Appeal for Use Permit # 99-10000112, Fifth and Harrison Street
L A Wood, February 8, 2000
Berkeley City Council:
The City's request for a use permit to build a playing field in the middle of our manufacturing district should raise serious questions regarding future conflicts in zoning management and economic development for this area of Berkeley. The rezoning of the site as well as the superficial CEQA review have left many important issues unaddressed. Consequently, project staff have failed to make a case for the proposed site's use or to even begin to provide adequate mitigations. Moreover, the numerous zoning stipulations required in order for this use permit to be viable should alert Council that the city needs to undertake a more thorough evaluation of this project and its use permit. I respectfully request you to consider the following issues, policies and mitigations:
The unresolved questions over air quality represent the most serious use permit concern. The site's air quality was sampled more than two years ago by Acurex Corporation. The two-day sampling and report have been used to prop up both the rezoning of the site and the completion of the required CEQA environmental survey for the proposed playing fields. However, during the public review of the use permit, evidence was presented to the city's project team that increased asthma and chronic respiratory health impacts were disproportionately plaguing the residents of this West Berkeley area This new data forced the City's Health Officer to publicly acknowledge the shortcomings of the Acurex report in evaluating these specific concerns.
The Public Health Officer's official recommendation is the same as the air quality mitigations offered in section III-2. It simply postpones the air quality evaluation until after the park is in use. This is an irresponsible course of action. (See attachment 1.) To date, air emissions at and around the site have not been adequately quantified or qualified (See attachment 2.) This is a most serious omission in the issuance of a use permit. A completed evaluation of air emissions should be the prerequisite for any project which involves such a radical shift in land use, and concerns the potential detriment of the health and safety of children.
There should also be a more directed evaluation of the diesel emission problems detailed by the Acurex report. The project has failed address the increased train activity or the health impacts associated specifically with diesel emissions. The trains, with their hazardous cargos and toxic air discharges, comprise yet another of the many under-evaluated elements of this project. The use permit gives inadequate protection for park users from daily train activity.
City of Berkeley Transfer Station
After the initial report was issued on Harrison, the question was raised about the city's own Transfer Station, adjacent to the proposed playing fields, arid the direct impact that these solid waste activities have on the Harrison site's overall poor air quality, especially the particulate emissions. This discussion was completely avoided by the city's project staff.
Tree Planting Plan
Under the use permit's Special Conditions, No. 11, the project proposes to plant trees along the site "to mitigate some of the air quality impacts..." This proposed mitigation was first introduced by a commission which reviewed the project. Perhaps city project staff grabbed onto this idea because of public criticism about the air quality of the site. The assertion that planting trees will positively affect the site's poor air quality in any kind of significant way is erroneous, and as a mitigation, it's essentially meaningless. One need only consider LBNL's National Tritium Labeling Facility to know that trees can trap and reshape air dispersion patterns. That's part of the reason why there are high concentrations of tritium on the bill next to the radiation stack and trees.
In my letter to the planning commission dated November 17, 1999 (attachment 3), 1 state that, "If the City insists on having children at the Harrison Site, then it is incumbent upon the City to insure that the air quality improves".
The City's Harrison use permit guidelines make no real recognition of this need to control or improve the air quality now or in the future. This should be a zoning requirement for the playing fields' use permit, given the extreme change in land use.
Under the section, Mitigation Monitoring Program, Land Use Mitigations, No. 2, the City's use permit states that it "... would provide intensive assistance to manufacturing and industrial businesses wishing to expand or locate within the area. This is certainly a plan for disaster without specific zoning provisions which would help reduce current, local industrial emissions, and which would possibly restrict future businesses that are air "emissions intensive". One such idea offered as a mitigation to this point is the creation of an Air Quality Enterprise Zone (AQEZ). (See attachment 3.) Measures such as this are necessary to insure that the future environmental quality at the Harrison site is adequate to maintain a sustainable city park.
Environmental Contingency Fund
The sum of thirty thousand dollars is a modest amount for an environmental contingency or complaint fund given the nature of this task and the potential demand for such services. This budget is only enough funding for one, half-time city employee, and will provide little more than a part-time telephone complaint line. What is needed is a $500,000 commitment to develop an AQEZ. The program's funds should be directed at developing business emission reduction incentives, promoting the development of future zoning protections for the project, and fully characterizing the poor air emissions at the Harrison location.
This need for an AQEZ, or some other mechanism, to manage air quality can be further illustrated by several local zoning use permit changes that were made during the last two years of the Harrison evaluation process. The Zoning Department authorized substantial changes in use permits for Berkeley Asphalt and Pacific Steel Castings which have resulted in significant increases of their toxic emissions. These zoning actions were taken without any consideration to the city's future playing field project.
Under Special Conditions No. 27, Land Use Mitigations, the City proposes to require all users of the fields to sign an environmental waiver which would disclose several concerns about the area suitability as a recreational resource. This is one of the more surprising and embarrassing elements in the fields project. Who would have guessed that the City of Berkeley would require an environmental disclosure form for the park it was planning to develop. In truth, the waiver represents a blanket protection for the City against a poorly conceived and planned City project and against all those who might be impacted by it.
What is missing from the disclosure form is the inclusion of an air quality statement which identifies more than the possible nuisance of odorous emissions, one which addresses the possible chronic health impacts associated with the site's toxic airborne contaminants This statement should be included within the disclosure form.
Soil and Groundwater Investigations
Much has been written about the Harrison Street site's environmental evaluation and the problems with the soil and groundwater investigations (See attachment 3.) Since the issuance of the draft CEQA report, the Department of Toxic Substances Control (DTSC) has been called in to oversee the projects environmental investigations. Why was this done at extra expense to the city when the Berkeley's Toxics Management Division (TMD), who supervises most site evaluations in Berkeley, was already overseeing the project? And why hasn't the city evaluated the site's groundwater contamination, even though the TMD) would be expected to do so for any other similar project within the city limits?
The answer: everyone knows DTSC will not require any further investigations at the site. Knowing city project staff had an option to choose DTSC and no further site actions, or, to choose the TMD and perform a site groundwater investigation, city project staff opted for DTSC. Under Hazard and Hazardous Materials Mitigation VIII- further actions would only be required if recommended It is now requested that a groundwater evaluation be required for the Harrison site. The playing fields project includes a creek restoration so a complete ground water investigation represents an important environmental protection for the entire area.
For the Record
During the review of the project, I was one of only a few who publicly opposed the proposed Harrison Street Playing Field location. Those in favor of the playing fields location were large in number, including city staff. Many of my public comments before commissions and council were subject to catcalls from enthusiastic fields supporters. This subtle intimidation has impaired what should have been a more balanced discussion of the merits of the project. The effect was to limit the number of persons willing to speak against this project, publicly. This has been privately expressed to me by a number of persons within city commissions, city staff linked to the project, and even city council members.
An example of this activity was observed at the city's Commission on Disabilities, which was reviewing the project. The director of the Association of Sports Fields Users, a group requesting to oversee the development of fields project, interrupted the commission meeting and admonished the commission for its failure to affirm the project.
Finally, several days before the use permit public hearing, I received a copy of the Zoning staff report. It incorrectly stated that I was in favor of the project and had suggested that trees be planted as a mitigation to the area's poor air quality. Given my outspoken position against the location of the playing fields' project, this error was inexcusable. I asked Zoning staff for an immediate correction of the report before the meeting. Instead, I was told that I could inform the ZAB of the error when I gave testimony. Unfortunately, I was then obligated to spend much of my comment time trying to explain the zoning report's misrepresentation of my position.
Additionally, it should be noted that the ZAB use permit hearing had only two speakers yet the ZAB chair selected to give only two and one half minutes to each of us. This level of engagement by the ZAB and their reluctance to fully discuss the conditions of the project's use permit is very disappointing.
Please accept this appeal of the use permit #99-10000112, as provided for by law.
1. Re-evacuation of Harrison Playing Fields Zoning. 11/23/99
2. "Thorough study of air quality needed". Berkeley Daily Planet 2/3/00
3. Re: Initial study and mitigated Negative Declaration for Harrison Playing Fields. 11/17, 99
4. "Harrison is wrong site for playing fields", Berkeley Daily Planet 12/14/99