[CPEO-MEF] Problems with ICs at NAS Alameda

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Subject: Problems with ICs at NAS Alameda
Date: Wed, 01 Dec 1999 15:54:08 -0800

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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, arc@igc.org)

==========================================================================

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***



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