ITEM:  17

SUBJECT: CONSIDERATION OF A RESOLUTION APPROVING THE PROPOSED CONSOLIDATED TOXIC HOT SPOTS CLEANUP PLAN

DISCUSSION: In 1990, the State Water Resources Control Board (SWRCB) and the Regional Water Quality Control Boards (RWQCBs) initiated the Bay Protection and Toxic Cleanup Program (BPTCP). The BPTCP is focused on the control of pollution in the State’s enclosed bays, estuaries and coastal waters by identifying and characterizing toxic hot spots, developing cleanup plans and developing strategies to prevent toxic pollutants from creating new toxic hot spots. From 1992 through 1997 the BPTCP completed a significant amount of monitoring in bays and estuaries to identify toxic hot spots. The SWRCB and RWQCBs began developing cleanup plans in 1997.

The SWRCB and the RWQCBs are required by Water Code Section 13394 to develop Regional Toxic Hot Spots Cleanup Plans and a Consolidated Toxic Hot Spots Cleanup Plan (Consolidated Cleanup Plan). In order to accomplish this, the SWRCB and RWQCBs implemented a four-step process that included: (1) RWQCB development of proposed cleanup plans in 1997, (2) SWRCB adoption of a Water Quality Control Policy (Guidance Policy) for guidance on the development of the regional cleanup plans, (3) RWQCB redevelopment of the Regional Cleanup Plans using the Guidance Policy and (4) SWRCB consolidation of the regional plans into the Consolidated Cleanup Plan.

The Consolidated Cleanup Plan is a compilation of the information provided by the RWQCBs in their Regional Toxic Hot Spots Cleanup Plans. The Consolidated Cleanup Plan is divided into two volumes. Volume I contains the consolidated list of known toxic hot spots, direction to the RWQCBs on implementation of the plan, delisting procedures, waste discharge requirement guidance, strategies to prevent toxic hot spots and findings on the funding needs. Volume II contains each of the Regional Toxic Hot Spots Cleanup Plans.

The Consolidated Cleanup Plan lists 48 toxic hot spots proposed by the seven coastal RWQCBs. Twenty-two toxic hot spots were ranked as high priority and each RWQCB identified different alternatives to address the problems at each site.

SWRCB staff has prepared a final Functional Equivalent Document (FED) for the proposed Consolidated Cleanup Plan in compliance with the California Environmental Quality Act. The FED contains an analysis of the environmental issues and alternatives to be considered by the SWRCB in adopting the Plan.

In compliance with Health and Safety Code Section 57004, the Regional Plans and the draft FED are peer reviewed by scientists at the University of California. Department of Fish and Game (DFG) was consulted to assess possible impacts to the provisions of the California Endangered Species Act (CESA) in connection with adoption of the Consolidated Cleanup Plan.

On June 3, 1999, the SWRCB held a public hearing seeking comments regarding the proposed Consolidated Cleanup Plan. Several issues were raised at the hearing. SWRCB staff summary on four comments is presented below.

Several commenters suggested that the SWRCB not list several locations in the Sacramento-San Joaquin River Delta as toxic hot spots. Commenters also recommended that the Central Valley RWQCB not be granted a variance from the Guidance Policy for the development of Total Maximum Daily Loads (TMDL) to address the identified pesticide pollution problems. The SWRCB staff recommends no change in the proposed Consolidated Cleanup Plan. In adopting the Regional Toxic Hot Spots Cleanup Plan, the Central Valley RWQCB determined whether pesticide toxic hot spots should be considered under the BPTCP cleanup planning process or under the Clean Water Act Section 303(d) TMDL process. The Central Valley RWQCB concluded in a unanimous decision that the pattern of pesticides detections documented in the BPTCP were frequent and merited consideration as high priority toxic hot spots. The Central Valley RWQCB directed its staff to seek a variance from the requirements of the BPTCP in order to address the pesticide issue using the TMDL approach.

The Department of Parks and Recreation, DFG and the Los Angeles RWQCB recommended that McGrath Lake be included as a high priority known toxic hot spot. When the Regional Cleanup Plan was submitted to the SWRCB, McGrath Lake was listed as a site of concern due to high pesticide levels in the sediment and sediment toxicity. At the time of submittal, the information was not available to designate McGrath Lake as a candidate toxic hot spot. Based on new monitoring data, McGrath Lake qualifies as a toxic hot spot. The Los Angeles RWQCB staff has requested the addition of McGrath Lake to the Regional Cleanup Plan’s list of toxic hot spot.

Nearly 1000 commenters requested that the five identified toxic hot spots in San Diego Bay be listed as high priority. The San Diego RWQCB listed only one site as a high priority candidate toxic hot spot. After the June 3, 1999 public hearing, SWRCB staff met with the representatives of the San Diego RWQCB, Environmental Health Coalition, DFG and other interested parties to discuss the issue of the priority ranking of the other four sites in San Diego Bay. The RWQCB followed the Guidance Policy and exercised its discretion in assigning toxic hot spot priorities. However, San Diego Bay is an important water body deserving significant attention to remediate sites. While staff does not recommend identifying the four subject sites as high priority, the Consolidated Cleanup Plan has been revised to acknowledge the significance of San Diego Bay and to direct the RWQCB to begin remediation activities at both high and moderate priority sites.

SWRCB staff also met with representatives of DFG, San Francisco Bay RWQCB, the San Francisco Public Utility Commission (SFPUC), and interested parties. Many technical issues regarding the listing of Islais Creek and Mission Creek as toxic hot spots were discussed. While the new studies sponsored by SFPUC were of high quality, the points raised and problems identified with the listing and ranking were not sufficient to change the recommendation of the San Francisco Bay RWQCB. However, several changes were made regarding the pollutant sources of these toxic hot spots.

POLICY ISSUE: Should the SWRCB adopt the proposed Consolidated Toxic Hot Spots Cleanup Plan?

FISCAL IMPACT: This is a budgeted activity. It is the final step of the adoption process that will culminate in the submission of a Consolidated Cleanup Plan to the California Legislature by the June 30, 1999 California Water Code deadline.

RWQCB IMPACT: Yes. Seven coastal RWQCBs (North Coast, San Francisco Bay, Central Valley, Central Coast, Los Angeles, Santa Ana, and San Diego RWQCBs).

STAFF RECOMMENDATION: That the SWRCB:

1.  Approve the Final Functional Equivalent Document: Consolidated Cleanup Plan.

2.    Adopt the Consolidated Toxic Hot Spots Cleanup Plan.

3.    Approve the Central Valley RWQCB’s request for a variance from the provision of the Guidance Policy in order to address pesticide regulation under the Clean Water Act Section 303(d) Total Maximum Daily Load process.

4.  Direct the RWQCBs to consult with DFG on compliance with the California Endangered Species Act during the implementation of the Consolidated Cleanup Plan.

 5. Authorize the Executive Director, or his designee, to submit the Consolidated Cleanup Plan for forwarding to the California Legislature by June 30, 1999 in compliance with Section 13394
of the California Water Code.

 6. Authorize the Executive Director, or his designee, to submit the regulatory provisions of the Consolidated Cleanup Plan to the Office of Administrative Law for their approval.

WHEREAS:

1.  The Bay Protection and Toxic Cleanup Program (BPTCP) was established by the State Water Resources Control Board (SWRCB) to implement the requirements of Section 13390 et seq. of the Water Code.

2. Water Code Section 13394 requires the SWRCB and the Regional Water Quality Control Boards (RWQCBs) to develop a Consolidated Toxic Hot Spots Cleanup Plan (Consolidated Cleanup Plan).

3. The SWRCB adopted a Water Quality Control Policy for Guidance on the Development of Regional Toxic Hot Spot Cleanup Plans (Guidance Policy) to be used by the RWQCBs in preparing their cleanup plans.

4.  Each of the seven coastal Regional Water Quality Control Boards (RWQCBs) used the Guidance Policy in the development of their Regional Toxic Hot Spots Cleanup Plans and has submitted the Plans to the SWRCB.

5. The SWRCB has consolidated the Regional Toxic Hot Spots Cleanup Plans into a Consolidated Cleanup Plan.

6. The SWRCB prepared and circulated a draft Functional Equivalent Document (FED) supporting the proposed Consolidated Cleanup Plan in accordance with provisions of the California Environmental Quality Act and Title 14, California Code of Regulations Section 15251(g).

7. In compliance with Water Code Section 13147, the SWRCB held a public hearing in Sacramento, California, on June 3, 1999 on the Consolidated Cleanup Plan and has carefully considered all testimony and comments received.

8. The SWRCB staff determined that the adoption of the proposed Consolidated Cleanup Plan will not have a significant adverse effect on the environment.

9. The SWRCB staff has prepared a final FED that includes the revised proposed Consolidated Cleanup Plan and has responded to the comments received.

10. The SWRCB consulted with the Department of Fish and Game (DFG) on the potential impacts of the amendments on fish and wildlife resources, including threatened and endangered species. DFG did not find that the Consolidated Cleanup Plan will jeopardize the continued existence of any endangered or threatened species, or result in the destruction or adverse modification of habitat essential to the continued existence of the species.

11. The SWRCB completed a scientific peer review of the draft FED as required by Section 57004 of the Health and Safety Code.

12. As directed at the June 3, 1999 public hearing, SWRCB staff met with representatives of the RWQCBs, DFG and interested parties to discuss specific comments and concerns, and has made minor revisions to the Consolidated Cleanup Plan accordingly.

13. The regulatory provisions of the Water Quality Control Policy do not become effective until the regulatory provisions are approved by the Office of Administrative Law (OAL)

THEREFORE BE IT RESOLVED THAT:

The SWRCB:

1. Approves the Final Functional Equivalent Document: Consolidated Toxic Hot Spots Cleanup Plan.

2. Adopts the Consolidated Toxic Hot Spots Cleanup Plan.

3. Approves the Central Valley RWQCB’s request for a variance from the provision of the Guidance Policy in order to address pesticide regulation under the Clean Water Act Section 303(d) Total Maximum Daily Load (TMDL) process. The RWQCB shall report to the SWRCB annually on progress toward completing the TMDLs.

4. Directs the RWQCBs to consult with DFG on compliance with the California Endangered Species Act during the implementation of the Consolidated Cleanup Plan.

5. Authorizes the Executive Director, or his designee, to submit the Consolidated Cleanup Plan to the California Legislature by June 30, 1999 in compliance with Section 13394 of the California Water Code.

6. Authorizes the Executive Director, or his designee, to submit the regulatory provisions of the Consolidated Cleanup Plan to OAL for its approval.

Maureen Marché
Administrative Assistant to the Board