|From:||CPEO Moderator <email@example.com>|
|Date:||Thu, 2 Dec 1999 15:25:02 -0800 (PST)|
|Subject:||[CPEO-MEF] Problems with ICs at NAS Alameda|
Subject: Problems with ICs at NAS Alameda Date: Wed, 01 Dec 1999 15:54:08 -0800 [This message was posted to the listserve by firstname.lastname@example.org] Please post... PROBLEMS WITH INSTITUTIONAL CONTROLS AT THE FORMER NAVAL AIR STATION, ALAMEDA The former Naval Air Station at Alameda (NAS Alameda) is a Superfund site containing large areas of contamination in both soil and groundwater. One region of soil contamination, known as the "Marsh Crust Zone," is found on the eastern portion of the base, as well as, at an adjacent Navy property known as the Fleet & Industrial Supply Center (FISC) Annex. The Marsh Crust Zone is also likely to affect nearby, non-Navy properties. A large portion of the Zone currently contains, or will contain, housing. Contaminated soil in the Marsh Crust Zone is generally found between 4 to 20 feet below the ground surface. It contains a mixture of petroleum hydrocarbons along with high levels of carcinogenic polynuclear aromatic hydrocarbons (PNAs). However, in some locations within the zone, elevated levels of PNAs have been detected in surface soils. This surface contamination may have resulted from historical excavation and construction activities. The regulatory agencies believe that the Marsh Crust contamination originated prior to establishment of the Naval Air Station, and before the current-day land surface had been created (via landfill). The Navy recently proposed to use institutional controls as a remedy for Marsh Crust soils at the Naval Air Station and Annex. This apparently prompted the City of Alameda, in consultation with the California DTSC, to propose a city ordinance that would establish a permitting system to control future soil excavations in these areas. Arc Ecology reviewed the proposed Alameda ordinance and found some problems with it. Our comments on the proposed ordinance are provided below. If you have any questions or comments related to this posting, feel free to call or email Eve Bach or Ken Kloc at Arc Ecology (415-495-1786, email@example.com) ========================================================================== COMMENTS ON THE PROPOSED CITY OF ALAMEDA ORDINANCE COVERING EXCAVATIONS IN THE MARSH CRUST ZONE (DRAFT 9-30-99, AMENDING CHAPTER XIII, ARTICLE XVII OF THE ALAMEDA MUNICIPAL CODE) 1. General comment Current regulatory guidance on institutional controls for hazardous waste sites emphasizes the layering, or redundancy, of controls and responsibilities. However, the proposed Alameda Ordinance on excavations in the Marsh Crust Zone provides for little, if any, layering of oversight by State or Federal regulatory agencies. The proposed ordinance creates an Alameda City project that gives the City Engineer discretion to define the conditions under which sequestered contamination at a former CERCLA site may be unearthed. Despite the disclaimer provided in the proposed ordinance, liability will be transferred to the City along with this discretionary authority. With this ordinance, the City will allow the State and Federal environmental regulatory agencies to pass the buck, as it were, for the long-term responsibility and cost of making sure that residual site contamination remains safely sequestered into the indefinite future. 2. Area of coverage The ordinance only covers areas that belonged to the former Naval Air Station and the FISC Annex. However, the Marsh Crust is not confined to these former military lands. Excavation of land along the northern stretch of Main Street, South of East Housing, and east of the Navy property (e.g., Alameda College), is likely to contain similar Marsh Crust contamination. 3. Claimed CEQA exemption The prelude to the Ordinance erroneously asserts that it is not a "project" under CEQA because the Ordinance will not supposedly generate environmental impacts. The statement is based on the narrow and incorrect assumption that the only action being approved by adoption of the Ordinance is the possible testing of excavated materials. This is an improper reading of CEQA. Section 21065 defines a project as "an activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment", and includes "[a]n activity that involves the issuance to a person of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies." The proposed ordinance creates a program that will permit the disturbance and excavation of CERCLA sites, that would otherwise be disallowed. It clearly "involves the issuance to a person of a…permit…by one or more public agencies." Action approving this new program is a project under CEQA, because the program will grant permission to disturb or excavate a CERCLA site containing residual contamination that the Record of Decision (ROD) assumes will remain sequestered. The ordinance should also clarify that approval of the specific permits are discretionary acts that will also be subject to CEQA. 4. Chemicals of concern The ordinance should define the chemicals of concern for the Marsh Crust area, based upon CERCLA risk assessment protocols. 5. Notification of DTSC and USEPA The City should be required to provide DTSC and USEPA officials with a copy of all permit applications received for their review and comment prior to permit approval. These agencies have primary responsibility for enforcing institutional controls. Relying solely on 5-year reviews to monitor untested institutional controls could allow significantly increased risk to human health and the environment. City controls, should supplement, not substitute for Federal and State enforcement. 6. Notification of the public The ordinance must provide for notifying the public that a permit application has been filed or approved. The consequences of excavating a closed CERCLA site potentially extend beyond the property line. 7. Definition of excavation (Section 13-56.1) The definition of excavation as "the mechanical removal of earth material" does not clearly cover the case where soil is brought to the surface but not removed from the excavation site. Section 13-56.5 indirectly suggests that mixing below-threshold depth materials with above-threshold depth materials could be subject to permit requirements. The ordinance should clarify that exposing soils below the threshold depth requires a permit. Excavating to a depth that would expose presumptively hazardous soils would be very likely to result in its mixing with, and contamination of presumptively clean soils. In addition the definition of excavation should include the removal of groundwater from the marsh crust area. 8. Definition of hazardous materials (Section 13-56.1) The definition of hazardous materials appears to include groundwater. The City's expectations would be clearer to applicants and the general public if the ordinance is explicit that it applies to contaminated groundwater as well as contaminated earth materials. 9. Definition of threshold depth (13-56.1) The ordinance should stipulate that the City Engineer must determine the threshold depth based upon CERCLA risk-based cleanup levels. 10. Threshold depth and margin of safety established by City Engineer (13-56.2) The ordinance should require that the City Engineer obtain U.S. EPA and California DTSC concurrence on the determination of threshold depths for excavation, as well as, the margin of safety. 11. Exemption of pile driving (Section 13-56.4) What is the rationale for exempting pile driving? Deep pile driving techniques, that could result in subsurface soil and groundwater being brought to the surface, should not be exempt. 12. Clarification of information required in permit application (Section 13-56.5e) It is not clear which costs the applicant must provide. Based on the assumption that excavated soils will be hazardous, the applicant must estimate the full cost of excavating the site, lawfully disposing of any soil or groundwater that is removed from the site, and restoring to site to a lower or equal risk as its pre-excavation condition. 13. Applicant's responsibility to for compliance (Section 13-56.6b) The Ordinance should clarify that the City is responsible for informing the applicant of laws governing the excavation and disposal of hazardous materials. In addition, the ordinance should state that it is, nonetheless, the applicant's independent responsibility to be aware of, and follow state and federal laws. 14. Materials handling (Sections 13-56.8 a) In many cases, Marsh crust contamination cannot be determined by sight or smell. Applicants must be required to have soils chemically analyzed in order to show that they are not hazardous materials. 15. Review and approval of the site specific management plan (Section 13-56.8c) The permit should require the applicant to submit the construction site management plan to the City for review and approval (similar to plan check required for building code compliance) prior to initiation of excavation on the site. In addition, the ordinance should require the City Engineer to obtain U.S. EPA and California DTSC concurrence on Reconnaissance Boring Plans, and on Construction Site Management Plans. 16. Review and approval of the site specific health and safety plan (Section 13-56.9) The permit should also require the applicant to submit the health and safety plan to the City for review and approval prior to initiation of excavation on the site. 17. Coordination of enforcement with other agencies (Section 13-56.16) The ordinance should clarify that the City will immediately notify the Defense Department, DTSC, the Water Board, and the Air Resources Board of any violations of the ordinance. The ordinance should also clarify that City penalties would be in addition to sanctions for violation of State and Federal laws. 18. Classification of violations (Section 13-56.16a) The ordinance should not limit prosecution of violations as infractions or misdemeanors. The City should be able to require a violator to restore the site and surroundings to a risk level less than or equal to its pre-excavation condition. ***end of comments*** You can find archived listserve messages on the CPEO website at http://www.cpeo.org/lists/index.html. 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