California's Choice: Containment Zones or Clean Water?
L A Wood, California Environmental Law Reporter,
A chemical revolution of nearly 100 years duration continues
to leave a toxic legacy for this and future generations in California.
Over the last 25 years we have made strides in both environmental protection
and in the long-awaited cleanup. The legislative process has emphasized
the need to make polluters responsible for a complete
and timely cleanup.
Now, a regulatory dismembering of this environmental protection
in Washington D.C. is being felt all over the country. Over a year ago,
the State of California began discussions directed at limiting the cleanup
of contaminated sites, focusing primarily on the Leaking Underground
Storage Tank program (LUST). The state is considering a proposed regulatory
shift that calls for the creation of zones of pollution called "Containment
Zones." A Containment Zone, in simple terms, is a designated area
where lower groundwater standards will be allowed because of high levels
Some proponents of this policy shift have contended that
these proposed changes are a response to a poorly constructed program
that has been plagued by over-enforcement. The claim is that the responsible
parties (RPs) have become a scapegoat to the program based on bad science,
the LUST just a scam, and that active remediation of contaminants is
no longer necessary.
It is certainly easy to find sympathy for those property
owners who have unknowingly acquired a contaminated site or who have
simply inherited one, and are now faced with the responsibility for
site restoration. Although RPs are aided by state cleanup funds, the
burden remains a difficult expense for most small investors to bear.
It is the outcry of these small RPs added to the strong voices of the
large oil interests in the state, that has fueled the debate over the
deregulation of groundwater in California.
The SB 1764 State Advisory Committee has undertaken the
task of reviewing the state's LUST program, and is considering a draft
amendment to revise SB Resolution No. 92-49 pertaining to water quality.
In the meantime, the State Water Resources Control Board in December
1995 issued an order that already allows Regional Boards to begin the
implementation of the proposed Containment Zone policy.
Containment Zone Policy: What's So Different?
In the mid 1980s, California first began to regulate underground
storage tanks. The state was faced with the management task of supervising
an estimated 200,000 tanks. Since the passage of Resolution No. 92-49,
the state has restored one quarter of its now confirmed 28,000 contaminated
sites, according to a recent report ["Lab Report Stops Fuel Tank
Cleanup," Tri Valley Herald, 1/11/96].
It is not surprising that many of these contaminated sites
either were or had previously been gasoline stations. Under the new
policy shift, the majority of the remaining toxic sites will not be
remediated, except for the removal of failed tanks. The resulting regulatory
changes will most certainly have an adverse impact on groundwater resources
and will allow massive amounts of contaminants to remain in place.(1)
The original Resolution 92-49 had authorized Regional
Boards to suspend remediation work on a case-by-case basis. This was
a systematic approach of determining what corrective actions were necessary.
Often site remediation was limited to soils alone. This new policy will
require no case-by-case investigations. It will, however, seriously
limit the state's ability to determine toxic levels, human health risks
and environmental impacts on any site.
The provisions in the amendment will allow Regional Boards
to define general classes of contaminated sites as "low impact"
through a process of health risk-based analysis. Developers and property
owners are generally responsible for risk assessments. Unbelievably,
these assessors are not required to be certified. Referring to such
health risk assessors, Tom Sparks of the Toxic Assessment Group in Davis,
California recently stated, "The assumptions you make will absolutely
determine the results you get, so it depends on who's putting the model
together and who's formulating the fundamental assumptions." ["Water
Board Wants to Relax Quality Standards," East Bay Express, 1/5/96].
The health risk-based approach lacks any objective standard.
Time and time again, it fails to quantify contaminants and to establish
the very real human risks from pollutants. Containment Zones will establish
predetermined health risks for all sites within each zone. This will
inherently result in fewer soil investigations and less data on actual
site conditions. No such contaminated property should be defined as
"low risk" unless based on a site-specific investigation.
The LLNL Report: Bad Science?
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 yearlong 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
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 that 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 groundwater. It is not an exact science. In fact, it is
plagued with uncertainty. There are many cases statewide that illustrate
this point. A good example of how difficult it is to anticipate groundwater
movement can be seen at one of LLNL's own contaminated Superfund sites.
The presence of heavy rains at Site 300 raised the water table to a
point that groundwater mixed with on-site generated wastes (including
uranium and tritium) in unlined trenches, adding to the contamination.
["Citizens Fight Nuclear 'Burn and Dump' Plan" Tri Valley
CAREs Citizen Watch, November 1995].
Greg Karras, a senior scientist with the San Francisco-based
group Communities for a Better Environment recently stated, "When
you start getting into predictions about how toxic chemicals behave
underground in a large area like Emeryville it's very speculative."
He went on to say, "Predictions about the direction contamination
moved from the Stringfellow acid pits in Southern California were completely
wrong. Tests showed the contamination actually moved much farther and
in the opposite direction from the way scientists thought it would move."
["Unusual Toxic Plan in Emeryville" Oakland Tribune, 12/18/95].
Experience has shown that even the most well thought out
and state-of-the-art containment plans fail, eventually allowing pollutants
to migrate offsite. This has been seen in toxic landfills across the
The LUST Program: What Does the Future Hold?
Although the State Water Resources Board may choose to
downplay contaminant migration, this issue has become the center of
discussion between the City of Emeryville and one of its adjoining municipalities,
the City of Berkeley. The conflict arose when Emeryville applied for
an EPA grant to establish a citywide Containment Zone in a federal pilot
program referred to as the "Brown Fields Initiative."(2)
Berkeley, concerned with the migration of pollutants,
recently sent a letter to the City of Emeryville requesting that it
actively remediate pollution, adequately remove contaminants, monitor
possible migration of pollutants and provide periodic reports to the
City of Berkeley as well as special compensation to oversee the monitoring
reports and the evaluation of impacts. Recently, Berkeley became the
first locality in California to request that the state halt all operational
changes in tank remediation, based on the draft LLNL report, until an
Environmental Impact Report is performed.
Part of the "sell" of the Containment Zone policy
has been to dismiss the importance of groundwater resources. To suggest
that there are no beneficial uses for groundwater, now and in the future,
is possibly the narrowest view imaginable of California's most precious
natural resource. Nearly 50 percent of the state's domestic water needs
are supplied by groundwater.
Never before has California's groundwater been so critical
to our state's future. When global demand for clean water is ever increasing,
and when more and more domestic water supplies are failing to meet clean
water standards, this is not the time to forsake groundwater quality
objectives. To deregulate now will mean an irreversible decline in groundwater
The site discovery process has helped to locate California's
many contaminated sites. It has come as no surprise that so many contaminated
sites are in the state's inner cities. According to a 1992 National
Law Journal study, "The government takes longer to address hazards
in minority communities and it accepts solutions less stringent than
those recommended by the scientific community." This report also
showed that penalties imposed on companies polluting in white areas
were greater than those imposed on polluters in minority communities.
Undoubtedly, California's proposed Containment Zone policy will be no
exception to this trend of environmental racism.
Through numerous site investigations, the LUST program
has been able to expose the seriousness of contaminant migration problems,
and has identified a real need for added safeguards for our groundwater
resources. Our knowledge has shown that it is essential that toxic sources
be removed in order to eliminate, or at least significantly reduce both
groundwater contamination and human health risks. The question has become
"Containment Zones or clean water?" The fate of California's
groundwater resources and the LUST program will hinge on that choice.