Paco, Port Challenge Order to Clean Up Copper Spill

The San Diego Unified Port District and Paco Terminals--ordered by the state in September to follow stringent guidelines and clean up copper ore dumped by Paco into the bay more than seven years ago--have filed suit against the state to challenge that order.

The suits, filed last Friday, intensify a battle over how much copper should be cleaned from the contaminated ocean bottom sediment at the National City Marine Terminal. The copper ore was illegally spilled by Paco Terminals between 1979 and 1985 while it was loaded onto ships for export, and it settled in the sediment at levels exceeding 50,000 parts per million.

The Regional Water Quality Control Board had ordered the responsible parties to dredge the sediment so only 1,000 parts per million of copper ore remain, but last December the board rejected staff recommendations and relaxed that standard to 4,000 parts per million in order to get a cleanup going.

San Diego’s Environmental Health Coalition appealed that decision to the State Water Resources Control Board, which upheld the stricter cleanup standard in late September.

The Port District, Paco, and more than a dozen other responsible parties, including insurance companies and copper mines, had tentatively agreed to finance the cleanup based on the more relaxed standard, but the state order jeopardized that agreement, Port District attorney David Hopkins said Thursday.

The stricter cleanup standard could cost the Port an additional $7.3 million, and scientists working for the Port and Paco Terminals contend that marine life has been unharmed by the copper ore, Hopkins added.

“The Port District filed the appeal because it feels that the state board decision to lower the cleanup level was not supported by the evidence,” Hopkins said. “Therefore, the only result of the state board order is to require the expenditure of millions of dollars of public money without any environmental benefit.”

The validity of that evidence has been disputed, however.

The state board rejected reams of scientific studies provided by Paco Terminals and Port scientists as inconclusive and self-serving, but invited them to submit further biological evidence supporting their views. Paco and the Port District stand by the original studies and have now submitted them to the court for an independent review.

“There hasn’t been any new biological information because we feel that the existing information is overwhelming, and that the state board--based on the information that was before them--made the wrong decision,” said Jan Driscoll, an attorney for Paco Terminals.

Driscoll said their studies show that the copper ore sits inert in the sediment, and does not dissolve into the water column or get into the food chain.

Studies by state and regional board staff, however, show that the water at the Paco Terminals site is already saturated with copper, which has also shown up in mussels sampled from the area. The stringent standard will help bring San Diego Bay--contaminated with copper from a variety of sources--closer to compliance with the State Board’s Enclosed Bays and Estuaries Plan, the board said when it issued its September decision.

“I think the State Water Board was correct in their determination,” Frances McChesney, an attorney for the State Water Board, said Thursday. “I think it’s going to be a difficult standard to overcome on their part, to go against the determination of a state agency.”

Attorneys for Paco Terminals and the Port District claim that the 1,000 parts per million standard is arbitrary, and designed to deal with copper discharged into water, not the type of copper ore that was spilled in Paco’s case. They say there is no clear evidence that the copper ore has been harmful.

But the onus is on them to prove that it is not harmful, said Laura Hunter, director of the Environmental Health Coalition’s Clean Bay Campaign.

“They’re right. Inadequate science has been done and they’ve done the inadequate science,” Hunter said. “They are obligated to prove that what’s in there is safe, and they have been unable to do that. The burden is on them, and they keep turning it on its head and saying you have to prove to us that it is hurting.”

Hunter added that there is evidence that the copper ore spilled by Paco Terminals is dissolving into the water in the area. Those findings were made by regional board scientists in the mid-1980s, prompting the initial cleanup order, regional board senior engineer David Barker said in an earlier interview.

Even if biological effects were undetermined, the copper ore was discharged in violation of a permit and should, by law, be cleaned up. The 1,000 parts per million requirement would only remove 4% to 5% of what was illegally spilled, but it would bring bay waters into compliance with state standards, whereas the 4,000 parts per million standard would not, the state order issued in September said.

Driscoll does not dispute that the water and mussels at the Paco site are copper-laden, but points to many other possible sources of contamination.

“There is copper in the water, and all over San Diego Bay. We think it comes basically from bottom paint and from storm water runoff,” she said. “There are 13 Navy berths right next door. There are other sources of copper.”

As the squabble intensifies, Paco Terminals and the Port District remain in violation of the cleanup order, and a Feb. 1 deadline to finish dredging is fast approaching. They plan to request a stay of that order at a hearing next week, attorneys said.

The Port District, which leased Paco its land, was named as a responsible party in 1989, and while both the Port and Paco have sued their insurance companies, those companies have denied coverage in connection with the spill, Hopkins said.

“When we talk about the additional money required to meet the state board cleanup level, we’re looking primarily at money from the Port District,” Hopkins said. Paco Terminals, which filed a petition for bankruptcy in 1990 and withdrew it later that year, does not have the extra millions to contribute to the cleanup, Hopkins said.

Although the copper ore was dumped in violation of a permit, Hopkins said the Port should not have to bear the burden of the cleanup.

“That permit was not issued to the Port District. The Port District did nothing in violation of any permit, yet it’s the Port District that’s required to do the cleanup,” he said, even though there is no clear evidence that marine life is being harmed.

But Hunter said the matter should be fought out among the Port District, Paco Terminals and their insurance companies. The public shouldn’t have to foot the bill for a cleanup, or for litigation against the state board, Hunter said.

“I’d be very disappointed and it would be kind of a disservice to the public, if public money is being spent to save insurance company money,” she said.