The Sierra Club blames Lehigh-Hanson's cement quarry operations in the Cupertino foothills for the high levels of selenium in the creek's water, which is detrimental to fish and other wildlife, and may be why steelhead trout no longer spawn in the creek in significant numbers. The creek runs through much of Mountain View, along St. Francis High school and through the middle of Google headquarters and Shoreline Park.
"By removing mining wastes and stopping selenium discharges on the Lehigh property, the Sierra Club plans to bring Permanente Creek a giant step closer to a recovered steelhead run," said a statement from the Sierra Club.
More than 10 times the allowable limit of selenium was found in the quarry's discharge water and the downstream water at Rancho San Antonio Park. Mike Ferreira, a Sierra Club executive committee member who managed the legal fight, said that the focus has been on cleaning the upper reaches of the creek, outside of Mountain View, where the naturally occurring toxin dissipates to lower concentrations.
Tests were conducted by the San Francisco Bay Regional Water Quality Control Board and the Sierra Club.
"We're quite satisfied with our settlement," Ferreira said.
It avoids a court trial that was set for the summer and requires the cement quarry to come up with an acceptable plan for the cleanup, which could cost as much as $12 million, and install a filtration system that may cost between $31 million and $127 million to keep the selenium out of the creek.
"It's no simple thing to get selenium out of water," Ferriera said.
"The problem is that selenium in the concentrations we were finding is bad for microbial and insect life," Ferriera said. "It would affect the ecology of the creek upstream and reduces the potential to get the fish back and migrating up there."
"We are pleased that the company and the Sierra Club were able to work collaboratively on resolving the litigation in a manner that is mutually acceptable to both parties," said Kari Saragusa, Lehigh Hanson's west region president.
"We started from a common baseline, which was to restore Permanente Creek in a manner that is environmentally sound and, importantly, scientifically valid. 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 as part of an overall site reclamation plan that was unanimously approved last year by the Santa Clara County Board of Supervisors," Saragusa said.
The lawsuit also orders Lehigh to restore 3.5 miles of creek damaged by "quarry overburden" and "mining waste."
"The (quarry) pit is enormous and very, very deep," Ferriera said. "As you might expect, groundwater coming from there picks up a lot of stuff from the floor of the pit, to the degree that some of it is in the creek water. Lehigh has been treating it somewhat — they weren't being completely negligent in the matter."
Cleanup "not feasible"
Prior to the 2011 lawsuit brought by the Sierra Club, the Santa Clara County Board of Supervisors had passed a resolution saying the cost of removing the selenium made it "not feasible" for Lehigh to clean up.
"The Lehigh site has been a priority to us for years, but compliance with water pollution standards has been elusive," said Dyan Whyte, the Water Quality Control board's assistant executive officer. "We are gratified that the pollution monitoring and analysis required by the Water Board provided key evidence to the Sierra Club to leverage today's success."
The settlement requires Lehigh to pay fines if an interim water treatment system isn't installed by Oct. 1, 2014, and if a final system isn't installed by Sept. 30, 2017. It also requires that Lehigh come up with a draft restoration plan for the creek by July 30, 2014, including changes to several parts of the creek to allow "sustainable fish passage."
Before the settlement can go into effect it must be approved by the federal court and the Environmental Protection Agency.