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How we got here: Faulty process blamed for landing bay on government's radar for dioxin pollution
by Nathan Rushton, 1/19/2007

Following the State Water Resource Control Board’s action in October to list Humboldt Bay as impaired for dioxin, several local agencies that were surprised by the move lobbied the state to reconsider its decision.

In letters to the state from the county, city of Arcata and the Humboldt Bay Harbor, Recreation and Conservation District, technical and procedural concerns were raised regarding the 303(d) listing process that requires all states to submit a list of pollution-impaired waters to the U.S. Environmental Protection Agency to comply with the Clean Water Act.

While at first the state indicated it wouldn’t budge on revisiting the matter, the State Water Board announced Thursday that it will now hear comments at an upcoming meeting Feb. 20.

“The (State Water Board) is concerned that some people feel they weren’t treated fairly because they didn’t get a chance to comment on the Humboldt Bay 303(d) listing,” said State Water Board spokesperson Chris Davis.

The news was viewed as positive by parties on both sides of the listing issue.

“It is nice of the state board to allow everyone a chance to comment,” said Humboldt Baykeeper Program Director Pete Nichols, who lobbied the state to list Humboldt Bay as impaired for dioxin.

While more input is always a good thing, Nichols said he is confident the board hearing won’t open the door to a delisting.

“We are really happy that the board is willing to entertain this issue and allow us the opportunity to provide them some comments,” said David Hull, CEO of the Humboldt Bay Harbor, Recreation and Conservation District, who sent a letter on behalf of the district to the state this week asking for a hearing.

While there wouldn’t likely be any new data the district would provide to the state in the listing matter, Hull said he will provide an analysis of where processes could have been done better, as well as identify flaws in the data that were used in making the listing.

Davis said if the board hears something that causes them to consider taking any action, the State Water Board would likely schedule that for a March meeting.

Officials from the state have denied that the Oct. 25 State Water Board’s 303(d) listing action process represented a deviation from what is normally done.

But officials from the local agencies that manage the bay, as well as the regional water board, said they were surprised by the State Water Board’s last-minute decision to reverse its position not to recommend listing Humboldt Bay as impaired for dioxin.

The controversial decision made in Sacramento during the final minutes on the last day of public input in a two-year 303(d) process was flagged as unusual and joked about by its own board members, who pointed out that previous versions of staff documents that had been circulated publicly didn’t indicate Humboldt Bay was being considered to be listed.

And in making its determination to list Humboldt Bay as impaired for dioxin, the state relied exclusively on 14 out of 29 tissue samples taken from testing resulting from a lawsuit filed against Sierra Pacific Industries by the Ecological Rights Foundation in 2002 over contamination concerns.

The 14 fish, crab, oyster and mussel tissue samples taken at various locations in the bay exceeded the .03 parts-per-trillion toxicity values established by the state’s Office of Environmental Health Hazard Assessment.

Critics of the state’s decision claim the data were “cherry picked” and submitted to the state by the area nonprofit environmental group Humboldt Baykeeper.

During their review, Davis said State Water Board staff became aware — in part from Humboldt Baykeeper — that there was more information available than was identified in their first cursory look.

Nichols denies his group “cherry picked” data in its petition in favor of the Humboldt Bay 303(d) dioxin listing, which included a host of available scientific information, including a 109-page U.S. Army Corps of Engineers analysis of waterfront sediment testing and a 110-page report by environmental consultant ENVIRON on dioxin and pentachlorophenol testing of oysters and mussels from the commercial oyster beds in the bay.

There was also a 105-page report on “Potential And Likely Environmental And Human Health Risks From Off-Site Movement of Chemicals From The Sierra Pacific Industries” by Marc Lappe, a consulting toxicologist and former director of the Center for Ethics and Toxics who was hired by Ecological Rights Foundation to conduct a separate study.

While all the studies showed various levels of dioxin in sediment and tissue, there isn’t any consensus on what the data points mean for health risks to humans.

According to Lappe’s conclusion in 2002, sediment at the SPI site continues to be a source of dioxin compounds in the aquatic ecosystem in the immediate and near area of the mill that poses an “imminent, significant and substantial risk to humans ...”

ENVIRON’s conclusion in 2002 from its data indicates that the trace levels of dioxin present in oyster and mussel tissue in the bay were “well below” the 25 parts-per-trillion benchmark established by the U.S. Food and Drug Administration.

David Dun, an attorney for Sierra Pacific Industries, said the products of the studies performed following the Clean Water Act lawsuit against SPI by Ecological Rights Foundation and the cleanup order by the Regional Water Board aren’t being represented fairly.

“The issue we have is the report includes more than 200 data points for dioxin testing, but most people are only talking about 29,” Dun said. “Our experts have agreed to use all data points, not just one subset.”

OEHHA scientist Robert Brodberg, who developed the state’s dioxin standard for fish toxicity levels, reviewed the SPI site assessment the tissue samples originated from and concluded that the fish evaluation conducted was adequate for purposes of identifying contamination at the site, according to the state.

Dun said the same data used to list the bay as impaired were signed off on by Brodberg, who reviewed the consultant’s conclusion in the report, which states: “overall the supplemental data collected for this analysis do not change the overall conclusions of the scoping risk assessment, which stated that these ‘risks assessment results do not indicate ecological or human health effects for which action is necessary to protect receptors.’”

“We don’t feel, and more importantly, the experts don’t feel that the conclusions of the state board are supportable by the available data,” Dun said.

One of the problems facing the state and regional water boards in analyzing the existing and new data is that the science for the cancer-causing dioxin isn’t completely understood.

“For almost any chemical, you can say that the science is evolving,” said OEHHA spokesperson Allan Hirsch. “Dioxin is a highly toxic substance, but it is prevalent in the environment in very low levels.”

Hirsch said the sampling of the tissues and the use of the screening levels is using fish as an indicator for water quality — not determining the amount of fish it is healthy to eat.

“You can’t really begin to make statements about the health effects on the screening value itself, rather a trigger above that level means that a further evaluation is warranted,” Hirsch said.

It would be appropriate at a future time to take a closer look to find out those risks to human health, Hirsch said.

Dioxin isn’t included in the state’s draft tissue levels and screening values document for California sport fish that is designed to provide meal consumption advice to consumers.

“We don’t have a draft for dioxin, primarily because it is not that common of a contaminant in fish,” Hirsch said.

Patty Clary, executive director of Eureka-based Citizens for Alternatives to Toxics, said she was surprised by the 303(d) listing, but added that animal tissue samples are the “Cadillac” of studies for identifying the presence of dioxin.

“If you have tissues from animals that live in the bay that have dioxin in them, you have a very serious problem,” Clary said.

The positions taken by the city of Arcata, the Humboldt County Board of Supervisors and Harbor District to ask the State Water Board to reconsider its decision are “very myopic,” Clary said, and she questions whether residents want science or politics driving the water quality.

Clary said she hopes the agencies will now focus on cleanup now that the bay is listed.

“I would like to see Humboldt Bay healthier again,” Clary said.




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State of California Water Resources
Control Board Meeting in Sacramento
____________________________________

Oct. 25, 2006

The following are excerpts from the meeting regarding the resolution approving the proposed 2006 Federal Clean Water Act section 303(d) list of water quality limited segments in California. The meeting began at 1:10 p.m., but the following excerpts pick up following a brief recess shortly after 7 p.m.

Michelle Smith (Humboldt Baykeeper): I’m Michelle Smith from Humboldt Baykeeper, and I wanted to thank the staff tonight for making my job a little easier and hopefully getting us out of here a little bit quicker. I planned on trying to convince the board to reconsider staff’s decision not to list Humboldt Bay as impaired for dioxin. And as staff has made that recommendation, I hope that the board will adopt it tonight. Thank you.

(Discussion about other matters.)

State Water Board Senior Environmental Scientist Craig Wilson: Yes. What I would like to list for is 2,3,7,8 TCDD equivalents, which includes the penta, hexa and octa dibenxodioxins and the penta, hexa and septa dibenzofuans. It includes all of those as one listing.

Smith: Correct.

Wilson: You’re good with that, right?

Smith: Yeah, that’s exactly what we’re looking for.

State Board Member Gary Wolff: But the proposed listing was circulated didn’t have ...

State Board Chairperson Tam Doduc: I am so impressed that you remember that.

Wolff: Yeah, that was impressive. But you’re proposing little something different that was sent out for comments, is that right?

Wilson: Yeah, completely different that was sent out for comments.

Wolff: Reversed, right? All right. So I wanted to ask the fellow from Region 1, How does Region 1 feel about that?

Matt St. John (North Coast Region Water Quality Control Board staff representative):
I’ll be honest that I hadn’t reviewed the data in a detailed way. But from what I know about it, we would support the listing and go along with the State Board’s recommendation.

Wolff: Boy, everyone gets so congenial after 7.

(Laughter.)

Motion passes and meeting adjourns at 7:15 p.m.

(Source: www.waterboards.ca.gov/tmdl/docs/303dlists2006/transcript_board_102506.pdf)
Copyright (C) 2005, The Eureka Reporter. All rights reserved.