Coastal Post Online


October, 2003

Last Stop for Hamilton Before Governor's Signs Off
Why Should The State Suck Up Army's Toxic Waste?
By Elena Belsky

This letter was sent on September 21, 2003, to the California State Public Works Board (PWB), a division of the Department of Finance; the PWB approves all land transfers for the State of California. Not surprisingly, the PWB subsequently approved the early transfer to the state of the Army's toxic parcel slated for wetlands restoration - they did so without reading any materials in their board packet.

Dear Public Works Board Members,
The question before you is not whether the Hamilton Wetlands Restoration Project site is ready for early transfer to the State, but whether it is in the best interest of the people of California to take possession of the HWRP property at this time.
I submit that the answer is NO.
I would fully and enthusiastically support a wetlands project at Hamilton-it is the currently proposed plan that falls so short of protecting human and environmental health, that it is unacceptable. I would at no time support the state taxpayers taking on liability of federal contaminated property- it is an unreasonable request.
If done well, the HWRP has the makings of a stellar and model project. On the down side, because of the unknown and hidden costs and liabilities of the proposed project as it stands, the property also has the potential of being another Oracle fiasco. At this time of our state's greatest instability, financially and politically, it would not seem prudent to release such a potentially damaging genie from the bottle.
Throughout the last six months, it has seemed that a heavy hand has been pushing the land transfer forward and causing the state agencies to make poor and improper decisions. With all the different state agencies rushing to do the army's bidding, at times the process has had the distinct feel of manipulation and a disregard for existing laws and regulations. Worryingly, these same agencies are now asking Governor Gray Davis to approve of and sign off on the land transfer deal - based on the "house of cards" that has been created.
The Army has imposed an arbitrary property transfer deadline of September 30, 2003, upon the state. There is no benefit to the people of California for the property to be transferred at this time - quite the contrary, it is fraught with unnecessary costs and liabilities. The HWRP can definitely continue under Army ownership without delay, if the Army so desires. But it seems they would prefer to foist their troubles, and toxic property, onto the citizens of California, instead.
As a result of this "rush to judgment" to meet the Army's deadline, the State Coastal Conservancy, Region 9 Water Quality Control Board, Department of Toxic Substances Control, and the Bay Conservation and Development Commission, have created a jumble of incomplete and inadequate documents which they have attempted to "fix" with a patchwork of "temporary agreements" and "to be determined later." These take the form of "conditional approvals" at a later date, completely based on behind the scenes negotiations, thereby eliminating public oversight. Along the way, these agencies have also failed and are continuing to fail to comply with Applicable or Relevant And Appropriate Requirements (ARAR's), CEQA, and even their own processes.
The documents, specifically the SEIR and the Record of Decision/Remedial Action Plan are out of compliance with the Endangered Species Act, as defined by the Fish and Wildlife Service in their August 24, 2003 Biological Opinion.

Partial Summary of Document and Process Problems
FWS Biological Opinion states that the clean up levels are not stringent enough, are not being applied properly, and the SEIR and ROD/RAP significantly underestimate the acreage of habitat being destroyed.
ROD/RAP says ESA is an applicable law, therefore the ROD/RAP should have been revised to incorporate the terms and conditions of the FWS Biological Opinion. As such, the ROD/RAP is now invalid.
The BCDC's Letter of Determination of Consistency (8/21/03) stated that - "Once the (FWS) BO is issued, the Army intends to comply with the measures outlined in the document during remedial activities to ensure that impacts to special status species are minimized." The ROD/RAP is now inconsistent with the determination of the BO, therefore the BCDC's Consistency determination is now internally inconsistent.
The Regional Water Quality Control Board issued Site Clean Up Requirements prior to signing the ROD/RAP, prior to the Biological Opinion, and are now in the position of enforcing something that must be amended to comply with federal law and is open to future change.

Financial Burden To The Taxpayers
The ROD/RAP and other letters of agreement between agencies maintain that the Army will pay 75% and the state will pay 25% of the restoration costs. Yet no estimate has ever been offered to the public! How much will this cost?
Are the taxpayers giving the Army a blank check? What is our financial responsibility for the project?
In addition, the state will be responsible for clean up of the "non-CERCLA" areas. What is our cost and liability associated with this part of the remediation?
The state will also a responsible party along with the Army for CERCLA related remediation on inboard parcels which need three feet of cover.
A multi-million dollar environmental insurance policy must be purchased by the state for an estimated $900,000. This insurance is only a necessary cost if the state takes possession of the HWRP parcel - and why would it, if it needs such a policy in the first place?
Does the state have to own the property to do the HWRP? The answer is NO.
Basic economic considerations must be scrutinized: to go forward at this time increases taxpayer liability, spends over $900,000 on insurance, incurs an undefined amount clean up costs, and initiates the spending of 25% of an unknown sum to build the wetlands.
Also, if state takes ownership of the property and the Army defaults or fails to comply with their CERCLA liability, the state will have signed over day to day implementation so has no way to correct problems. If army retains ownership, the state has virtually NO liability as they are not the owner nor the constructor (rights signed over to army corps) therefore, state is simply an unencumbered provider of money to the project.
The unknown and hidden costs and liabilities of the proposed project is daunting. Another financial and bureaucratic boondoggle would increasingly put California in a weakened position, and most likely worsen the already challenging political situation.
Is this part of a trend for the state to buy contaminated property and absolve the owners of legal liability? How many of these properties can the taxpayers take on? Who is benefiting of these toxic property transfers?
In closing, it would be wonderful to be able to support a wetlands project at Hamilton in the near future - one that is protective of human and environmental health, and is equitable for the citizens of California. The state should save $900,000 and avoid incurring excessive taxpayer liability - and not take possession of the Army's contaminated property.



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