Berkekey City Council Agenda CR# 96-008,
COUNCIL ACTION Background Information
At the City Council meeting of January 30, 1996, the Planning Commission proposed, amongst other things, that a letter be sent to the State Water Board rejecting the draft containment zone policies. The City Council approved sending a letter to the State Water Board but deferred drafting it until staff presents a comprehensive report scheduled for tonight. The City Council posed questions about the containment zone policies and these are addressed below.
The proposed State Water Board containment zone policy is currently in draft form, non-specific and complex. The draft resolution will be undergoing review for several additional months. It is expected that implementation will differ from region to region. Staff will bring back new information as it develops from the State and Regional Water Boards.
City of Berkeley's Regulatory Authority and Cleanup Goals for Soil and Groundwater
The State scheme for the regulation of soil and groundwater contamination is exceedingly complicated, consisting of several statutes, with different but overlapping subject matters. The Health & Safety Code contains several chapters, generally focused on the regulation of hazardous substances (including those originating in underground tanks) and their remediation (chapters 6.5, 6.7, 6.75, 6.95). Implementation of these statutes is generally the responsibility of the affected local agency or the state Department of Toxic Substances Control (BMC chapter 11.52).
Another statutory scheme, the Porter-Cologne Act (Water Code section 13000 et seq.) focuses on water quality (including groundwater quality), and is implemented by the State Water Board and the Regional Water Board (See Attachment E), the latter must prepare a "basin plan" containing policies related to water quality for the affected basin.
Because these areas overlap, the City has for several years been implementing not only the Health & Safety Code, but also the Porter-Cologne Act, under an informal agreement with staff of the San Francisco Regional Water Board. Accordingly, staff has begun a comprehensive review of all of the relevant statutes, to determine (1) the extent to which the City, as opposed to the Regional Water Board has authority to implement the relevant statutes, and (2) the extent to which the City may adopt stricter local requirements than those adopted by the Regional Water Board. Because of the complexity of the statutory scheme, however, it has been impossible to complete this review in time for presentation to the Council.
What is a Containment Zone?
The containment zone concept was developed in response to the need of property owners to cleanup contamination while avoiding prohibitive cleanup costs. It also addresses a need to avoid the stigma of a property being labeled as a contaminated or polluted site with uncertain future liabilities regarding site remediation. The uncertainty regarding liability hinders the ability to finance or insure properties. For example, the Temescal Business Center, one of West Berkeley's largest developments was not able to secure bank financing because the site had not received State Water Board closure.
The concept of containment zones contemplates that:
a) Pollution would be contained within a geographical area.
b) Pollution would not significantly impact human health or the environment.
c) Sites would require a "post closure" management plan.
With a containment zone, the property owners are given a way of "closing" their sites, allowing local jurisdictions, banks and insurers to assist in the redevelopment of the site.
Drinking Water/Current Cleanup Standards
Presently, the cleanup levels established by the State Water Board for a water body are based upon the most sensitive beneficial use. The most sensitive beneficial use for groundwater is to drink it (other uses might be for example irrigation or cleaning). Therefore, the most stringent cleanup levels are in areas where there is a potential to drink the groundwater. For groundwater that is not considered to have a potential for drinking, where there is economic hardship and where the technology does not allow clean up to such low levels, less stringent standards can be used.
Based on 15 years of experience the San Francisco Regional Water Board has concluded, and verified at many sites across the nation, that cleanup to "background" or drinking water standards will be technically impractical and/or economically costly or both. It should be noted that the Lawrence Livermore Laboratory Report, "Recommendations to Improve the Cleanup Process for California's Leaking Underground Storage Tanks" (See Attachment F), supports the concept that with time, fuel contamination can dissipate through natural processes. In addition, it has been demonstrated that fuels do not travel far beyond the point of contamination (about 250 feet) and will eventually dissipate and biodegrade.
Regarding groundwater within Berkeley, the City has a few private drinking water wells and some wells that may be used for non drinking purposes in times of water shortage. However, Berkeley's groundwater quality and yield does not always meet drinking water criteria under the Regional Water Board's Basin Plan. In cooperation with the Regional Water Board, the City has for the past decade allowed cleanup levels less stringent than drinking water standards. The City of Berkeley cleanup levels are based on removal of the source of pollution to the extent of economic and technical feasibility, site specific health risk based criteria and other cleanup guidelines from the State and Regional Water Boards. In the current draft containment zone policy, the role of the City of Berkeley with regard to sites which have contaminants other than petroleum is taken up by the Regional Water Board.
Risk Assessment - Protection of Human Health and the Environment
In the draft State Water Board containment zone proposal, cleanup standards in a designated containment zone are determined by a risk assessment study to ensure protection of human health and the environment. Subsequently, a cleanup zone is designated through a public hearing without respect to actual boundaries of known contamination. Risk assessment is an analytical tool to help identify sitespecific potential hazards. Prior to conducting a risk assessment, site-specific data are required, such as soil characteristics, geography, magnitude of the contamination and the identification of pathways the chemical agent might take from the source to the exposed individual (e.g., people could inhale it; children could ingest it by eating dirt). The collection of reliable data depends on experience of the professionals and on the budget allocated for the job. Regulatory oversight of this process to set reliable parameters is critical.
A risk assessment determines the likelihood (probability of risk" estimates) of chemical exposure resulting in adverse effects to a community (human risk assessment) or to wildlife (ecological risk assessment). Adverse effects usually means the death of an organ or individual. It does not take into account the "quality of life" or "nuisance" factors. A risk assessment evaluates the baseline risks (under no remedial action or institutional control) associated with human or ecological exposure to contaminated soil and groundwater. It should be noted that human health risk assessments incorporate high safety factors because many of the factors needed to calculate risk are assumptions and estimates, rather than known, verifiable quantities. Risk assessments provide the justification for the necessity to perform any cleanup. If cleanup is necessary, the risk assessment determines the levels of contaminants that may remain without threatening public health and the environment. By contrast, in the absence of risk assessments, cleanup would be required in most cases and the standards for cleanup would be significantly higher.
Once the risk assessment is made, it is necessary to develop a plan to manage any risks identified. Under the containment zone policy, a risk-based corrective action type of assessment and management study will be used to assure that public health and the environment are not subject to significant adverse risk. The "corrective actions" in such a plan could mean removing contaminants, aerating them, capping them to assure that they will not escape, or other actions. Evaluating what precise combination of risk management actions requires determining what actions will be technically effective at reasonable cost.
The City of Berkeley's Approach and Concerns
The containment zone proposal as currently drafted is vague in many ways. In addition, the containment zone proposal is scheduled to undergo additional months of review and is likely to be modified. The review process has been extended at least in part to consider the concerns of the Metropolitan Water District in Southern California. In the mean time, containment zones are being established in the San Francisco Bay Area under the guidance of the Regional Water Board.
Because of this vagueness and this likelihood of change, staff cannot recommend that the City take a definite position. Rather, staff has drafted a letter expressing concerns about the proposal. If these concerns are adequately addressed, and in light of the fact that the City has performed risk assessments in the past, it may be appropriate to support the containment zone proposal and apply it in Berkeley. Some key concerns are:
- Local control. Staff views this as an extremely important issue. The regulation as currently proposed gives local agencies full control over sites which are contaminated only with petroleum products. Such sites represent the bulk of contaminated sites. However, a number of the larger, more complex sites exist where a City might wish
to apply a containment zone policy on higher risk sites that are typically contaminated with chlorinated solvents. Local agencies typically act in cooperation with the Regional Water Boards for technical overview and site closure but local agencies should control the investigation and remediation procedures. Such controls should not be lost by the local agencies.
- Inter-Jurisdictional Protection. Containment zones in one jurisdiction can have impacts on other jurisdictions because groundwater generally flows to the Bay. The draft regulation provides no specific protection for contamination which migrates across jurisdictional boundaries, particularly in the case where adjacent jurisdictions may have significantly different water quality goals. Therefore, it is suggested that the resolution establish procedures for consultation with and mitigation of impacts on affected neighboring jurisdictions.
- Impacts on the Public Rights-of-Way. Under the containment zone resolution, contamination will flow not only into neighboring sites, but also into the public right-ofway. If this occurs, local authorities and utility companies may be subject to considerable expenditures in maintaining underground utilities impacted by the pollution, especially if personnel are used to service the utilities. The resolution should state that all containment zones should have requirements which address such impacts.
Polluted Sites in Berkeley
City records indicate that there are over 50 sites in the City of Berkeley that are expected to have contamination, in addition to the sites currently being remediated. These sites are mostly current or former gasoline stations with leaking underground storage tanks. Under the proposed containment zone policy these sites could be considered low risk sites and residual contamination could be allowed to be left in place. The draft resolution suggests that the few sites known as "high risk", which are typically contaminated with solvents or chlorinated compounds, could be sent by the City to the Regional Water Board for remediation, assessment, and finally closure.
The City of Emeryville
The City of Emeryville, in partnership with state, county and private agencies, has been allocated a matching grant of $200,000 from the U.S. Environmental Protection Agency for studying a risk management model for accelerating "brownfields" redevelopment. "Brownfields" are areas that have been abandoned by industry leaving empty and heavily contaminated land. Approximately 55% of Emeryville has contamination which is considered economically infeasible to clean to a pristine level. It has, therefore, been proposed that the "brownfields" redevelopment program include a containment zone which may cover the entire City of Emeryville.
Because of the lack of technical specificity in the proposed containment zone policy and lack of clarity regarding Berkeley's environmental and liability exposure, staff recommends that Emeryville prepare an Environmental Impact Report. In addition, the City of Berkeley should act in a consultative manner with Emeryville's proposed "brownfields redevelopment.
Environmentalists, environmental justice activists and the affected community have expressed opposition to changes in the non-degradation of ground water policies of the water code. If these policies were to be implemented, the community would expect an opportunity to participate in the containment zone designation process in order to provide meaningful input (Attachment G). On the other hand, businesses and industrial and commercial property owners in Berkeley have expressed support of the proposed containment zone policies.
Sites that are subject to remediation through current cleanup standards may be subject to a considerable financial impact. A containment zone policy could provide owners of polluted sites a mechanism to develop the site and alleviate some of the financial burden. Development of the "brownfields" could create business and generate additional tax revenue for Cities. However, if high levels of pollution is allowed to remain in place through containment zones, adjacent or down-gradient sites may be impacted.
Steve Beicher Acting Assistant City Manager Office of Special Community Services
Gil Kelley, Director Planning and Development
CONTAINMENT ZONE POLICY, FOR COUNCIL ACTION
From: Planning Commission, January 30, 1996
To: Honorable Mayor and Members of the City Council
At their January 10, 1996 meeting, the Planning Commission viewed a video entitled "On Berkeley Soil" regarding ground soil contamination in Berkeley. The film producer, L A Wood, offered recommendations to the Commission to be forwarded to the City Council concerning Containment Zone Policy. The Planning Commission endorsed the recommendations based on the statement which accompanied the presentation of the film (see attached).
That the City Council:
Direct a letter of concern to the State Water Resources Board Hearings expressing the City's objections to the proposed lowering of groundwater standards and stating that the City of Berkeley will not adopt the State's proposed Containment Zone Policy, based on the 1/10/96 statement which accompanied the presentation of the film, "On Berkeley Soil"; and impose major restrictions on the use of Containment Zones in Berkeley in the event that the State of California adopts a Containment Zone Policy.
At its January 10, 1996 meeting the Planning Commission took the following action:
(M/S/C) that the Council direct a letter of concern to the State Water Board Hearings expressing the City's objections to the proposed lowering of groundwater standards and stating that the City will not adopt the State's proposed Containment Zone Policy, based on the 1/10/96 statement which accompanied the presentation of the film, "On Berkeley Soil"; and impose major restrictions on the use of Containment Zones in Berkeley in the event that the State of California adopts a Containment Zone Policy (Nicoloff/Spangler).
Ayes: Fred, Horowitz, Nicoloff, Peterson, Spangler. Opposed: None. Abstain: None. Absent: Anderson, Deringer, Resner, Wengraf.
Containment Zone Policies (CR#96-008)
March 12. 1996 Council Minutes Page 8
Recommendation: That Council direct the City Manager to
1) Send a letter to the State Water Board expressing the City's concerns, including: maintain quality of groundwater resources; local control over all containment zone technical reviews, designations, mitigation and management, local interpretation of basic protections to assure human health, environmental quality and local economics; protect neighboring jurisdictions with higher standards water quality standards from impacts by the designation of a containment zone; and protect quality of groundwater and soils in the public right of way.
2) Send letters to the City of Emeryville and the U.S. Environmental Protection Agency (EPA), which has allocated a "brownfields redevelopment" grant to the City of Emeryville, to study the city-wide application of a containment zone policy. Express the City's concerns including that the City of Emeryville prepare an Environmental Impact Report (EIR) and insure that there is not a greater degradation of the Bay and Berkeley's quality of groundwater because of Emeryville's actions.
3) Review the Containment Zone policy and the appropriate City response to it when the policy is enacted by the State Water Board. Expense: None
1. L A Wood, 1328 Bancroft Way
b. City Manager Report
c. Draft letter from Mayor Dean
1. Clifford Fred
2. L A Wood and Carolyn Erbele
Action: Moved, seconded, carried (Woodworth/Olds) to accept the proposed draft letter with revisions suggested by L A Wood, and continue to March 19, 1996 to give staff an opportunity to incorporate additional comments. Directed staff to provide information on State Water Board's timeline for public comments and actions and to send to the Board a copy of L A Wood's video ("On Berkeley Soil") tape. (Absent - Armstrong)
To: Mr. Walter Pettit Executive Director State Water Resources Control Board
From City of Berkeley March 5, 1996
The purpose of this letter is to provide the City of Berkeley's views on the draft amendment to the State Water Resources Control Board Resolution 92-49 on water quality. As you may know, Berkeley is a progressive City committed to environmental protection. The City has been proactive on issues such as restricting the use of ozone-depleting compounds, waste minimization, and limiting the use of radioactive materials. Berkeley citizens believe that natural resources should be safeguarded for future generations.
The proposed modifications of resolution 92-49 appear to significantly relax cleanup standards. The City recognizes that there are economic reasons for the proposed policy and if adopted the policy may support the brownfields' redevelopment concept. However, the City is concerned that the draft policy could adversely impact the quality of ground water resources.
The City of Berkeley believes that additional safeguards and procedures must be included in the amendments to the policy. These include:
Further, it should be noted that the containment zone resolution incorporates vague language and that its broad scope may result in very different interpretations. There is a major concern that interpretations could permit high levels of contamination to be left in place and result in the suspension of remediation efforts. It should also be noted that post closure management of containment zones needs more specification.
The containment zone policy may shift the financial burden of cleanups from responsible parties to adjacent sites or the public right-of-way. Most importantly, the Berkeley community insists on greater access to decisions related to the designation of containment zones. At the very least, public hearings must be conducted by the City in addition to State or Regional Boards for high and low risk sites.
Weldon Rucker Acting City Manager
City of Berkeley
Clifford Fred, Planning Commissioner, Berkeley, California
March 5, 1996
RE: AGENDA ITEM C(a)2 - CONTAINMENT ZONES:
Please note that staff failed to include the January 10, 1996 Planning Commission recommendation to you on CONTAINMENT ZONES in your packet. I have attached these recommendations to this memo.
The Planning Commission recommendations are totally opposed to the staff report. The Planning Commission opposes the use of containment zones, both in Berkeley and throughout the state, and is asking the City Council to communicate that opposition to the State Water Resources Control Board.
City staff is IN FAVOR OF containment zones, even in Berkeley, and wants the opportunity to be containment zone managers. I am troubled that the staff report trivializes the environmental hazard of contaminated ground water. And, I am concerned that staff would rather please certain un-named property owners who do not want to go to the expense of properly cleaning up their contaminated property, than be concerned about the long-term environmental health and safety of the greater community.
Although our Commission took no formal vote on the staff recommendation at our February 28, 1996 meeting, our clear intent was to stand by our January 10 vote opposing containment zones. And, we were clearly opposed to the staff recommendations. Commissioners noted that staff support for "local control" is deceptive. "Local control" means that Berkeley would be powerless to do anything if Emeryville officials made their entire city one massive toxic containment zone.
Page 2 of the staff report notes that the state's "draft resolution will be undergoing review for several additional months." Thus, if the City Council is not prepared to endorse the Planning Commission's recommendation to oppose Containment Zones and to communicate this opposition to the State Water Resources Control Board and the city of Emeryville, it would be better to take NO action tonight than to adopt the staff recommendations supporting containment zones.
HAMILTON • COHN • THATCHER & ASSOCIATES,OAKLAND, CA
RE: Containment Zone, March 11, 1996
Dear Mayor Dean & City Council Members: -Unfortunately I have a prior commitment on Tuesday night and cannot attend the meeting.
I have been an active Industrial/Commercial Realtor in the East Bay for over 35 years; specializing in West Berkeley. I have represented most of the firms and owners in the area and have located a large percentage of the firms in West Berkeley. At the present time I am representing many owners for the sale or leasing of their properties, as well as representing several firms that want to locate in West Berkeley. Environmental issues have become a major part of my business; I have to deal with every city in. the East Bay. Most cities have larger staffs and are more progressive in dealing with environmental issues than Berkeley. The combination of a small staff and, in many cases, excessive regulation has placed Berkeley in a less than competitive position with cities like Emeryville, Richmond, and Oakland.
Needless to say, I am in favor of a "Containment Zone" in West Berkeley. I have had three (3) transactions in Berkeley that have taken from two (2) to over four (4) years to get the necessary clearances from the city's environmental department to proceed with the closing of sales. The expense to the sellers has been so great that in two (2) cases the sellers have actually lost money on their sales. Not only has there been excessive costs related to sales, but we have lost new businesses that wanted to come to Berkeley, but could not wait the needed time for "closure". This has also lead to a decline in values which translates into a decline in tax revenues in West Berkeley. A "Containment Zone" would lead to faster transactions, which would enable firms to come to Berkeley in. a timely manner and not look to the surrounding cities. Also, values would stabilize and tax revenues would. increase.
I feel that before any action is taken by the Council the issue needs to be studied more. A study would provide additional information needed to pass "Containment Zone" legislation. There are many cities in. California and nationally that have adopted containment zones and have had very successful results. I would be most happy to supply any information I have on the problems in West Bertley, and share my experience and knowledge with you.
Thank you, very much, for your consideration of this matter. I highly recommend the passage of "Containment Zone" legislation. If you feel you cannot recommend such legislation at this hearing, please, do not vote against it - recommend further study. The benefits to the city are enormous and a quick negative action would only hurt West Berkeley's economy.
Arnold W. Cohn
INDUSTRIAL & COMMERCIAL REAL ESTATE & INVESTMENTS
Berkeley Chamber Of Commerce "OPPOSITE THE GOLDEN GATE"
RE: Proposed Containment Zone Policy, March 12, 1996
Dear Mayor Dean and Members of the Council:
It is of great concern to the Berkeley Chamber of Commerce that you are considering major changes in the way you respond to State and local environmental issues without involving those most impacted. The fact that policies are being contemplated without setting up a task force comprised of representatives of business, as well as environmental and planning staff and Council policy makers, means decisions will be made without careful input in an emotionally charged atmosphere that has excluded us. It is this type of action that reinforces our image as a city that does not care about its business community.
The Berkeley Chamber of Commerce does not believe this is the intent of the City Council. Neither do we believe you want our neighboring communities to grow economically at Berkeley's expense. And yet, we have only recently learned that the Planning Commission and the Council have been working on this review of new environmental policies for several months. Do you believe any other city in this State would conduct such a review without having extensive, detailed analyses by affected businesses?
We respectfully request that you defer your decisions about containment zones until we all have all the facts. We ask the City Council to form a task force which will include representatives of those businesses most impacted by both existing and the proposed new policies from the State. We believe that careful work with all sides represented will give this community the best opportunity for both environmental and economic well-being.
Very truly yours,
Miriam Ng, President
LLNL Report: Bad science?
L A Wood, City of Berkeley
Last fall, the Lawrence Livermore National Laboratory (LLNL) presented a report on the LUST program. With the aid of an EPA grant and subsequent contributions from the petroleum industry, Dr. David W. Rice, Jr., an environmental scientist at the lab, conducted a year long study. It rationalizes that fuel hydrocarbons have limited impacts on human health, the environment, or California's groundwater resources when contaminants are just left in place to naturally degrade over time.
A cloud of suspicion surrounds the LLNL study. It appears to have been written to justify a pre-established conclusion. This study has no business being used as a policy making tool as long as it remains in its present draft form, unreviewed by the independent scientific community. Instead, it is being touted as the scientific basis for sounding the retreat from the cleanup of contaminated sites. This is not good science or policy making.
While not doubting the health risks from contaminants like benzene, the LLNL report suggests these carcinogens will naturally degrade long before they reach any water supply. This is a very simplistic view of bio-remediation which has little application outside the laboratory.
No less controversial an issue is the state's reliance on hydrologic containment. Hydrologic containment is simply the art of containing ground water. It is not an exact science. In fact, It is plagued with uncertainty.
There are many cases statewide which illustrate this point. A good example of how difficult it is to anticipate ground water movement can be seen at one of the LLNL's own contaminated, Superfund sites. The presence of heavy rains at Site 300 raised the water table to a point that ground water mixed with on-site generated wastes (including uranium and tritium) in unlined trenches, adding to the contamination.
It's time for a full review and a CEQA, too! Who do they think fooling?!
Department of Non-attainment
L A Wood, East Bay Express, January 12, 1996
Thank you, Express, for Judy Campbell's
story ("Cityside" January 5) which exposes the dirty details
of our polluted urban groundwater and "containment zone" policies.
Campbell's comments on the health risk assessment process shows how
easily regulation is manipulated by industry and development.
Regional Water Board manager Steve Morse attempts to sell
these slanted policies as some kind of trade-off, or better yet, as
just "the facts of life" Unfortunately, regulators like Mr.
Morse convince many of us to accept environmentally damaging policies.
How can they get away with this? Simple! They fail to adequately present
all the facts to the public and their representatives.
Those who have been following the state's debate concerning
the lowering of groundwater standards know "the sell" hasn't
been that easy. Until a few months ago. "containment zones"
were going to be called "nonattainment areas." That quickly
changed when it was pointed out that the word "nonattainment"
overemphasizes what is not being done. Perhaps in a few more months,
and with more public exposure, we can begin to call them what they really
are: "zones of pollution"
Deep in the Heart of Toxins
L A Wood, East Bay Express, December 6, 1996
In Potter Wickware's story 'My Wife Smells Something:
West Oakland's Toxics Scare' (Cityside, November 29), the toxics are
not all that stink. How could anyone be surprised at the events surrounding
this community crisis!
Certainly not the EPA and the other state regulatory agencies
who over the last fifteen years have promoted lower standards for the
cleanup of contaminated properties and who are now allowing wholesale
"capping-over" of these sites.
The cries of the West Oakland residents living near this
highly toxic plume are being echoed by many inner-city communities across
the country. These communities, most often poor, minority ones, are
paying for our failure to comprehensively clean up these poisonous brownfields.
The health risks associated with such sites is both a cause for alarm
and a clear case of environmental racism.
This national dilemma can also be seen next door in the
city of Emeryville. They claim that 55 percent of the city is known
to be toxic. However, its redevelopment agency is currently proposing
capping over the entire city and just leaving the toxics in place. It
should come as no surprise that the cries of its citizens will not be
heard either. Like in Oakland, their voices are now being drowned out
by the construction din of redevelopment. Perhaps the EXPRESS can do
a story on them in a few years, if indeed, they are still around.