Subject:  CONTAINMENT ZONE POLICIES
March 5, 1996 CR# 96-008, COUNCIL ACTION

The State Water Resources Control Board (State Water Board) is considering a "containment zone" policy which would permit the Regional Water Quality Control Board (Regional Water Board) and local jurisdictions to designate geographic areas where ground water contamination could be left in place if it could be determined through a "risk assessment" that there is acceptable risk to human health and the environment. The draft policy will be subject to review for the next several months. The State Water Board has requested comments on the draft containment zone policy by the end of March. The following recommendations and report address a variety of issues related to this initiative.

RECOMMENDATION

That the City Council direct the City Manager to do the following:

A. Send a letter to the State Water Board with the following points (See Attachment A):

1. Maintain of the quality of Berkeley's groundwater resources. 2. Establish local control over all containment zone technical reviews, designations, mitigations and management. That is, no containment zone should be designated without the consent of the affected jurisdiction.

3. Maintain local interpretation of basic protections to assure the protection human health, environmental quality and local economies.

4. Protect neighboring jurisdictions with higher water quality standards, from impacts by the designation of a containment zone.

5. Protect of the quality of groundwater and soils in the public right of way.

B. Send letters to the City of Emeryville (See Attachment B) and the U.S. Environmental Protection Agency (See Attachment C), which has allocated a "brownfields redevelopment" grant to the City of Emeryville to study the city-wide application of a containment zone policy. Express the City's concerns, including that the City of Emeryville:

1. Prepare an Environmental Impact Report.
2. Insure that designation of a citywide containment zone not degrade the Bay or Berkeley's quality of groundwater. The City desires that an active site discovery program, adequate site investigation, and identification of preferential pathways of migration be addressed.

C. Review the Containment Zone policy (See Attachment D) and the appropriate City response to it when the policy is enacted by the State Water Board.

BACKGROUND 

At the City Council meeting of January 30, 1996, the Planning Commission proposed, amongst other things, that a letter be sent to the State Water Board rejecting the draft containment zone policies. The City Council approved sending a letter to the State Water Board but deferred drafting it until staff presents a comprehensive report scheduled for tonight. The City Council posed questions about the containment zone policies and these are addressed below.

The proposed State Water Board containment zone policy is currently in draft form, non-specific and complex. The draft resolution will be undergoing review for several additional months. It is expected that implementation will differ from region to region. Staff will bring back new information as it develops from the State and Regional Water Boards.

City of Berkeley's Regulatory Authority and Cleanup Goals for Soil and Groundwater

The State scheme for the regulation of soil and groundwater contamination is exceedingly complicated, consisting of several statutes, with different but overlapping subject matters. The Health & Safety Code contains several chapters, generally focused on the regulation of hazardous substances (including those originating in underground tanks) and their remediation (chapters 6.5, 6.7, 6.75, 6.95). Implementation of these statutes is generally the responsibility of the affected local agency or the state Department of Toxic Substances Control (BMC chapter 11.52).

Another statutory scheme, the Porter-Cologne Act (Water Code section 13000 et seq.) focuses on water quality (including groundwater quality), and is implemented by the State Water Board and the Regional Water Board (See Attachment E), the latter must prepare a "basin plan" containing policies related to water quality for the affected basin.

Because these areas overlap, the City has for several years been implementing not only the Health & Safety Code, but also the Porter-Cologne Act, under an informal agreement with staff of the San Francisco Regional Water Board. Accordingly, staff has begun a comprehensive review of all of the relevant statutes, to determine (1) the extent to which the City, as opposed to the Regional Water Board has authority to implement the relevant statutes, and (2) the extent to which the City may adopt stricter local requirements than those adopted by the Regional Water Board. Because of the complexity of the statutory scheme, however, it has been impossible to complete this review in time for presentation to the Council.

What is a Containment Zone?

The containment zone concept was developed in response to the need of property owners to cleanup contamination while avoiding prohibitive cleanup costs. It also addresses a need to avoid the stigma of a property being labeled as a contaminated or polluted site with uncertain future liabilities regarding site remediation. The uncertainty regarding liability hinders the ability to finance or insure properties. For example, the Temescal Business Center, one of West Berkeley's largest developments was not able to secure bank financing because the site had not received State Water Board closure.

The concept of containment zones contemplates that: a) Pollution would be contained within a geographical area. b)  Pollution would not significantly impact human health or the environment. c) Sites would require a "post closure" management plan.

With a containment zone, the property owners are given a way of "closing" their sites, allowing local jurisdictions, banks and insurers to assist in the redevelopment of the site.

Drinking Water/Current Cleanup Standards

Presently, the cleanup levels established by the State Water Board for a water body are based upon the most sensitive beneficial use. The most sensitive beneficial use for groundwater is to drink it (other uses might be for example irrigation or cleaning). Therefore, the most stringent cleanup levels are in areas where there is a potential to drink the groundwater. For groundwater that is not considered to have a potential for drinking, where there is economic hardship and where the technology does not allow clean up to such low levels, less stringent standards can be used.

Based on 15 years of experience the San Francisco Regional Water Board has concluded, and verified at many sites across the nation, that cleanup to "background" or drinking water standards will be technically impractical and/or economically costly or both. It should be noted that the Lawrence Livermore Laboratory Report, "Recommendations to Improve the Cleanup Process for California's Leaking Underground Storage Tanks" (See Attachment F), supports the concept that with time, fuel contamination can dissipate through natural processes. In addition, it has been demonstrated that fuels do not travel far beyond the point of contamination (about 250 feet) and will eventually dissipate and biodegrade.

Regarding groundwater within Berkeley, the City has a few private drinking water wells and some wells that may be used for non drinking purposes in times of water shortage. However, Berkeley's groundwater quality and yield does not always meet drinking water criteria under the Regional Water Board's Basin Plan. In cooperation with the Regional Water Board, the City has for the past decade allowed cleanup levels less stringent than drinking water standards. The City of Berkeley cleanup levels are based on removal of the source of pollution to the extent of economic and technical feasibility, site­ specific health risk based criteria and other cleanup guidelines from the State and Regional Water Boards. In the current draft containment zone policy, the role of the City of Berkeley with regard to sites which have contaminants other than petroleum is taken up by the Regional Water Board.

Risk Assessment - Protection of Human Health and the Environment

In the draft State Water Board containment zone proposal, cleanup standards in a designated containment zone are determined by a risk assessment study to ensure protection of human health and the environment. Subsequently, a cleanup zone is designated through a public hearing without respect to actual boundaries of known contamination. Risk assessment is an analytical tool to help identify sitespecific potential hazards. Prior to conducting a risk assessment, site-specific data are required, such as soil characteristics, geography, magnitude of the contamination and the identification of pathways the chemical agent might take from the source to the exposed individual (e.g., people could inhale it; children could ingest it by eating dirt). The collection of reliable data depends on experience of the professionals and on the budget allocated for the job. Regulatory oversight of this process to set reliable parameters is critical. 

A risk assessment determines the likelihood (probability of risk" estimates) of chemical exposure resulting in adverse effects to a community (human risk assessment) or to wildlife (ecological risk assessment). Adverse effects usually means the death of an organ or individual. It does not take into account the "quality of life" or "nuisance" factors. A risk assessment evaluates the baseline risks (under no remedial action or institutional control) associated with human or ecological exposure to contaminated soil and groundwater. It should be noted that human health risk assessments incorporate high safety factors because many of the factors needed to calculate risk are assumptions and estimates, rather than known, verifiable quantities. Risk assessments provide the justification for the necessity to perform any cleanup. If cleanup is necessary, the risk assessment determines the levels of contaminants that may remain without threatening public health and the environment. By contrast, in the absence of risk assessments, cleanup would be required in most cases and the standards for cleanup would be significantly higher.

Risk Management

Once the risk assessment is made, it is necessary to develop a plan to manage any risks identified. Under the containment zone policy, a risk-based corrective action type of assessment and management study will be used to assure that public health and the environment are not subject to significant adverse risk. The "corrective actions" in such a plan could mean removing contaminants, aerating them, capping them to assure that they will not escape, or other actions. Evaluating what precise combination of risk management actions requires determining what actions will be technically effective at reasonable cost.

The City of Berkeley's Approach and Concerns

The containment zone proposal as currently drafted is vague in many ways. In addition, the containment zone proposal is scheduled to undergo additional months of review and is likely to be modified. The review process has been extended at least in part to consider the concerns of the Metropolitan Water District in Southern California. In the mean time, containment zones are being established in the San Francisco Bay Area under the guidance of the Regional Water Board.

Because of this vagueness and this likelihood of change, staff cannot recommend that the City take a definite position. Rather, staff has drafted a letter expressing concerns about the proposal. If these concerns are adequately addressed, and in light of the fact that the City has performed risk assessments in the past, it may be appropriate to support the containment zone proposal and apply it in Berkeley. Some key concerns are:

Local control. Staff views this as an extremely important issue. The regulation as currently proposed gives local agencies full control over sites which are contaminated only with petroleum products. Such sites represent the bulk of contaminated sites. However, a number of the larger, more complex sites exist where a City might wish to apply a containment zone policy on higher risk sites that are typically contaminated with chlorinated solvents. Local agencies typically act in cooperation with the Regional Water Boards for technical overview and site closure but local agencies should control the investigation and remediation procedures. Such controls should not be lost by the local agencies. Inter-Jurisdictional Protection. Containment zones in one jurisdiction can have impacts on other jurisdictions because groundwater generally flows to the Bay. The draft regulation provides no specific protection for contamination which migrates across jurisdictional boundaries, particularly in the case where adjacent jurisdictions may have significantly different water quality goals. Therefore, it is suggested that the resolution establish procedures for consultation with and mitigation of impacts on affected neighboring jurisdictions. Impacts on the Public Rights-of-Way. Under the containment zone resolution, contamination will flow not only into neighboring sites, but also into the public right-ofway. If this occurs, local authorities and utility companies may be subject to considerable expenditures in maintaining underground utilities impacted by the pollution, especially if personnel are used to service the utilities. The resolution should state that all containment zones should have requirements which address such impacts.

Polluted Sites in Berkeley

City records indicate that there are over 50 sites in the City of Berkeley that are expected to have contamination, in addition to the sites currently being remediated. These sites are mostly current or former gasoline stations with leaking underground storage tanks. Under the proposed containment zone policy these sites could be considered low risk sites and residual contamination could be allowed to be left in place. The draft resolution suggests that the few sites known as "high risk", which are typically contaminated with solvents or chlorinated compounds, could be sent by the City to the Regional Water Board for remediation, assessment, and finally closure.

The City of Emeryville

The City of Emeryville, in partnership with state, county and private agencies, has been allocated a matching grant of $200,000 from the U.S. Environmental Protection Agency for studying a risk management model for accelerating "brownfields" redevelopment. "Brownfields" are areas that have been abandoned by industry leaving empty and heavily contaminated land. Approximately 55% of Emeryville has contamination which is considered economically infeasible to clean to a pristine level. It has, therefore, been proposed that the "brownfields" redevelopment program include a containment zone which may cover the entire City of Emeryville.

Because of the lack of technical specificity in the proposed containment zone policy and lack of clarity regarding Berkeley's environmental and liability exposure, staff recommends that Emeryville prepare an Environmental Impact Report. In addition, the City of Berkeley should act in a consultative manner with Emeryville's proposed "brownfields redevelopment.

Community Perspectives

Environmentalists, environmental justice activists and the affected community have expressed opposition to changes in the non-degradation of ground water policies of the water code. If these policies were to be implemented, the community would expect an opportunity to participate in the containment zone designation process in order to provide meaningful input (Attachment G). On the other hand, businesses and industrial and commercial property owners in Berkeley have expressed support of the proposed containment zone policies.

FINANCIAL IMPLICATIONS

Sites that are subject to remediation through current cleanup standards may be subject to a considerable financial impact. A containment zone policy could provide owners of polluted sites a mechanism to develop the site and alleviate some of the financial burden. Development of the "brownfields" could create business and generate additional tax revenue for Cities. However, if high levels of pollution is allowed to remain in place through containment zones, adjacent or down-gradient sites may be impacted.

Steve Beicher Acting Assistant City Manager Office of Special Community Services
Gil Kelley, Director Planning and Development