Berkeley Wants Tougher Groundwater Cleanup Rules
William Brand, Oakland Tribune, January 19, 1996
The Planning Commission has entered a dispute with Emeryville
and the state Water Resources Board over a plan to
ease regulations on cleaning up contaminated groundwater in old industrial
Commissioners are concerned that less strict toxic cleanup
standards might in the long run be harmful to cities and contribute
to the pollution of San Francisco Bay. The commission voted unanimously
to ask the City Council to write a letter to the state board expressing
State law requires developers to attempt to make polluted
groundwater pure enough to drink. Developers and property owners commonly
spend large amounts of money on the process.
However, the state has proposed a new plan that would
create "containment zones" around heavily polluted industrial
sites. "It's a recognition of the infeasibility of cleaning up
groundwater in some places," said Lisa Babcock, a state supervising
No matter how much money and time is spent, the groundwater
in the zones can never be restored to the high standards the law now
requires, she said.
Under the new plan, a developer would have to remove the
source of the pollution and demonstrate that the polluted groundwater
would not seep off the site, Babcock said. The new regulation would
be much less costly in most cases, state regulators believe.
There have been two public hearings on the proposal and
a state water board work session will be scheduled in Sacramento later
this month or in February, Babcock said. A final vote has not been scheduled.
To take advantage of the new proposal, Emeryville, a city
with a large percentage of polluted industrial sites, has applied for
a $200,000 federal Environmental Protection Agency grant to survey the
city and declare most of the town a toxic containment zone.
It would be the first time a containment zone approach
has been used for an entire city.
The Berkeley City Council has already asked its toxics
division for a report on the Emeryville and state actions. The planning
board wants the City Council to digest the report, then write an urgent
letter to the state water board.
"It's a matter of' what you feel in your heart,"
said Jeff Horowitz, planning commission chairman.
"Very often environmental issues are overlooked until
after they affect someone's life directly. I believe it's up to the
city to do its part and really look at this idea about underwater contamination
seriously," he said.
"Emeryville's plan bothers me because the city is
right next to San Francisco Bay and whatever is in the water in Emeryville
will undoubtedly reach the Bay."
But Babcock said that if the state found out that contamination
was seeping off-site, steps would be taken to contain it. The state
would require the owner to do more cleanup if necessary, she said.
Emeryville city officials point out that the city has
had 100 years of hard industrial use and the containment zone plan would
give them a chance to develop vacant property. City Manager John Flores
said developer a would take precautions to ensure that contamination
does not spread.
But Horowitz said the commission passed its vote after
watching a 10-minute video on how groundwater pollution has spread in
Berkeley, made by amateur film makers and West Berkeley political activists
L A Wood and Carolyn Erbele.
"We just can't subscribe to this toxic containment
zone idea," Wood said. "I believe we should continuously work
to improve our quality of life, not live with something like polluted
City Makes Water a Concern Protesting Emeryville's plans
to lower water standards
Apul Kirit Patel, Daily Californian, February 1996
The Berkeley City Council agreed Tuesday night to send
a letter in March to the State Water Resources Board
over concerns about containment zones and their effect on groundwater.
The city's Planning Commission, after viewing a local
resident's film documenting the spread of polluted groundwater through
Berkeley, asked the council to compose the letter. The statement would
criticize plans by the city of Emeryville to lower groundwater standards
and would ask that the city not be allowed to a containment zone policy.
The commission had asked the council to submit the letter
this month, but concerns over lack of information prompted the council
to defer action until March 5 so city staff can complete a detailed
analysis of the impacts of the proposed containment policy.
During the public comment period on Tuesday, some residents
criticized the council's decision to delay sending the letter. "We
can have this studied afterward," said Daniel Horodysky. "But
go ahead with a letter of concern."
Steve Beicher, assistant city manager, said information
was already being gathered on the issue. He added city officials have
done some research on brownfields, or contaminated areas, and their
relationship to groundwater coming from Emeryville.
"We are at the midpoint in collecting and analyzing
the information we need," Beicher said.
LA. Wood, a staunch opponent of containment zones, who
made the video, said after the meeting that he was satisfied with the
council's actions. "One of my goals is education, and we're going
to be educated for another month," Wood said. "I think they're
moving in the right direction and I would have been surprised if it
had gone any other way. City government moves slow."
Companies that develop on containment zones could save
a large amount of money because, in cases of contamination, they only
have to remove sources of pollution and show that tainted groundwater
can be contained. Without the declaration, state Law requires developers
to take costly measures to ensure that polluted groundwater is cleaned
up. According to Wood, 50 percent of the state's domestic drinking water
comes from groundwater.
Emeryville, which borders Berkeley on the south, recently
applied for a $200,000 grant from the Environmental Protection Agency
to survey the city and possibly declare most of the city a containment
zone. Wood and the Planning Commission are especially concerned because
contaminated groundwater can migrate from Emeryville into Berkeley and
into the San Francisco Bay.
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
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
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
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
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
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
"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
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".