To California Regional Water Quality Control Board San Francisco Bay Region, July 20, 2004
Subject: RCRA (Resource Conservation and Recovery Act) Corrective
Action at the Lawrence Berkeley National Laboratory/CMS (Corrective
Measures Study) Report
Dear Board Members:
We, the undersigned, request that the San Francisco Bay RWQCB issue
an order to the Department of Energy to clean up the nuclear and non-nuclear
contamination of groundwater and soil at Lawrence Berkeley National
Laboratory (LBNL) within the city limits of Berkeley and Oakland. In
addition, the Board should impose penalties under the Porter Cologne
Act for the impact on surface waters by the Lab’s tritium-polluted
groundwater in the area of Chicken Creek, a tributary of Strawberry
Creek.
Background
Members of the Berkeley City Council, city commissions, environmental
and neighborhood organizations, and creek groups have spent over a decade
working with state and federal regulatory agencies to address the serious
problems of environmental contamination at LBNL. Our experience has
been one of frustration and disappointment with these regulatory agencies’
lack of commitment to enforce a comprehensive cleanup of radioactive
and hazardous chemical waste from the soil, groundwater, surface waters,
and vegetation in the Strawberry Creek Watershed.
Our Berkeley city government has communicated to the Board that the
City and citizens of Berkeley strongly oppose the imposition of risk-based
clean-up standards, which permit significant amounts of federally generated
contamination to remain in place at LBNL that threatens groundwater
in the Berkeley/Oakland hills. (See attachments 1&2)
Under RCRA Corrective Action, LBNL was required to submit the Corrective
Measures Study Report to the Department of Toxic Substances Control
(DTSC) over two months ago. At the July 1, 2004 Berkeley’s Community
Environmental Advisory Commission meeting, a LBNL representative informed
the community that Department of Energy (DOE) headquarters in Washington
DC had issued an order forbidding LBNL to release the CMS report to
the regulators and public. It was further revealed by the LBNL representative
that DOE is not committed to any serious cleanup at the LBNL site.
The City of Berkeley has a policy against the use of risk based corrective
actions as a first measure of hazardous materials clean-up. City policy,
like that of the state water codes (Porter Cologne Act) contains a significant
principle that resources that are deemed to have existing and potential
groundwater beneficial uses should be preserved. Similarly, the state
water board has a non-degradation policy. This means that the first
consideration for any site clean-up is that it should be brought back
to the pristine condition in which it was found.
The city of Berkeley’s comment letter to LBNL dated November 26,
2003 states the following “Should DOE reduce its budget for clean-up
at LBNL, the facility will not meet any restrictive cleanup goals. Mitigation
measures should be expressed as measures required to comply with the
most restrictive applicable standards to insure implementation of such
requirements regardless of changes in Federal funding for remediation.”
(See attachment 3. page 13)
If the financial requirements to reach this clean-up goal are too much
of a hardship to DOE, or if no technical solution is reasonably found,
then some reasonable leniency can be considered. One such approach could
be the use of Maximum Contaminant Levels (MCLs). The use of MCLs is
a risk level based on the drinking water standard in which the risk
level causes no more that one cancer case in a million people. The clean
up at LBNL, if necessary, could employ this approach.
Deed restrictions are the last resort for a clean up and are more clearly
associated with Brownfields than they are with a successful clean-up.
Brownfields should only be a last resort in a depressed area where the
contamination will not be cleaned up due to the absence of a responsible
party and/or general economic depression. Berkeley is not depressed
economically nor is the federal government. Thus, LBNL/DOE does not
require either the use of deed restrictions or Brownfields.
Preservation of the groundwaters of the State of California must be
of the highest priority. The Berkeley City Council and its environmental
commission support full environmental restoration at LBNL so as to preserve
the Berkeley/Oakland hills groundwater for future generations. This
is mandatory because in an emergency Berkeley groundwater will be used
for domestic, municipal, irrigation and industrial purposes. Today,
the LBNL site is contaminated by the presence of large quantities of
radionuclides and 162 contaminants including Volatile Organic Compounds
(VOCs), Polychlorinated Biphenyls (PCBs), Pesticides, Fuels, Metals
and Freon.
The official Zoning Map of the city of Berkeley designates the UC hill
campus lands, including LBNL, as a residential district. This zoning
permits, for instance, the construction of residential structures such
as apartments and hotels that will provide housing opportunities for
transient or seasonal residents. (See attachment 4.) LBNL/DOE must evaluate
the cleanup scenarios within the context of actual residential zoning
and land use provisions. The city of Oakland’s land use designation
(S-7 Preservation) for the UC/LBNL hill area is Park, Recreation or
Natural area or Watershed. (See attachment 5.)
The Department of Energy has not proven it has financial hardship. Nevertheless,
it is attempting to withdraw money earmarked for LBNL clean-up by past
agreements and past practices.
Leaving contamination in place is a cost saving measure. The savings
to the DOE is a cost to the citizens of California and especially to
the citizens of Berkeley. How much does it cost to accept the tritium,
volatile organic compounds and the necessary zoning use restrictions
for, say, 300 years? The people of Berkeley would like to comment on
the detailed analyses of what costs were considered. The issue of the
landowner, University of California, is particularly important since
they will have to accept, in perpetuity, any contamination that was
caused by the DOE. In this case, the federal government pollutes the
soils and groundwater and the state government (and taxpayers) end up
paying for the contamination. Has the landlord accepted this liability?
The RWQCB comment letter (See attachment 6.) to DOE dated May 17, 2004
states that the risk characterization of LBNL is incomplete and cited
the following areas, issues and contaminants of concern that need to
be addressed:
- Multiple Land Use Scenarios, including unrestricted land use.
- Site-wide Radiological Issues. Tritium is known to exceed the drinking
water MCL (at LBNL) and the groundwater to surface water pathway exists
in the area of Chicken Creek.
- Beneficial Use Assessment of Surface water and Groundwater (including
surveys of the groundwater wells (and the Lennert Aquifer)
- Site-wide Stormwater and Sediment Management issues.Beyond the state,
there is the issue of local jurisdiction. If groundwater contamination
is not cleaned up, it will continue to move down hill and pollute the
City of Berkeley. Contaminated groundwater enters the surface waters
or runs subsurface and moves below student dormitories downhill from
LBNL.
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In conclusion, we reiterate our request that the San Francisco Bay RWQCB
issue an order to the Department of Energy to clean up the nuclear and
non-nuclear contamination of groundwater and soil at LBNL. In addition,
the Board should impose penalties under the Porter Cologne Act for the
impact on surface waters by the tritium-polluted groundwater in the
area of Chicken Creek, a tributary of Strawberry Creek.
Sincerely
L A Wood, City of Berkeley Community Environmental Advisory Commission
Pamela Sihvola, Co-chair Committee to Minimize Toxic Waste
Steve Donnelly, Executive Director, Urban Creeks Council of California
Janice Thomas, Past President of the Panoramic Hill Association
Attachment 7: Friends of Strawberry Creek Comment Letter on UCB 2020
LRDP EIR.
Cc: Governor Schwarzenegger
Congresswoman Lee, 9th District, California
California Senators Boxer and Feinstein
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