Unified Program Section California Environmental Protection Agency
From: Larry Matz Chief,
To: L A Wood
April 17, 2002
Re: Cupa enforcement practices
The California Environmental Protection Agency (Cal/EPA) has completed its review of the complaint which you sent us, dated October 4, 2001. During the recent triennial Certified Unified Program Agency (CUPA) evaluation of the City of Berkeley Toxics Management Division on February 13-14, 2002, the CUPA's enforcement practices were reviewed. The findings will be listed as observations in the Final Evaluation Report. The findings for each of the regulated businesses which you cited in your complaint are listed below.
Jettco - This business was referred to the District Attorney for a Class I violation (illegal disposal) pursuant to the CUPA's inspection and enforcement plan.
Berkeley Repertory Theater - The. Berkeley Toxics Management Division has identified some issues with this facility in regards to Site Mitigation of an underground storage tank removal. The Site Mitigation program is not a part of the Unified Program.
Berkeley Unified School District - The CUPA identified hazardous materials business plan violations at this facility. The case was referred to the District Attorney and was settled in 2001.
Bayer - According to TMD staff a Notice of Violation (NOV) was issued to this facility 12-13 months ago regarding a CaIARP violation. The case was then referred to the District Attorney. The District Attorney is currently not pursuing action on this case, while the City attempts to resolve the matter internally. The CUPA, City Police, City Fire, City Planning Department and the City Manager are all working with Bayer to resolve the CaIARP issue currently.
City of Berkeley Public Works Department - There are ongoing storm water violations which are being addressed by the Berkeley Toxics Management Division. The storm water program is not a part of the Unified Program.
The City of Berkeley Public Works Department,(PWD) has consistently provided late submittals of the Business Plan information. In the year 2000 the PWD was not issued a Notice of Violation for these violations as other facilities were. The other facilities that were issued a Notice of Violation were also referred to a District Attorney pre-enforcement panel, while the PWD was not. This was not consistent enforcement. In 2001 the PWD again had late Business Plan submittals but according to CUPA staff all facilities were brought into compliance that year without referrals to the District Attorney. The PWD was treated consistently in the year 2001.
Based on these findings, Cal/EPA did not find that the City of Berkeley CUPA is currently using inconsistent enforcement practices in conflict with statute or regulation. I appreciate your concern on this matter. If you have any further questions, you may contact me at (916) 327-3442 or by email at lmatz@calepa.ca.gov.
cc: Mr. Nabil Al-Hadithy Hazardous Materials Manager City of Berkeley Toxics Management Division 2118 Milvia Street, #200 Berkeley, CA 94704
Mr. Michael O'Connor Assistant District Attorney Department of the District Attorney Consumer and Environmental Affairs 7677 Oakport Street Oakland, CA 94621
FROM: Nabil Al-Hadithy Hazardous Materials Manager
City of Berkeley Toxics Management Division
Audit result is in. Audit overall is satisfactory. Some suggestions are good, others are not so good.
Following improvements needed:
a. Unified Program General Requirements
i Self Audits not done 1999, 2000 (they stated our reasons but sadly still dinged us)
ii No protocol to maintain records for reports to Cal EPA
iii No protocol for i
iv No protocol for expedited permitting
v No procedure for suspending permits for non-payment or late payment of fees.
b. Hazardous Materials Business Plan (HMBP) Chemical Inventory Meets/Exceeds
c. HMBP HazMat Inso Statements - Meets/Exceeds
d. Cal Accidental Release Program (toxic gas) - no category due to major changes in state program
e. Underground Storage Tank i. Operating Permit does not have all the elements. Section 2712(h) is paraphrased on our permits and it has to be exactly as written in the state regulations, including commas ii One file did not have a Plot Plan of a gas station.
f. Above Ground Storage Tanks - Meets/Exceeds
g. Hazardous Waste Generator and HazWaste Treaters i. Not sending out Permit By Rule
Consoldiated Permit to our one facility annually - 67450.3(c)
In the case of the complaint for improper enforcement, the EPA found that in 2000 we were inconsistent for Public Works HMBP. We corrected that in 2001.
Specific Recommendations from Agencies:
a. SWRCB - Filing to be improved.
b. SFM - Storage location grid on maps
c . SFM - consider giving BFD an electronic HMBP summary in future
d. DTSC - Create a 'Return to Compliance Noticed form after an inspection.
