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Delisting Copper?
Environmentalists broke a tradition this October, when for the first time in regional history they did not contest regulatory approval of South Bay wastewater discharge permits. They also, after three years of study and negotiation, agreed with regulators, dischargers and scientists that the actual waters of the extreme South Bay may not be as impaired by copper and nickel pollution as they are on the books. This agreement could someday lead to the removal of copper from the federal "303(d)" list of pollutants impairing beneficial use of Bay waters, and today provides a leg up to North Bay stakeholders now launching a similar process.
"We're not wholly comfortable with what we've done, there are risks," says Michael Stanley Jones of the Silicon Valley Toxics Coalition, who represented regional environmental interests at the South Bay negotiating table and didn't make a peep at the October hearing over the discharge permits. "But we're trying it as an alternative to endless litigation and stonewalling."
"We still have to keep our nose to the grindstone in terms of copper," says discharger Phil Bobel of the Palo Alto treatment plant. "We're on the right track, but it's taken a long time and a lot of money."
The official focus of this investment of three years time and $2 million dollars (San Jose provided the bulk of the money, science and sweat) was an effort to develop a TMDL (total maximum daily load) for copper and nickel in the extreme South Bay. Once a pollutant gets bad enough to be on the federal 303(d) list, the Clean Water Act requires a TMDL effort. The TMDL approach seeks to account for, and regulate based on, the total mass of a pollutant entering a water body from all sources, rather than permitting based on individual discharges' concentration levels.
One of the first steps taken in the South Bay's TMDL process was to put all the available scientific data through the ringer. Hot shot technical experts with good credentials finetuned this data, and also reassessed testing methods, eventually concluding that it is unlikely copper and nickel are impairing beneficial use of extreme South Bay waters.
"The data showed that ambient waters were less toxic than lab waters," says Tom Mumley of the S.F. Bay Regional Water Quality Control Board, which brokered the TMDL process and issues discharge permits. "Estuarine waters behave differently than lab waters - they have more things called ligands, for example, that bind to copper and make it less available to organisms. We want to base our judgement of impairment on actual, rather than laboratory, conditions."
These findings led to the suggestion of what nobody wants to call a more relaxed water quality standard, although that's what it is. Stakeholders and regulators are now proposing site specific objectives for dissolved copper in the range of 5-12 parts per billion (ppb) - up from the current California Toxics Rule (CTR) of 3.1 ppb - and for dissolved nickel of 11.6 - 20.5 ppb - up from the current CTR of 8.3 ppb. Their technical experts assure them that such standards are scientifically defensible (see graph p.6).
"This is a compromise," says Stanley-Jones, who notes that the environmental coalition's comfort level was greatly enhanced by funding providing them with their own dedicated technical expert. "We agreed to put faith in the impairment report, and not challenge Board decisions and discharge permits in exchange for the two action plans and a commitment to explore the remaining uncertainties."
"Rather than arguing over how clean is clean, we're requiring a commitment to pollution prevention," says Mumley.
Discharger action plans to reduce copper and nickel, completed this summer, specify baseline activities such as controlling sources, educating copper-intensive industries, evaluating street sweeping, encouraging recycling and more. What's keeping enviros from lying awake at night worrying are the triggers built into the plans. If monitoring (to be conducted in the summer when concentrations can reach their worst) indicates a rise in copper or nickel levels, a second tier of controls on discharges kicks in. An even bigger rise triggers a third tier.
"If the promises made in these pollution prevention plans are promises kept, then we may not have to go down the road to a full TMDL," says Stanley Jones. (A full TMDL would require the regional board to allocate copper loads to each discharger).
One issue still in the ether may be recent increases in the amount of copper in brake pads, whose wear and tear contributes to copper on the road and in runoff. The timing is bad. Just when water quality interests would like to see copper in brake pads reduced, and are meeting with the industry to make it so, new national safety standards have been pushing the industry in the other direction. Copper levels in new vehicle brake pads jumped 40% between 1998 and 1999.
"We can't expect the industry to scrap all their plans, but at least they're still at the table," says Mumley. If copper levels surge, then brake pads may turn out to be the culprit. "Because of the traffic safety issue, working the brake pad industry angle could fail. In the meantime, we need to challenge South Bay municipalities and developers to stop building so much hardscape and car habitat without buffers to prevent runoff."
The proposed site specific objectives for copper and nickel still have to be codified in the region's Basin Plan, and as Bobel says, getting stakeholder agreement on an actual number (rather than the range) "will no doubt be difficult."
"A new site specific objective doesn't necessarily mean a delisting," adds BayKeeper's Jonathan Kaplan. Though the Regional Board recently went on record with its intent to delist, experts are still debating what then happens to the TMDL. BayKeeper is arguing, for example, that once you list, you can't delist until you complete the TMDL. Others believe that the new finding of unlikely impairment can be used for delisting, eliminating the need to finish the TMDL. In any case, delisting can't occur until at least April 2002, when EPA's 303(d) list gets revised.
Whatever the steps, they'll certainly help blaze a trail for a reassessment of North Bay copper and nickel impairment launched this summer. North, in this case, is everything upstream of the Dumbarton Bridge. At least the hard part, the technical steps necessary to ensure the copper is not a problem, have already been mapped out for the North Bay by their southern neighbors. Research on the North Bay issues may also provide opportunities to look further into some of the uncertainties acknowledged in the South Bay work. One topic slated for study is a look at what, if any, influence the different chemical forms of copper, and the presence of other metals, may have on impairment. Another possible research topic is copper toxicity to phytoplankton. Scientists hypothesize that there's enough copper in the South Bay to shape phytoplankton species composition (by selectively inhibiting growth of sensitive forms like dinoflagellates, for example, that have higher food value).
Mumley says the way the South Bay group dealt with the uncertainties over phytoplankton impacts was to acknowledge them and suggest "keeping them on the radar screen" as part of the copper action plans. "Stopping the process because of the uncertainties goes beyond the intent of the original listing, and the baseline standard and objective-setting process," says Mumley. "It's bigger than just a South Bay issue. If evidence of a problem emerges somewhere down the line, then we could relist."
The South Bay may be heaving a sigh of relief at getting the bulk of the regional copper consensus behind it, but there's more work to be done. Copper is just one of more than 30 TMDL projects covering more than 70 water body impairment listings that the S.F. Bay region is slated to tangle with in the near future (one of the next in line is the PCBs TMDL; stakeholders held their first meeting this Halloween). "There's no way grassroots environmentalists can do more than appear to participate in these TMDLs unless we receive funding for technical expertise like we did for copper," says Stanley-Jones. "Otherwise, it'll all be TMDL lite, and back to the stonewalling."
The TMDL overload, and the successes at the South Bay copper bargaining table, are prodding the Bay Area Dischargers Association to take some initiative. BADA is now proposing a five-year plan and funding to the Regional Board for doing the TMDLs. "We're not the bad guys," says Chuck Weir of the Association. "In the long run, we'll all be better off if we work on the TMDLs collectively, instead of pointing fingers at each other." Contact: Tom Mumley (510) 622-2395 ARO
Copyright © 2002, San Francisco Estuary Project