CUPA New program
launched to control toxic waste

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New program launched to control toxic waste
Tiller Russell, Berkeley Voice
February 27, 1997 Vol. 15, No. 21

Asserting local authority over pollution control, the city council voted Tuesday to coordinate its toxics program on roughly equal terms with those of neighboring cities and the county. The council was responding to a Feb. 7 decision by the California Environmental Protection Agency to confer Certified Unified Program Agency (CUPA) status on Berkeley, allowing it to synchronize with toxics programs in Oakland, Fremont, Hayward, and Alameda County.

The agreement requires all CUPA agencies within Alameda County to implement their programs in a consistent manner, according to a memo released by City Manager James Keene. More specifically, the agreement seeks to standardize inspections, enforcement policies, interpretation of technical issues, and training within the county. Although CUPA status will not significantly alter the city's toxics program, it does signal a vote of confidence from the California EPA. Of the 48 cities throughout the state that recently applied for CUP A status, only 15 were approved.

According to Health Officer Poki Namkung, the CUPA program deals with the "regulatory, monitoring, licensing, inspection, and preventive aspects of preserving public health against the everyday hazards in our life." The state legislature enacted the CUPA program in 1994, giving local agencies the opportunity to regulate their own hazardous materials programs. Previously, such programs had been administered by county or state agencies. The coordinating agreement comes in the wake of the recent controversy surrounding the relocation of toxics to the department of Health and Human Services.

Critics claim the move will entangle the program in bureaucratic red tape, but supporters note that it is precisely Berkeley's administrative structure that enabled the city to qualify for CUPA status in the first place. "Most cities simply don't have the infrastructure to administer a CUPA program," said Namkung. "But because Berkeley has Environmental Health [a sub-division of health and human services], we are qualified to have one." Namkung sees environmental health as the necessary support system for toxics to function effectively. "Before, toxics was like a stepchild stuck in a department with no technical expertise [the office of community services]. Now it's got the backing and clout of a department that understands its job."

Alex Schnieder, Manager of Environmental Health, also sees the relocation in a favorable light. "1 think it's a great move for the community. Health and Human Services has a pretty flattened hierarchy, and now toxics will have direct access to and the support of the city health officer," he said. Schnieder admits that the unification issue is controversial because it requires the county CUPA group to' approve any city policies that change stare regulations. However, Schnieder maintains that this stipulation will not compromise Berkeley' s commitment to keeping the environment clean.

Environmental Enforcement Seems Uneven: City Investigates Equity in Environmental Code Violations
John Geluardi, Berkeley Daily Planet, October 8, 2001

The City Council will hear an information report tomorrow from the city manager about what the Community Environmental Advisory Board calls selective enforcement of the city's environmental laws.

In light of what appears to be favorable treatment of city departments and large and influential businesses over smaller businesses, the CEAC has asked City Manager Weldon Rucker to establish a clear enforcement policy that would ensure equal enforcement of code violations.

The city manager's Chief of Staff Arrietta Chakos said that the commission and City Manager's Office are "of one mind" on the issue. She also said that a policy is currently in the works to spell out enforcement policies as well as include an educational element that will hopefully help all city businesses and agencies avoid unnecessary enforcement.

In 1997, Alameda County gave Berkeley enforcement authority to implement the California Health and Safety Code. That code enforcement is carried out by the Toxics Management Division of the Planning and Development Department.

In an October report, the CEAC said that some agencies and large businesses have been given excessive amounts of time to correct environmental code violations, while smaller businesses have been taken to court.

According to the report, the Department of Public Works and the Berkeley Unified School District have flouted repeated requests to comply with environmental regulations without any consequence. In addition, CEAC Commissioner L A Wood said in a letter to the Alameda County District Attorney that businesses like Bayer and the Berkeley Repertory Theater have also avoided regulation compliance while smaller businesses like Jettco, a transmission repair shop in west Berkeley, were prosecuted by the district attorney s office.

"The city's Public Works Corporation Yard has been violating storm water runoff regulations since 1995 and was only issued a Notice of Violation in May," Wood said. "That was after years of ignoring notices of corrective action."

Chakos agreed it is critical city agencies follow the same policies that it expects city businesses to follow.

"We want our own public works staff to make sure that we live by the same standards we enforce," she said.

Wood said that Berkeley Unified School District, especially Berkeley High School, has ignored health codes for nearly 10 years by not providing inventories of dangerous chemicals or disposal of hazardous materials.

Chakos said the health and safety code violations are beginning to be addressed since Michele Lawrence was hired as BUSD superintendent.

The CEAC composed a draft policy for the city manager to consider adopting. The first section of the CEAC draft policy described equal accountability.

"All agencies within the city are subject to environmental regulation on an equal and consistent basis. All entities within the city are expected to adopt and apply pollution prevention practices," it reads.

According to a October city manager's information report, city staff is working to adopt a citywide policy that is similar to the CEAC recommendation. "Equitable enforcement is one of the tools of proper environmental regulations and staff cognizant of the city's expectations," the report reads.

Re: Differential Enforcement and Berkeley's Certified Unified Program Agency (CUPA)

Donald A. Johnson, Assistant Secretary
Local Programs Coordiantion
California Environmental Protection Agency
October 4, 2001

Dear Mr. Johnson and Mr. O'Connor:

Several weeks ago, I contacted your office (CAL EPA) and spoke briefly with Mr. Matz of your staff regarding my concerns over differential enforcement practices and our local Certified Unified Program Agency (CUPA).

To help put this into so context, you should know that our CUPA in Berkeley is somewhat unique. Most local CUPA programs have no community involvement, or very little. In Berkeley, CUPA activities include public education with some civilian commission review and oversight. My own involvement in local government environmental protection and compliance spans a decade, well before the creation of the statewide CUPA program.

During these ten years, I have complained on many occasions about the city's unequal enforcement, especially when afforded to its own physical operations and projects, and to other large institutions and businesses. I've enclosed a newspaper editorial written this year regarding Public Works to give you some sense of the ongoing public discussion.

Several months ago, in response to my informal complaints to Mr. Al-Hadithy, Berkeley's CUPA director, I was encouraged to sit down with the city manager and staff to discuss my concerns. In addition, staff suggested that a subcommittee of the city's Community Environmental Advisory Commission (CEAC), of which I am vice chair, also convene for this same purpose. I was heartened that there was a willingness to talk about enforcement practices, though I was quite dubious about the administrative staff's desire to make any real changes, given the political nature of this problem.

However, from these meetings, a history of the issue of enforcement was drafted. I think it will be very helpful in giving you background to my complaint. The City of Berkeley's initial response was that of denial and then the admission of some problems. These discussions ended with various ideas being offered to staff for the improvement of enforcement

Unfortunately, little has changed with regard to my initial complaints to the City of Berkeley concerning enforcement. I am still troubled to see that some businesses are hauled off to the DA and others are not. The most recent action against a small company in Berkeley, Jettco, is a prime example of the selective enforcement practices. Jettco was punished while the City of Berkeley continues to allow entities such as Bayer, the Berkeley Repertory Theater, the school district, and its own Public Works Department to be out of compliance. Needless to say, this raises serious legal and ethical questions. Who gets referred to the DA in Berkeley? Who in Berkeley decides?

You are I am sure aware that next year the state has scheduled an audit of Berkeley's CUPA and this month the Toxics Management is scheduled to complete its internal audit. Neither audit will even begin to investigate the issues surrounding Berkeley's differential enforcement of environmental protection and compliance. I therefore formally request that your office(s) conduct an independent, external audit of enforcement in the City of Berkeley and address the questions raised about Berkeley's CUPA and its enforcement activities.

Finally, I want you to understand that I file this complaint with your office(s) not as a Berkeley commissioner, but as a private citizen. I hope to have an opportunity to discuss these matters with your agency(s) and to aid in your review. (510) 644-CITY.

cc: Nabil Al-Hadithy, Berkeley CUPA Director Weldon Rucker, City Manager, City of Berkeley Mayor and Members of the Berkeley City Council Larry Matz, CAL EPA

Attachment 1: "Corp yard still noisy, polluting", Berkeley Daily Planet, June 2, 2001 Attachment 2: CEAC communication to Weldon Rucker, City Manager, July 16, 2001


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