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CBS Outdoor, coastal commission attorneys make case before judge


4/3/14



A Humboldt County Superior Court judge heard attorneys’ arguments Wednesday on whether the California Coastal Commission vio­lated a advertising company’s property rights by requiring billboard removal as part of a U.S. Highway 101 safety project between Eureka and Arcata.



Representing the Delaware-based outdoor advertising company CBS Outdoor Inc., attorney Arthur Coon argued that his client was given “no notice (and) no due process” when the commis­sion approved a condition in which Caltrans would remove as many billboards as feasible along the 6-mile corridor as part of the Eureka-Arcata Route 101 Corridor Improvement Project.



Coon’s main argument was that the company — which owns 20 billboards along the corridor — was never informed of any of the hearings or discussions leading up to the condition’s approval on Nov. 14.



“This is a property rights and due process issue,” Coon said.“(CBS) was not informed when the condition was first discussed at the commis­sion’s Sept. 13 hearing. It only learned a week prior to its actual adoption in the form of revised findings.”



The condition was one of four that Caltrans agreed to under a conditional concurrence with the commission in order to obtain approval for coastal development under the California Coastal Act. The $46 million project aims to improve safety along the corridor by closing median cross­ings at several locations and building a raised interchange at the Indianola Cutoff.



The coastal commission, represented by David Alderson of the State Attorney General’s Office, said the case is “not right,” as the company is making a facial challenge — a challenge in which a plaintiff argues that existing legislation or statutes are unconstitutional — when the condition has not been approved by Caltrans yet.



“The petitioner is challenging a matter that is currently being reviewed and processed by the coastal commission and Caltrans,” Alderson said. “So it is premature for this court to review the matter.”

Alderson made a second argu­ment that CBS Outdoor’s petition was not filed within the required 60-day time limit under state public resources code section 30801.

Coon said this was misleading.

“We’re being told we’re suing too early and too late,” Coon said.

Coon said that there was no consti­tutional basis between the condition’s directive to remove all the billboards rather than those causing visual impacts, and the purpose of the proj­ect. Arguing the condition only necessitates billboard removal to maximize the view of Humboldt Bay from the Indianola Cutoff, Coon said removing all billboards oversteps the purpose of the safety project.

“This is specifically a visual miti­gation condition,” Coon said. “This is a relatively small portion of the highway that is affected by the inter­change. Yet they’ve issued a sweep­ing directive to remove all billboards within the 6-mile corridor.”

Arguing that Caltrans has yet to determine whether billboard removal is even possible, Alderson said Coon’s arguments are non-applicable.

“The condition does not require the removal of any billboards what­soever,” Alderson said. “It merely requires Caltrans to come up with a plan to remove the billboards to the extent feasible. Caltrans has not determined that it is entirely feasible.”

In response, Coon said that CBS Outdoor should be notified of the meetings when Caltrans will deter­mine the feasibility of the condition as “we’re entitled to by law.”

Caltrans’ attorney Jeff Wilcox was present at the hearing through a court call, and confirmed that the agency withdrew its scheduled April 11 demurrer hearing to challenge CBS Outdoor’s claims.

When asked why the department withdrew the hearing, Caltrans District 1 spokesman Scott Burger said that “it is Caltrans policy not to comment on pending litigation.”

The Humboldt County Associa­tion of Governments is also being targeted by CBS Outdoor’s petition for writ of mandate as a “real party of interest” due to it being “respon­sible … for programming and approving the financing of the proj­ect, including the financing of actions necessary to implement the (commission’s) condition.”

Judge Bruce Watson scheduled a case management hearing for June 4.

“I’ll look at it and get you a decision,” Watson said.

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Open space review may face delay, or housing grants may be at risk


4/1/14



The Humboldt County Board of Supervisors will consider at its meeting today whether it will rearrange its General Plan Update schedule in order for the county to meet the submission deadline for the state-mandated Housing Element.



In a March 24 memorandum, the county Planning and Building Department recommends that the board cancel its April 7 GPU meeting and have it change the topic of its April 21 and May 5 meetings from the Open Space and Conservation Elements to the Housing Element.



The board’s review of the Open and Space and Conservation Elements would be pushed back to September. The Housing Element, which requires approval by the State Department of Housing and Community Development every five years to be in compliance with state law, has a strict July 1 submission deadline.

If the deadline is missed, 3rd District Supervisor Mark Lovelace said it will impact the county’s grant opportunities.


“A consequence of not having it submitted on time is the inability of the county to seek certain grants or make it less competitive for other grants,” he said.



The element has been under review by the county Planning Commission since Feb. 6, but progress has not been going as quickly as planned.



“Based on the progress of the commission, it appears that they will not finish their review of the Housing Element by the end of their special meeting schedule, which ends in March,” the memo reads.



To make up for this, the commission has scheduled three more special meetings this month to complete its review and has referred certain sections of the element back to the county’s advanced planning staff to draft recommendations for policies or language that reflect the commission’s previous discussions.



Along with this, the letter states that some of the planning commission’s changes to the element are inconsistent with the element’s required draft environmental impact statement, which may potentially require the county to recirculate the statement. Lovelace expressed concern whether the commission’s changes were made to be “consistent with state law or driven by public input.”



The memo states that the combined workload from the commission, the potential review of the environmental impact statement and the board’s regularly scheduled GPU meeting would create a “perfect storm” and overwhelm the planning staff.



Second District Supervisor Estelle Fennell said she was “glad that it appears the planning commission will be able to get their draft of the element completed on time,” but said she had concerns on the Open Space and Conservation Elements being rescheduled.



“I would like to stick to the original schedule for us to go through the open space element,” she said. “I don’t see the benefit in switching things around.”



Humboldt Baykeeper Policy Director Jennifer Kalt — one of the many people who spoke out on the commission’s several recommended changes to the Open Space and Conservation Elements that are now before the board — said she hopes the board will not push the elements back any further than they need to be.



“I think it is an obvious attempt to kick the can down the road on some decisions that needed to be addressed,” Kalt said.“The open space and water resources sections are where a lot of the environmental protections are going to be. Pushing it off is just going to mean a longer time frame before we have those protections in place.”

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'A disaster that miraculously did not happen'

3/29/14

As a barrage of rain poured down on the Samoa pulp mill's corroding storage tanks, Environmental Protection Agency Regional Administrator Jared Blumenfeld took the opportunity to explain why the millions of gallons of hazardous liquids contained inside must be removed.

”When it rains, the tanks fill up because they are not properly covered,” Blumenfeld said. “Literally, with the rain today, if we weren't pumping it out, they could overflow.”

Blumenfeld was one of several government officials who gathered at the run-down mill to watch the start of the multi-agency effort to remove and transport nearly 4 million gallons of hazardous liquids and toxic sludge from the Samoa site to a pulp mill in Longview, Wash.

The hazardous state of the 72-acre site -- owned by the Humboldt Bay Harbor, Recreation and Conservation District since August -- was brought to the EPA's attention by the Wiyot Tribe, which urged the agency to investigate, Blumenfeld said. When EPA inspectors went to the site in September, Blumenfeld said they found “an enormous mess,” which initiated an emergency response.

The points of concern were the nearly 3 million gallons of caustic liquor -- chemical liquids used to break down wood chips into pulp material for paper products -- 10,000 gallons of sulfuric acid and 10,000 tons of “highly corrosive sludge” being stored in leaking, corroding storage tanks throughout the mill.

With the mill nestled between the Pacific Ocean and Humboldt Bay, Blumenfeld said it was “a disaster that miraculously did not happen.”

”When you add up the three factors -- the huge amount of poorly contained, hazardous materials located on a fault line between two incredibly important water bodies, that's why it's nationally significant,” he said.

With seismic events like the magnitude-6.8 earthquake that struck on March 9 increasing the likelihood of the chemicals spilling into the surrounding waters, EPA federal on-scene coordinator Steve Calanog said they “can't afford much more time.”

”If released into the environment, it would have an immediate effect on the bay and its ecosystems, and would effect the seafood and shellfish industry immediately,” Calanog said.

Cleanup workers from the EPA and the U.S. Coast Guard Pacific Strike Team began pumping the first batches of the caustic liquid from the tanks into two storage trucks on Friday morning. Calanog said that these will be the first of an estimated 800 trucks loads that will make the 460-mile drive to the pulp mill in Longview, Wash., where they will be reused. To ensure safety, Calanog said the trucks will only transport the materials out of the mill during daylight hours.

California 2nd District Congressman Jared Huffman attended the cleanup and thanked all of the county and federal agencies who “stepped up for this community and brought it to this point.”

”The fact that we made it through and got the EPA to come out here to secure the chemicals, that we made it through despite the government shutdown, it's nothing short of remarkable,” Huffman said.

Liquids located in areas inaccessible to trucks were pumped through a pipeline provided by the Pacific Strike Team into 10 temporary storage tanks, which will later be transported over to the trucks. Strike team workers elevated on cherry pickers held pipes that sucked in the liquors from holes cut into the top of the tanks. Calanog said this is “a slow and tedious process, and very dangerous.” Any contact with the liquors can cause severe chemical burns, he said.

Though the mill has changed hands several times since it was built about 50 years ago, Blumenfeld said one of its previous owners -- Evergreen Pulp Inc. -- is mainly responsible for the mess.

”This is the responsibility of the company that left in the middle of the night, and left this exactly as we found it a few months ago,” he said.

Blumenfeld said a good portion of the cleanup costs will be paid off by selling millions of dollars worth of scrap material from the mill, but “we will still go after the responsible parties.”

”We work to assign responsibility legally,” he said. “In some cases -- which partly applies to this one -- even if we wanted sue them, some of the people have no money.”

Huffman said the cleanup is “just the beginning” of an “exciting and ambitious vision” to turn the blighted mill into an economy opportunity that will create jobs.

”We're going to see it put to work for aquaculture, for sustainable, renewable energy research,” he said.

This vision came closer to reality after the Board of Supervisors approved a $100,000 community development block grant application from the county Administrative Office and the harbor district on Tuesday. The grant would pay for a feasibility and planning study that would “identify and analyze the highest and best uses for the site,” according to a county staff report.

Blumenfeld said that if all works according to plan, all of the liquor and sludge could be off the site in eight months. In the meantime, he said he's comfortable knowing that progress is being made.

”At least in the next week, as the levels go down and down, the risk diminishes accordingly,” Blumenfeld said.

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3/27/14

When the undulations of the March 9 earthquake rousted Jack Crider from his sleep, his first thoughts were the Samoa pulp mill; specifically, the nearly 3 million gallons of caustic fluids poised to spill out of old, failing storage tanks and into Humboldt Bay.

Those liquors — remnants of the pulp mill's production days — have been a threat to the bay for years, and even a gentle rolling earthquake like that one was enough to motivate Crider, CEO of the Humboldt Bay Harbor, Recreation and Conservation District, to put on his shoes, grab a flashlight and head down to the mill to look for leaks. He was the only one poking around the old tanks that night, but half a dozen concerned community members called him the next morning. People are worried about those liquors.

A couple weeks later, Crider stands on a tarpaper surface 200 feet above the sands of the Samoa Peninsula, beaming at the structures and piles of rubble below as gusts of cold ocean air ruffle his hair.

He paces across the broad, flat roof of the Samoa pulp mill's boiler, the hulking monolith unused since 2008 that once spewed stinky white steam into the air above Humboldt Bay. From the dizzying height of the county's tallest building, Crider excitedly points out the improvements and potential of the 72-acre mill site that his agency acquired in August.

In that short time, the harbor district has gotten rid of and secured hazardous chemicals around the old mill. And a steady stream of trucks is scheduled to soon begin hauling the remaining pulping liquors — millions of gallons of ultra-basic chemicals — up to Washington, where they will be reused.

Crider and the harbor district aren't the only ones relieved to see the liquors going — The Environmental Protection Agency and local oyster farmers are thrilled, too. And you should be, if you recreate on the bay, enjoy local shellfish or benefit from Humboldt County's economy. Those chemicals, housed for the last six years in failing and nearly overflowing tanks, have been threatening the economy and health of Humboldt Bay, with every tremor or rainstorm increasing the danger.

But safety is nearly here, as well as a new life for the Humboldt Bay property.

When the harbor district acquired the pulp mill after a year of negotiations, the district board and staff knew they were in for a large project.

Concerned about the security of the estimated 4 million gallons of pulping liquors, the caustic fluid used to turn wood into pulp, the district asked EPA coordinator Steve Calanog to inspect the site.

"I was out there earlier doing some work on Indian Island and the harbor district acquired the pulp mill and asked me to come over and take a look," Calanog said. "I determined there was quite a bit of hazardous material and began to initiate an emergency response."

By that point the tanks were nearly overflowing as years of rainwater had accumulated in them. But quick action was no guarantee — the federal sequester was about to begin.

"That was a time of real political turmoil," said North Coast Congressman Jared Huffman. "When the concern about leakage arose it was at the worst possible time — it was right as we were heading into a government shutdown."

Huffman said he and his staff pressed for federal funding on the site, "but to EPA's credit they responded immediately — they understood what was at stake here."

The uncertainties didn't end there. EPA began searching for a barge company that could transport the liquors — 3 million gallons, after some measurements — and a pulp mill that would accept them. One solution came from Capstone Paper in Longview, Wash., a town of about 36,000 on the Columbia River. The company will boil the liquors down and reuse them. No money will change hands over the liquors, Calanog said.

But shipping the liquors has been frustrating for the agencies and will be costly. Anticipating that the liquors would be shipped by barge, the harbor district rebuilt its dock, brought in temporary tanks and laid down a large network of large black pipes. But the barge fell through. Longview's port demanded $800,000 worth of improvements in order to offload liquors there and coast guard-approved chemical barges are scarce on the West Coast, Crider said.

The EPA is still searching for a barge, but will begin shipping the liquors via truck by the beginning of April. The first 200 shipments are already scheduled — trucks will haul the liquors, about 2,500 gallons at a time up U.S. Highway 101 to Crescent City, along the twisting U.S. Highway 199 over the pristine Smith River to Grants Pass and up Interstate 5 to Longview.

"There's additional risk with trucks, especially that many," Crider said, but it has to be done. "We're just on borrowed time."

The hauling will be just another drop in the stream of around 2,000 trucks that come in and out of Humboldt County daily, Crider said. Whether logs, gasoline or pulping liquors, there's always potential for an accident. Crider said both the harbor district and the hauling company have insurance in case of a spill. Trucking the entire liquors supply to Longview will cost $1.6 million, Crider said.

Peering over the dock as a crew worked on oyster equipment below, Taylor Mariculture Operations Manager Mitch White said getting the liquors away from Humboldt Bay is crucial. The oyster company is investing millions of dollars into the dock and warehouse facilities at the pulp mill — investments that could be ruined by a leak. White's anxious for the cleanup. "The sooner the better — for everybody," he said.

If the tanks failed, the liquors would flow into the bay, Calanog explained, dramatically changing the pH and disrupting oyster production and the bay's fragile ecosystem. And the longer the liquors sit on the peninsula, the greater the risk. "There's no telling how long it would take the bay to recover," he said. "It would both be an environmental and economic disaster up there."

As Calanog knows, a spill could prove catastrophic for one of the area's emerging industries.

Though aquaculture remains a relatively small percentage of Humboldt County's recorded economy, the county listed "fisheries, processing and aquaculture" as one of its nine industries to promote as part of its prosperity strategy. A 2010 survey reported that Humboldt Bay shellfish production totaled $9.3 million in sales, half of the bay's total seafood value that year. Aquaculture made up 30 percent of the North Coast's total $31.4 million in seafood landings, according to the survey.

Although the March 9 earthquake, a strangely mild 6.8, caused no damage, it increased the harbor district's urgency, Crider said.

Perched above the pulp mill grounds, Crider points out that there's a lot of work still to be done. Once the liquors are shipped away, the EPA's superfund people will remove the sludge and solids and dismantle the liquors tanks. The Harbor District also secured EPA brownfield funding to clean up less hazardous materials around the mill.

After Evergreen Pulp's quick departure in 2009, the company sought to recoup costs by selling off valuable copper wire, piping, steel and other reusable materials that made up much of the water, sewer and electrical infrastructure of the mill. Still, valuable assets remain on the property, and Crider is confident they will attract businesses who will invest in and lease space from the district.

Looking west, Crider pointed to a mile-and-a-half pipeline into the Pacific, which could eventually discharge the entire peninsula's wastewater. Below the boiler building sits an electrical substation and the site's natural gas pipeline — two important incentives for businesses, Crider said.

To the east sit the mill's massive warehouse space, dozens of offices, the mill's operational generator and the dock. Still-functioning cranes dot the pulp mill's landscape. Taylor Mariculture has already built "flupsies," large nursery rafts used to culture oysters in the bay. The accessibility of the dock will make for convenient "show and tell" opportunities for Taylor and others in the oyster industry, Crider said.

Even the dormant giant under Crider's feet, the boiler that once cooked organics off of the liquors so they could be reused, may be valuable to the district. Crider said the agency is negotiating with a pulp mill in the Philippines to sell the boiler. He expects the district can get around $2 million for it, money that would be used to help pay for the cleanup.

Final plans for the pulp mill are evolving, and depend on the businesses that will eventually land there. Potential uses dreamed up by the district include export of lumber and other goods, aquaculture and research, food and industrial manufacturing and a public dock. Crider thinks the district will have enough interested businesses that the most difficult part will be deciding what kind of uses are best for the mill site — and Humboldt County.

For more than 40 years, the mill site has lurked as one of the area's most prominent landmarks. Crider visited Eureka as a fish buyer in the mid-'90s and distinctly remembers the odorous mill's effect on the city. Enamored with the area, he recalled thinking, "It really sucks about the pulp mill."

In the years to come, the boxy, sooty boiler building, one of the most recognizable parts of the Humboldt Bay skyline in combination with the 300-foot-tall crimson-topped smokestack, may be gone for good.

Pulp Mill Timeline

1964 — The pulp mill is built by Georgia-Pacific on the Samoa Peninsula.
1965 — The mill begins operation.
1989 — Environmental groups sue Louisiana-Pacific, which now runs the mill, and the Simpson Paper Company, which runs another mill nearby, alleging the mills are daily discharging tens of millions of gallons of untreated wastewater into the ocean. According to the suit, scientists found traces of a host of toxic chemical byproducts of the chlorine bleaching process, including dioxin and furan, in fish and crab samples from near the discharge sites.
1991 — The companies settle the suit, agreeing to pay a combined $5.8 million in penalties to the Environmental Protection Agency. Following the settlement, Simpson shutters its mill and Louisiana-Pacific converts its mill to a chlorine-free production process. In the ensuing years, Louisiana-Pacific sells the mill to a group of investors, which then re-sell the mill several times, with it ultimately landing in the hands of Stockton Pacific.
2005 — The Chinese-owned Lee and Man Paper Co. purchases the pulp mill under the name of a subsidiary, Evergreen Pulp.
2006 — Environmental groups again sue the mill's owners, this time alleging significant and ongoing violations of the mills federal air quality permit.
2007 — Evergreen settles the suit by agreeing to install a $1 million, state-of-the-art emissions control system.
2008 — Lee and Man Paper Co. sells Evergreen Pulp to a new investment group as the mill announces a temporary closure with plans to re-open in three to six months. During its ownership of the mill, Evergreen pours more than $40 million into improving the facility and remains profitable. However, in 2008, the pulp market goes into steep decline and Evergreen falls delinquent on its bills, with some suppliers and contractors acquiring court liens.
2009 — With Evergreen Pulp totally insolvent, Freshwater Pulp Co., led by Bob Simpson, purchases the mill with plans to get it up and running again.
2010 — Simpson announces he is unable to secure some $400 million in financing needed to re-open the mill and that it will be permanently closed.
2013 — The Humboldt County Harbor, Conservation and Recreation District acquires the mill site from Simpson at no cost, knowing there are some 4 million gallons of caustic pulping liquors on site that need to be removed. Within months, the district has the federal Environmental Protection Agency inspect the site and it is immediately federalized as the EPA initiates an emergency response to secure the pulping liquors and plan for their removal.
2014 — The EPA and the district plan to begin trucking the liquors off site beginning in late March.

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