COLUMBIA — The city of Columbia has hired an attorney to respond to the EPA's recommendations for cleaning up Hinkson Creek.
The draft recommendations, called a TMDL or total maximum daily load, call for Columbia to reduce the amount of stormwater that runs into Hinkson Creek by 39.6* percent. The EPA has until Dec. 31 to review public comments and make a final recommendation.
Representatives of the city and Boone County governments, as well as MU, met in a closed session Nov. 12 to determine a response to the EPA recommendations. The public comment period ended Dec. 1.
A letter from David Shorr of the law firm Lathrop and Gage, dated Dec. 1, represents the position of the city, county and university.
The 23-page letter disputes the listing of Hinkson Creek as "impaired," alleges that the EPA unlawfully treats stormwater as a pollutant in its recommendations, and asserts that the recommendations would have adverse effects on the community and would inhibit the property rights of downstream landowners.
Much of the controversy centers on the use of stormwater as a surrogate for a specific pollutant. The Clean Water Act stipulates that a specific pollutant must be identified before a recommendation can be developed. The EPA's recommendations designate stormwater, which carries with it a variety of pollutants, as a surrogate for a specific pollutant to fulfill requirements of the Clean Water Act.
Shorr disputes that designation.
"It's our belief and other commenters' belief that the EPA has an obligation to designate a pollutant, which is a specific term, in order to provide communities the ability to properly plan for a TMDL," Shorr said.
In its draft recommendation, the EPA listed several pollutants associated with stormwater runoff, including insecticides, herbicides, chloride, petroleum waste oil and plasticizers.
Shorr also disputed the placement of Hinkson Creek in 2004 on the list of "impaired" streams. The designation specifies unknown pollutants.
"I would argue that there's insufficient data to demonstrate that Hinkson Creek belongs there," Shorr said.
Ken Midkiff, chairman of the Osage Group of the Sierra Club, said he thinks it's "legal and appropriate" for the EPA to use stormwater as a pollutant in its recommendations and said that he had been "assured many times" by the EPA and the Missouri Department of Natural Resources of that.
"We'll challenge whether it's appropriate," Shorr said. "We do not believe it is. We do not agree with Sierra Club's evaluation."
Midkiff said the EPA asked the Sierra Club for an extension of its Dec. 31 deadline to respond to public comments and make its recommendation, which the Sierra Club declined.
The EPA can ask for an extension of 60 days on its own but must do so 30 days before the deadline. According to Midkiff, the time to ask for such an extension has passed.
"The EPA is required to establish this TMDL by Dec. 31, and if the city wants to delay, it's too late," Midkiff said. "If the EPA does not establish the TMDL by Dec. 31, 2010, as required by law, we will bring suit."
In its comments, the Sierra Club said, "We do understand that there is a threat of a lawsuit by the city of Columbia, the county of Boone, and the University of Missouri — if the lawsuit requests a 'stay,' that would be viewed as a contradiction of the federal court order."
The federal court order refers to the Missouri Supreme Court's 2001 decision in American Canoe Association et al. v. EPA, which orders the EPA to establish a TMDL for Hinkson Creek by Dec. 31, 2010.
Shorr would not comment on the possibility of a lawsuit but said that "if the EPA wants to experiment with legal proceedings, that is another issue."
Another point of controversy centers on whether Hinkson Creek is polluted.
"I don't know if Hinkson Creek is polluted," Shorr said. "Neither does the EPA. There's limited sampling on Hinkson Creek."
Midkiff pointed to several documented fish kills as evidence of Hinkson Creek's pollution. But Jason Hubbart, a researcher at MU who works on Hinkson Creek, said, "Fish kills occur naturally. Fish kills are not themselves evidence that Hinkson Creek is polluted."
Midkiff said that, while fish kills can occur naturally, there is no evidence that the conditions for a natural fish kill, such as low dissolved oxygen, are present in Hinkson Creek.
Shorr and Hubbart both advocate further sample collection and a revision of the EPA's recommendations.
"We want them to look at which are the more viable potential pollutants and go through a process that is orderly to determine whether those will result in improvement," Shorr said.
But for Midkiff, the time for study is over.
"Hinkson Creek has been impaired by unknown pollutants for 12 years," Midkiff said. "They had 12 years to do the studies they claim haven't been done. The court ruling is clear. The EPA must establish a TMDL by Dec. 31."