2000 CPEO Military List Archive

From: peter strauss <pstrauss@igc.org>
Date: Thu, 17 Feb 2000 11:52:59 -0800 (PST)
Reply: cpeo-military
Subject: Re: [CPEO-MEF] Institutional Controls at Alameda - RESEND
I want to congratulate the authors of this letter for their thoughtful
and persuasive discussion.  The upshot is that cities need to look
deeper into these matters before letting the military off the hook.

Furthermore, in this particular instance, the original source of
contamination seems to be known.  Based on my experience with town gas
sites in Massachusetts, New Jersey and California, if the utilities were
named as  PRPs - even for land that they gave away - they would assume
some or all of the financial responsibility for cleanup.  The Marsh
Crust Ordinance seems to lets them off the hook entirely.  

Peter Strauss 

CPEO Moderator wrote:
> *We are posting this message a second time since the first message was
> accidentally cut-off. We apologize for the inconvienence.
> [This was posted to the listserve by Arc Ecology, arc@igc.org]
> Hi Pauline
> I don't know if I'm sending this to the right person, but would
> appreciate if you could post this communication to the Alameda City
> Council about the Excavation Ordinance they passed last night that is
> part of the institutional control on NAS and the FISC.
> Here it is (minus maps, which folks can request us to fax by calling 315
> 495 1786).
> February 15, 2000
> To: Mayor and Members of the City Council
> From:    Eve Bach Arc Ecology
>             Dr. Bill Smith Sierra Club
>             Patrick Lynch Clearwater Revival Company
> RE: Marsh Crust Excavation Ordinance
> Public comments at your meeting of January 18 pointed out that the Marsh
> Crust Excavation Ordinance suffers from two types of problems: the
> Ordinance is too sweeping and strict, and at the same time it is too lax
> and fails to protect human health and the environment.
> It will probably surprise you to know that we agree with both positions.
> We ask you to reconsider your support for the second reading of the
> Ordinance.
> As you know, the Marsh Crust is a former wetland that was used as a dump
> before it was acquired and filled by the Navy. The Navy's theory is that
> current contamination problems (primarily polyaromatic hydrocarbons,
> including cancer-causing benzo(a)pyrene) were caused by wastes deposited
> in the marsh by the Pacific Coast Oil Works plant and two gasification
> plants on the Oakland side of the Estuary. (See Map 1) If the Navy's
> theory is correct, it would mean that the property had been contaminated
> when it was under City, not Navy control.
> The Navy's theory is not an unreasonable starting point for an
> investigation of the site. But like all theories, it needs to be
> verified or modified by factual evidence. The normal way to test this
> theory would be to sample soil at the depth of the old marsh, starting
> at the suspected source of the problem, continuing outwards to determine
> how far and in what directions the contamination had migrated. If the
> contamination levels were consistently lower in samples taken further
> away from the suspected source, the Navy's theory would be validated.
> Unfortunately the NAS and FISC cleanup programs have not attempted to
> verify the Navy's theory. There has been little deep sampling within the
> Marsh Crust area, and none whatsoever at East Housing. Cleanup remedies
> proposed so far are based on the assumption that the Navy's theory is
> valid, without any confirming evidence. The cleanup remedy that has been
> proposed for East Housing and FISC is a prohibition against digging
> deeper than 5 feet on the former bases (except for the areas in federal
> ownership) without a City permit. The prohibition would be delivered as
> a covenant attached to the property deed; the Ordinance establishes the
> program that would issue excavation permits.
> The restrictions on digging that will apply to future property owners
> (including East Housing homeowners) are based on the assumption that all
> of the marsh crust and subtidal areas are contaminated. The key word is
> "assumption." Since the Navy's cleanup program that was supposed to
> investigate contamination on the bases never took deep samples at East
> Housing or on most of the FISC, there is no evidence that the marsh
> crust contamination has spread to those locations.
> Even though there is no evidence that the entire marsh crust is
> contaminated, future property owners will be burdened with very
> expensive requirements if they decide to dig deeper than five feet.
> Homeowners and businesses will be required to
> ---sample and test the soil or assume soil is hazardous;
> ---hire a registered engineer or geologist to develop a construction
> site management plan and oversee compliance;
> ---hire a certified industrial hygienist to develop a health and safety
> plan
> ---potentially put up a performance bond
> ---comply with all laws and regulations pertaining to hazardous wastes,
> including disposal at a toxic waste dump site.
> Theoretically the City's Ordinance will shift the responsibility and
> costs of soil sampling and testing from the Navy to the future owners:
> to the City (who will excavate the site to install new infrastructure),
> to developers (who will excavate during construction), and to the future
> homeowners and businesses that Alameda is trying to attract to the
> former bases.
> In reality, however, by the time homeowners and businesses purchase
> Marsh Crust properties from the developer, more information about the
> extent of contamination will be available. The City will do extensive
> excavation to install new infrastructure before construction, and will
> be obligated by the Ordinance to test the soil. It is likely that the
> prices that the homeowner and business pay will incorporate information
> provided by the tests about the property's environmental condition. A
> parcel that is contaminated will cost less than one that turns out,
> after its soil has been tested, to be clean.
> It is also likely that developers will be protected from unanticipated
> costs, because the price they pay to the City will be based on the
> assumption that the property is contaminated. The City intends to
> acquire base properties and immediately reconvey them to the developer.
> It is predictable that the price the developer will pay will reflect a
> worst case assumption; that is, the price will incorporate the
> assumption that the entire property is contaminated. The price the
> developer pays will discount the maximum costs of complying with the
> excavation restrictions.
> Ironically, the City stands to lose substantially if the property turns
> out to be less contaminated than assumed. By federal law, the City will
> acquire base properties at no cost, whether they are contaminated or
> clean. It appears that the City will negotiate a sale price before it is
> known to what extent this assumption is valid. If the property is
> cleaner than assumed, the City will have sold the property to the
> developer for less than it is actually worth.
> For areas within the Marsh Crust that actually are contaminated, the
> Ordinance does not provide sufficient protection. When the City Council
> adopted the Ordinance on first reading, a map of threshold depths had
> not yet been prepared. Now a map has been proposed that assumes that all
> contamination is deeper than five feet; i.e., that all soil down to five
> feet is clean.
> If the land fill in the marsh crush had never been disturbed over the
> last eighty years, this assumption might be reasonable. However, that is
> not the case. In the past, utility lines have been laid; construction
> and demolitions have occurred, with likely regrading of the site.
> Without sampling it is not possible to know locations where
> contamination that was originally at the bottom of the fill has been
> brought closer to the surface than five feet. Estuary Park is an example
> of one site where contamination was found at surface levels (and ignored
> until citizen complaints forced fencing of the area).
> The Ordinance and the Covenant are also too lax for areas of the site
> where there actually is contamination because they do not meet emerging
> standards for institutional controls. Alameda recently had a study
> prepared by Ellen Garber of Shute, Mihaly & Weinberger, that concluded
> that institutional controls (of which the Covenant and Ordinance is an
> example)
> ---should involve layers of multiple government agencies to implement,
> monitor, and enforce the provisions;
> ---need centralized information systems;
> ---require dependable enforcement mechanisms; and
> ---long term sources of funding for implementation, monitoring, and
> enforcement.
> Alameda's Ordinance does not measure up to these recommended criteria:
> ---LAYERING- For all practical purposes, the Covenant-Ordinance scheme
> that Alameda intends to use relies almost exclusively on the City of
> Alameda for implementation, monitoring, and enforcement. A DTSC official
> agrees with our assessment that the State delegates implementation of
> the restrictions to the City through the Covenant, rather than layering
> City efforts as a supplement to State efforts.
> ---INFORMATION SYSTEMS- There is no requirement to establish an
> information system in the Ordinance. When the Ordinance was presented
> for first reading, there was no recommendation or notice by the staff
> that the additional expense of such a system will be incurred to
> implement the Ordinance.
> ---DEPENDABLE ENFORCEMENT MECHANISMS- Enforcement of the Ordinance
> relies on an infraction process that trivializes violations. There is no
> provision in the Ordinance for stop work orders, or declaring a public
> health hazard when violations occur. There is no provision for city
> officials to gain entry to a property where a violation is suspected.
> ---LONG TERM FUNDING - The Ordinance provides for a permit application
> fee. In California, the fee can only apply to the costs associated with
> the individual permit. There is no provision for monitoring and
> enforcement, or for public education about the permit requirements.
> When the marsh Crust Excavation Ordinance came before you for first
> reading, the Council and the public were told that DTSC was urging the
> City to adopt this Ordinance immediately. In a meeting with DTSC, we
> learned that they are puzzled why the City is in such a hurry to adopt
> this Ordinance now since the Covenant is not yet in final form.
> It was clear from the Council's January 18th discussion that the Council
> does not fully grasp the content or long term implications for the City
> of adopting this Ordinance. That is not surprising since the topic of
> institutional controls is new, controversial, and technical.
> Nonetheless, questions and concerns raised by the public need to be
> addressed with substantive, accurate responses rather than dismissed as
> inconvenient annoyances.
> The Council would do well to delay the second reading until their
> questions and the public's concerns have been fully explored.
> The City's asserts that this Ordinance is not a project under CEQA
> because it is certain that adoption of the permitting program "will not
> involve or require any physical activities other than optional testing
> of excavated materials and, &.because there is no possibility that the
> enactment of the ordinance may have a significant effect on the
> environment."
> This assumption is inconsistent with the facts.
> ---First, the Ordinance permits excavation above the five foot threshold
> depth even though soil mixing from previous disturbance of the Marsh
> Crust fill could have caused contamination at a depth less than five
> feet.
> ---Second, the Ordinance establishes a program with the authority to
> make ministerial decisions to issue excavation permits. Council approval
> of this program in effect approves future permits. No subsequent
> opportunities will exist for the City to exercise discretion in its
> review of specific permit applications. There will be no opportunities
> for public review, even if a future homeowner is concerned about an
> adjacent neighbor's plans to excavate sequested hazardous wastes.
> Subjecting this Ordinance to environmental review would provide the
> public dialog that could cure its numerous flaws.
> We strongly recommend that the Council table the second reading of this
> Ordinance. Council members need to consider the views of the public,
> including those willing to share their expertise about institutional
> controls. The Restoration Advisory Board is the only group to review
> this Ordinance prior to its appearance on the Council agenda. They have
> expressed serious reservations about the Ordinance. An Ordinance that
> has been subjected to public scrutiny will better serve the City's
> financial as well as environmental interests.
> You can find archived listserve messages on the CPEO website at
> http://www.cpeo.org/lists/index.html.
> If this email has been forwarded to you and you'd like to subscribe, please send a message to:
> cpeo-military-subscribe@igc.topica.com
> _____________________________________________________________
> Who will win the Oscars? Spout off on our Entertainment list!
> http://www.topica.com/lists/showbiztalk

  Prev by Date: [CPEO-MEF] Institutional Controls at Alameda - RESEND
Next by Date: [CPEO-MEF] Cut-of Communications
  Prev by Thread: [CPEO-MEF] Institutional Controls at Alameda - RESEND
Next by Thread: [CPEO-MEF] Cut-of Communications

CPEO Lists
Author Index
Date Index
Thread Index