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Suit Seeks to Blame Port for Allowing Tenant's Pollution

February 05, 1989|RALPH FRAMMOLINO | Times Staff Writer

SAN DIEGO — The San Diego Unified Port District has the reputation of a government agency short on controversy and long on the knack of making lots of money as landlord of about 1,200 acres of tidelands leased out to hotels, shops, manufacturing firms, marinas and shipyards along San Diego Bay.

Now it may be time to add something else to the image: The port as a polluter.

Local water pollution officials are considering an unprecedented move that would hold the port district liable as a primary contributor to copper concentration in the bay at the 24th Street Marine Terminal in National City.

So far, all eyes have turned to Paco Terminals Inc., the shipping firm that loaded copper ore at the National City terminal between 1979 and 1986, and which leases its land from the port.

After finding copper in nearby sediment at levels nearly 2 1/2 times greater than normal, the Regional Water Quality Control Board last year fined Paco $50,000 and ordered the firm to begin planning a massive cleanup that could cost as much as $100 million.

But now board members face a proposal to hold the port district equally responsible for the pollution because, as the firm's landlord, the public agency failed to do enough to make sure the tenant was more careful with the copper concentrate, which was stored in mounds near the pier and storm drains running into the bay. The board is expected to vote on the issue this month.

As regulators wrestle with this question, port district officials fear approval of the proposal would have far-reaching and expensive implications. It could put the governmental agency in financial jeopardy every time one of its tenants pollutes the bay, they say.

"If that rule were applied to the port district, a good argument could be made for that situation that any tenant could create (pollution) liability on the part of the port district," said attorney David Hopkins, who has been retained by the port for the Paco case.

In the Paco case, the idea of going after the port came from the firm's attorneys, who contend that the port's laissez-faire attitude as a landlord is partly to blame for the environmental mess.

"They (the port district) had knowledge of what was going on, the knowledge of the environmental concerns at the project . . . and they permitted it," said attorney John J. Lormon.

The argument received support in January in a written opinion from the water board's own attorney, who found that the legal precedent and conditions exist to officially designate the port as a primary polluter.

Action Called Smoke Screen

"The regional board can conclude that the port district permitted copper ore to be discharged into San Diego Bay, creating a condition of pollution in the bay," the legal opinion said.

Port officials, however, say Paco's attempt to have the public agency named as co-polluter is a smoke screen sent up by the company so it can escape some, if not all, of the blame and cleanup costs.

"I think they're looking for someone with deep pockets, is what I think," said Port Director Don Nay.

If any governmental entity has such deep pockets, it is the port, which is charged by state law to "promote commerce, navigation, fisheries and recreation" on the 2,600 acres of tidelands under its jurisdiction.

Made $43.6 Million

Less than half of that--1,200 acres--are designated for commercial and industrial use, and the port makes money by granting 400 master leases for a variety of uses. Those leases, along with the operation of Lindbergh Field, helped the port make $43.6 million last year, according to the agency's 1988 annual report.

Port district officials have concentrated on getting the highest return for their commercial and industrial land, leaving environmental considerations up to other agencies, such as the regional board, said a port spokesman.

But pressure is now being applied on the port to become more environmentally conscientious in the wake of a series of pollution cases involving its tenants.

One involved Teledyne Ryan, a major port district leaseholder that was fined $75,000 by the board last April for allowing cancer-causing polychlorinated biphenyls to escape into the bay. Last month, Southwest Marine was tagged for $15,000 for allowing raw sewage and sandblast residue to fall directly into the bay.

But one of the biggest pollutions involves Paco, which was cited for 31 spills or discharges of copper ore into the South Bay between April, 1985, and Dec. 29, 1986--the date the firm discontinued its ore-loading operations.

The runoff, thought to occur mainly during rainstorms, raised copper levels in sediment near the 24th Street terminal to 2,400 parts per million (ppm). The company was fined $50,000 and told it must remove the pollution to bring the copper concentration down to 1,000 ppm. The company drew up a plan to dredge the nearby sediment and dump it far off into the ocean.

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