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HomeMy WebLinkAbout07 SD CREEK&NEWPRT BAY 01-03-06AGENDA REPORT JANUARY 3, 2006 WilLIAM A. HUSTON, CITY MANAGER PUBLIC WORKS DEPARTMENT/ENGINEERING DIVISION APPROVAL OF AGREEMENT TO FUND A SCIENTIFIC STUDY REGARDING ORGANOCHLORINE COMPOUNDS WITHIN THE SAN DIEGO CREEK AND NEWPORT BAY SUMMARY The Santa Ana Regional Water Quality Control Board ("Regional Board") is in the process of developing a program for the control of legacy pesticides (i.e. DDT, chlordane, etc.) and other compounds suspected of causing toxicity within the Newport Bay and San Diego Creek. Since mobility of these compounds is influenced by sediment movement, the Regional Board identified possible sediment control measures at a June 2005 Organochlorine Workshop. These measures include restricting mass grading activities within the San Diego Creek Watershed to the dry season (April through October) and cost recovery for dredging contaminated sediments from Newport Bay. This Agreement will fund a Work Plan to examine the role of legacy pesticides and other compounds on the water quality and biological health of the San Diego Creek and Newport Bay. This independent study will provide unbiased scientific information that can be used to determine if the Regional Board's proposed implementation actions are appropriate or if modification is warranted. RECOMMENDATION It is recommended that the City Council approve the Agreement between the City of Irvine, the City of Tustin, The Irvine Company, Centex Homes, lennar Homes, Shea Homes, Shea Properties, and Marble Mountain Partners to fund a scientific study that will examine the role of legacy pesticides and other compounds on water quality, and authorize the Mayor and City Clerk to execute the Agreement on behalf of the City, subject to approval as to form by the City Attorney. In addition, the signature page of the Agreement is currently being updated to ensure that all applicable parties are included and will be subject to approval as to form by the City Attorney. FISCAL IMPACT The City's share of the Work Plan is in the amount of $15,000. Funds will be provided from the Tustin legacy land Sale Proceeds Expense Account (Acct No. 18-805-6010). Approval of Agreement to Fund a Scientific Study Regarding Organochlorine Compounds within the San Diego Creek and Newport Bay January 3, 2006 Page 2 BACKGROUND In 2002, the United States Environmental Protection Agency (EPA) issued a Total Maximum Daily Load (TMDL) for organochlorine compounds believed to be causing toxicity in San Diego Creek and Newport Bay. However, the development and enforcement of the TMDL implementation plan is the responsibility of the Regional Board. Currently, there are questions regarding whether or not a TMDL for the legacy pesticide class of organochlorine compounds is justified. This uncertainty is due to the fact that most of the organochlorine compounds have not been used for decades, the natural attenuation of these compounds has resulted in decreasing levels in the receiving waters, and biological studies have detected no actual present-day toxicity from these compounds. In a June 22, 2005 Organochlorine Workshop, the Regional Board described several potential implementing actions that could significantly impact the City, including restricting mass grading activities to the dry season. It is likely that restricting mass grading to the dry season would impair the City's ability to meet its commitments regarding development of Tustin Legacy since build out of developments is necessary for financing Tustin Legacy infrastructure improvements. In addition, the Regional Board indicated it would consider seeking cost recovery to dredge Newport Bay from entities the Regional Board deemed responsible for the legacy pesticides. Subsequent to the workshop, the Regional Board has coordinated with interested municipalities, stakeholders, and the regulated community, including participating in an August 2005 stakeholders meeting at which a scientific presentation was made outlining stakeholders' scientific concerns. Preliminary indications were that the Regional Board found merit in the scientific information presented. Since then, the Regional Board has revised its schedule for adopting the implementation plan, which will allow it to receive further pubic input, including scientific work to be done pursuant to the Work Plan funded by this Agreement. It is anticipated that this study will be critical in affecting the Regional Board's choice of control measures. If the Regional Board does not reconsider their proposed control measures, restrictions on mass grading would substantially limit the progress of development at Tustin Legacy and create undesirable financial constraints on both the City and developers. Tim D. Serlet Director of Public Works/City Engineer Dana R. Kasdan Engineering Services Manager Attachment Agreement for Organochlorine Study in San Diego Creek and Newport Bay Work Plan to Facilitate Regulatory Response to Toxicity in the Newport Bay Watershed Approval of DDT Cost Share Agmtdoc DRAFT AGREEMENT This Agreement (hereinafter "Agreement") is made and entered into as of the Effective Date by and between the City ofIrvine, the City of Tustin, The Irvine Company, Centex Homes, Lennar Homes, and Shea Homes (collectively, the "Parties"). RECITALS A. The Santa Ana Regional Water Quality Control Board ("Regional Board") is in the process of developing a program to be implemented within the San Diego Creek and Newport Bay watersheds for the control oflegacy pesticides (e.g., DDT, chlordane, etc.) and other compounds that occur at residual levels in soil at various places in these watersheds, including soil at the Great Park and former Marine Corps Air Station in Tustin ("MCAS Tustin") (the "TMDL"). B. The Parties are interested in ensuring that the Regional Board's TMDL is based on accurate, objective and reasoned scientific data and analysis. C. To that end, the Parties are entering into this Agreement in order to fund scientific studies relevant to the promulgation of the TMDL, as described in more detail in the Work Plan, attached hereto as Exhibit A and which is incorporated by reference into the Agreement. AGREEMENT NOW, THEREFORE, in consideration ofthe foregoing Recitals and the mutual covenants and agreements set forth below, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: 1. The Work Plan. 1.1 The Parties agree to fund and support the work to be performed as described in more detail in the Work Plan, attached hereto as Exhibit A. 1.2 It is anticipated that the consultants retained to perform the work described in the Work Plan ("Consultants") shall commence the work on or about January 3, 2006, and it is also anticipated that the Consultants will complete the work on or about June 30, 2006. 2. The Fund. 2.1 As soon as reasonably possible after the execution of this Agreement, each party will contribute Fifteen Thousand Dollars ($15,000.00) to support the scientific effort described in the Work Plan. 2.2 Each party's Fifteen Thousand Dollar payment shall be made payable to The Irvine Company, in its capacity as administrator of this Agreement. 3. The Administrator. DRAfT 3.1 The Irvine Company will serve as the administrator of this Agreement. Although The Irvine Company is the administrator of this Agreement, each Party is jointly responsible for expenses incurred pursuant to this Agreement, not to exceed each party's Fifteen Thousand Dollar contribution. 3.2 As administrator of this Agreement, The Irvine Company shall establish a separate account into which it shall promptly deposit each party's Fifteen Thousand Dollar contribution after receipt of such contribution (the "Fund"). Expenses incurred in order to implement this Agreement, including the retention of the Consultants, will be paid by The Irvine Company out of monies existing in the Fund. The Irvine Company shall provide to the Parties, for informational purposes, all invoices received by The Irvine Company for which The Irvine Company has or will payout of the Fund. Any monies remaining in the Fund after the completion of the work contemplated by this Agreement shall be returned to the parties on a pro-rated basis. 3.3 As administrator of this Agreement, The Irvine Company shall be responsible for managing the Consultants retained for purposes of completing the Work Plan. 4. Consultants' Report. The Consultants retained pursuant to this Agreement shall report on the status of their work to The Irvine Company, and shall provide The Irvine Company with a draft report(s). The Irvine Company shall work with the Consultants, and shall distribute draft materials generated by the Consultants to all Parties for their review, comment, and approval before the Consultants issue a final report. The final report generated by the Consultants shall be forwarded to all Parties upon its completion. 5. The Effective Date. The Effective Date shall be the date on which the last Party to the Agreement signs the Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the Effective Date. THE CITY OF IRVINE By: Name: Title: Date: [Signatures Continue On Next Page] 2 [Signatures Continue On Next Page] THE CITY OF TUSTIN DRAft By: Name: Title: Date: THE IRVINE COMPANY By: Name: Title: Date: CENTEX HOMES By: Name: Title: Date: SHEA HOMES By: Name: Title: Date: 3 LENNAR HOMES By: ORþ.f1 Name: Title: Date: 4 DRAFT WORKPLAN TO FACILITATE REGULATORY RESPONSE TO TOXICITY IN THE NEWPORT BAY WATERSHED BACKGROUND The EPA established a Toxic Pollutants Total Maximum Daily Load (TMDL) that developed target loads for organochlorines (including DDT, chlordane, toxaphene, and dieldrin) for the Newport Bay Watershed in 2002. EPA's TMDL found that existing loads of these compounds exceed EPA's calculated allowable loads, which were based upon sediment quality guidelines rather than observed effects. The Santa Ana Regional Water Quality Control Board (Regional Board) is currently working to revise EPA's 2002 TMDL for organochlorine compounds and to develop an implementation plan. Studies have also asserted that these compounds - most notably DDT - have the potential to cause impacts, including chronic toxicity and eggshell thinning, at current concentrations. These and other important scientific issues will drive important decisions regarding TMDL implementation. Use of most organochlorine pesticides in the United States ceased long ago (DDT was banned by EPA in 1972, dieldrin in 1974, chlordane in 1988, and toxaphene in 1990). Consequently, concentrations of these compounds in sediments, fish, and shellfish from the Newport Bay watershed have declined dramatically over the past 10-20 years, and the mass of these compounds in watershed soils also continues to decline. Recent studies demonstrate that these compounds are not likely to be causing toxicity in the watershed - rather, these studies have found that other compounds are more likely to be the cause of acute toxicity in the waters and sediments of San Diego Creek and Newport Bay (Lee and Taylor, 2001; Bay et aI., 2004). There is also disagreement within the scientific community regarding the potential of DDT to cause chronic toxicity or effects at currently observed concentrations (e.g., potential for low concentrations of DDE in bird eggs to cause embryo deformities). Three studies are proposed to address these issues and to develop potential alternatives to the implementation measures being considered by the Regional Board: (1) a review of available concentration data in the literature, to address the Regional Board's primary concerns regarding DDT in the watershed; (2) a comprehensive identification of the causes of acute toxicity within the sediments and water of Newport Bay and San Diego Creek; and (3) continued monitoring for DDT and other organochlorines. This work plan provides detail for the first study. WORKPLAN TASK 1: DATA REVIEW Flow Science will review and present all available DDT data for the Newport Bay Watershed, including data from fish tissue, mussels, sediment, and water. Data used in recent presentations to the Regional Board will serve as a beginning point for this task. Flow Science will also follow up with the Regional Board to obtain any additional data that were not incorporated into the recent presentations. Task I Cost: $10,000 TASK 2A: REVIEW FISH AND WILDLIFE EFFECTS OF ORGANOCHLORINES Jim Byard and Ron Tjeerdema will review and report on available studies documenting the effect of organochlorines on fish and wildlife, including waterfowl. Available literature will be collected, reviewed, and analyzed to provide a dose-response for eggshell thinning for sensitive species resident to Newport Bay. The literature will also address issues related to chick malformations and toxicity to marine mammals. The final report will identify sensitive species, toxic endpoints, and the dose-response relationships. Task 2A Cost: $20,000 TASK 2B: REVIEW OF SFEI BlOACCUMULATION MODELING The San Francisco Estuary Institute (SFEI) is currently developing a "case study" to model the movement of DDT from sediment to waterfowl in Newport Bay. The results of the modeling could end up driving the DDT TMDL and TMDL targets for sediment. A careful review of this model will be important, as certain limitations inherent to the model approach may compromise its credibility as a tool for estimating the sediment and water column concentrations of organochlorines that would produce levels in biota high enough to cause impairment. These limitations may include the use of compounded conservative assumptions and/or the inability to consider temporal trends in exposure that are evident from existing data. We will review the model and make a recommendation regarding reasonable and appropriate model parameters and resulting model predictions, particularly with regard to the model's ability to replicate observed relationships between biota organochlorine levels and water and sediment organochlorine levels. Dr. Ron Tjeerdema will lead this task, and Dr. John Connolly, who has previously reviewed this modeling approach, will provide technical support. Task 2B Cost: $10,000. TASK 3: REVIEW BASIS FOR TELs, SQGs, AND WILDLIFE SVs The Regional Board may be using fish screening values to establish impairment. Screening values will be for human ingestion of fish fillets and waterfowl ingestion of whole fish. The USEP A has also promulgated the DDT TMDLs using sediment TELs (threshold effects levels) as target sediment concentrations. Jim Byard and Ron DRAFT Tjeerdema will review the scientific basis for currently available Threshold Effects Levels (TELs), Sediment Quality Guidelines (SQGs) and OEHHA wildlife Screening Values (SVs) for DDT, including their appropriateness for application within Newport Bay. For example, we anticipate that the human cancer risk for DDT in fish will be recalculated, taking into account the observed decay in DDT residue concentrations. Task 3 Cost: $20,000 TASK 4: PROJECTIONS OF DDT MASS Flow Science will use available data to make qualitative projections regarding the mass of relevant organochlorines (e.g., DDT) available in the watershed currently and in the future. Factors such as soil erosion and organochlorine degradation will be considered in this analysis. Task 4 Cost: $10,000 TASK 5: STATISTICAL POWER ARGUMENTS Flow Science will collaborate with Dr. John Connolly to investigate further the validity of the view that there are too few organochlorine data from the watershed to demonstrate that organochlorines are not causing impairment. This investigation will help clarify the actual power of statistical testing of the hypothesis that organochlorines are causing impairment. While an individual data set may not provide a strong test of the hypothesis, multiple data sets, to the extent they lead to the same conclusion, do provide a strong basis for rejecting or not rejecting the hypothesis. This assessment will rely upon the data collected and analyzed in Task 1. Task 5 Cost: $10,000 TASK 6: FINAL REPORT Flow Science will work with Jim Byard, Ron Tjeerdema, and John Connolly to integrate the results of the tasks outlined above into a final, cohesive report. This report will initially be issued in draft form, and comments on the draft will be incorporated into a final report. Task 6 Cost: $10,000 Total Workolan Cost: $90,000 Investigators James L. Byard, Ph.D., D.A.B.T., will have the primary responsibility for toxicological analysis. He will work closely with Drs. Paulsen and Tjeerdema. Dr. Byard has consulted on DDT and other chemicals in the San Diego CreeklNewport Bay Watershed for The Irvine Company since 1984. He has a B.S. in biochemistry from Cornell University and a Ph.D. in biochemistry from the University of Wisconsin. Dr. Byard studied biological chemistry as an Arthritis Foundation postdoctoral fellow at the DRAFT Harvard Medical School. He has held full-time academic appointments at the Albany Medical College in the Institute of Human and Comparative Toxicology and at the University of California at Davis in the Department of Environmental Toxicology. After receiving tenure at UC Davis, Dr. Byard began a full-time consulting business, which he has continued to the present. Dr. Byard is a member of the Society of Toxicology, the Society of Environmental Toxicology and Chemistry and is a charter diplomate of the American Board of Toxicology. He has testified in more than a hundred court cases as well as before state and federal regulatory agencies. His list of past and present clients includes much of corporate America, local governments, law firms and individuals. He has worked on every major class of chemicals, including original research on organochlorine pesticides. Dr. Byard's publications and other details of his professional activities are listed in his curriculum vitae. John P. Connolly, Ph.D., PE, DEE is the President of Quantitative Environmental Analysis, LLC., a national environmental engineering and science firm specializing in the investigation and remediation of pollution problems in natural systems. He has degrees in Civil Engineering and Environmental Engineering from Manhattan College and a Ph.D. from The University of Texas at Austin. He is a registered Professional Engineer in New York and Texas and is a Diplomate by Eminence in the American Academy of Environmental Engineers. He has conducted research and engineering on contaminated sediment issues since the late 1970s, beginning with his Ph.D. research on the effect of adsorption on the fate of the pesticide Kepone which had been discharged to the James River. He has worked on more than 35 toxic chemical and contaminated sediment sites in the United States and Latin America covering a broad range of inorganic and organic contaminants. His work has involved the design and execution of field sampling programs, fine-grained sediment transport analysis, data analysis and interpretation, chemical fate modeling and food web bioaccumu1ation modeling, aspects of remedial design and the evaluation of remedial action effectiveness. He is a member of the USEP A Science Advisory Board and has published about 40 peer-reviewed research articles. Susan C. Paulsen, Ph.D., P.E., will manage Flow Science's efforts in this project. Dr. Paulsen is a Vice President and Senior Scientist at Flow Science, where she has worked since 1997. Dr. Paulsen obtained an M.S. degree in Civil Engineering and a Ph.D. in Environmental Engineering Science from the California Institute of Technology (Caltech) and holds a B.S. in Civil Engineering from Stanford University. Dr. Paulsen has also been extensively involved in several large projects involving multi-disciplinary approaches to addressing issues of fate and transport of contaminants in river, estuarine, and ocean environments. Dr. Paulsen has also provided testimony and worked with regulatory agencies on a variety of water quality, water rights, and regulatory matters. Dr. Paulsen has performed work throughout the Newport Bay watershed area, has analyzed issues related to each of the Newport Bay TMDLs, and has worked extensively with the Santa Ana Regional Water Quality Control Board (Regional Board). Dr. Paulsen is an active member of both the Nitrogen Selenium Management Program (NSMP) Working Group and the Storm Water Quality Standards Task Force (SWQSTF). Dr. Paulsen is also a member of the Sediment Quality Objective (SQO) Advisory DRAft Committee, established by the State Water Resources Control Board, and is familiar with the detailed studies conducted in Newport Bay as part of that process. Ronald S. Tjeerdema, Ph.D., D.A.B.T. is both Professor and Chair of the Department of Environmental Toxicology at the University of California, Davis. He is also Certified in General Toxicology by the American Board of Toxicology. He holds both an M.A. and Ph.D. in Pharmacology & Toxicology (with an emphasis in environmental toxicology) from U.c. Santa Barbara and U.c. Davis, respectively, and B.S. degrees in both Natural Resources and Wildlife Management from Humboldt State University (Arcata, CA). Professor Tjeerdema has over 20 years of research and teaching experience regarding the environmental fate and toxic actions of chemicals, and has published over 140 peer- reviewed research articles and 220 abstracts involving the fate and effects of pesticides and petroleum hydrocarbons in the environment. He has also served on numerous panels charged with managing both chemicals and hazardous wastes at both the federal and state levels.