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CC 09-05-2013 Special 1./ SST'1 9S` CUPERTINO APPROVED MINUTES CUPERTINO CITY COUNCIL Special Meeting Thursday, September 5, 2013 CITY COUNCIL MEETING PLEDGE OF ALLEGIANCE At 3:06 p.m. Mayor Orrin Mahoney called the special City Council meeting to order in the Community Hall Council Chamber, 10350 Torre Avenue, Cupertino, CA. ROLL CALL Present: Mayor Orrin Mahoney, Vice Mayor Gilbert Wong and Council members Barry Chang and Rod Sinks. Absent: Mark Santoro.. CONSENT CALENDAR Due to a conflict of interest City Manager David Brant left the dais for voting on item number 1. Wong moved and Chang seconded to approve the items on the Consent Calendar. Ayes: Chang, Mahoney, Sinks, and Wong. Noes: none. Abstain: none. Absent: Santoro. 1. Subject: Approve amendment to the Employment Contract for the City Manager Recommended Action: Adopt Resolution No. 13-071 amending the Employment Contract for the City Manager ORAL COMMUNICATIONS Cathy Helgerson said she was concerned about pollutants from Stevens Creek Quarry getting into the air, water, and soil. She asked to have the quarry shut down and turned into a Superfund site, and to also close the composting facility. Thursday, September 5, 2013 Cupertino City Council STUDY SESSION 2. Subject: Conduct a study session to learn about regulation of the Lehigh Cement Plant (formerly Kaiser and Hanson) Written communications for this item included: • PowerPoint presentation from Bay Area Air Quality Management District (BAAQMD) • Staff PowerPoint presentation on information from the California Water Board • Letter from the San Francisco Bay Regional Water Quality Control Board (RWQCB) • Emails from Ken Smyth expressing concerns about Lehigh, and a response to Mr. Smyth from the Cupertino Union School District regarding his request to attend the study session • Email from Monika Piazzesi commenting on dust from the cement plant • Email from Frank Geefay concerning public comment time allowances A. Introduction of speakers and presentations by regulatory agencies • Bay Area Air Quality Management District • Written Report from the Regional Water Quality Control Board • County of Santa Clara Mayor Mahoney gave background information and said the City does not have direct control over Lehigh because of its location in the County, but the City is providing a forum for the plant regulation monitoring agencies to provide updates on various issues. These agencies include the Air Quality Management District for air emissions, the Water Quality Control Board for water emissions, and the County for land use. Public Affairs Director Rick Kitson introduced Bay Area Air Quality Management District (BAAQMD) Director of Engineering Jim Karas, who gave a PowerPoint presentation on the Status of Lehigh Southwest Cement Company. His presentation covered: permit activity since 2010; estimated emission reductions from Regulation 9-13 requirements; emissions limits and monitoring; regulation 9-13 toxic hot spots requirement; and compliance status. BAAQMD Director of Enforcement Wayne Kino explained that the inspection staff is certified by the State of California to read or detect smoke or dust, and a violation Thursday, September 5, 2013 Cupertino City Council would occur if the frequency reading is more than three minutes. He said that they have not observed any dust cloud violations coming from the quarry but they are notified by their facilities department whenever there is a potential issue. Public Affairs Director Rick Kitson reviewed a letter from San Francisco Bay Regional Water Quality Control Board (RWQCB) Assistant Executive Officer Dyan C. White which summarized: existing Lehigh permits; a new pending permit; other regulatory efforts of enforcement; Permanente Creek restoration; legacy pollution and selenium; and more information resources. Santa Clara County Staff Consultant Patrick Angel made a PowerPoint presentation on the County's activities regarding the Permanente facility which included: County's regulatory authority; Reclamation Plan Amendment (RPA); RPA background; RPA component/areas; final reclamation condition; RPA annual reporting for proposed 2013 RPA; anticipated schedule; and County contacts. Santa Clara County Planner and Lehigh Project Manager Marina Rush discussed the County's process for enforcing notices of violations and said it is discretionary how those violations are corrected, and that there is follow-up with field inspections. B. Council questions The City Council asked various questions of the regulatory agency representatives. C. Public comments Midpeninsula Regional Open Space District (MROSD) Resource Planner III Matt Baldzikowvski gave a PowerPoint presentation of MROSD updates on Lehigh highlighting: air monitoring locations established at Rancho San Antonio; preliminary continuous data collection of particulate matter; specific data for elements in a range of sizes; tentative air study timeline; and legal updates regarding California Environmental Quality Act (CEQA) challenge of the Environmental Impact Report (EIR) and vesting (by BACE), and the Amicus Brief. Mr. Baldzikowski introduced MROSD Board Director Yoriko Kishimoto who said that the Board has taken action to protect Rancho San Antonio which borders on the Lehigh quarry and has over $200,000 to use for air monitoring, the CEQA lawsuit, and for General Counsel to prepare an amicus "friend of the court" letter on the vested interest lawsuit. She asked Council to agendize taking action, join the Amicus filing, and authorize up to $5,000 of funding. Thursday, September 5, 2013 Cupertino City Council Ms. Kishimoto introduced MROSD General Counsel Cheryl Schaeffner who talked about the Amicus filing deadlines and requested that Council make a determination by the end of September. Paula Wallis, on behalf of Bay Area for a Clean Environment (BACE), said she was concerned about the mercury content in the limestone compared to other areas of the country. She said that BACE has raised nearly $200,000 to support the lawsuit of the new reclamation plan and the appeal on vested rights, and presented maps of: granted vested parcels; BACE's argued vested parcels; and County staff recommended parcels. BACE member Richard Adler said citizen involvement is necessary for regulation to occur and they have filed a suit of appeal. He said Cupertino residents are impacted the most by Lehigh and asked Council to join Los Altos and MROSD in the Amicus Brief filing. BACE member Tim Brand said Lehigh submitted an RPA to extract material and reclaim the land but surface mining and environmental impact from extraction was not included in the EIR because Lehigh is vested. He read two written County responses to public questions regarding the Final EIR dated May 2012. Libby Lucas said she was concerned about the Cal Water wells that supply water to Los Altos and Cupertino, and the limestone vein that impacts the water supply for Santa Clara County. She noted that they should be monitored and analyzed. Janet Ghanem, on behalf of Breathe California of Bay Area, said her organization is committed to reducing air pollution and lung disease associated with poor air quality in the Bay Area. Lyn Faust asked Council to participate in the Amicus Brief and said that the cement plant and quarry is not in the City's jurisdiction but still impacts the lives of the residents. She expressed concern over air quality, the storage area, and land disruption, and asked Council to continue to take steps toward increased regulation of Lehigh. Cathy Helgerson said she was concerned about Lehigh's operations, getting another permit to mine, and adding a selenium plant and monitoring tower. She asked Council to take legal action and noted that the Environmental Protection Agency (EPA) and Water District declined her request to appear at this meeting. Thursday, September 5, 2013 Cupertino City Council Terri Hoornstra, a former teacher at Regnart, said that the number of students with autism has increased noticeably from fifi:een years ago. She showed a slide of the autism rate in the Cupertino Union School District (CUSD) and referenced a study that related mercury and diesel pollution studies to autism. Gary Latshaw, representing the Loma Prieta chapter of Sierra Club presented a report on water and air quality which included: removing selenium and toxins from the water; a partial creek restoration; stages of water treatment; restoration cost and details of scheduled reporting; a study to further control emission of Nitrogen Oxide (NOx) and Sulfur Dioxide (SO2); and data of mercury readings resulting from the air monitoring system. He asked Council for reductions in selenium, a Lime Slurry Injection (LSI), system, an activated Charcoal Injection system, Selective Non Catalytic Injection (SNCI) system, and installation of a stack. Karen DelCompare talked against granting vested rights to Lehigh and asked Council to support the BACE lawsuit, join MROSD to write the Amicus Brief, asked to set limitations against Lehigh, and expressed concern over the appearance of the East Materials Storage Area (EMSA). Victor Yu, on behalf of Quarry No, showed photos of Lehigh with a dust or smoke cloud rising above the sky. He said he lives near the plant and asked Council to stop the pollution from occurring. Rhoda Fry referenced violations that were issued to Lehigh Southwest by the Mining, Safety, and Health Administration, and had concerns about potential administrative and political practices, labor issues, the recent Lehigh shooting, and the appearance of the EMSA. She showed photos of these facilities and asked Council to join MROSD in the vested rights lawsuit. Joyce M. Eden, on behalf of West Valley Citizens Air Watch, said mercury emissions are now measureable because of the air monitor, and said she was concerned about the amount of limestone in the quarry. She asked for testing to be performed at the full operating amount, monitoring from a stack, and local area measuring. She urged Council to join in the Amicus Brief. D. Council comments Council directed Staff to add consideration of the Amicus Brief on the September 17 agenda. Thursday, September 5, 2013 Cupertino City Council ADJOURNMENT At 5:37 p.m., the meeting was adjourned. Kirsten Squarcia, Deputy City Clerk Staff reports, backup materials, and items distributed at the City Council meeting are available for review at the City Clerk's Office, 777-3223, and also on the Internet at www.cupertino.org. Click on Agendas & Minutes, then click on the appropriate Packet. Most Council meetings are shown live on Comcast Channel 26 and AT&T U-verse Channel 99 and are available at your convenience at www.cupertino.org. Click on Agendas & Minutes, then click Archived Webcast. Videotapes are available at the Cupertino Library, or may be purchased from the Cupertino City Channel, 777-2364.