State Holds Port Liable in Copper Pollution

In an unprecedented move, local water quality officials ruled Monday that the San Diego Unified Port District is just as responsible for a celebrated case of copper pollution in San Diego Bay as the company that handled the metal concentrate.

Members of the state Regional Water Quality Control Board voted unanimously to name the Port District a primary contributor to the bay pollution, along with Paco Terminals Inc., the firm that leased port property at the 24th Street Marine Terminal for copper loading in National City.

The vote marks the first time the regional board has cited another San Diego public agency as a co-equal polluter. The action now puts the port on the same legal hook as its former tenant for the costly copper cleanup--a job that one estimate puts at $180 million.

‘Not a Blanket Decision’

Board members stressed that their vote should not be interpreted as a precedent to be used against the port if other lessees are found to pollute the bay.

“This is not a blanket decision,” board member Mary Jane Forster said.

But Forster said she and other board members intended the 5-0 vote to be a “message” to the Port District that it needs to “update its employee training program and oversight of its tenants.”

Referring to the fact that the district operated a satellite office near the Paco loading operations, Forster added:

“What were they (port employees) seeing that they did not have the realization that copper was getting into the bay and something should be done about it? The message today should turn that kind of situation around.”

David Hopkins, the Port District’s attorney in the matter, said the agency may appeal the vote to the state Water Resources Control Board in Sacramento because of the “tremendous precedential value” of Monday’s decision.

Policy Ramifications

“What this order means is that, if the cleanup timetable is not met and there is a violation of that order, then the regional board has a right to move against the Port District as well as Paco,” Hopkins said, adding that port officials are concerned that Paco will now bow out altogether from the cleanup.

Hopkins also said the regional board’s decision could have “tremendous policy ramifications” on the Port District by forcing it to focus more on environmental issues, than maintaining its traditional approach of fetching the highest return from 400 commercial and industrial leases covering 1,200 acres of tidelands under its jurisdiction.

Added Jay Powell, special projects director of the Environmental Health Coalition: “It puts the Port District on notice that they’re going to have to be more pro-active in terms of protecting the bay environment.”

The idea of naming the port as a co-polluter was proposed last year by attorneys for Paco, which, until Monday, was the only party held responsible for the copper pollution. Last April, the company was fined $50,000 by the regional board for 31 spills or discharges of copper ore into the South Bay between April, 1985, and December, 1986, when the company ceased its ore-loading operations.

Those discharges, thought to occur during rainstorms, raised copper levels to 2,400 parts per million (ppm) in sediment near the 24th Street Terminal. Paco was told to remove the tainted sediment to drop concentrations to 1,000 ppm, a job the company’s consultant said could range from $600,000 to $180 million.

Faced with a potentially huge price tag, Paco moved late last year to have the port designated as co-polluter. The company said the public agency, at minimum, permitted the pollution because it failed to exercise proper oversight as landlord of the 2.3 acres leased by the company.

Benefits to Port

In addition, Paco attorney John Lormon has argued that the Port District was a co-polluter because it enjoyed a “joint venture” with the copper firm, benefiting from “incentive” fees for everything Paco shipped in excess of 137,500 tons a year.

Paco also rented a Port District-owned crane on the National City Pier to lift the copper concentrate to waiting ships. Lormon said the crane occasionally spilled metal into the bay, a defect that was long left unremedied, although it was reported by Paco and known to port employees stationed at the terminal.

The past business relationship between the Port District and Paco, which ceased operations at the 24th Street Terminal in December, 1986, was one reason that regional board members voted to name the port as a co-polluter.

Another was that, despite the fact that Paco is gone, copper continues to seep into the bay through storm drains controlled by the port. Water samples taken Dec. 15 showed that rain runoff contained copper at 12 to 16.7 ppm, according to a regional board staff report.

“The port is definitely responsible for the runoff today,” said John V. Foley, chairman of the regional board.

Foley stressed that the board’s vote should not be interpreted as a precedent, adding that the action does not relieve Paco of its “hands-on responsibility” for causing the pollution. Attorney Lormon assured board members Monday that the company will not walk away from the cleanup.

Similar Action From Others

“I think we will take it on a case-by-case basis,” Foley said of future attempts to have the port designated a polluter. “One of the factors here was the involvement of the port in day-to-day operations.”

However, discussion of an unrelated case Monday showed that the port can expect similar tactics from other lessees: four boatyards charged with dumping copper, mercury and a toxic marine-paint additive called tributyltin into the bay.

Regional board members were informed during a routine staff report that owners of the boatyards intend to ask that the Port District, also their landlord, be designated a co-polluter.

Meanwhile, regional board members heard their staff mention yet another measure aimed at putting more pressure on the port for bay pollution. The measure, which is under study, would put the Port District’s name on discharge permits that have already been issued to 45 of its tenants around the bay.

The permits set legally allowable limits for compounds to be dumped into public waters, and a violation of those limits could lead to cleanup orders and civil penalties from the board.

In the past, the Port District’s name has been left off the permits issued to its tenants. That omission has led the board to only negotiate with the tenants when there have been problems, said David Barker, a regional board staff member.

Putting the Port District’s name on the permits, however, would make the public agency more responsible for any pollution created by its tenants, Barker said.

“The port has the obligation to ensure that their tenants comply with their discharge permits,” Barker said.