VIA CERTIFIED MAIL - RETURN RECEIPT REQUESTED
August 11, 2000
Stanwood A Murphy, Jr.
Humboldt Bay Forest Products, Inc.
110 C Street
P.O. Box 266
Fields Landing, CA 95537
Re: 60 Day Notice Letter of Intent To Sue For Violations of the Clean Water Act
To Whom It May Concern:
On behalf of the Environmental Protection Information Center ("EPIC") and the Californians for Alternatives to Toxics ("CATs"), you are hereby notified that we intend to file suit against the company, directors and officers of Humboldt Bay Forest Products, Inc. ("HBFP") for serious and ongoing violations of the Clean Water Act and its implementing regulations. 33 U.S.C.A. §§ 1311(a), 1342; 40 C.F.R. § 122. These violations arise from the HBFP's failure to obtain a requisite permit under the National Pollution Discharge Elimination System ("NPDES") program of the Clean Water Act ("CWA") for its operations in Fields Landing, California, resulting in unregulated quantities of pollutants being discharged into Humboldt Bay. These violations are egregious and demonstrate a willful disregard by the HBFP for both the law and the beneficial uses of water that the CWA requires to be protected. Therefore, we provide this notice pursuant to the citizens suit provisions of the CWA to notify you that unless these violations are corrected within the next 60 days, we will seek justice for the public trust resources of Humboldt Bay through the United States District Court. 33 U.S.C.A. § 1365(a)(1), 40 C.F.R. § 135.
EPIC and CATs, both California non-profit organizations, actively work to protect and restore damaged ecosystems on the North Coast of California. We are increasingly concerned because Humboldt Bay has been and continues to be seriously damaged by the various harmful pollutants that are discharged into its waters by business entities such as HBFP. Many of EPIC and CATs' staff, board and members regularly hike, kayak or otherwise enjoy the Humboldt Bay National Wildlife Refuge, the Arcata Marsh and Wildlife Sanctuary, the Manila Dunes Recreation Area, the Samoa Dunes Recreation Area and other areas in and around Fields Landing and Humboldt Bay. These members derive spiritual, physical, recreational, and aesthetic benefits from these activities. EPIC and CATs rely on corporations and agencies to comply with relevant conservation laws to protect the beneficial uses provided by areas such as Humboldt Bay. The HBFP has failed to comply with their obligations required by law, and this has caused degradation to Humboldt Bay that may have otherwise been avoided. The staff, board and members of EPIC and CATs have been, are being, and unless these violations are corrected, will continue to be injured along with many plant, aquatic, bird and mammal species who also depend on Humboldt Bay.
The phone number and address for EPIC and CATs are as follows:
EPIC, Post Office Box 397, 351 Sprowel Creek Road, Garberville, California, 95542, (707) 923-2931. CATs, 860 1/2 11th Street, Arcata, California 95521 (707) 822-8497.
I. Background
The Humboldt Bay Forest Products, Inc. ("HBFP") operates an industrial port and dock facility in Fields Landing, California on the edge of the southern portion of Humboldt Bay ("Fields Landing site" or "site"). Serving such companies as Chinese International Forestry, the port at this facility is primarily utilized to import whole logs from such countries as New Zealand and Argentina and to export whole logs from the "Redwood Region" to Japan, Korea and other countries. In addition to whole logs, HBFP imports and exports sawdust, chips, "hogfuel," steel, and minerals, and maintains a 50-acre storage yard for these materials.
Various chemical pesticides and fungicides are consistently applied to whole logs and other forest products. Because high risks of introducing exotic insects and diseases are involved when these resources are imported to and from other countries, such chemicals are heavily applied to those transported to and from facilities such as HBFP's. Many different chemicals are used for this purpose, including pentachlorophenol ("PCP's"), tetrachlorophenol, copper quinolinilate and/or copper chromated arsenate, methyl bromide, benzene hexachloride, creosote oil, lindane, cyclohexanone, aliphatic petroleum hydrocarbons, and others . As rainwater and other moisture come into contact with these chemicals at the site, it becomes contaminated with such toxic compounds as dioxin and furan before entering Humboldt Bay. These compounds, include, but are not limited to, tetrachhlorodibenzo-p-dioxin, hexachlorodibenzo-p-dioxin, and polychlorinated dibenzofurans. In addition to these pollutants, others are also discharged from the wood products transported to and from and stored at the Fields Landing site, including chips, water with high total suspended solids ("TSS"), high turbidity, high specific conductance, high biochemical and chemical oxygen demand ("BOD" and "COD" respectively), and others.
Heavy equipment used at the site is an additional source of water contamination. Conveyers, loaders, vehicles and other equipment leak engine oil, diesel fuel, hydraulic fluid, lubricants and other toxic hydrocarbons onto the ground surface of the facility. As a consequence, copper, mineral oils, antifreeze, brake fluid, transmission fluid, diesel fuel, xylene, toluene, benzene, butadiene, gasoline, oil and grease, low pH water, and other pollutants are also discharged into the soil and the Bay from the Fields Landing site.
The activities at the Fields Landing site have caused and are currently causing serious deleterious impacts to the human and non-human animals that depend upon the Bay. The pollutants discharged from the site are known have serious impacts on humans and other mammals, fish, birds, and plants. Dioxin-like compounds from chemicals used on wood products are particularly dangerous, disrupting the endocrine system of developing fetuses and bioaccumulating in the tissues of salmon, shark, steelhead, shellfish, and mammals. Virtually every person on the planet carries a body burden of dioxin-like compounds, and this level is increased every time fish or shellfish are ingested that also carry dioxin-like compounds. Research shows that as these chemicals accumulate in humans, they risk "developmental toxicity based on the inherent sensitivity of the developing organism to changes in cellular biochemistry and/or physiology, reduced reproductive capacity in males based on decreased sperm counts, higher probability of experiencing endometriosis in women, reduced ability to withstand immunological challenge and others." (U.S. EPA). HBFP's improper and illegal management of pollutants at this site contributes to the severe water quality degradation that plagues Humboldt Bay, and poses serious health hazards to human and non-human animals who consume fish and shellfish that become contaminated due to HBFP's misdeeds.
Humboldt Bay is one of the largest and most biologically important coastal estuaries in California. Its wetlands, intertidal mudflats and marshes provide essential habitat for a great diversity of life, including approximately 141 invertebrates species, 110 fish species and 251 bird species. The designated beneficial uses for Humboldt Bay include commercial and sport fishing; preservation of special biological significance; wildlife habitat; marine habitat; migration habitat for aquatic organisms; habitat for rare, threatened or endangered species; spawning reproduction and/or early development habitat for fish; shellfish harvesting; estuarine habitat; and aquaculture. The diverse flora and fauna make the Bay highly attractive for educational, scientific, and recreational purposes, and Humboldt Bay is greatly used for diving, surfing, bird watching, nature photography, and the study of natural history, ecology and marine sciences.
Eelgrass, "which supports an extremely diverse and complex food web," "accounts for about 20 percent of the total area extent of the inter-tidal habitat of the Bay. Philips (1984) recognized Humboldt Bay as having one of the three largest stands of eelgrass in the Pacific northwest region" (U.S. Fish and Wildlife Service, Fish and Wildlife Coordination Act Report for the Humboldt Harbor and Bay Deepening Project, March, 1995). The largest and most pristine stands of eelgrass beds are in the southern portion of the Bay, which is also the area in which the Fields Landing site is located.
The Bay is an important spawning and nursery ground for numerous fish and other aquatic species, hosting albacore tuna, green and white sturgeon, Pacific herring, lingcod, Dungeness crab, rock crab, and many species of rockfish, salmon, oysters, and clams. For this reason, Humboldt Bay provides a critical link for migrating and wintering water birds in the chain of coastal wetlands from the Arctic Circle to South America, annually supporting millions of waterbirds, shorebirds, raptors, and songbirds. Also for this reason, until very recently the Bay supported large commercial and sport fishing, clamming, and other seafood industries. Indeed, of California's twelve shellfish reserves set aside for public clamming and oystering, seven are located within Humboldt Bay. The Bay is also essential habitat for a myriad of mammal species, as more than 30 species of mammals have been found in and around the Bay. The populations of many of these plant and animal species have declined so dramatically that protection under the California and/or federal Endangered Species Acts has become necessary to prevent their demise. Such species include the Western lily, Menzie's Wallflower, Beach Layia, Marbled Murrelet, Brown Pelican, Western Snowy Plover, Aleutian Canada Goose, Peregrine Falcon, Gray Whale, Coho Salmon, Chinook Salmon, and Steelhead Trout
II. Requirements of the Clean Water Act
In response to widespread degradation of the nation's waters, Congress began enacting legislation in the 1940's to help protect and restore the watersheds, wetlands and estuaries flowing through the United States. Congress expanded upon earlier legislation in 1971 to pass the Federal Water Pollution Prevention Act that is in place today (the "Clean Water Act," "CWA" or "the Act"), establishing as an objective "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C.A 1251(a). To achieve this objective, Congress declared that "it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985," and that all watersheds be healthy enough to, at the very minimum, "provide for the protection and propagation of fish, shellfish and wildlife…" Id. at (a)(1) and (2). Congress also declared that "it is the national policy that the discharge of toxic pollutants in toxic amounts be prohibited." Id. at (a)(3).
As part of its efforts to enable these goals and objectives of the CWA to be actualized, Congress made it illegal for persons and entities to discharge any pollutant into waters of the United States unless such discharge strictly complies with the Act. 33 U.S.C.A. §1311(a). For discharges stemming from facilities used for log sorting and log storage, for the storage and maintenance of material handling equipment, raw materials, and intermediate and finished products, and as shipping and receiving areas, one must apply for a permit under the National Pollutant Discharge Elimination System ("NPDES") program. 33 U.S.C.A. §§ 1342(a), (p)(2)(B) and (3)(A); 40 C.F.R. §§ 122.1(b)(1) and (2)(v), 122.21(a); 122.26(a)(1)(ii), (b)(14) and (c); 122.27(b)(1) and (3). It is through this program that pollution from these and other "industrial activities" is intended to be controlled such that deleterious effects to the nation's beneficial uses of water are not endured.
Any discharge from an industrial activity without a valid NPDES permit is unlawful and in violation of the CWA unless such activity is specifically exempted from the requirements of the NPDES program. 33 U.S.C.A. § 1342(a); 40 C.F.R. §§ 122.1(b), 122.21(a), and 122.26(a)(1)(ii) and (c). "Dischargers of storm water associated with industrial activity are required to apply for an individual permit, apply for a permit through a group application, or seek coverage under a promulgated storm water general permit" under the NPDES program. § 122.26 (c)(1). "Dischargers…seeking coverage under a general permit shall submit to the Director a written Notice of Intent to be covered by the general permit..." §122.28 (b)(2). Existing facilities subject to the terms of the California's General Permit for Industrial Activities were required to have filed a Notice of Intent ("NOI") for coverage under the Permit by March 30, 1992, and to thereafter comply with its procedural and substantive requirements.
To apply for an NPDES permit, dischagers must provide information and documentation to the State and/or EPA so that any potential adverse environmental impacts can be adequately assessed and mitigated. §122.26(c)(1)(i). Among other things, dischargers must provide maps of the facility, an estimate of the area of impervious surfaces, a description of specific activities that have taken place at the facility, a certification that all outfalls have been tested or evaluated for non-storm water discharges, information on the leaks and spills of hazardous pollutants in the previous three years, and quantitative data from storm water samples. Id.
To comply with the State of California's General Permit, the discharger must, amongst other things: prepare and implement an adequate monitoring plan and an adequate storm water pollution prevention plan; conduct visual observations at all discharge locations; collect stormwater samples; sample and analyze wet season discharges and representative samples; keep and make available adequate records; and prevent discharges which cause pollution, contamination, or nuisance, or violate any applicable water quality standard. [Permit No. CA S000001, (State Water Resources Control Board) Water Quality Order No. 91-13-DWQ, Water Quality Order 92-12 DWQ and Water Quality Order 97-03 DWQ; Section A through C].
To legally discharge into the waters of the U.S., entitites must comply with any and all orders that are issued by the EPA and/or a state with respect to a standard or limitation for a pollutant. For the area which includes Humboldt Bay, the state has ordered that "controllable water quality factors shall conform to the water quality objectives…" of the applicable regional water quality standards. Among other things, the applicable water quality objectives for Humboldt Bay require that "there shall be no bioaccumulation of pesticide concentrations found in bottom sediments or aquatic life." These objectives further require that "all waters shall be maintained free of toxic substances in concentrations that are toxic to, or that produce detrimental physiological responses in human, plant, animal, or aquatic life." All persons, corporations and other entities are required to comply with these provisions as well as the "Water Quality Control Policy for the Enclosed Bays and Estuaries of California" ("Bays and Estuaries Policy") that was adopted by the California State Water Resources Control Board on May 16, 1974.
In accordance with the Bays and Estuaries Policy and "in order to achieve water quality objectives, protect present and future beneficial water uses, protect public health, and prevent nuisance," the California North Coast Regional Water Quality Control Board ("Regional Board") declared that point source waste discharges are prohibited in Humboldt Bay. (Regional Board, Water Quality Control Plan, North Coast Region, 4-1.00)("Basin Plan"). The Regional Board also enacted an "Action Plan for (the) Humboldt Bay Area," which "was intended to guide publicly-funded cleanup of the Bay. It envisioned full implementation of the State Water Board's 1974…(Bays and Estuaries Policy)…" Id. at 4-3.00. The action plan notes that some improvements have been made with respect to pollution problems in the Bay, but that "the Bay has been affected by point and nonpoint sources of water pollution and the potential for polluting episodes remains." Id. To reduce the potential for such episodes, the action plan recognizes that "…stormwater NPDES regulations and possible small-municipality regulations must be implemented to advance the management of runoff-borne pollutants" in Humboldt Bay. Id. at 4-400.
Persons and entities that fail to comply with the above-described requirements can be made accountable for such violations by concerned citizens pursuant to the CWA's citizen suit provision. 33 U.S.C.A. § 1365(a)(1). Without a valid NPDES permit, each and every discharge constitutes a separate violation of the Act. Pursuant to Section 309, each violation of the Act subjects the violator to a penalty of up to $27,500 per day per violation for violations occurring within five (5) years prior to initiation of a citizen enforcement action. Id. at § 1319(c) and (d). Any person or entity that commits such violations are liable for all relief deemed necessary by a court of law, including all related penalties set forth by section 309 of the Act. Id.
III. HBFP's Violations of the Clean Water Act
A. Failure to Obtain an NPDES Permit
HBFP is involved in the shipping and receiving of various materials, log sorting and storage, the storage and maintenance of material handling equipment, and other industrial activities, all of which are subject to the requirements of Section 402 of the CWA and its implementing regulations. 33 U.S.C.A. §§ 1342(a), (p)(2)(B) and (3)(A); 40 C.F.R. §§ 122.1(b)(1) and (2)(v), 122.21(a); 122.26(a)(1)(ii), (b)(14) and (c); 122.27. Materials at the Fields Landing site, including wood products and heavy machinery, contain chemicals that are discharged into the soil and into Humboldt Bay when rainwater and other moisture comes into contact with these items. Irrespective of the CWA's clear mandate to require a NDPES permit for facilities such as HBFP's, the corporation has failed altogether to comply with this provision of the law. HBFP has not applied for an individual permit nor has it submitted an NOI to comply with California's general permit for industrial activities [Permit No. CA S000001, (State Water Resources Control Board) Water Quality Order No. 91-13-DWQ, Water Quality Order 92-12 DWQ and Water Quality Order 97-03 DWQ]. HBFP has discharged polluted stormwater and non-stormwater into the soil and into Humboldt Bay from the Fields Landing site without a valid NPDES permit for at least the last five years. By failing to obtain a valid NPDES permit, HBFP has circumvented the regulations set forth to abate water quality degradation to our nation's waters, thereby committing substantive and procedural violations of the CWA. 33 U.S.C.A. §§ 1311(a), 1342(a) and (p); 40 C.F.R. §§ 122.1(b), 122.21(a), 122.26(a)(1)(ii) and (c). These violations of the Act are ongoing, and will continue each time HBFP carries out its industrial activities in a manner that is inconsistent with these laws.
B. Failure to Provide Information Required by the NPDES Program
HBFP is required to provide information and documentation on the activities and associated discharges at the Fields Landing site so that risks of degradation to the Bay's beneficial uses are decreased. 40 C.F.R. 122.26(c)(1). Despite the fact that the numerous pollutants discharged from this site carry a great risk of causing such degradation, there is absolutely no evidence that the company has made any effort to monitor or report relevant information or take any steps that are necessary to ensure its activities do not harm the Bay's beneficial uses. HBFP has never provided the information that is required to begin coverage under the NPDES program, nor have they provided the information that is required to continue operating and discharging into the waters of Humboldt Bay. Thus, HBFP has not performed the essential duties required by the NPDES program, and has failed to provide information that is critical to the recovery and protection of Humboldt Bay. These duties include, but are not limited to, the following:
1) sampling and monitoring for all constituents required under state and federal laws and regulations, including but not limited to those that might discharge to a stormwater drain system
2) eliminating all unauthorized non-stormwater discharges
3) ensuring that adequate stormwater control measures are in place
4) conducting an accurate and complete inventory of all harmful pollutants stored at or spilled on the Fields Landing site
5) filing timely, accurate annual reports
6) making dry season and wet season (and/or quarterly) inspections
7) providing a map of the facility
8) making their annual reports and their NPDES permit available to the public.
Quantitative data and other relevant information are essential for adequate assessment and monitoring of the discharges associated with the Fields Landing site. Without such, it is impossible for mitigation measures to be designed and implemented so that our beneficial uses and public trust resources are not harmed. By neglecting these duties and failing to provide this essential information, HBFP has thwarted public and agency review and increased the threat of further degradation to the beneficial uses of Humboldt Bay, thereby committing substantive and procedural violations of Sections 301 and 402 of the Act. §§ 1311(a), 1342(a), 122.26(c).
C. Failure to Comply With State Orders and Illegal Discharges Are Causing Pollution, Contamination, or Nuisance
In addition to other provisions outlined in this notice letter, the Basin Plan requires that "waters shall not contain taste- or odor-producing substances in concentrations that impart undesirable tastes or odors to fish flesh or other edible products of aquatic origin, or that cause nuisance or adversely affect beneficial uses." The Basin Plan also requires that "all waters shall be maintained free of toxic substances in concentrations that are toxic to, or that produce detrimental physiological responses in human, plant, animal, or aquatic life." Furthermore, Discharge Prohibition A(2) of the General Permit prohibits the discharge of storm water which causes or threatens to cause pollution, contamination, or nuisance. From all evidence available, it is apparent that HBFP's failure to obtain an NPDES permit or comply with the NPDES program's provisions has allowed unchecked quantities of pollutants to be discharged into Humboldt Bay, including those that are known to be harmful to benthic communities, birds and mammals. The illegal discharge of these pollutants runs contrary to the orders of the State of California, and is causing, or is threatening to cause, pollution, contamination and/or nuisance to Humboldt Bay.
Similar facilities are known to cause serious pollution problems due to the types of pollutants they discharge into the waters of the U.S., and it is likely that these pollutants are discharged into the soil and into Humboldt Bay when rainwater and other precipitation comes into contact with the site. With every "significant rainfall event" (defined as greater than or equal to 0.1 inches of precipitation in a 24-hour period as measured by the National Oceanographic and Atmospheric Administration), HBFP discharges stormwater directly and indirectly into Humboldt Bay. These and non-stormwater discharges from the site indubitably contain pollutants including, but not limited to, pentachlorophenol, tetrachlorophenol, 2,4,6-trichlorophenol, 2,3,7,8 tetrachlorodibenzo-p-dioxin, hexachlorodibenzo-p-dioxin, polychlorinated dibenzodioxins, polychlorinated dibenzofurans, hexachlorobenzene, copper, mineral oils, antifreeze, brake fluid, transmission fluid, diesel fuel, xylene, toluene, benzene, 1,3 butadiene, gasoline, oil and grease, low pH water, chips, water with high TSS, water with high turbidity, water with high specific conductance, and water with high BOD and COD. These discharges or threatened discharges carry a very real threat to the health of many human and non-human animals and plants, constituting a nuisance and otherwise defying the orders of the State of California and the provisions of the CWA that are described above.
D. HBFP is Liable For Each Violation of the CWA
Taken separately and together, the violations committed by HBFP demonstrate a lack of desire and/or ability on behalf of the company to adequately carry out its operations in a manner that does not violate state and federal laws. EPIC and CATs believe that HBFP has violated the laws described in sections II and III of this notice by discharging pollutants directly and indirectly into the soil and into the waters of Humboldt Bay for at least the last five years without complying with the provisions of the NPDES program. EPIC and CATs further believe that these unlawful discharges cause or threaten to cause nuisance and otherwise degrade the beneficial uses of Humboldt Bay, and are in violation of the orders of the State of California described in sections II and III of this notice. Each day HBFP operated in a manner that did not comply with these regulations and each discharge they unlawfully released constitute a separate violation of the CWA. These violations of the Act are ongoing and will continue until HBFP takes remedial action to seek the abatement of the water quality problems they impose upon Humboldt Bay. HBFP is subject to all civil penalties prescribed by the CWA for their violations during the last five years as well as any future violations they may commit. In addition to the violations set forth above, this notice covers all ongoing violations of the Clean Water Act and related violations evidenced by information that becomes available to EPIC and CATs after the date of this Notice of Intent to File Suit.
We hope this notice letter will compel you to act promptly to redress the problems and violations described herein, and to relieve Humboldt Bay of your unlawful pollutant discharges. If you do not so act within the next 60 days, HBFP is hereby notified that we will pursue all injunctive, declaratory and other relief that is available under the law and seek the protection to which the life in Humboldt Bay and that which depends upon it are entitled. If you wish to discuss this matter or you begin taking the necessary steps to correct these violations, please contact Ms. Sharon Duggan, attorney-at-law, 2070 Allston Way, Suite 300, Berkeley, California, 94704, (510) 647-1904.
Sincerely,
Cynthia Elkins
attachment
cc: Carol M. Browner, Administrator
U.S. Environmental Protection Agency
401 M Street, N.W.
Washington, D.C. 20460
Felicia Marcus
Regional Administrator
U.S. Environmental Protection Agency, Region 9
75 Hawthorne Street
San Francisco, California 94105-3901
Walter Pettit, Executive Director
State Water Resources Control Board
901 P Street
P.O. Box 100
Sacramento, California 95812-0100
Benjamin Kor, Executive Officer
California Regional Water Quality Control Board
North Coast Region
550 Skylane Blvd., Suite A
Santa Rosa, CA 95403
Janet Reno
Attorney General
Main Justice Building
10th Street and Constitution Avenue, N.W.
Washington, D.C. 20530
