Re: National Stakeholders' Forum on MNA Report

[Tony Chenhansa <tonyc@cpeo.org>]

> From: Bruce Klafter <bklafter@orrick.com>
>

> Regarding the Containment Zone ("CZ") policy -
>
> I've been involved in three sites which received the
> designation, hardly a comprehensive sample, but enough
> to draw some conclusions.
>
> The RWQCB (SF Region) applied the CZ criteria rigorously,
> in my opinion, and required a demonstration that the
> cleanup had reached asymptotic levels (i.e. mass removal
> was no longer being accomplished) or that pump and treat
> would be ineffective and, therefore, uneconomic.  I did not
> find the Board overly concerned with economic issues, but
> rather with the issues of feasibility of the cleanup and
> containment of the plume.  While a party can claim inability
> to pay for a cleanup, the issue is usually framed in terms of
> whether the expenditures will achieve any signficant benefits
> (in terms of reaching MCLs).
>
> Note: Although most aquifers are designated as potentially
> suitable for beneficial purposes, the reality is that the
> uppermost aquifers in many areas would never really be
> suitable for drinking water or even irrigation.  In the Bay Area
> many of those aquifers are either too saline or the pumping
> rate is too low.  The Board should not turn those aquifers into
> sumps, but we shouldn't place artificially high values on
> them either (by assuming they're pristine and useable).
>
> You should keep in mind that a CZ designation does not
> amount to a closure of the site.  The designation, therefore,
> does not conflict with the anti-degradation policy.  It is
> recognition of the fact that the discharger could pump and
> treat until their resources are exhausted (and they're blue in
> the face!) and MCLs will still not be achieved.  It's much
> closer in practice to EPA's Technical Impracticability policy.
>
> Many of my clients would rather pump and treat if they could
> predict that it would work and the site would be closed.  In
> other words, they would choose a more expensive, certain
> remedy over a less expensive and lengthy monitoring
> regime.  Prospects for "success" and closure are the key.  I
> realize this equation is often different for federal facilties,
> where the government may not care about closure, but
> rather places a premium on cost control.
>
> All CZs (that I'm aware of) include so-called "guard" wells or
> sentry wells.  Those wells are located at the outer edge of
> the plume and are designed to alert the discharger and the
> Board to new movement of the plume.  If it's not stable or
> shrinking, the Board has the authority to order the discharger
> to implement some hydraulic controls so that it doesn't
> spread.
>
> In sum, I think the CZ policy strikes a reasonable balance in
> terms of protecting resources and allowing dischargers to
> undertake rational measures.  My original point was that the
> policy seems at least somewhat consistent with MNA.  Both
> policies, of course, represent some acknowledgment that
> an aquifer has been degraded and will not be restored (at
> least not in the short-term).  That is the reality at most solvent
> sites, however unfortunate and unpalatable any of us find
> that to be.
>
> Thanks for the response.