Mill pond EIR "a really slow horse"
September 16, 2022 — The Fort Bragg City Council stated its position on the mill pond cleanup project at its September 12 meeting, making it clear that, although the property is in private hands, the city and the public still have a certain amount of control over what happens on the site.
The agenda item under discussion had to do with approving a request for proposals to find a contractor to conduct an environmental impact review of the owner’s remediation plan. But council members and the public had questions about where the city stands, and what kinds of scenarios are possible.
The property is owned by Mendocino Railway, which attempted to acquire it through eminent domain but ended up purchasing it from Georgia Pacific through a stipulated agreement. The city and the railway are now in court over the questions of whether or not the railway is a public utility, and if it is subject to the city’s jurisdiction when it comes to permits. The railway maintains that it is a public utility, and that it is under federal jurisdiction, which means it does not need to apply for permits from the city to work on its property.
An August 12 letter from the California Public Utilities Commission states that Mendocino Railway is not a public utility, which the railway’s counsel continues to dispute.
The state Department of Toxic Substances Control has ordered the remediation of the mill pond, which is contaminated from years of industrial pollution. The railway has proposed a containment and stabilization solution. Sarah McCormick, with the city manager’s office, explained.
“Most of the site is clean at this point, to the standards set by DTSC, the major cleanup point being in the operable unit E, which takes up the mill ponds, the whole mill pond complex in the area right in the center of the site, along with the mill pond up on the northern portion, and some in the riparian area,” she described. “So it’s all the water and wetland areas. In order to do remediation out there, the DTSC requires a remediation action plan. So what the applicant has submitted to DTSC is a draft remediation action plan. In that plan, they’ve identified what their preferred alternative is to clean up the mill pond area, which is basically a containment and stabilization So it’s doing improvements to the dam, adding some more armoring, putting a weir into the larger pond to take it out of the Army Corps of Engineers’ jurisdiction, and some more along the beach berm. And so the idea is that there’s land use restrictions, and then containment, and that would be the remediation. In order to do that project, the DTSC order states that there must be an EIR completed, and identifies the City of Fort Bragg as the lead agency.”
Council member Lindy Peters wanted to make it clear that the city still has some authority over the property. “The zoning authority for that property is the City of Fort Bragg,” he said. “So we do have some control.”
McCormick pointed out that part of the environmental analysis includes examining alternatives, including a no-project alternative. As the lead agency in the environmental review process, the city has the authority to hire the consultant that will conduct the review, and to instruct that consultant on how much input to entertain from the public. “I added six public meetings,” she told the Council. “We might want to add a couple more, just because DTSC is going to be doing meetings. If anything I heard tonight is maybe we could add a couple more meetings.”
The Coastal Commission is another agency that must ultimately approve any remediation plan that moves forward. Jerry Stavely’s concerns were shared by most of the other members of the public who addressed the City Council, including sea level rise and the economic and recreational benefits he believes could be gained from restoration of the area instead of mitigatio “Therefore, I wholeheartedly support the staff’s call for the EIR to have a robust analysis of plan alternatives, to have extensive public involvement in its development, and to have a thorough examination of the effects of tsunami and sea level rise,” he declared. “Also, I wonder whether it wouldn’t be better to conduct the EIR after a local coastal plan is prepared” by the Coastal Commission.
Attorneys advising the city assured the council that the request for proposals from consultants to conduct the environmental review would not obligate the city to take any particular course of action, as the lawsuit winds its way through court and so many questions remain unresolved.
One member of the public worried that looking for a consultant now was putting the cart before the horse, a concern addressed by council member Jessica Morsell Haye.
“That’s an important consideration,” she acknowledged. “Yet this is a really slow horse.”
The council voted 4-1, with Council member Marcia Rafanan dissenting, to send out the request for proposals.