Sedimentality

For nearly 30 years after the end of World War II, the U.S. Navy engaged in a practice one might call “truck fondue.”

At Mole Pier, a section of the Navy’s Broadway Complex, Naval personnel hosed down trucks and heavy machinery with diesel fuel, then dunked them in Paleta Creek, a tributary of San Diego Bay. The Navy sprayed, burned or buried an estimated 500,000 gallons of fuel during that period.

It was all done in the name of “decontamination”—ironic, because this is one of dozens of practices cited as primary causes of sediment contamination in the bay, according to  a federal lawsuit filed Oct. 14 by the city of San Diego. The city is asking for damages from the Navy, the San Diego Unified Port District, power companies and shipbuilders—many defunct—that operated in the shipyards along the 60-acre area south of Coronado Bridge during the last 100 years. 

General Dynamics NASCCO is listed at the top of the list of defendants for “intentionally or accidentally” dumping abrasive blast waste—containing aluminum, calcium oxides, iron, titanium, silicon, sand, steel and zinc used to remove paint—to the tune of 198 tons per month between 1987 and 1991. That’s a grand total of 11,880 tons of slag. 

BAE Systems San Diego Ship Repair Inc. is accused of similar practices, dumping 178 tons per month during those five years, a total of 10,680 tons of waste. San Diego Gas & Electric, which operated the Silvergate Power Plant along the bay for 20 years, filled an 11-foot-deep pond with waste oil and other pollutants from its sump pumps and barrel-cleaning operations. 

Other defendants named in the suit include Martinolich Ship Building Company, Southwest Marine Inc., San Diego Marine Construction Company, Star and Crescent Boat Company, Campbell Industries and as many as 100 “John Doe” parties who later could be found to assume some of the responsibility for contamination. (Download pdf)

The allegations go on and on, stating that the pollution has affected “aquatic life, aquatic-dependent wildlife, human health and San Diego Bay beneficial uses.” The main hazardous waste of concern in the bay sediments includes arsenic, lead, mercury, hydrocarbons and polychlorinated biphenyls, a class of “organic pollutants” that were banned in 1976. The city’s lawsuit calls for a judge to determine which party ought to pick up what part of the cleaning bill. The suit does not, however, specify what kind of damages the city thinks the defendants should pony up. 

“I think the complaint is a treasure trove of information on what kind of activities went on in our public resource, the bay,” said Gabriel Solmer, legal director for San Diego Coastkeeper, after CityBeat provided the nonprofit environmental group with a copy of the filing. “This is just amazing that this could happen on the city’s watch and on the port’s watch.”

Solmer added that the filing of the suit indicates a positive move: Not only is the city acknowledging the full extent of contamination of the bay’s sediments in writing, but it’s also taking an aggressive step toward cleanup. 

Much of the information in the complaint was derived from a tentative cleanup order issued in 2005 by the San Diego Regional Water Quality Control Board. While the “dischargers” have successfully stalled the process for several years with procedural requests for digitized records and technical reports, a Sept. 30 memo from appointed mediator Timothy Gallagher predicts that an agreement over who should pay for what will be ready on Nov. 19. A new technical analysis would be released in December, which the public would have until March 2010 to review and comment on.

The question, then, is: Why is a lawsuit necessary if a mediated settlement is in the works? 

The City Attorney and Mayor’s offices aren’t talking, citing a hush-hush policy when it comes to pending litigation. The lawsuit was approved unanimously by the City Council on July 27 and quietly announced two days later at the end of a 10-hour marathon session. The suit was outsourced to the firm Gordon & Rees, which did not return calls. 

“Essentially, we’re making sure that whoever is responsible for pollution shares equally in the cleanup costs,” Councilmember Donna Frye told CityBeat, though she could not comment on the legal strategy. “If I was a non-elected official, you would get a much different answer from me.” 

There are a few possible theories for the suit: The city may be anticipating the mediation will fall through or the city could be baring its teeth to let the dischargers know that they can either accept the results of the mediation or let a judge decide how to allocate costs. 

“I would imagine there is some advantage to be the first one to file this kind of suit,” Solmer said. “There’s some issues we are not privy to, and this suit could be necessary from an insurance perspective.” 

Frank Melbourn, a state water engineer who serves on the team overseeing the San Diego cleanup, said there are numerous potential reasons for the city to file suit, and “it doesn’t necessarily mean they’re opposed to [the mediation] process.” Normally, though, if a party wanted to dispute an agreement, they would appeal to the state board before bringing it to a judge. 

So far, Melbourn has faith in the process. 

“Obviously, this case is complex because there are many different parties, so getting them all to agree on something is very difficult,” he said. “I think the mediation process will help to facilitate it to occur in an efficient manner and one that will cost less overall.”

NASSCO spokesperson Karl Johnson said the company won’t comment on pending litigation, either, but offered that “overall, NASSCO feels that significant progress is being made in the bay-sediment matter.”

But the two organizations chosen to represent environmental interests in mediation—San Diego Coastkeeper and the Environmental Health Coalition—walked away from the table in September 2009, calling it, in Solmer’s words, a “sham process.” Solmer says Coastkeeper may file a brief in support of the city’s lawsuit, with further evidence of contamination or a motion to intervene on behalf of the public in the federal suit. Coastkeeper contends that cleanup should have started in 2005. 

“Delay after delay, there was a whole comedy of errors,” Solmer says. “Our message to the regional board is this mediation has gone as far as it can go. The regional board needs to schedule this for a hearing, and we need an up-or-down vote on cleanup.”

Write to davem@sdcitybeat.com and editor@sdcitybeat.com.

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