Enforce EPA’s Rules, for Newport Bay Now, Groups Insist

Two years ago, the U.S. Environmental Protection Agency established limits to stem the flow of 14 toxic pollutants into ecologically sensitive Newport Bay.

Yet Robert Caustin says he is still waiting for state water quality officials to implement and enforce the EPA requirements he fought so hard in federal court to get.

“I never dreamed it would take this long,” said Caustin, who founded Defend the Bay, an environmental group dedicated to restoring Newport Bay. “The way it looks, it might still be years before anything is done.”

Last week, the patience of Defend the Bay and the Natural Resources Defense Council, a national environmental group, apparently ran out. The two organizations petitioned the Santa Ana Regional Water Quality Control Board, demanding that the regulatory agency assume its legal responsibility and put the EPA standards into place by July 30.

“I’ve never seen this kind of procrastination where toxic pollution is involved,” said David Beckman, a Natural Resources Defense Council attorney who prepared the petition. “The fact that almost two years have passed while the standards gather dust adds insult to injury.”

But water board officials say the EPA standards are gradually being implemented. By the end of 2005, for instance, they plan to have them in place at the Rhine Channel, a pollution hotspot in the bay’s old cannery district.

Studies also are underway, they say, to assess the sources and environmental impact of some pollutants for which the EPA has set limits. The water board would like to finish the research and make adjustments to the rules within three years.

“We have been implementing the standards through a number of programs, and we are incorporating the EPA limits into our discharge permits as they come up for issuance or revisions,” said Wanda Marquis-Smith, chief of the coastal waters planning section for the Santa Ana board.

Water quality officials are willing to meet with attorneys from the two environmental organizations to discuss their concerns, Marquis-Smith said.

The state board, whose jurisdiction includes half of Orange County and parts of western Riverside and San Bernardino counties, develops and enforces water quality laws, and issues permits to companies and government agencies that discharge pollutants into waterways.

The controversy began in 1996 when Defend the Bay sued in federal court to force the EPA to develop pollution standards for Newport Bay, where swimming and shellfish-harvesting have been banned in some areas for decades. The upper portion of the bay is an ecological reserve, while the lower portion is a bustling pleasure harbor.

Caustin alleged that EPA officials were delinquent in ensuring that the Santa Ana board developed and implemented pollution limits for the bay.

The standards set limits on how much of each pollutant the bay can handle, and form the basis of discharge quotas for permit holders.

In November 1997, the EPA agreed to set such standards for 14 toxic pollutants, including pesticides, copper, lead, selenium and mercury. Also on the list were DDT (dichlorodiphenyltrichloroethane) and PCBs (polychlorinated biphenyls), chemicals used in electrical equipment. Once a widely used pesticide, DDT has been banned, but traces remain in the environment.

The standards, which were established in April and June 2002, affect cities, homes and businesses in the bay’s 112-square-mile watershed, which extends miles up San Diego Creek and through parts of eight Orange County cities, including Irvine, Orange and Tustin.

Separate plans to reduce bacterial contamination and other pollutants already are in place. Environmentalists and water quality officials hope the EPA regulations, in combination with the other efforts, will open sections of the bay to swimming by 2013, and to the taking of shellfish by 2019.

Caustin and Natural Resources Defense Council officials said they decided to proceed with a petition after a preliminary study was released two weeks ago by the Orange County Heath Care Agency. The research found potentially dangerous levels of PCBs and DDT in fish caught in Newport Bay between 2000 and 2002.

The study, for example, revealed levels of DDT ranging from 15 to 490 parts per billion. The state considers anything above 100 a potential health risk.

Such results “serve to underscore the fact that for two years, the water board has not done anything specific to reduce pollution” in Newport Bay, Beckman said.

Caustin and Beckman say the water board’s ongoing studies are a waste of time because they duplicate much of the research the EPA conducted when it set the standards.

“This issue has been studied to death,” Caustin said.

If nothing is done, Defend the Bay and the two environmental organizations can appeal to the state water board in Sacramento, seek a court order, or ask the EPA to force the water board to apply the standards fully.

Marquis-Smith said further studies are necessary because the EPA information is not always complete. Some of the pollution sources, she said, must be analyzed more to determine their exact locations, especially DDT and PCBs.

“Some of their data was preliminary. We need to see the exact impacts on people, fisheries, and wildlife to better define what the standard is going to be,” Marquis-Smith said. “There is a lot of science, and science does take time.”