Appeal - DTSC’s Decision For the Approval of Corrective Measures Study Report and Remedy Selection for Lawrence Berkeley National Laboratory (LBNL)


Re: Appeal and request for a high level administrative review of DTSC’s Decision For the Approval of Corrective Measures Study Report and Remedy Selection for Lawrence Berkeley National Laboratory (LBNL)

To: Watson Gin, Deputy Director, Hazardous Waste Management Program. DTSC. P. O. Box 806, Sacramento, CA
September 30, 2005

Dear Deputy Director Gin,

We, the undersigned, residents and environmental leaders in the Berkeley community, respectfully submit this request for the highest level administrative review of the above referenced decision, its administrative record and DTSC’s 8/31/05 Response to Comments document.

The three reasons for our petition asking DTSC, to review the conditions of its decision are (1.) an important policy consideration requiring review and (2.) the fact that all public comments were not addressed and petitions and other materials submitted were excluded from the attachments and (3) the array of wells to sample, monitor, and assess the distribution of the contaminant plumes is insufficient to disprove that contamination is not more widespread.

I. Important Policy Consideration Requires Careful Review

DTSC states, in its Response to Comments, that one of the three general areas of concern expressed by the public was “Public Outreach”. Public outreach is only one component of an important equation. What is and has been missing is the most important component, i.e. the inclusion of public input into the decision making process during the past decade and a half, during which time DTSC has been the lead agency.

A glaring example of the exclusion of public input was DTSC’s own statement in the “Final Decision” document, which states: “Please note that DTSC did not make any changes from draft to final decision.” Public Hearings and Public Comment Periods are a total waste of taxpayers’ monies, considering that DTSC has excluded public input in the decision making process and virtually ignored that public comment finally allowed. Because community input was not allowed in the past decade, and is now ignored, it is mandatory that our request for a community advisory group (CAG) be implemented.

In response to general comment #3, DTSC states that..."there is a provision for establishing a Community Advisory Group (CAG) for response actions for state superfund cleanups." Please note that the ZENECA site is not a state superfund site, and yet a CAG was formed including 25 stakeholders from the Richmond community, plus additional members added later to represent University of California's Richmond Field Station.

“DTSC's mission is the protection of public health and the environment. A vital component of accomplishing this mission is providing meaningful opportunities for community members to have input into the decision of which the CAG will be an important part.” (DTSC's February 2005 Public Involvement information sheet titled: Members Needed for Community Advisory Group for the ZENECA/former Stauffer Chemical Company site in Richmond, CA, which also includes the University of California's Richmond Field Station site next door.) LBNL may not be on the state's list for superfund cleanup (US EPA made an administrative decision to not require DOE to clean up its superfund qualified site: LBNL) but LBNL qualifies as a Superfund site, with a Hazard Ranking Score (HRS) of 50.35, higher than Lawrence Livermore National Laboratory’s ammunitions' dump, Site-300.

II. Fact: All Public Comments Were not Addressed and Petitions and Other Materials Submitted Were Excluded.

In the August 31, 2005 "Notice of Final Decision for the Approval of Corrective Measures Study..." on p. 2 it is stated "DTSC has prepared a Response to Comments document addressing all public comments received during the public comment period." This is erroneous:

1.) The 6/7/05 letter from the Friends of Strawberry Creek Watershed, attachment 2 (see p. 53) erroneously listed as a petition, was not responded to. We hope that this time it will not be dismissed.

2.) An 11 page petition, with more than 80 signatures, requesting that DTSC sponsor a representative Citizens' Watershed Advisory Group to participate in the implementation of the environmental cleanup at LBNL, was excluded from the Response to Comments. (This petition is an integral part of public comment #16, Sihvola Wood letter dated 6/7/05)

3.) A 400 + signature petition titled Save Strawberry Creek Watershed was excluded from Response to Comments Attachments. (See comment #8. Tuula Gordon)

4.) A transcript and Community Questions from a 1996 DTSC Public Hearing submitted by commenter #3, Joan Levinson, was excluded from the Response to Comments attachments and was not responded to.

DTSC must include these omitted documents, which review the history and show the depth of community concern over LBNL's environmental contamination. This strong community concern warrants the formation of a 25 member CAG, as was established in Richmond, a site not on the state's superfund list.

We also ask that DTSC answer Councilmember Kriss Worthington’s question, asked at the May 26, 2005 Public Hearing: Is there anything in the law that forbids DTSC from sponsoring a CAG for the Berkeley community?

DTSC's second classification of general comment, Radionuclides Contamination, discusses collocated contaminants, i.e. radionuclides mixed with solvents, which is the case with regard to the large underground tritium plume, and the radioactive solvents associated with it. In view of the most recent information on radiation risks, published by the National Academy of Sciences panel: Committee on Biological Effects of Ionizing Radiation (BEIR VII), there is No Exposure Level Below Which Dosage of Ionizing Radiation is Harmless! (San Francisco Chronicle, June 30, 2005)

We ask that DTSC express more serious concern over the cleanup of collocated contaminants at LBNL, which once pumped up from underground become mixed waste under DTSC's jurisdiction. (Attachment A)

Ultimately nothing we brought to the attention of DTSC in the interest of protecting public health and the environment was considered in the decision making process. For this reason, it is imperative that a Community Advisory Group be formed for the Berkeley community, to include a wide representation (25) of stakeholders from the creek and environmental communities, neighborhood organizations, various city commissions, including the Community Environmental Advisory Commission at City Council’s recommendation, to participate in the implementation phase of corrective measures process, and in the development of the Groundwater Monitoring and Management Plan.

In fact the Groundwater Monitoring and Management Plan is such a central component of the CMS process, that the CMS report should not be approved until the Groundwater Monitoring and Management Plan is developed and approved by community members participating on the CAG, as their first order of business.

III. Monitoring Wells Should be More Widely Distributed Near Previously Interpreted/Mapped Faults and Landslides

Based upon previous and recent geologic interpretations of Strawberry Canyon there still seems to be uncertainties and differences in interpretation over the interpretation of fault and landslide features. Given this and that the entire area is within a complex sheer zone that is intensively fractured and faulted, it seems wiser to place a larger array of monitoring wells downslope of landslides and along suspected faults intersecting the contaminant plumes in order to disprove that pollutants are not moving along these zones.

It is certainly easy to visualize that one or two wells could easily miss a fracture zone that could funnel contaminated groundwater in some unanticipated directions. The current placement of monitoring wells does not convince us that the plumes are fully contained along the zones shown by LBNL. Independent and technical review of the sampling strategy should be conducted by an outside highly qualified scientific review panel.

We, therefore, respectfully ask again that you conduct the highest level of review of DTSC's lower level decision and its administrative record.

James Cunningham, Sec/Treas, CMTW (Committee to Minimize Toxic Waste)
Pamela Sihvola, Co-chair CMTW
Joan Levinson, CMTW
Jennifer Pearson, Ph.D., Co-facilitator for Friends of the Strawberry Creek
Carole Schemmerling, Co-facilitator for Friends of the Strawberry Creek
Daniella Thompson, (Daley’s Scenic Park Association of Neighbors)
L A Wood, Berkeley Community Environmental Advisory Commission (CEAC)*

RCRA MAPS (2004) Corrective Measures Study LBNL

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