By: Walter West P.E.

The Texas Natural Resources Conservation Commission (TNRCC) approved a reduction in water standards for the upper reaches of Sam Rayburn July 26, 2000. The EPA has ultimate authority, and they concluded that the Lufkin paper mill who proposed the reduction, and the state did not establish that the water standards they were proposing were the proper standards. In other words, the frequently advertised six years of "sound scientific study" we heard so much about turned out to be not so sound under EPA scrutiny. That’s why we called the studies psuedo-science. The EPA also concluded that the mill would be in violation of law on August 2001, the expiration date of their federal waste discharge permit. On June 21, 2001 the EPA took enforcement action and issued a "Findings of Violation and Order for Compliance" to the mill owners. The order states; "The permittee has failed to implement corrective action and install equipment and treatment processes necessary to comply with the effluent limits on August 1, 2001, in violation of part I.B of NPDES Permit No. TX0001643". The EPA enforcement action also ordered compliance with a schedule for design and construction of new waste treatment facilities. The EPA negotiated with the Paper Mill representatives, the TNRCC, and the angler, conservationist, Sam Rayburn property owner coalition with the purpose of arriving at a compromise arrangement that avoids legal action, minimizes embarrassment of the state regulatory agency, TNRCC, and allows the continued operation of the mill without fear of financial penalties that could be levied because of violations of their waste discharge permit.

In summary, it seems that the mill owners, with the approval of the proposed reduction in standards by the appointed TNRCC commissioners, assumed that they could justify a reduction in water standards and avoid the expense of installing waste treatment facilities that would remedy the polluted condition of waters downstream of the mill effluent. Rather than fix the problem, they assumed that ill-founded studies and their political influence could be used to avoid the expense of adequate waste treatment. Based on discussions between EPA, Abitibi / Donohue, and conservationist representatives during an August 20, 2001 meeting in Lufkin it was concluded that it was very likely the mill would continue to try and justify a reduced water standard for the upper reaches of Sam Rayburn and avoid the expense of waste treatment that would ensure a dissolved oxygen content of 5.0 as required to support a High Aquatic Life standard. In a nut shell, all this activity has resulted in an arrangement between the EPA, TNRCC and Abitibi that will allow the mill to operate without financial penalty for violations of the Clean Water Act. In a press release, the EPA "applauds the company’s commitment to voluntarily undertake environmental projects that will benefit the Lufkin community and enhance the water quality in this region of Texas". More on the benefit and enhance statement later.

The EPA chaired a meeting in Lufkin in August 2001 to provide an explanation of the compromises and agreements that had been reached and to better define the voluntary funding commitments. The EPA also wanted to achieve an agreement upon a process for selection of an independent technical consultant to represent the coalition of angler and conservationist groups and Rayburn property owners who have opposed the on-going pollution of Sam Rayburn. The coalition includes the National Wildlife Federation, Texas Black Bass Unlimited, Sensible Management of Aquatic Resources, Clean Water Action, Sierra Club, and Concerned Citizens for Clean Water.

The meeting was chaired by the EPA regional director. Representatives from the coalition were meeting participants, as were representatives of the Lufkin Donohue Paper Mill owned by the Canadian based Abitibi Consolidated Industries, and Texas Parks and Wildlife management. Lufkin City and Angelina County Officials were present in the audience. Jasper City and County officials were not.

During negotiations that took place prior to the August 20 meeting the EPA asked for suggestions for beneficial projects from the conservationist coalition. It is my opinion that we did a poor job of responding. The coalitions suggestions included a wetlands demonstration project that would demonstrate capability to cleanse paper mill effluent and a study to determine the extent of Dioxin and other fish tissue contamination. We also suggested a study to assay sediment and the water column pollutants and asked for funding to hire an independent technical consultant who would represent the conservation coalition interests. A suggestion to fund a Sam Rayburn fish stocking program was made and a suggestion for funds to help construct a facility near Twin-Dikes suitable for use as a tournament headquarters and other community activities.

The August 20, 2001 meeting provided a somewhat better understanding of the mills commitment and the intent of the voluntary funding of projects than we were able to achieve prior to the meeting. Even so, the project definitions are still vague. Each project is discussed in the following.

The mill will provide $185,000 to fund a Wetlands Park and Educational Center in Lufkin near Lotus Lane. According to the Public Notice for permit application 199900302 an Angelina County foundation proposed to mitigate the harm associated with the loss of waters and wetlands by construction of wetlands treatment in a site located in the Northwest side of Lufkin, in response to actions taken by the US Army Corps of Engineers and the United States Fish and Wildlife Service. Apparently the Lufkin Recycling Authority had illegally filled wetlands in the vicinity of Hurricane Creek and federal agencies (USACE & USFWS) took action resulting in a proposal for mitigation by the city – oops, I meant foundation - to construct wetlands treatment. At best this might be construed as taking money from one pants pocket and putting in the other – same pants. It appears to be a classic funny-money deal. If the voluntary funding provided by Abitibi / Donohue for wetlands is considered by the EPA as "mitigating" money the mill is sure getting a lot of bang for the buck.

The mill stated they will fund the "replacement of failing septic systems in Angelina County" in an attachment to a letter from the General Manager of the Abitibi / Donohue mill to the EPA Regional Director. After reading the letter, a member of the coalition contacted the Angelina Neches River Authority (ANRA) and asked if they had been approached about, or included in, discussions of this project. The answer was no. In fact the ANRA first learned of the proposal by reading the local news paper announcement of the EPA decision. The ANRA is the authority for approval of septic system construction and inspection in the entire five county watershed of Sam Rayburn and they are undoubtedly the best qualified agency to define the most critical septic system problems in the watershed. Apparently problems downstream of the mill effluent, or outside of Angelina County are of little concern. Most folks understand that the contaminated surface water discharged by the mill eventually passes through the dam and continues southward and also realize that there are numerous septic system problems throughout the Sam Rayburn watershed. It would be appropriate for the ANRA to decide where septic system problems affecting Sam Rayburn are most critical rather than rely upon Angelina County or City of Lufkin officials.

In reference to the coalitions suggestion to use funds to assay fish tissue contamination and sediment and water column pollutant loading, the mill proposes to provide funds for specific objectives as determined by a designated committee. The make up, objectives, and philosophy of the committee will be extremely important to the value of this funding commitment. The mill identified TPWD, the ANRA, and TNRCC as possible agencies to perform this work. The Texas Department of Health is the best qualified state agency to estimate human health risks associated with consumption of contaminated fish and they should play a role in this project although they were not mentioned. Some folks have an opinion that the coalition has asked for a study that could ultimately provide a basis for legal action and the mill management will never fund any such activity. Recent conversation with a paper mill representative (Mr. Hughes) and TPWD’s Dr. McKinney indicates that both are amenable to all reasonable study objectives that are proposed by the conservationist community.

The mill will provide funds for TPWD to perform an "assessment of regional stream habitat criteria and Index of Biotic Integrity (IBI)" with an overall project time of two years. TPWD management from Austin provided written material and discussed a two-year assessment program costing $200,000 with $125,000 used the first year and $75,000 the second year. The meeting chairperson commented that he was left with glazed over eyeballs after listening to the TPWD managers song and dance describing how this money would be used, as were most who were present.

TPWD upper management does not have the confidence of local people familiar with the Rayburn Fishery or some coalition leaders. The TPWD proposal to perform a two year "monitoring effort" followed by "some specific studies" and possibly other special studies before any stocking activity intensifies the lack of confidence in TPWD management and is perturbing. The coalition has not forgotten that TPWD upper management withdrew agency opposition to the Sam Rayburn head waters downgrade proposed by the mill and it was not withdrawn because their biologists changed their minds. It was withdrawn because of political influence. Some coalition members are also aware that TPWD management has consistently misrepresented fishery productivity to the public and to the scientific community. You should note that TPWD received funds from Temple Inland and Abitibi to support a TPWD economic study months ago, prior to their withdrawal of opposition.

The members of the coalition did not go off half-cocked and suggest a stocking program for Sam Rayburn until we had received the advice of respected freshwaters fisheries biologists. The TPWD management claim that they need a two year study before deciding if stocking Rayburn is needed is preposterous when you consider that they perform electro-fishing assessment twice per year and creel surveys once per year. Frankly, I don’t believe anyone in the coalition believes that any of the funds provided by the mill to the TPWD, Texas Wildlife Foundation will be used for fish stocking in Sam Rayburn. The funds provided to TPWD that could have been used for a Sam Rayburn stocking program have now been committed to the purchase of a new electro-fishing boat and additional personnel support. TPWD has asserted that all state hatchery stocks were committed to other water bodies. The coalitions proposal for stocking Sam Rayburn included a suggestion for purchase of stock with advanced growth and consequently a better survival rate than is available from state owned hatcheries.

During the meeting it became clear that the mill intended to perform yet another - third round of study (site-specific criteria study) and attempt to justify a reduction in dissolved oxygen standards that is very unlikely to be supported by independent objective appraisal. The mill was first granted a variance to the proper limits in 1994. (8 years ago) Meanwhile the recreational value of the reservoir declined as waste discharges into the headwaters increased. Business’s dependent upon the recreational value have suffered. The permit and waste treatment facility construction schedule laid out in the EPA administrative order will not require that the mill achieve an effluent oxygen demand that will support the Phase II , 5.0 mg/l dissolved oxygen content limit as required for a High Aquatic Life use until November of 2004. Even then the permit limit may be rescinded. The EPA order includes this statement. "If the results of the site-specific criteria study show an upstream D.O. (dissolved oxygen) of no more than 4.0 mg/l will support the designated use and TNRCC adopts a site specific criteria and EPA approves the revision, the Phase II compliance schedule is hereby void." If the mill can sell a third round of study results they will have achieved their goal – a permit limit that supports a 4.0 DO. Perhaps we should request that they average the results of the prior two "failed attempts" to justify the 4.0 DO level, and the third study result when it is completed. Or better yet, put the two previous study results that were disapproved in a hat along with the new third study result and draw one. The odds for drawing a study result proving a downgrade is appropriate would be in our favor. For sure - politics wouldn’t decide the result in a draw from the hat.

We have briefly described the suggestions made by the coalition and the mills commitment to voluntarily fund various projects. In summary, the voluntary funds will be provided to the City of Lukin, to Angelina County and to a TPWD foundation. The one exception is a commitment to fund an independent technical consultant and the mills intent to "determine the final pool of qualified candidates" was stated in a document they provided at the meeting. Based on this declaration it was anticipated that a contest over the technical consultant company selection would ensue but a selection has recently been made that is acceptable to all.

During the meeting, the mill representatives were asked to identify any foundations other than the TPWD foundation that would be recipients of the voluntary funds. None were identified. Taking the response at face value the voluntary funding money will go to Lufkin City and Angelina County coffers.

You should be getting the picture by now. The memory of TPWD management’s withdrawal of opposition to the proposed downgrade is one element of the picture. The memory of the four chartered busses, free lunches for all aboard and chartered air planes ferrying local politicos to Austin to lobby for the paper mills proposal to downgrade Rayburn water standards should make the picture even more vivid. If you surmise that the history of the Angelina County Chamber of Commerce – partnering with Abitibi / Donohue and other businesses – paying for the caravan, meals and snacks , as well as the private flights and Angelina County Police escort, to travel to Austin and Lobby for the mill, as reported in the Lukin Daily News on March 2000 has anything to do with all of this you just might be right. Remember the EPA press release statement; the EPA "applauds the company’s commitment to voluntarily undertake environmental projects that will benefit the Lufkin community and enhance the water quality in this region of Texas". It looks like "region" has been defined as Angelina County. Just how the water quality of Sam Rayburn reservoir, ultimately the recipient of the Paper Mill waste water, will be enhanced by these projects is a mystery.

During the teleconferences and negotiations between the EPA and the coalition an attempt was made to get the EPA to focus on mill effluent issues other than the dissolved oxygen demand of their effluent - with no success. It appears that both state and federal agencies responsible for water quality have looked the other way and ignored other significant water quality issues affecting Sam Rayburn. The following material will provide some facts that support this conclusion.

First fact - The EPA’s administrative order contains a 569 lbs./day mill permit limit for aluminum discharges to surface waters. The 569 lbs./day limit that was written into the Administrative Order was actually based on a mill funded study that was withdrawn from further consideration because of errors that an EPA expert discovered in the study. As a consequence, the study was withdrawn months ago, prior to the time the administrative order was written. The initial 1994 mill state permit limit for aluminum discharges was 119 lbs. /day but the mill has been operating under the protection of permit variances since 1994 that virtually eliminates the aluminum limit by only requiring the mill to report aluminum discharges. Discharges of aluminum have consistently exceeded 500 lbs./day. Values of 600 to 900 lbs./day are typical. Meanwhile, TNRCC has documented the fact that acute concentrations of dissolved Aluminum are impairing aquatic life use. An acute impairment listing by the TNRCC means that aquatic life will die with short-term exposure to the measured concentrations. Since the EPA found fault with the first study they and TNRCC and the EPA have both received a new (2nd) privately funded study, they should be considering the new study at the same time the law, the Clean Water Act, requires remedial action (TMDL action) to reduce the dissolved aluminum in the reservoir to levels that will protect aquatic life.

Second fact - The mill effluent contains metals in concentrations that exceed criteria established to protect aquatic life - according to a TNRCC Internal memorandum written in December 1996. The TNRCC internal memo documents the presence of Mercury and other metal content in mill effluent as determined by TNRCC’s own analysis. The Texas Department of Health (TDH) has issued advisories recommending limited consumption of Fish taken from Rayburn and downstream of Rayburn in B. A. Steinhagen, because of excessive mercury in fish tissue. The advisories were issued in 1995 and they are still in effect. The only metals mentioned in the TNRCC and NPDES permits governing the mill discharges are aluminum and zinc. Lead, Mercury, Copper are not mentioned even though the TNRRC memorandum identifies significant concentrations of these metals in the effluent. Public awareness of the TDH fish consumption advisories is minimal because the TDH, TPWD and TNRCC have not made public notice of this human health issue a priority. Texas State agency efforts to inform the public of the advisories are ludicrous in comparison to other states such as Arkansas and Louisiana. TNRCC claims that they require all permit applicants to identify pollutants including metals known to exist in their discharges. The paper mills application to amend and renew their wastewater discharge permit that was submitted to TNRCC November 21, 2000 did not disclose the presence of detectable levels of lead , mercury, zinc, or copper in mill effluent. All were listed at below the minimum analytical level (detectable level). In contrast, the mill effluent sample analyses obtained during TNRCC inspections on 1/23/95 and 2/8/94 reported significant metal concentrations. The independent analysis of these samples was reported in a December 1996 Internal TNRCC memorandum from Jo English to Georgie Volz as follows. Measured metal concentrations in mill effluent reported in the memo included 4,620mg/l of total aluminum, 12mg/l of copper, 30mg/l of lead, 10mg/l of nickel, 141mg/l of zinc and 12.2mg/l of mercury; all well above the minimum analytically detectable levels that were reported in the mills application for permit amendment. The memorandum also disclosed the presence of 31,800mg/l of aluminum in Sam Rayburn sediment at Highway 103. Can there be doubt as to the source of the acute aluminum concentrations in Sam Rayburn?

Third fact - Highly toxic Dioxins, a by-product of paper mill processes using Chlorine based bleaching agents, are accumulating biologically in fish caught in Sam Rayburn headwaters. Six annual reports available from TNRCC that were prepared under a requirement defined in Part II of the TPDES permit document this fact. The work documented in these studies is not adequate to perform human health risk assessments. However, the studies do serve to establish that extremely toxic Dioxins are present and accumulating in fish tissue downstream of mill effluent.

Fourth fact - Water toxicity tests are performed because it is impossible to analytically predict the combined or synergistic effect upon aquatic life of the myriad of chemicals present in the mill effluent. EPA records of Chronic Ambient Toxicity Tests conducted to evaluate toxicity at the mill effluent confluence with the Angelina river, consistently indicate the mill effluent alters reproduction and growth rates of aquatic life test subjects. The mill has not been required to perform Chronic Ambient Toxicity tests in the receiving water body (Paper Mill Creek) that flows through privately owned property because TNRCC has classified Paper Mill Creek as an intermittent stream, even though federal agencies classify the creeks feeding into Paper Mill Creek as perennial. Does anyone believe that it is OK to permit chronically toxic waste water to flow through privately owned property? Local kids play in this water and live stock drink this water.

Rayburn fishery productivity declined dramatically in the 1999 through 2001 period as evident by every means of assessment. Take a look at the chart that depicts the mill toxic releases to surface waters over the last few years and you will see a plausible cause. The chart is based on the mills discharges as reported to the EPA and as documented in the EPA’s Toxic Release Inventory records.

Fifth fact - The Angelina Neches River Authority (ANRA) Upper Neches Basin Report, May 2000, identifies16 different pollutants that are either inhibiting use in parts of Sam Rayburn, or have been identified by the state as cause for concern in Sam Rayburn. There are 18 ANRA designated water body segments in the Upper Neches basin. In the entire Upper Neches Basin the next most highly polluted segment was above Lake Palestine and 8 pollutants were identified there. In most segments only two or three pollutants were listed. Simple arithmetic indicates Sam Rayburn has twice the pollutants found in any other segment in the Upper Neches Basin

Study of the most current draft of the TNRCC Water Quality Inventory, 2001 document, discloses that TNRCC estimates that 20,480 acres of Sam Rayburn waters do not fully support higher aquatic life because of inadequate dissolved oxygen. That’s 18 % of the total 114,000 surface acres of Sam Rayburn at pool level. They also estimate another 5120 acres increment exceeds the Acute criteria limit for dissolved aluminum 25% of the time, according to the reference. The TNRCC acute criteria limit for dissolved aluminum is intended to prevent death of aquatic life from short term exposure.

Other problems identified in the Use support summary of the TNRCC document are quoted exactly as written in the following. "The fish consumption use is partially supported throughout the reservoir because of a restricted-consumption advisory issued by the Texas Department of Health in November 1995 due to elevated levels of mercury in the fish tissue. General uses are partially supported in the main body of the reservoir near SH 147 because pH values are outside the criterion range (less than and greater than the range at different times)"

"Dissolved oxygen is an Aquatic life concern in the Attoyac Bayou arm near SH 103. Oil and grease, arsenic, manganese and nickel in sediment are concerns at numerous locations throughout the reservoir. Ammonia nitrogen and orthophosphorus are concerns at several locations throughout the reservoir. In the upper end of the Angelina arm water color and odor are concerns"..

Water sample analysis from 18 specific monitoring stations were used in the TNRCC assessment. Divide 114,000 surface acres of Sam Rayburn by 18 and you get 6,333 acres per station. Assuming that each of the monitoring stations is representative of water conditions throughout 6,300 acres is a bit of stretch in logic. How TNRCC estimates Sam Rayburn water quality problems in 5,120 acre increments, as reported, has not been determined. Since bureaucratic agencies rarely promote messengers with bad news a little positive bias might be expected in the reported estimates.

A recent Jasper Newsboy article had a heading, "Newest water quality report looks good". The article quotes an Angelina Neches River Authority (ANRA) official as saying that the news on Lake Sam Rayburn water quality is good. The ANRA and Texas Natural Resources Conservation Commission reports refute the quoted ANRA official’s statement. If the above data is considered as "good" and "very positive", as previously reported, it is hard to imagine what poor or bad would be. Some concerned Sam Rayburn residents don’t think the recreational value of Sam Rayburn can withstand much more of these "good" water conditions.

It is obvious that TNRCC and the EPA are aware of the problems I have just outlined, yet the focus of all activity associated with the attempted downgrade has been on Dissolved Oxygen and Dissolved Oxygen alone. It seems to us that it would be appropriate to fund and immediately begin remedial action as required by CWA law to correct the water quality Impairments defined in the current Impaired Waters List 303d, 2000. Remedial actions, called TMDL actions, were not mentioned in the Administrative Order or in the voluntary funding proposals. Perhaps this is because funding of remedial action would be construed as admission of responsibility for the existing water quality impairments.

We believe the mill has enjoyed an economic advantage over competitive paper mills for years because they have not been required to invest in adequate waste treatment facilities. The Evadale Paper Mill has an effluent retention pond roughly 500 acres in size and a retention time for effluent over 30 days. We don’t know what the numbers are for the Lufkin Mill but since the mill property is only 544 acres in size it is obvious that their effluent retention time is woefully small in comparison to other mills. The limited space currently available to the mill is a fundamental problem for the mill as are the seasonal variation and low flow rates of the Angelina River that is receiving the mill effluent. There is an old adage, "the solution to pollution is dilution". Other mills have been required to construct pipe-lines and discharge their pollutants miles away from the source. The Lufkin mill has an aqueduct that runs cross-country to tap Lake Stryker as a water source in addition to use of river and ground water. We do not know if it is money that prevents the mill from using a pipe-line to transport mill effluent to an area that provides ample space for proper effluent treatment or the mill effluent is too caustic for transport via a pipe line. If they can invest money in an aqueduct to transport water cross-country seems like they could invest money to transport effluent to an area where space is available for adequate treatment facilities. In any case, it should be treated properly before putting it into public waters. The upper portion of Sam Rayburn should not be used as a settling basin and retention pond for mill metal discharges and other pollutants.

The mill submitted an application for an amended permit for surface water discharges prior to the EPA decision denying the downgrade and TNRCC has accepted public comments on the amendment and assigned it to a technical writer. We believe that all the issues identified herein will culminate in a contest over the permit amendment that TNRCC will issue. See the accompanying side bar.

All parties concerned with the ecology of Sam Rayburn should be prepared to contest the permit in a formal hearing and be fore-warned - to achieve a contested case hearing with TNRCC is a formidable task that will require legal preparation as thorough as a trial. Be prepared or forget it! The TNRCC director can decide if a public meeting will be held to discuss these issues if he decides there is sufficient interest. A public meeting to discuss these issues is a given if a member of the state legislature simply makes a request to TNRCC.

There is no question that the mill effluent can be treated to support the proper high aquatic life standards – it is a question of will - commitment of money - and profit margins. We applaud the EPA decision denying the downgrade. We appreciate the EPA effort to reach a compromise solution to the issues that will allow the continued operation of the mill. We commend the positive action of scheduling construction for new mill waste treatment facilities - as called for in the EPA’s Administrative Order. However, we expect TNRCC & EPA to establish discharge permit limits that support the proper High Aquatic Life designation and protect the ecology, the recreational value of the region, and human health. – Nothing Less. Anything less will be opposed by the coalition. Finally, we hope that the mill will pursue a waste treatment process that will support the existing High Aquatic Life Standard instead of performing yet another - 3rd round of studies, that attempts to justify a reduction in standards that is not supported by independent objective appraisal. We have a right to an appraisal of - and regulation of - environmental issues that are free of the political influence possessed by moneyed special interests.