[CPEO-MEF] Institutional Controls at Alameda - RESEND

[CPEO Moderator <cpeo@cpeo.org>]

*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

SUMMARY

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. 

THE NAVY'S THEORY OF MARSH CRUST CONTAMINATION

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 MARSH CRUST ORDINANCE IS TOO SWEEPING AND DRACONIAN 

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.


IF CONTAMINATION IS LESS THAN ASSUMED, THE DEVELOPER WILL GAIN AND THE 
CITY WILL LOSE

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.


THE MARSH CRUST ORDINANCE IS NOT STRICT ENOUGH; IT DOES NOT PROTECT 
HUMAN HEALTH AND THE ENVIRONMENT

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.

TIMING OF THE ORDINANCE

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.

ENVIRONMENTAL REVIEW

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. 

CONCLUSION

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