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  Betting All the Chips on DTSC May Backfire
April 29, 2005

The Campus Bay project and its high profile toxic remediation component has spawned a widespread reaction that seems almost totally focused on the designation of DTSC as the sole regulator for toxic cleanups in California. See the following article from the Berkeley Daily Planet.

I submit that this excessive level of confidence in DTSC may not be the panacea advocates expect. One has to look back only a couple of years to Richmond’s last high profile remediation controversy on the Bottoms property adjacent to what is now Seacliff Landing. In this incident, DTSC was the designated regulator. The project sponsor retained a consultant that submitted a plan that was summarily approved by DTSC, then the contractor proceeded to undertake a remediation project that bore little resemblance to the approved plan. What was supposed to be a fill approximately two or three feet thick with an asphalt cap turned into a mountain many times that size – so large that it became known as the “space alien landing pad” because it allegedly could be seen from space.

Ultimately, the City of Richmond bailed the project out by allowing the contaminated fill to be moved next door to the Point Potrero Terminal where it now reposes under an asphalt cap and thousands of Hyundais and Kias, but the City has yet to collect its $500,000 for the move.

Where was DTSC while all this was going on? Nowhere. Where was the City of Richmond? Nowhere. The lesson is that no matter how many toxicologists these agencies have on staff, they are all inept government bureaucracies that are essentially incapable of doing anything other than sitting at desks and shuffling paper. In the end, effective resolution of these problems usually falls to ordinary citizen activists who have some motivation other than pulling down a fat government paycheck and counting the days until they can retire on a bloated government pension.

“We’re the government, and we’re here to take care of you.” Be careful what you ask for, because you may get it, and it won’t be worth anything.

 Campus Bay-Inspired Bills Clear Assembly Committee By RICHARD BRENNEMAN

Two bills designed to change the way California handles hazardous waste sites won the approval Tuesday of the state Assembly Committee on Environmental Safety and Toxic Materials.

The bills, cosponsored by East Bay Democrat Loni Hancock and Cindy Montanez, a fellow Democrat who chairs both the Assembly Rules Committee and the Select Committee on Environmental Justice, were inspired in part by events at Richmond’s Campus Bay.

Both bills now head to the Assembly Appropriations Committee, where decisions are expected within the next two weeks. If they pass that hurdle, the bills will then go before the full Assembly and from then on to the state Senate. If approved, the bills will go to Gov. Schwarzenegger, himself a real estate developer.

Hancock’s Assembly Bill 1360 (passed on a 5-2 vote) creates a new category of toxic waste site called a “public health priority site” where a hospital, day care center or residential housing is planned on land where toxic waste has been stored and poses a potential threat.

All such sites would come under the jurisdiction of the state Department of Toxic Substances Control (DTSC), which currently exercises sway over similar sites targeted for schools.

Citing her inspiration as the protracted battle over the development of the Campus Bay site—where a developer has proposed to build 1,330 units of housing atop 350,000 cubic yards of buried chemical waste—Hancock said her bill was created to prevent so-called “forum shopping,” a practice whereby a developer could choose a less stringent agency to monitor toxic cleanup.

Accompanying the East Bay legislator to Sacramento were three key figures in the battle over the site: Sherry Padgett, an activist with Bay Area Residents for Responsible Development (BARRD); Contra Costa County Public Health Director Dr. Wendel Brunner, and Peter Weiner, a San Francisco attorney and pro bono advocate for BARRD.

Critics of Campus Bay have charged that cleanup of the site where a variety of dangerous chemicals were manufactured for a century was poorly handled under the jurisdiction of the San Francisco Bay Regional Water Quality Control Board.

Because the City of Richmond issued an over-the-counter permit, demolition of the factory buildings, storage tanks and other remnants of the site’s industrial heritage occurred without an environmental impact report—a sore point with critics like Padgett, who say they were subjected to a wide range of toxins as a result.

Most of the Campus Bay site was transferred to DTSC oversite after hearings last November where Bruce Wolfe, administrator of the regional water board, acknowledged his agency lacked even a single toxicologist on its staff. The DTSC, by contrast, is heavily staffed with toxicologists and other scientific experts.

Padgett, who has worked next door to the site for the last eight years and has suffered from a variety of cancers and other ailments her physicians believe were caused by exposures to toxins, told the committee that 40 of 500 employees near the site have been stricken with unusual cancers, with 14 dead to date.

“The water board is not equipped to monitor such a complex site,” she said. “They don’t have the internal expertise.”

Brunner said the Richmond site was one of the most complex sites in Contra Costa County.

“Over the last several years, the site characterization has changed, and there appears to be no systematic method” to deploy expertise at the site, he said. “The water board does not have the expertise or experience to handle the site... We need a mechanism in the California EPA (Environmental Protection Agency) to bring” the DTSC and water board together.

Testifying against the measure were lobbyists for a coalition of home builders, the California Building Industry Association, the California Chamber of Commerce, and the California Center for Land Recycling. The latter group, a non-profit organization that supports development on reclaimed hazardous waste sites, counts San Francisco water board official Steve Morse among its advisors.

While the industry associations charged that Hancock’s measure would conflict with existing law on cleanup sites, Hancock said the bill merely clarifies the law.

“This is a very important step forward,” she said.

“I agree,” said committee Chair Ira Ruskin. “It’s an important step forward in environmental justice.”

The dissenting votes were cast by two Republicans, Vice Chair Van Tran and member Audra Strickland. Ruskin was joined in his vote by Democrats Judy Chu, Hector De La Torre, Fran Pavley and Jackie Goldberg.

Tuesday’s hearing was a reunion of sorts for Goldberg and Wendel Brunner. Both were activists in Berkeley’s Free Speech Movement.

“We’re delighted we got the bill out of committee,” Hancock said in an interview in her office after the vote.

“It’s a very simple bill. It clarifies the process so the developer will know what to do, and it places jurisdiction with the department that has the expertise,” she said. “Note also that the bill passed despite powerful opposition.”

Hancock held off from introducing another bill calling for a restructuring of the state EPA agencies handling oversite of toxic waste sites in order to spend more time refining the bill—which she said will be introduced in January.

Water Board Strictures

Montanez, who represents the city of San Fernando and the surrounding areas of the city of Los Angeles, has waged a long-running battle against the local water board’s handling of a landlocked site in her jurisdiction, making her a natural ally of Hancock.

Her Assembly Bill 597 mandates new rules for cleanups conducted under the aegis of the state regional water quality control boards.

Under current state law, cleanups are designed with no public participation before they are unveiled to the board for approval. The Southern California legislator’s bill would force a major restructuring, imposing the same strict public participation standards as now mandated for the DTSC.

Her bill requires local water boards to:

• Provide public notice of major decisions and planned activities at cleanup sites and gives the public access to site plans and assessments with 30 days to comment on them.

• Post notices in English and other languages commonly spoken in the area notifying the public of their rights of review and comment.

• Hold public meetings in the area to gather comments if requested by the public.

• Consider public comments prior to acting on the site plan.

• Consider posting site data in electronic form for public access and consider forming advisory groups to assist the board in disseminating information and gathering public input and holding public meetings and workshops.

• Evaluate site plans in the context of environmental justice and impacts on low-income and minority populations.