Bay Area, and one of the few quarrying and cement production facilities located in an urban
area.
While cement is a necessary material for modern construction, its mining and production can
have adverse impacts on the surrounding area. In addition to the usual traffic and noise
impacts of any large manufacturing facility, the Lehigh cement facility produces a number of
highly toxic pollutants, notably airborne mercury and waterborne selenium. In addition, it also
creates large amounts of dust that is both a nuisance to nearby homes and a potential health
hazard.
Under California’s Surface Mining and Reclamation Act of 1975 (“SMARA”), every surface
mining (i.e., quarrying) facility must have an approved reclamation plan that shows how the
mined areas will be restored to a useful post-mining condition once mining ceases. The mine
operator must also show that it has sufficient financial resources to successfully implement the
reclamation plan. Thus the reclamation plan protects the surrounding community from having
a useless and potentially toxic site once quarry operations end.
THE RECLAMATION PLAN AMENDMENT
The initial reclamation plan for Permanente Quarry was prepared in 1985 by Kaiser Cement
Company, which operated the quarry at that point. Lehigh took over the mining operations in
the 1990s, and continued to operate under the 1985 reclamation plan until 2004, when
investigation of landslides within the quarry led to the discovery that Lehigh’s mining
operations had expanded beyond the boundary of the 1985 reclamation plan. Lehigh and the
County agreed that Lehigh would prepare a reclamation plan amendment to bring its quarrying
operation into compliance with SMARA.
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A complication was that, after having been mined for a hundred years, the quarry pit, known as
the “north quarry” had been dug so deep that it went below the groundwater level for the
area. As a consequence, the bottom of the pit collected groundwater, which Lehigh pumped
out and drained into Permanente Creek, which runs through the quarry site on its way to San
Francisco Bay.
As it turns out, investigation by the Bay Area Regional Water Quality Control Board determined
that the quarry pit effluent was highly contaminated with selenium, a highly toxic chemical that
occurs in the limestone and other rock in the quarry. The contamination flowing into
Permanente Creek violated state and federal water quality standards and could be expected to
adversely affect aquatic organisms in the creek, which include the federally listed California redlegged frog (the frog made famous by Mark Twain’s story, The Celebrated Calaveras Jumping
Frog). Consequently, Lehigh’s reclamation plan amendment also had to explain how it would
ameliorate the selenium contamination of the creek.
The contamination of the quarry pit meant that Lehigh would need a new source for its
limestone. Lehigh therefore proposed to open a new mining pit south of Permanente Creek,
but still within the quarry area. Because that area had not previously been mined, Lehigh
would need to obtain a use permit from the County for the new “south quarry.” The
reclamation plan amendment was therefore expanded to also cover this new pit. However,
pressure from the State Office of Mine Reclamation to complete approval of the reclamation
plan amendment convinced Lehigh and the County to put aside plans for a new pit and focus on
a plan covering only the existing quarry operations.
The RPA was completed in early 2012, and after multiple appeals from the Planning
Commission, the County Board of Supervisors approved the RPA in June 2012.
THE LITIGATION
Both BACE and the Mid-Peninsula Regional Open Space District (“MROSD”) filed suit challenging
the County’s approval of the RPA. In addition to challenging the County’s compliance with the
California Environmental Quality Act (“CEQA”), BACE’s suit also questioned the RPA’s
compliance with state regulations implementing SMARA.
The lawsuit was heard in Santa Clara County Superior Court before Judge Joseph Huber, who
eventually ruled in favor of the County on all of both BACE’s and MROSD’s claims. Both BACE
and MROSD appealed the trial court rulings, however MROSD decided to settle its appeal.
BACE also attempted to reach a settlement through a court-sponsored mediation, but that
effort was unsuccessful.
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ISSUES IN THE APPEAL
While both BACE and MROSD raised multiple issues in the trial court, BACE has only appealed
what it feels are the four strongest issues in the case. Two of those issues involve compliance
with CEQA and two, compliance with SMARA regulations. The SMARA claims involve Lehigh’s
contamination of Permanente Creek, which would continue unabated through much of the
twenty-year reclamation period. Not only will this violate water quality standards, but it would
also harm the California red-legged frogs that live in downstream sections of the creek. Both of
these violate SMARA regulations.
The primary CEQA claim has to do with Lehigh’s aborted plans to establish a new, second
quarry pit. While those plans were temporarily dropped so that the RPA could be rushed
through, it is clear that a new pit will be needed to replace the North Quarry, which is almost
fully played out. Yet the EIR prepared for the RPA refused to consider or discuss the cumulative
impact of reclaiming the North Quarry while also initiating mining in a new quarry pit. Those
impacts would include increased noise, traffic, dust emissions, and potentially water and air
contamination. Several of these impacts would also affect local residents. It is therefore this
issue where your city might be most effective in providing support through an amicus brief.