A water pollution odyssey

The Water Quality Control Board has a backlog of unprocessed and expired permits for the major polluters into San Diego bay. What are those people doing?

by Carolyn Chase

o you have the impression that the State of California cares about water pollution discharges into our watershed? Spending even a small amount of time listening to regulators and water activists will convince you otherwise.

The health of California's families and its economy depends upon clean coastal waters. Eighty percent of California's families live on or near the coast. They rely on coastal waters and systems for fishing, swimming and, in many cases, their livelihood. California is world-renowned for its coastline. Industries that depend on healthy coasts, oceans and bays contribute more than 17 billion dollars to the state's economy every year and provide 370,000 jobs to California's citizens. Naturally, I thought that water quality would be important. I vaguely thought that toxic pollution was effectively regulated by the state and I'd heard of the Clean Water Act.

So my interest was definitely peaked when I received a press release from the Environmental Health Coalition, a long time citizen's watchdog group for pollution prevention entitled, "EHC CHALLENGES EXPIRED, UNISSUED WATER DISCHARGE PERMITS," and "Seeks State Water Board/EPA Assistance to Address Discharges into San Diego Bay."

Could it be true that all the major shipyards on San Diego Bay had expired permits, with some expirations dating back 8 years? That key Naval facilities (North Island, Naval Amphibious Base, 32nd Street Station, and the Navy Submarine Base) had no permits at all, even though they had applied in 1990 or 1991?

Did this mean that they had stopped discharging pollution, since they had no permit? Well, of course not.

Permitting pollution

It is the primary duty of the Regional Water Quality Control Board, of the State of California, San Diego Region, to "protect the quality of the water within the region for all beneficial uses." This duty is implemented by formulation and adoption of water quality plans for specific ground or surface water basins and by prescribing and enforcing requirements on all domestic and industrial waste discharges. Responsibilities and procedures of the Regional Water Quality Control Board come from the state's Porter-Cologne Water Quality Act and the nation's Clean Water Act.

The total budget for the San Diego RWQCB is $3.7 million supporting 42 permanent staff and 11 part-time assistants. This Board is in charge of 105 non-storm water discharge permittees under the National Pollutant Discharge Elimination System (NPDES). The nine members of the Board are appointed by the Governor to represent the following interests: water quality (two), industrial water users, municipal governments, county government, recreation/fish/wildlife, irrigated agriculture, water supply, and "undesignated public."

As explained by Laura Hunter, Director of EHC's Clean Bay Campaign, "The permitting system of the Porter-Cologne Act and the federal Clean Water Act relies on permits that are issued and updated to reflect current technology and scientific knowledge. Without current permits, the system breaks down as dischargers do not budget adequately for improved programs. The facilities with expired and unissued permits represent the bulk of the major polluters of San Diego Bay. Due to inaction by the Board, these facilities are operating under archaic, outdated permits, or, worse yet - no permit at all."

EHC also noted that many permittees that have expired permits are members of the Industrial Environmental Association, the same organization that is funding workshops and training sessions for Regional Board staff. "It is of obvious concern that staff has time and is directed to attend IEA funded programs, but does not appear to have sufficient time to spend processing or updating permits," commented Hunter.

In addition to private industry permits, the San Diego municipal storm water/urban runoff permit, covering 20 jurisdictions, has been expired for almost two years. According to EHC, "the inadequacy of this permit issued in 1990 allows for most of the programs that the dischargers have developed to be inadequate and as long as the expired permit remains in effect, it provides a valid excuse for the 20 dischargers to ignore budgeting for improved water quality."

Meeting of the bored

EHC went on to state that a status report on how and when the Board would address the backlog of permits would take place at an upcoming hearing. So I decided to attend the hearing to see what the deal was.

When I arrived at the hearing, I checked on the agenda for an item related to expired permits. There wasn't one.

To make sure my trip downtown would not be in vain, I ran out the door to submit my own speaker's slip so I could ask the Board myself. At public hearings, all official boards are required to make time available for the public to address the board on any matter. When my name was called by the Chair, I went up, stated my name and address for the record, explained my editorial interest and launched right into the following statement from the EHC press release:

"Environmental Health Coalition announced today that the state agency that has authority to regulate discharges into San Diego Bay is not issuing or renewing water discharge permits in accordance with the law. In a letter to Mr. Tim Kelly, Chairman of the San Diego Regional Water Quality Control Board, EHC listed six expired permits and four Naval facilities that have yet to receive permits from the Regional Board."

I added that I found it rather shocking that this should be the case and that most people would think that the State of California had some handle on regulating pollution and protecting water quality.

Chairman Kelly was quick to respond that he had only received the EHC letter a few days ago and that indeed there would be a report today from the Executive Director. "Over the next 30 days we will respond," he stated

This was only the beginning of my education in the art and bureaucracy of permitting pollution.

"A good question"

If I simply reported a summary of the discussion that followed, you might have a hard time believing some of it. If I reported my opinion of the proceedings, it might just look like bureaucracy bashing. So here is a rather painful blow-by-blow summary (note: this is not a Monty Python sketch).

John Robertus, Executive Officer of the Regional Board, began his report by handing out a 2-page chart entitled, "Status of significant San Diego Regional Permits & Waste Discharge Requirements." It listed 22 permits and included the ten specifically cited by EHC.

He began, "How can permits be that old and not be rewritten is a good question... there are things that have to be done before rewriting permits... we all know we have problems. We have to set priorities. We don't have the resources. We have to know the discharge requirements. There are no discharge standards for bays and estuaries.

"We take the application from the discharger of what they want to discharge. Then we look at activities and determine how we will monitor compliance. We write new permits first... New permits have priority where they may be stopped from proceeding with business if they don't get a permit. ... Expired permits can be extended provided they provide updates. In the case of a general permit, they don't have the same updating requirements but the San Diego County permit has 20 co-permittees still reporting. Even if expired it's not an unpermitted discharge."

Kelly: What is the status of a permit that is expired?

Legal counsel: It gets complicated. Under state laws, all permits expire in 5 years. Under federal law, the discharges are no longer permitted unless the state allows it. Under California law, the provisions of an NPDES permit remain applicable even though the permit is expired. The applicant is required to submit a new application every 5 years. We continue to monitor and the permittee remains bound by the terms of conditions of the expired permit.

Robertus: "Reviewing reports takes time. I have no resources for enforcement. When it happens, we put the resources into it. Pretreatment is now receiving more interest. We will monitor effluent in the receiving water.... The San Diego Bay standards are unclear. The prior plan was declared invalid. Another option is to use the Ocean Plan standards. But there are problems in applying this to the Bay, and these indicators are especially not valid in the South portion of the Bay. Another choice would be to use the Basin Plan. But this Plan does not cover discharges. This is presenting a dilemma for us and the dischargers have a good case when they say we're not applying appropriate standards. Then there are federal standards which are going to be promulgated, but they are not specific either."

Kelly: Regarding the pending shipyard permits, this is an area of great controversy. How can you issue permits on the proposed deadline (June 11, 97) without standards?

Robertus: Not sure what we're going to do. Would like to get close to something that's defensible and not have to go back. We have not determined entirely what the water quality standard will be.

Judy Johnson: "Regulations are enforcement. We should never say we are not doing enforcement. We do enforcement daily. If we weren't here no one would even have to do anything about their discharges..... Why aren't the Navy permits a priority?

Staff: The Navy facilities have been around since the 40s and have been doing what they're doing since then. The permits have been an equity issue... an attempt to equalize regulations on industry and military facilities around the Bay... so our intent was to issue permits in the same fashion as the industrial shipyard permits. There are no new projects being held up by the lack of new permits.

Robertus: There are 30,000 filers reporting in the state with 134 per month in our area. There are other DoD facilities that in fairness, arguably should have permits... It's a spectrum. These are discharges that have been around for a long time. Our intention is to permit them.

Kelly: I really have concern with the shipyard permits. The permittees are in a position to challenge the basis because we don't have receiving water quality standards. This is a substantive problem we will be faced with.... what is the true status of an expired permit? What does this mean?... How is San Diego Bay receiving water quality standard going to be resolved?

State staff: We need a new Bay and Estuary State Plan in place. One proposal is to accept federal standards and revise monitoring. The State Plan is going through the public process. The State Board is responsible for this and is working with interested parties.

Making a point

So I wondered, if there are no standards and no resources for updates or enforcement... well really, what's the point?

Libby Lucas of EHC disagrees strongly with many of the Board's key assertions. "The Water Plans are undergoing an update which has been a slow process," she explains. "Nevertheless, saying the state doesn't have standards and therefore they're not moving forward is groundless. Other Boards around the state are moving forward with their permitting efforts. And in fact this Board has adopted several permits since the plans were challenged in 1991. Our request is that the [local] Board seek immediate assistance from the state Board to expedite the backlogged permits and that they further request the U.S. EPA to direct resources to San Diego for the express purpose of alleviating the permitting backlog and bring all permits up-to-date."

The response of the Board has been to initiate a report for their March 12th meeting in Oceanside, "which will specifically address the reason for and the impact of not issuing revised permits for some existing permit holders and the processing of new permits." One wonders why the Board would be reticent to make these simple requests for additional resources to accomplish their mission. They have had such assistance in the past.

Despite the lack of standards and resources, the Board is planning to issue a combined permit for all five of the shipyards in question. Director Robertus reported that they have toured each shipyard in the last year and worked to improve shipyard practices. There will be a public workshop on this process on March 5th, from 1pm to 4pm at the Regional Board offices at 9771 Clairemont Mesa Blvd, Suite A, San Diego.

Bringing in the feds

The federal Clean Water Act requires all states to adopt Water Quality Control Plans. These plans define beneficial uses, water quality objectives to protect the uses, and programs to achieve those objectives. In 1991, the State of California had 3 statewide plans that established standards for "priority toxic pollutants:" the Inland Surface Waters Plan, the Bay and Estuary Plan, and the Ocean Plan.

But California was sued by a group of municipalities and the final decision in 1994 required the state to rescind the Inland Surface Water Plan and Bay and Estuary Plan. Since then, the state has been without water quality standards.

Diane Frankel, California Toxics Rule Project manager, EPA Region 9, was quick to admit that the State of California is "out of compliance with the Clean Water Act" and has been for some time.

Because of the void in state standards, the U.S. EPA moved into action and is in the process of creating a federal rule setting standards for the state. In the meantime, according to Frankel, "all the Regional Boards have narrative criteria that state, in one form or another, 'no toxics in toxic amounts.' They have the authority to issue permits with numeric limits. The EPA issued permit guidance on how to do this."

She indicated that standards are currently in effect for 45 out of 126 priority toxic pollutants (PTPs). PTPs include heavy metals and organic chemicals, but not bacterial or sewage-related pollutants (which are handled in the "Regional Basin Plans" which regulate storm water and urban runoff) or other sewage and nutrient pollutants.

The federal rule establishing California's water standards is expected to be published within 3 months and then enter a 60-day public comment period. There will also be public meetings in Northern and Southern California.

There will be a cost analysis by the federal Office of Management and Budget, including a "Regulatory Impact Assessment." EPA cost analysis so far does not show it to be significant.

After the rule becomes federal law, the State Board will start a CEQA (California Environmental Quality Act) process which will analyze the impacts of the federal as well as other possible standards on California. If all goes well, the Regional Boards will run permits workshops sometime in 1998.

In parallel, the State is pursuing the development of the rest of the plans that would, along with the standards, bring California into compliance with the Clean Water Act.

Flowing and growing

It seems like we are in for years of bureaucratic and special-interest wrangling over paperwork while the pollution keeps flowing and population keeps growing. Once these standards and plans are passed through the regulatory system, the odds are they will be sued and stopped again by cities and industries saying they are too costly to implement. In the meantime, we are great at giving lip service about the importance and beauty of our coast and beaches, when the hard truth is, we have other priorities. There are lots of things that make this America's Finest County, but I'm sorry to say the efforts of the Regional Water Quaity Control Board and Executive Officer do not seem to be one of them.

The goal of clean water and healthy water ecosystems is clearly looked at as idealistic ­ not realistic ­ and the priorities of the board and staff are clearly focused on the importance of keeping the polluters happy. Lost in the flurry of rules and permits is any urgency whatsoever about directing or increasing resources to reduce or eliminate pollution.

Pollution police needed

It seems clear that additional resources could be put to good use. However, I'm hesitant to say that additional money should go to an organization with such limited accountability and that has such a clear bias for industry over water quality. We need a board that is responsive to all users and the health of the ecosystem, not just the dischargers and users they do business with. I could only support additional funding for the Regional Board if it were tied to enforcement, and at the same time established clear ethics rules for the Regional Board members and Executive Officer. I think the system would also benefit from an increased number of public representatives on the board, which is now heavily weighted with users with financial investments in pollution.

The Environmental Health Coalition can be reached at: (619) 235-0281.

Water quality: an independent assessment

The Center for Marine Conservation and the American Oceans Campaign have identified the following issues in water quality protection for the State:

To get involved, contact: Center for Marine Conservation (415) 391-6204.