California's Choice:
Containment Zones or Clean Water?


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.

(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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