From: Mark Brest van Kempen <>
Date: January 27, 2005 2:09:30 PM PST
To: <>
Cc: <>, <>, <>, <>, <>, <>, <>, <>, <>, <>, <>, <>, <>, <>, <>, <>, <>, <>, <>

Subject: To violate or not to violate...that is the question

Dear Fuad,

I was somewhat confused by City Staff's criteria for determining violations
of storm water discharges for the Leona Quarry Project.

When grading on the site began in April of 2004, filling Chimes Creek with
silt, City staff assured the community that the dirty water was not coming
from the Quarry.

The City said that if the dirty water was coming from the quarry it would be
deemed a violation but since the water wasnt coming off the site it was not
a violation.

Later when the City determined that the dirty water WAS coming from the
quarry they determined that it wasnt a violation because when they
informed the developers about it the developers said they would fix it.

When the dirty water continued, the City said that it was not a Violation
the developers were going to do even more to try to prevent silt from entering City storm

This went on and on.

When the dirty water continued I visited the site and met with Ken Peyton
who assured me that no water was coming off the site and suggested that it
was probably coming from somewhere else. When I asked him if we could look
at the outlet structure to make sure, we found a large amount of very silty
water gushing out of the outlet.

The City determined that this was not a violation because the developer said
that they would fix it (I was there this time and noted that the developer
agreed to fix the problem extremely grudgingly).

In frustration with the City, the community turned to the State. The State
determined that the developer was not complying with permits. Why the City
couldnt determine this adds to my confusion.

The state set a limit to the turbidity of the water leaving the site: 50 NTU
or 10 percent above background water entering the site.

Now after several discharges of water from the detention pond with a
turbidity of approximately 350 NTU. The City determines that these are not
violations because the developer cant prevent this water from escaping.

If a developer says that they cant do what they are supposed to do it would
seem that this would be grounds for a fine rather than an exemption from one.

It would appear that the City changes its criteria of what constitutes a violation
in this project so that the developer wont be fined.

Perhaps you can clarify.

Mark Brest van Kempen
3835 Delmont Ave
Oakland CA 94605
510 568 6889