City of Berkeley "Containment Zones"
SB 92-49

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Water Board Wants to Relax Quality Standards
Judy Campbell, East Bay Express, January 5, 1996

Department of Non-attainment
L A Wood, East Bay Eepress, January 12, 1996

California's Choice: Containment Zones or Clean Water? L A Wood, California Environmental Law Reporter, April 1996

VIDEO (R): City of Berkeley "Containment Zones" SB 92-49 A short segment from the city council discussion (Dona Spring) regarding Containment Zones, (California State Water Resources Control Board Resolution No. 92-49)

 

Water Board Wants to Relax Quality Standards
Judy Campbell, East Bay Express, January 5, 1996

The new policy is being called an attempt to "actively dilute environmental laws." Under its terms, opponents say, pollutants would have to be "bubbling out of the ground" before anyone would be required to deal with it. It's all happening here in the Bay Area, but so far nobody seems to have noticed. In the arcane world of environmental regulation, policies are shrouded in so much bureaucracy that usually the only people who bother to follow them are those that are paid to do so. So perhaps it's not surprising that sitting quietly in Sacramento is a proposed amendment to Resolution No. 92-49 of the state Water Resources Control Board, which could drastically weaken California's groundwater standards.

Like most environmental debates, this one comes down to economics versus the environment. The new policy calls for the creation of 'containment zones' -- areas that are deemed so polluted that to clean them either isn't possible, or isn't economically viable. The proposal has gone through a series of name changes which has further confused the issue. "We still call them aquifer abandonment zones," says Tom Sparks of a firm called Toxic Assessment Group, "because the proposal is basically to allow non- cleanup."

No matter who's talking, it's clear that the changes are major. Existing law says that a property owner is responsible for cleaning up a polluted site to "background levels"-- that is, to the condition it was in before contamination. The new proposal's "containment zones" would allow a site to remain polluted if the owner can make a reasonable case that the contaminants won't spread.

The most immediate result of such a policy would be that California's water quality standards would be reduced. Existing standards require that most groundwater be kept at drinking water standards, even in areas that don't drink their groundwater. That includes cities with industrial histories such as Emeryville. Even there, current standards say that pollutants in the groundwater must be kept at background levels.

Steve Morse, supervising manager of the Bay Area Regional Water Quality Control Board, admits that lowering standards is a tradeoff, "but on the other hand the owner/operator is going to have to maintain it to make sure it doesn't move any further." Morse says the idea of containment is tailored for places like Emeryville whose aquifer is so shallow, polluted, and difficult to clean up, that he contends it is unreasonable to try. "It recognizes the facts of life. Back maybe ten or fifteen years ago when we started most of these cleanups, we thought we'd be able to go all the way back or to very low levels. Now we know from experience that we just aren't going to be able to do that."

Industry has the most to gain from a containment zone policy; if businesses can prove the pollution on their sites will stay put, they wont need to spend so much to clean it up. Sources say GE, which has had a considerable presence in Emeryville, spent a sizable sum to be represented by consultants who testified at hearings for the new policy.

Despite its location here, in the birthplace of the Sierra Club, the Bay Area Regional Water Quality Board is an appointed board that has often been accused of pandering to industry. "In general the regional board is overly sensitive to business interests," Greg Karras, senior scientist at Citizens for a Better Environment, says. "They are way out of step with the majority opinion of the Bay Area."

The Bay Area board, which Sparks describes as being at the forefront of the marketing of the containment zone idea, wrote a first draft of the resolution which was rejected by the state board as too deregulatory. Nonetheless, the most recent version still uses language that is open to interpretation, and would put much of the decision-making in the regional boards' hands. Instead of specifying how much contamination would be allowed or how much clean-up effort is too much, the word 'reasonable' is often used. Even the word "containment" is left undefined. Opponents worry that if such interpretations are left to the regional boards, the Bay Area board will nod politely at industry as barrels of waste are dumped into the soil and groundwater.

The Emeryville City Council is already discussing projects that depend on the adoption of the new policy. Emeryville's long history of industry has left the area severely polluted. Since current environmental standards demand that all that can be done to clean up a site be done, Emeryville developers have paid a sizable premium for locating there, since they were required to take the responsibility for decontaminating contaminated land. Now that the city's biggest sites have been built upon, Emeryville is left with a checkerboard of smaller lots that may not justify the potential clean-up costs. So, urged by the Bay Area water quality board, the city is taking the preliminary steps towards getting most of Emeryville declared a containment zone.

Not so fast, says Tom Sparks. The new policy could be dangerous, he contends, because we just don't know enough about the movement of groundwater to predict that pollutants can be contained. "Generally anything that doesn't get cleaned up always has the potential to migrate someplace else," Sparks says -- and "someplace else can mean into the bay or into potential drinking water resources. "There's a hell of a lot more groundwater [in the Bay Area] than there is surface water and the projection is that we're going to have a population growth of fifty percent by the year 2000. Were not going to have much more surface water so we have to be pretty darn jealous of the groundwater."

This argument was brought to Berkeley City Council by a neighborhood activist, L A Wood, last month. Wood demanded that the city of Berkeley sue Emeryville if the latter wins a containment zone designation, on the grounds that the contaminated groundwater might leach into the bay, or cross the border into Berkeley and spoil a potential drinking water source that could be vital in an emergency. The Berkeley council appointed a committee to study the issue; its report is expected soon.

Nobody really knows exactly how groundwater will move, or how high the risk of contaminated groundwater is for areas that don't drink it. Depending on who you talk to, polluted groundwater can travel rapidly, kill fish and animals, and seep toxins into basements -- or it can be a stagnant underground pool that at affects nothing. And you can probably find a risk assessor to argue either case.

Risk assessment is at the heart of the new containment zone policy. In order to qualify for containment, a site's owners must provide an assessment of risk, which generally means evaluating the projected human impact of leaving the pollution where it is. Risk assessment involves plugging various factors (such as geological formation, the nature and volume of the pollutants and nearby population density) into a computer. Critics complain that this is all soft science that can be skewed to say anything. "Anytime you hear risk assessment especially if ifs associated with the term 'good science,' you know industry is in charge of the process. And good science, like anything else, is in the eye of the beholder," Sparks says. Toxicologists in the field say that Shell Oil funds much of the training for risk assessors and that it teaches methods that favor industry. Indeed, in the Bay Area water board's most recent training seminar on risk assessment, a representative from Shell Oil was a guest speaker.

Property owners or potential developers are usually responsible for the risk assessment of their land. There is no certification for assessors. "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," says Sparks.

When an assessor is asked to evaluate the effects of containment on a particular site, the fundamental question he attempts to answer is how many deaths could be caused. But a system that looks at potential death instead of setting objective standards based on a quantifiable amount of pollutants, opponents argue. Ignores a wealth of factors such as potential human health problems and allergies, fish and wildlife depletion, and irreparable damage to the environment. What's going on here is a fundamental change in the way risk is being measured," says a toxicologist who didn't want his name used. "Pollution used to be measured by parts per billion. Now clean up is determined by how many people could die. And the acceptable number keeps rising."

Another aspect of the new policy that scares its critics is the creation of a classification system of geological zones that would determine how much cleanup is necessary for an area that meets certain criteria. Under a zone system a site could have a predetermined risk factor, lessening the requirements for testing the sod. The theory is, if one gas station didn't have to clean up after its underground storage tank leaked, its neighbor probably shouldn't either.

The state water board insists that this sort of generalization is necessary to make the policy workable and, fair, by reducing the costs and administrative overhead that assessing a site can demand. The policy, Steve Morse says, "would say, 'we know the person, we know the foundation we know all these half a dozen criteria. If you meet these, you don't have to go back and reinvent the wheel." The containment zone policy, formally known as Resolution 92-49, is now being revised; a "public comment period" will be allowed for sometime this spring, after the revised policy is issued.

Morse points out that under existing law, provisions are made for cases that are extremely cumbersome to clean; he estimates that half a dozen sites in the Bay Area since 1993 have been exempted from further clean-up. But, he says, the process is onerous and should be standardized.

While a zone system may life easier for property owners and regional water boards, critics fear that it will also create an incentive to pollute. Since dumping waste is a lot less expensive than treating it, they argue, industry will seek out those places where the standards for cleanliness are lower. "If you know the aquifer under you is going to be one of these classes that's automatically declared Un-cleanable it'll be a lot easier to lose those barrels," says Sparks.

"What's at stake is millions of dollars, oftentimes," Patton says. "Once (the state] says there's a way to get an exception, even if it's a limited exception, people who would otherwise have to spend money to clean their sites up, will try to get that exception. Sometimes they'll get an exception they shouldn't get" The result: patches of land where environmental health standards are left to industry.

"The notion that there are some things that we realistic all cannot deal with no matter how much money you throw at it is valid," Sparks says. "But at least let property owners demonstrate on a case by case basis that it really is technically unfeasible for them to clean their sites up. It's just a matter of not making it a wholesale policy that everyone abuses; that's what we're concerned about."

Department of Non-attainment
L A Wood, East Bay Eepress, 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 "non attainment areas." That quickly changed when it was pointed out that the word "non attainment" 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".

California's Choice: Containment Zones or Clean Water?
L A Wood, California Environmental Law Reporter, April 1996

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 of pollution.

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 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 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 country.

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 quality.

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.

Endnotes
(1)Under the existing regulations, highly polluted sites can achieve closure status with a Maximum Contaminant Level (MCL) approximately 10 times higher than drinking water standards. With the proposed amendment, the MCL could easily become 10,000 times higher.
(2)The Brown Fields Initiative is a federal program that allows for a relaxation of cleanup standards by the EPA. Brown Fields are similar to Containment Zones, targeting large, toxic, industrial sites. The City of Emeryville is currently conducting a pilot study that would certify most or the city as one large Containment Zone.


L A Wood recently co-produced a video, "On Berkeley Soil" which examines possible abuses of the state's containment zones as well the many beneficial uses of groundwater. [Water Resources Center Archives, University of California, Berkeley: http:/www/lib.berkeley/WRCA (catalog #g4422 NS Video)]

Editors note: Mr. Wood wrote this article in response to "The Leaking Tank Scam" by Mark Borsuk, published in March 1996 of the California Environmental Law Reporter [1996 CELR 59]

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