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 do that."

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 new policy.

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 Bay Area."

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 soon.

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 be standardized.

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 Sparks.

"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 about."