WHAT LIES BENEATH: Agencies try to unravel a complex and confusing process
by Nathan Rushton, 1/18/2007
It was a decision that surprised bay-dependent businesses and nearly every local and state government agency that has a stake in managing Humboldt Bay.
A slowly building controversy began Oct. 25 when the State Water Resources Control Board, in finalizing its list of pollution-impaired waters it must provide every two years to the U.S. Environmental Protection Agency to comply with section 303(d) of the Clean Water Act, voted to add Humboldt Bay over concerns of elevated levels of the carcinogen dioxin found in animal tissues in the bay.
Citing negative economic impacts and problems with the process, a flurry of letters and conference calls in recent weeks from several city, county and special district entities to the state’s top water quality agency have been aimed at trying to get the state to consider reversing an action most have written off as a done deal.
Although the state initially stated in response letters in early January that it did “not intend to revisit its decision based on either procedural or technical grounds,” information this week from the State Water Board indicates the staff is considering options and evaluating the technical analysis employed in the preparation of the 303(d) list.
The EPA has already approved California’s recommended list of impaired waters — including Humboldt Bay for dioxin.
KNOWN PCP POLLUTANT ‘HOT SPOTS’ IN HUMBOLDT BAY
According to county officials, economic impacts to the area as a result of the listing might mean additional — and costly — scrutiny for dioxin testing for development permits and restoration activities for wetland and marsh habitats.
Listing Humboldt Bay as impaired for dioxin sets in motion a lengthy process by which the North Coast Regional Water Quality Control Board must initiate a plan — known as a total maximum daily load — that identifies the contamination and plots a course to clean it.
But in making its decision, critics of the listing action have said the State Water Board overlooked reams of available scientific literature and relied on only a small “cherry-picked” subset of contamination data, which led to the board reversing its previous position to not list the bay as impaired for dioxin.
The controversial decision, which was flagged as unusual by its own board members, was made in Sacramento during the final minutes on the last day of public input in a two-year process — despite previous versions of staff documents that had been circulated publicly that didn’t indicate Humboldt Bay was being considered to be listed.
While the Humboldt Bay Harbor, Recreation and Conservation District, Humboldt County Board of Supervisors and city of Arcata sent letters to the State Water Board raising concerns over “inconsistencies” with technical review, “cursory” data analysis and “troubling” recommendation reversals, one environmental group that lobbied for the listing — Humboldt Baykeeper — said it got exactly what it wanted and announced the action was an important step in getting the cancer-causing dioxin cleaned up.
Humboldt Baykeeper, which formed and set up shop on Humboldt Bay in October 2004 to safeguard coastal resources through education, research and enforcement of environmental laws, is a member of the national Waterkeeper Alliance and the California Coastkeeper Alliance funded through the Ecological Rights Foundation.
The tissue-testing samples the state said it originally received in September 2004 stemming from the ERF’s lawsuit against Sierra Pacific Industries for Clean Water Act violations was part of a Humboldt Baykeeper petition submitted last January, which asked the state to re-examine the data.
The State Water Board staff did take a second look and used it as the basis for reversing its previous recommendation not to list Humboldt Bay.
Although the state said the sampling data showing 14 out of 29 fish, oysters, crab and mussel tissue samples taken from the bay in 2002 tested higher than California’s established thresholds for dioxin toxicity, representatives from SPI said the conclusion of the Scoping Ecological and Off-Site Human Health Risk Assessment report the data were taken from states there were no health risks to humans.
While agencies are questioning the appropriateness of the data and the process that allowed information to surface so late in the process that they weren’t given a chance to respond, State Water Board Information Officer Chris Davis indicated Wednesday the data were considered because regulations require the state to consider all available data and information when forming recommendations for including water bodies on the EPA’s 303(d) list.
“We are not required to give notice to solicit data, but do so to gather as much information as possible,” Davis said in an e-mail correspondence Wednesday. “Staff is not only encouraged, but required to seek out all available information.”
But in an apparent disconnect, the State Water Board didn’t communicate with its Region 1 Water Board, whose jurisdiction Humboldt Bay falls under, which one staff member said had “reams” of scientific studies and data it had already assembled but not yet thoroughly analyzed.
Region 1 Water Board Executive Officer Catherine E. Kuhlman said her staff was also surprised by the State Water Board’s action.
Harbor District CEO David Hull argues that had the state given any indication it intended to reverse its previous decision, he would have attended the meeting to provide more thorough scientific information.
So how will the 303(d) listing affect the various agencies and businesses or the Harbor District, which arguably has the most bay acreage under its charge as part of its harbor, recreation and conservation responsibilities?
“It is a huge unknown, which is the nut of the problem,” Hull said. “When process is warped and none of those things are considered, we don’t know what the impacts could be.”
The last-minute reversal of the state’s position on contaminants was a sort of déjà for the Harbor District, which had its approximately once-every-decade Marina maintenance dredging delayed by one year as the result of dioxin concerns raised by Humboldt Baykeeper during the last day of public comment period of a California Coastal Commission hearing to finalize those permits.
At that hearing, Humboldt Baykeeper Program Director Pete Nichols warned that the 200,000-cubic yards of bay sediment proposed to be dredged and dumped into the surf on a beach north of Samoa was contaminated with dioxin and should be disposed of in a way that didn’t put human and animal’s health at risk.
Coastal Commission staff agreed and the agency put the permits on hold until the district and the dredging co-applicant, the city of Eureka, completed more testing.
After a one-year delay of the project, which cost the Harbor District and, ultimately, taxpayers more than $200,000 in additional dioxin testing and caused significant problems for fishermen as sediment continued to pile up and interfere with boat navigation, the project was allowed to proceed as previously planned in November with minor changes.
A late-added Eureka Waterfront dredge site, which tested above acceptable thresholds for dioxin, wasn’t allowed to be dumped on the beach.
The testing for the majority of sediments in the various dredge sites did show dioxin, but in “ambient” levels experts say are present nearly everywhere.
Humboldt Bay, whose banks have been riddled in the past with industrial mill sites, is no stranger to the 303(d) list.
Humboldt Bay is already on the EPA’s list for impairment from polychlorinated biphenyls — a now-banned carcinogenic chemical, which was used as a coolant and lubricant and is often associated with dioxin contamination.
Nichols, who said Humboldt Baykeeper isn’t an alarmist group, objects to the assumption that data were “cherry picked” and submitted to influence that state and said he was as surprised as everyone else that the state reversed its decision and listed the bay as impaired for dioxin.
“The information and data included in that petition included all the available data we could find relating to dioxin levels in Humboldt Bay, not just the fish and oyster tissue data,” Nichols said.
And it is up to the State Water Board staff to analyze the information and provide a list of impaired waters, Nichols said.
“Hopefully, we can move forward proactively,” Nichols said.
Copyright (C) 2005, The Eureka Reporter. All rights reserved.
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