Security National, Baykeeper settle Balloon Track suit; agreement has SN paying Baykeeper $1.8 million, allowing input on cleanup
Thadeus Greenson
Times-Standard
09/23/2010
In a rare moment of solidarity, Humboldt Baykeeper and Security National both hailed a settlement in a lawsuit brought by the environmental group over contamination on Eureka's Balloon Track property as a good thing and a step forward for the community.
Filed in 2006, Baykeeper's suit was initially brought against Union Pacific Railroad but was inherited by Security National when its subsidiary, CUE VI, purchased the Balloon Track property from the railroad company in October 2006 with its sights set on building the Marina Center, a 42-acre mixed-use development featuring residential, office and retail space as well as an 11-acre wetland reserve.
The suit sought an injunction mandating Security National to clean up the property and to prevent contaminated storm water discharges from running into Humboldt Bay from the property, which contains contaminants from old underground fuel tanks and rail maintenance activities.
Wednesday, Baykeeper and Security National both issued press releases announcing the settlement and stating they are looking forward to a cleanup of the property.
”We are pleased to achieve this settlement and to put this lawsuit behind us,” Security National Vice President Randy Gans said in the release. “Thankfully, from this point on, what will matter on the cleanup are facts and science, rather than rhetoric and generalizations. The end result of this settlement is a win for the community.”
Baykeeper Executive Director Pete Nichols said that, under the settlement, Security National will pay Baykeeper $1.8 million to help repay legal and research expenses and will give the group's technical experts some input into the characterization and cleanup of the former rail yard.
Though Baykeeper is getting $1.8 million under the settlement, Nichols said that number only represents a fraction of the resources Baykeeper has put into the suit over the years and is less important than other concessions in the settlement agreement.
”We actually took a bit of a hit on this, but we feel getting the work done properly is the most important thing,” Nichols said, adding that Baykeeper has employed five lawyers and 12 experts as a part of the litigation. “The settlement establishes a process for us to be involved in the development of work plans and the cleanup.”
Moving forward under the settlement agreement, Nichols said, Security National and Baykeeper's technical experts will work together to review development and cleanup plans, and that any disagreements will be resolved by a neutral third party appointed by the court.
”Given our participation and the fact that there could be third-party review of these documents, we feel that's going to result in the best overall cleanup of the property,” Nichols said.
Security National Vice President for Real Estate Development Mike Casey said, from his perspective, there's a more important aspect of the settlement.
”I think the most important provision for us is they've agreed not to sue us anymore,” Casey said. “In our view, it's unfortunate that we have to spend a lot of money to pay lawyers, but if that's what it takes to move the project forward, then so be it.”
As a part of the lawsuit, Nichols said Security National was forced to allow Baykeeper experts access to the Balloon Track property. In three site visits, Nichols said Baykeeper conducted soil samples that revealed a number of hot spots on the property that showed significant levels of contamination such as dioxins, metals and arsenic. Under the settlement plan, Security National is required to remove contaminated sediment at numerous locations and to prevent further discharges of pollutants into Humboldt Bay and Clark Slough.
As far as the hot spots are concerned, Casey said Security National won't be doing anything differently than what the company had initially proposed for its phase-one cleanup of the property -- the plan that was ultimately approved by the North Coast Regional Water Quality Control Board. However, Nichols said it was some of Baykeeper's studies, made possible through the litigation, that helped guide that cleanup plan.
A coastal development permit to implement that plan was issued by the city of Eureka but has been appealed to the California Coastal Commission. Lawsuits brought by Security National and local group Citizens for a Better Eureka challenging the Coastal Commission's jurisdiction over the permit were thrown out of court by Humboldt County Superior Court Judge John Feeney in July. Security National had said it was considering appealing Feeney's ruling, and has reportedly refused to comply with a number of requests for documents and information from the coastal commission.
Wednesday, Casey said the company is still deciding whether to appeal Feeney's ruling, and is currently evaluating the impact the settlement may have on “those issues.”
Casey and Gans did say, however, that the company is moving immediately to implement an interim stormwater management program to keep contaminants from draining off the property. A coastal development permit for that project was approved by the Eureka City Council on Tuesday.
Nichols said Baykeeper thinks the interim management plan proposed is a sound one.
”We think the plan they put forward is a plan that has been shown to work in the past,” Nichols said.
While Baykeeper and Security National -- who have wrangled publicly over the Balloon Track property for years -- were on the same page Wednesday in lauding the settlement as a step forward, it's not a trend that seems likely to continue.
Nichols said Baykeeper is still moving forward with lawsuits it has filed challenging the environmental impact report certified by the city of Eureka for the Marina Center project and the Eureka City Council vote to put zoning changes necessary for the project on the November ballot.
