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CHAPTER 4: IMPLEMENTATION PLANS (continued)

4.25 GROUNDWATER PROTECTION AND MANAGEMENT

Per State Water Board Resolution No. 88-63, almost all the Region's groundwater is considered to be an existing or a potential source of drinking water. With limited resources, the Water Board must concentrate its groundwater protection and management efforts on the most important groundwater basins. DWR has identified 28 individual groundwater basins and seven sub-basins in the Region that serve, or could serve, as sources of high quality drinking water.

Increased demands on these groundwater resources have become evident in the rapidly developing Region. Years of drought and decades of discoveries of groundwater pollution have resulted in impacts or impairment to portions of these basins. Some municipal, domestic, industrial, and agricultural supply wells have been taken out of service due to the presence of pollution. Some of the basins have also been affected by over-pumping, resulting in land subsidence and saltwater intrusion.

Such pressures on groundwater resources require that comprehensive environmental planning and management practices be developed and implemented for each individual basin by all concerned and affected parties. The Water Board will foster this concept with the following groundwater protection and management goals for the Region.

1) Identify and update beneficial uses and water quality objectives for each groundwater basin.

Water quality objectives must maintain the existing high quality of groundwater, protect its beneficial uses, and protect human health and the environment. The Water Board's program to identify and update objectives is described in Section 4.25.1 Application of Water Quality Objectives.

2) Regulate activities that impact or have the potential to impact the beneficial uses of groundwater of the Region.

Federal, state, and local groundwater protection and remediation programs that will result in the overall maintenance or improvement of groundwater quality must be implemented Region-wide in a consistent manner. When a potential threat or problem is discovered, containment and clean-up efforts must be undertaken as quickly as possible to limit groundwater pollution. Where activities that could affect the beneficial uses of groundwater are not regulated by other federal, state, or local programs, the Water Board will consider regulation depending upon the threat to beneficial uses and availability of Water Board resources. The overall requirements for site cleanup and closure, setting cleanup levels, and future groundwater management strategies are described in Section 4.25.2 Requirements for Site Investigation, Cleanup and Site Closure. The Water Board's programs for cleanup of polluted sites are described in Section 4.25.3 Regulation of Potential Pollution Sources.

3) Prevent future impacts to the groundwater resource through local and regional planning, management, education, and monitoring.

Groundwater is an integral component of a watershed's hydrologic system. A comprehensive watershed management approach is necessary to protect groundwater resources. The Water Board's program for broadening its information base on groundwater resources and individual protection needs of basins is described in Section 4.25.4 Groundwater Protection Programs. Groundwater monitoring efforts by state and local agencies are described in Chapter 6 Surveillance and Monitoring.

Local water, fire, planning and health departments are actively involved with their own groundwater protection programs. These programs include: salt water intrusion and land subsidence control, wellhead protection, groundwater recharge area preservation, hazardous material storage and management ordinances, Local Oversight Programs and non-Local Oversight Programs for cleanup of leaking underground fuel tanks, potential conduit well destruction, and well permitting and inspection. For some agencies, maintaining funding for protection programs is an ongoing challenge. Through numerous regional projects, the Water Board is evaluating the groundwater protection needs in specific basins, and thus will provide additional support for local agency efforts.

4.25.1 APPLICATION OF WATER QUALITY OBJECTIVES

Water quality objectives apply to all groundwater, rather than at a wellhead or at a point of consumption. The maintenance of the existing high quality of groundwater (i.e., "background") is the primary objective, which defines the lowest concentration limit that the Water Board requires for groundwater protection. The Water Board also has narrative and numeric water quality objectives for bacteria, chemical constituents, radioactivity, and taste and odor (see Chapter 3). These objectives define the upper concentration limit that the Water Board considers protective of beneficial uses. The lower and upper concentration limits define the range that the Water Board considers for clean-up levels of polluted groundwater. Establishment of cleanup levels is discussed in Section 4.25.2 Requirements for Site Investigation, Cleanup and Site Closure.

Numerical limits that implement all applicable water quality objectives include Maximum Contaminant Levels (MCLs) and Secondary Maximum Contaminant Levels (SMCLs), and are only acceptable as the upper end of a concentration range to protect the beneficial uses of municipal and domestic drinking water sources.

Ideally, the Water Board would establish numerical groundwater objectives for all constituents. However, the Water Board is limited in its ability and resources to independently establish numerical objectives for groundwater. To evaluate compliance with water quality objectives, the Water Board will consider all relevant and scientifically valid evidence, including relevant and scientifically valid numerical criteria and guidelines developed and/or published by other agencies and organizations (e.g., State Water Board, U.S. EPA, DHS, Cal/EPA's Office of Environmental Health Hazard Assessment (OEHHA), Cal/EPA's Department of Toxic Substances Control (DTSC), etc.) to provide the numerical criteria for Water Board consideration as groundwater objectives.

The Central Valley Water Board summarized water quality standards and criteria from a variety of sources in “A Compilation of Water Quality Goals”. This report contains an extensive compendium of numerical water quality limits from the literature for over 800 chemical constituents and water quality parameters.

In practice, the Water Board uses water quality objectives for groundwater somewhat differently from those for surface water. For groundwater, the Water Board's emphasis is the regulation of sites where water quality objectives are not being met, clean-up is required and/or under way, and no further waste discharges will be allowed in the future. In contrast, surface water discharges regulated by the Water Board are usually for ongoing discharges regulated to meet water quality objectives in receiving waters.

In a typical situation, the Water Board must identify and establish site- and basin-specific groundwater beneficial uses and standards for the cleanup of groundwater polluted by numerous and extensive spills and leaks of toxic chemicals (e.g., organic solvents, fuels, metals, etc.).

Very few waste discharges to land are allowed by the Water Board and those that are permitted (e.g., landfills, industrial waste disposal, above-ground soil treatment, etc.) are closely regulated under the requirements of existing laws and regulations in order to maintain and protect groundwater quality objectives. An additional category of discharges to land is the numerous individual domestic waste disposal systems (e.g., onsite dispersal systems) that are permitted and regulated by the counties. The Water Board waives regulation based upon the fact that the counties' regulation of the systems complies with applicable Water Board requirements.

Groundwater objectives for individual basins may be developed in the future. As the Water Board completes projects that provide more detailed delineation of beneficial uses within basins, revised objectives may be developed for portions of groundwater basins that have unique protection needs. Examples of Water Board projects completed in the Region are described in "Section 4.25.5 Groundwater Protection Studies.”

4.25.2 REQUIREMENTS FOR SITE INVESTIGATION, CLEANUP AND SITE CLOSURE

This section describes the regulatory requirements and their applications for investigation, cleanup, and closure at sites impacted by soil and groundwater pollution.

4.25.2.1 STATE WATER BOARD POLICIES FOR GROUNDWATER CLEANUP

ANTIDEGRADATION POLICY

The “Statement of Policy with Respect to Maintaining High Quality of Waters in California,” known as the Antidegradation Policy (State Water Board Resolution No. 68-16), requires the continued maintenance of existing high quality waters. It provides conditions under which a change in water quality is allowable. A change must:

  • Be consistent with maximum benefit to the people of the state;
  • Not unreasonably affect present and anticipated beneficial uses of water; and
  • Not result in water quality less than that prescribed in water quality control plans or policies.

However, in cases where unauthorized releases have polluted groundwater, restoring groundwater quality to background concentrations is often technically impractical. In those situations, groundwater should be restored to attain applicable beneficial uses.

SOURCES OF DRINKING WATER POLICY

This policy, adopted by the State Water Board in 1988 (Resolution No. 88-63), established state policy that all surface and ground water in the state are considered suitable, or potentially suitable, for municipal or domestic supply (MUN) and should be designated for this use, with certain exceptions. The exceptions for groundwater are:

  • The groundwater’s TDS exceeds 3,000 mg/L (5,000 microSiemens per centimeter (μS/cm), electrical conductivity), and it is not reasonably expected by the Water Boards to supply a public water system; or
  • There is contamination, either by natural processes or by human activity (unrelated to the specific pollution incident), that cannot reasonably be treated for domestic use through implementation of BMPs or best economically achievable treatment practices; or
  • The water source does not provide sufficient water to supply a single well capable of producing an average, sustained yield of 200 gallons per day; or
  • The aquifer is regulated as a geothermal energy-producing source or has been exempted administratively pursuant to 40 Code of Federal Regulations (CFR), Section 146.4 for the purpose of underground injection of fluids associated with the production of hydrocarbon or geothermal energy, provided that these fluids do not constitute a hazardous waste under 40 CFR, Section 261.3.

POLICIES AND PROCEDURES FOR INVESTIGATION AND CLEANUP AND ABATEMENT OF DISCHARGES

State Water Board Resolution No. 92-49, "Policies and Procedures for Investigation, Cleanup and Abatement of Discharges Under Water Code Section 13304" contains the policies and procedures that all Water Boards shall follow to oversee and regulate investigations and cleanup and abatement activities resulting from all types of discharge or threat of discharge subject to Water Code Section 13304. Therefore, the five program areas described below follow the same policies and procedures outlined in Resolution No. 92-49 for determining:

  • When an investigation is required;
  • The scope of phased investigations necessary to define the nature and extent of contamination or pollution;
  • Cost-effective procedures to detect, cleanup or abate contamination; and
  • Reasonable schedules for investigation, cleanup, abatement, or any other remedial action at a site.

State Water Board Resolution No. 92-49 requires that the Water Board ensure that the discharger is aware of and considers minimum cleanup and abatement methods. The minimum methods that the discharger should be aware of and consider, to the extent that they may be applicable to the discharge or threat thereof, are:

  • Source removal and/or isolation;
  • In-place treatment of soil or water, including bioremediation, aeration, and fixation;
  • Excavation or extraction of soil, water, or gas for on-site or off-site treatment techniques including bioremediation; thermal destruction; aeration; sorption; precipitation, flocculation and sedimentation; filtration; fixation; and evaporation; and,
  • Excavation or extraction of soil, water, or gas for appropriate recycling, reuse, or disposal.

State Water Board Resolution No. 92-49 was amended in 1996 with Resolution No. 96-79, Containment Zone Policy. Per the revised resolution, it is not the intent of the State Water Board or the Regional Water Boards to allow dischargers, whose actions have caused, permitted, or threaten to cause or permit conditions of pollution, to avoid responsibilities for cleanup. However, in some cases, attainment of applicable water quality objectives for groundwater cannot reasonably be achieved. In these cases, the State Water Board determines that establishment of a containment zone is appropriate and consistent with the maximum benefit to the people of the state if applicable requirements contained in the policy are satisfied.

STATE WATER BOARD DECISIONS

In addition to State Water Board policies that specify requirements for investigation and cleanup of groundwater, State Water Board precedential orders on petitions provide guidance and direction to the nine Regional Water Boards with respect to cleanup orders. State Water Board decisions affecting site cleanup fall into three general categories: naming responsible parties, setting cleanup standards, and closing low-risk cases.

4.25.2.2 ELEMENTS OF GROUNDWATER CLEANUP AND SITE CLOSURE

State Water Board Resolution No. 92-49 outlines the five basic elements of a site investigation. Any or all elements of an investigation may proceed concurrently, rather than sequentially, in order to expedite cleanup and abatement of a discharge, provided that the overall cleanup goals and abatement are not compromised. State Water Board Resolution No. 92-49 investigation components are as follows:

  1. Preliminary site assessment to confirm the discharge and the identity of the dischargers; to identify affected or threatened waters of the state and their beneficial uses; and to develop preliminary information on the nature and vertical and horizontal extent, of the discharge;
  2. Soil and water investigation to determine the source, nature, and extent of the discharge with sufficient detail to provide the basis for decisions regarding subsequent clean-up and abatement actions, if any are determined by the Regional Water Board to be necessary;
  3. Proposal and selection of clean-up action to evaluate feasible and effective cleanup and abatement actions and to develop preferred clean-up and abatement alternatives;
  4. Implementation of clean-up and abatement action to implement the selected alternative and to monitor in order to verify progress; and
  5. Monitoring to confirm short- and long-term effectiveness of cleanup and abatement.

The following additional requirements for site cleanup and closure may also apply, as described below.

“Cleanup Complete” Determinations – The Water Board provides no further action (NFA) confirmations and no-further-active-cleanup confirmations to responsible parties when no further active cleanup is needed. For petroleum-impacted sites, the Water Board provides a case closure letter as part of the case closure summary report.

Public Participation – The Water Board will provide opportunities for public participation in the oversight process so that the public is informed and has the opportunity to comment. The level of effort is tailored to site-specific conditions, depending on site complexity and public interest. The level of public participation effort at a particular site is based on the potential threat to human health, water quality, and the environment; the degree of public concern or interest in site cleanup; and any environmental justice factors associated with the site.

Electronic Data Reporting – The State Water Board maintains a web-based geographic information system (GIS) program that provides the public and regulators with online access to environmental data. The State Water Board adopted regulations that require electronic submittal of information for groundwater cleanup programs (Title 23, CCR, Division 3, Chapter 30). For several years, parties responsible for cleanup of leaking underground fuel tanks (LUFT) have been required to submit groundwater analytical data, the surveyed locations of monitoring wells, and certain other data to the State Water Board database over the Internet. As of 2005, all groundwater cleanup programs are required to submit these items as well as a portable data format (PDF) copy of reports.

Compliance Monitoring – Monitoring reports are required periodically that describe the status of the cleanup activities and monitoring results. The Water Board will conduct site inspections to ensure the responsible party is complying with Water Board enforcement directives.

Deed Restriction - A deed restriction (land use covenant) may be required to facilitate the remediation of past environmental contamination and to protect human health and the environment by reducing the risk of exposure to residual hazardous materials. Water Code Section 13307.1 requires that deed restrictions be mandated for sites that are not cleaned up to “unrestricted use”, and that the restrictions be recorded and run with the land to prohibit sensitive uses such as homes, schools, or day care facilities. Underground storage tank (UST) sites are exempted from this requirement because of the sheer numbers and the small size of most of these sites. Site conditions are tracked in the statewide database developed by the State Water Board (Section 4.25.2.2 Electronic Data Reporting).

Liability Relief Tools – Several tools are available to municipalities, landowners, developers and responsible parties for seeking relief from contamination liability. The Polanco Act, California Land Environmental Restoration and Reuse Act, and California Land Reuse and Revitalization Act provide liability relief and help redevelopment agencies, cities and counties to guide and pursue redevelopment of Brownfield sites (Section 4.25.3.1 Brownfields).

4.25.2.3 SETTING CLEANUP LEVELS

The Water Board approves soil and groundwater clean-up levels for polluted sites. Per State Board Resolution No. 92-49, the basis for Water Board decisions regarding investigation, and cleanup and abatement includes: (1) site-specific characteristics; (2) applicable state and federal statutes and regulations; (3) applicable water quality control plans adopted by the State and Regional Water Boards, including beneficial uses, water quality objectives, and implementation plans; (4) State and Regional Water Board policies, including State Water Board Resolutions No. 68-16 (Antidegradation Policy) and No. 88-63 (Sources of Drinking Water Policy); and (5) relevant standards, criteria, and advisories adopted by other state and federal agencies.

State Water Board Resolution No. 92-49 directs the Regional Water Boards to ensure that dischargers are required to cleanup and abate the effect of discharges. This cleanup and abatement shall be done in a manner that promotes attainment of either background water quality, or the best water quality that is reasonable if background levels of water quality cannot be restored, considering all demands being made and to be made on those waters and the total values involved: beneficial and detrimental, economic and social, tangible and intangible. Any alternative cleanup levels less stringent than background shall:

  • Be consistent with maximum benefit to the people of the state;
  • Not unreasonably affect present and anticipated beneficial uses of such water; and
  • Not result in water quality less than that prescribed in the Water Quality Control Plans and Policies adopted by the State and Regional Water Boards.
GROUNDWATER CLEAN-UP LEVELS

The overall clean-up level established for a waterbody is based upon the most sensitive beneficial use identified. In all cases, the Water Board first considers high quality or naturally occurring "background" concentration objectives as the clean-up levels for polluted groundwater and the factors listed above under "Setting Cleanup Levels." For groundwaters with a beneficial use of municipal and domestic supply, cleanup levels are set no higher than:

  • MCLs or adopted SMCLs, whichever is more restrictive, or
  • A more stringent level (i.e., below MCLs) based upon a site-specific risk assessment. Clean-up levels must be set to maintain the excess upperbound lifetime cancer risk to an individual of less than 1 in 10,000 (10-4) or a cumulative toxicological effect as measured by the Hazard Index of less than one. For all sites performing risk assessments, an alternative with an excess cancer risk of 1 in 1,000,000 (10-6) or less must also be considered.

The Water Board determines excess cancer risks and the Hazard Index following the procedures described in the U.S. EPA's Risk Assessment Guidance for Superfund, Volume I, Parts A dated August 1989, B dated December 1991, and C dated December 1991, which are incorporated by reference into this plan. The Water Board may modify the U.S. EPA's approach based on OEHHA's guidelines or more current site- or pollutant-specific information.

Groundwater clean-up levels are approved on a case-by-case basis by the Water Board. The Executive Officer or a local agency may approve clean-up levels as appropriately established by the Water Board. Proposed final clean-up levels are based on a discharger-developed feasibility study of clean-up alternatives that compares effectiveness, cost, time to achieve clean-up standards, and a risk assessment to determine impacts on beneficial uses, human health, and the environment. Clean-up levels must also take into account the mobility, toxicity, and volume of pollutants. Feasibility studies of cleanup alternatives may include the guidance provided by Subpart E of the National Oil and Hazardous Substances Pollution Contingency Plan (40 CFR 300); Section 25356.1(c) of the California Health and Safety Code; CERCLA; the State Water Board's Resolutions Nos. 68-16 and 92-49; and the Water Board Resolution No. 88-160.

SOIL CLEANUP LEVELS

Soil pollution can present a health risk and a threat to water quality. The Water Board sets soil clean-up levels for the unsaturated zone based on these threats. Guidance from the U.S. EPA, DTSC, and OEHHA are considered when determining cleanup levels. Cleanup levels must be protective of human health for existing and likely future land use based on properly adopted land use designations in general plans, zoning, and other mechanisms. In addition, if it is unreasonable to cleanup soils to background concentration levels, the Water Board may:

  • Allow residual pollutants to remain in soil at concentrations such that:

    a) Any residual mobile constituents generated would not cause groundwater to exceed applicable groundwater quality objectives, and

    b) Health risks from surface or subsurface exposure are within acceptable guidelines.

  • Require follow-up groundwater monitoring to verify that groundwater is not polluted by chemicals remaining in the soil. Follow-up groundwater monitoring may not be required where residual soil pollutants are not expected to impact groundwater.
  • Require measures to ensure that soils with residual pollutants are covered and managed to minimize pollution of surface waters and/or exposure to the public.
  • Implement applicable provisions of CCR Title 27 where significant amounts of wastes remain on-site. This may include, but is not limited to, subsurface barriers, pollutant immobilization, toxicity reduction, and financial assurances.

In order for a discharger to make site-specific recommendations for soil clean-up levels above background, the fate and transport of leachate can be modeled by the discharger using site-specific factors and appropriate models. Assumptions for minimal leachate dilution, as proposed by the discharger, may be considered by the Water Board if deemed reasonable.

4.25.3 PROGRAM AREAS

Sites with identified pollution problems are managed through five program areas: (1) Spills, Leaks, Investigations, and Cleanups (SLIC) Program; (2) UST Program; (3) Landfill Program, (4) Department of Defense/Department of Energy (DoD/DoE) Program and (5) Above-ground Petroleum Storage Tank Program. Requirements for site investigation and remediation of groundwater under these programs are described in Section 4.25.2 Requirements for Site Investigation, Cleanup, and Site Closure.

4.25.3.1 SPILLS, LEAKS, INVESTIGATION, AND CLEANUP PROGRAM (SLIC)

The SLIC program focuses on unauthorized releases of pollutants to soil, surface water, and groundwater. Sites that are managed within the SLIC program include sites with pollution from recent or historical surface spills, subsurface releases (e.g., pipelines, sumps, etc.), and all other unauthorized discharges that pollute or threaten to pollute surface or groundwater. The SLIC program also includes groundwater cleanup at Brownfields, refineries, and other large industrial facilities. There is some overlap with the UST program as many SLIC cases also have leaking underground tanks.

The Water Board identified many historical releases in the 1980s. New releases are identified through discharger reports, complaints to the Water Board, the Water Board's own surveillance, “due diligence” reports for proposed property transfer or redevelopment, and local agency reports.

There are variety of different pollutants at SLIC sites, including chlorinated solvents, fuels and non-chlorinated solvents, SVOCs, inorganic constituents and metals, polychlorinated biphenols (PCBs), and pesticides. Persistent and mobile constituents, such as chlorinated solvents, tend to cause more serious pollution problems, while immobile constituents, such as metals, and biodegradable constituents, such as fuels, tend to be less serious. Two other factors can increase case complexity: multiple dischargers on a site (such as a current owner, past owner, and past operator) and commingled groundwater plumes, where contaminants from two or more source sites have merged. In both cases, dischargers may argue against being named in cleanup orders or may demand that other parties be named as well.

The Water Code provides authority for the Water Board to require investigation and cleanup of sites with unauthorized pollutant releases. Water Code Section 13267 allows the Water Board to require technical reports from suspected dischargers. Water Code Section 13304 authorizes the Water Board to issue “cleanup and abatement” orders requiring a discharger to cleanup and abate waste, “where the discharger has caused or permitted waste to be discharged or deposited where it is or probably will be discharged into waters of the State and creates or threatens to create a condition of pollution or nuisance.” The Water Board coined the term “site cleanup requirements” (SCRs) to describe Water Code Section 13304 orders where soil or groundwater cleanup would take many years to complete and the dischargers are cooperating.

The Water Board also complies with any requirements in the state Health and Safety Code and the federal Superfund law for authority at federal Superfund sites where the Water Board is the lead agency.

SLIC COST RECOVERY PROGRAM

Water Code Section 13304 authorizes the Regional Water Boards to recover costs for oversight of site cleanup at sites where a discharge of waste has occurred and that discharge creates, or threatens to create, a condition of pollution or nuisance. The Water Board was instrumental in establishing the State Water Board’s SLIC cost recovery program. Cost recovery was initially established in the early 1990s with the agreement of Bay Area petroleum refineries to reimburse the state for oversight of groundwater and soil remediation. Shortly thereafter the State Water Board organized a pilot program to expand the cost recovery program to other SLIC sites. During this period the legislature amended this section of the Water Code to strengthen the ability of the Regional Water Boards to recover staff oversight costs.

In 1993, the State Water Board established a unified SLIC cost recovery program. Program funding came initially from the General Fund but later switched to the State Water Board’s Cleanup and Abatement Account (revolving fund mechanism). The net cost of this program to the state is a small fraction of this amount because dischargers repay almost all of the staff oversight costs.

In general, SLIC sites should be enrolled in the SLIC cost recovery program because there is very limited program funding for oversight of non-cost recovery sites. Exceptions include de minimus sites (e.g., sites where oversight can be completed with minimal staff effort), and under special circumstances (e.g., sites with significant potential threat to human health or water quality where there are limited funds available for remedial action).

FEDERAL SITES

Superfund Sites – The federal Superfund program was created in 1980 when Congress enacted CERCLA, known as Superfund. CERCLA was amended in 1986 with the Superfund Amendments and Reauthorization Act (SARA). The Water Board is the lead regulatory oversight agency for 16 federal Superfund sites in the South Bay. The Superfund program was designed to address the most seriously contaminated hazardous waste sites in the country. The Water Board previously had a U.S. EPA grant to oversee the 16 federal Superfund sites. Currently the sites are all enrolled in the Water Board's cost recovery program and are managed similar to SLIC cases while still ensuring that U.S. EPA's requirements, as defined in the National Contingency Plan, are met. The Water Board has adopted final SCRs for all 16 sites, and all 16 sites have implemented long-term remediation projects.

RCRA Sites – Six sites originally proposed as federal Superfund sites were subsequently dropped because cleanup could be required under Resource Conservation and Recovery Act (RCRA). As with the Superfund sites, the Water Board has adopted final SCRs for all sites in compliance with RCRA requirements, and all six sites have implemented long-term remediation projects. There are also about 20 RCRA “analogous” sites. These are sites where Water Board oversight has included extra steps to assure that oversight is analogous to the state and federal RCRA requirements. The Water Board has adopted SCRs for all “analogous” sites, and most have implemented long-term remediation.

BROWNFIELDS

The Water Board is one of several agencies with a role in the Brownfield cleanup and redevelopment process. Brownfields are properties that are contaminated, or thought to be contaminated, and are underutilized due to perceived remediation costs and liability concerns. The Water Board directly oversees investigation and cleanup at Brownfield sites. Other stakeholders in the process include: local redevelopment agencies (who designate redevelopment areas and often acquire and assist in redevelop of Brownfield sites), local governments (who must approve redevelopment proposals), developers and non-profits (who make redevelopment proposals), lenders, and community members.

BROWNFIELD REGULATIONS

There are several key federal and state environmental laws that have fostered Brownfield development, as described below.

Federal Legislation

The Small Business Liability Relief and Brownfields Revitalization Act (Brownfield Law) signed into law in 2002 contains three subtitles dealing with funding and liability for assessing and cleaning up contaminated properties. Subtitle A codified and expanded U.S. EPA’s current Brownfield program by authorizing funding for assessment and cleanup of Brownfield sites. Subtitle B exempted contiguous property owners and prospective purchasers from Superfund liability, and clarified the extent of appropriate environmental inquiry for innocent landowners. “Innocent landowners” are those who hold property with contamination on it, but did not contribute to the pollution. Subtitle C authorized funding for State response programs and limited U.S. EPA’s Superfund enforcement authority at sites cleaned up under a State response program.

This law is important because it provides liability relief for innocent landowners and purchasers as long as they meet certain requirements. Many redevelopment deals have stalled previously because there was no clear-cut mechanism for providing liability relief to innocent purchasers who were willing to perform the cleanup, but unwilling to take on the long-term liability associated with the site.

State Legislation

The Polanco Redevelopment Act of 1990 (Polanco) outlines the processes for redevelopment agencies to follow when cleaning up a hazardous substance release in a redevelopment project area. It also provides immunity from liability for redevelopment agencies and subsequent property purchasers for sites cleaned up under a plan approved by the Water Board (or DTSC). The Polanco process has become a widely used tool by redevelopment agencies to guide and pursue redevelopment of Brownfields. Redevelopment agencies requesting approval of their cleanup plans under the provisions of Polanco are required to reimburse oversight costs to the agencies.

The California Land Environmental Restoration and Reuse Act of 2001 was enacted to enable cities and counties to direct or conduct investigation and remediation at Brownfield sites that are outside of redevelopment areas to help return Brownfields to productive uses. It requires Cal/EPA to provide a variety of data related to Brownfield cleanups, and to develop a set of screening values for hazardous substances commonly found at Brownfield sites. A centerpiece of the legislation was its requirement that Cal/EPA develop statewide screening levels, based on environmental screening levels developed at this Water Board (Section 4.25.2.3 Setting Cleanup Levels).

The California Land Reuse and Revitalization Act of 2004 (CLRRA) is intended to bring California into conformity with the federal statutes concerning liability relief for innocent landowners, perspective (bona fide) purchasers, and contiguous property owners in urban areas. It allows for risk-based cleanups at Brownfield sites. Participants who seek immunity must enter into an agreement with the agency that includes the preparation and implementation of a site assessment plan, and if necessary, a response plan. A certificate of completion is issued upon determining that all response actions have been completed in accordance with the agency approval process.

BROWNFIELD GRANTS AND LIABILITY RELIEF TOOLS

Brownfield Grants

The U.S. EPA provides two types of Brownfield grants to states for the purpose of promoting Brownfield redevelopment, and to local agencies and non-profits to jump-start specific Brownfield redevelopment projects. The Water Board has worked closely with several cities in the Region to encourage Brownfield site cleanup and redevelopment, including writing letters of support for project-specific U.S. EPA grants. Between 1996 and 2005, U.S. EPA has awarded Brownfield grants totaling $9 million within the Region. The City of Oakland alone has received over $2 million in grants. Other recipient jurisdictions include: Emeryville, East Palo Alto, Richmond, San Francisco, Livermore, Alameda County, Contra Costa County, San Pablo, Petaluma, San Jose, and Union City.

Cal/EPA’s Brownfield Initiative

In 2004, Cal/EPA announced a Brownfield initiative aimed at improving the way Cal/EPA agencies coordinate their regulatory activities at Brownfield sites. The initiative includes an ambitious implementation plan to:

  • Foster partnerships with Brownfield stakeholders;
  • Develop an inventory of Brownfield sites in California;
  • Provide liability relief to Brownfield owners and buyers; and
  • Pursue necessary funding and resources for Brownfield cleanup.

The initiative also directed the State Water Board, Regional Water Boards, and DTSC to complete a MOA. The MOA was signed in 2005 and contains the following elements:

  • Limit oversight to a single lead agency at any given site;
  • Establish procedures for identifying the appropriate lead agency;
  • Establish a uniform site assessment procedure to be used by both agencies;
  • Require that cleanups address the issues and concerns of both agencies;
  • Allow the lead agency to gain the advice and expertise of the other agency as appropriate;
  • Ensure ample opportunities for public input and involvement;
  • Establish target timeframes for completing investigation and cleanup; and
  • Establish regular coordinating meetings.

California State Liability Relief Tools

Several tools are available to municipalities, landowners, developers and responsible parties for seeking relief from contamination liability. Polanco, the California Land Environmental Restoration and Reuse Act, and CLLRA provide liability relief and help redevelopment agencies, cities and counties to guide and pursue redevelopment of Brownfields. Prospective purchaser agreements (PPA) are agreements to protect purchasers from being named as a discharger for pre-existing pollution. The buyer must provide something in return, such as an agreement to provide reasonable access for site cleanup and monitoring.

The Water Board may issue “comfort letters” to buyers of polluted property or owners of off-site properties affected by migrating groundwater pollution to mollify buyers or lenders about the potential liability they face. Letters to offsite owners typically promise not to enforce against them as long as they provide reasonable access. Letters to onsite buyers typically promise not to enforce against them as long as they provide reasonable access and the current responsible parties continue to perform necessary cleanup work.

4.25.3.2 UNDERGROUND STORAGE TANK PROGRAM

A UST is defined by law as "any one or combination of tanks, including pipes connected thereto, that is used for the storage of hazardous substances and that is substantially or totally beneath the surface of the ground" (certain exceptions apply). The purpose of the UST Program is to protect public health and safety and the environment from releases of petroleum and other hazardous substances from tanks. State regulations regarding underground tank construction, monitoring, repair, closure, release reporting, and corrective action are contained within CCR Title 23, Chapter 16.

Implementation of the UST Program is unique, as the Health and Safety Code Division 20, Chapters 6.7 and 6.75, gives local agencies the authority to oversee investigation and cleanup of UST leak sites. The Corrective Action regulations (CCR, Title 23, Chapter 16, Article 11) use the term "regulatory agency" in recognition of the fact that local agencies have the option to oversee site investigation and cleanup, in addition to their statutory mandate to oversee leak reporting and tank closure.

Some local agencies also provide oversight for underground fuel storage tank cases under a Local Oversight Program (LOP) contract with the State Water Board. Most oversight charges are billed to responsible parties. Some LOPs, known as Local Implementing Agencies (LIAs), have independent authority under UST laws to require investigations and cleanup. The Water Board still retains its Water Code authority to approve case closure. However, the Water Board has authorized a few local agencies to close fuel leak cases where groundwater has not been polluted, and future groundwater impacts are not expected.

Additionally, a few other local agencies have funded their own (non-LOP) oversight programs and have developed guidance documents based upon State and Regional Water Board guidance. In many areas throughout the Region the local agency has opted not to assume the lead position for fuel leak cases. Consequently, the Water Board is the lead agency for fuel leak sites in those areas.

CASE DETERMINATION

Certified Unified Permitting Agencies (CUPAs) permit and regulate UST operations including leak prevention and inspections. When a release occurs, the Water Board is generally notified of the release via a copy of an Unauthorized Release Form (URF). This form is tailored so as its notification hierarchy complies with Proposition 65 notification requirements.

If the release is fuel based, and the CUPA happens to also be an LOP agency or an agency that has an agreement with the Water Board for fuel UST cleanup oversight, it will oversee cleanup operations from that point. All of this Region’s LOP agencies are part of a CUPA. The same holds true in the case of our LIA agencies, with the exception of the Alameda County Water District (ACWD).

If the release is solvent based, the Water Board will provide oversight for cleanup. Exceptions may be found for those situations for which DTSC is the lead agency because the tank is on a site that is under DTSC lead, such as the solvent UST being located within a RCRA site, or by mutual agency agreement.

WATER BOARD LEAD UST SITES

The Water Board oversees cases for all of Contra Costa County, Marin County, and various cases within the LOP and LIA jurisdictions.

The Water Board having the lead in UST cases is the result of one or more of the following: 1) solvents or solvents commingled with fuels are the pollutant of concern; 2) the petroleum discharge is from something other than a UST under the Local Oversight Program or not necessarily under UST regulation such as sumps, spills, or agricultural tanks; 3) complex technical or policy issues; 4) conflict of interest issues in which the local agency is the responsible party, there is inappropriate political pressure on the case, or for which the agency requests Water Board lead; 5) cases given to the Water Board as part of the Site Designation Process (AB 2061); 6) the local agency is unable, unwilling, and/or unavailable to provide proper oversight; 7) part of the site is within a larger facility currently under Water Board oversight; and 8) historical precedent.

Local Oversight Program (LOP) Agencies

Although the LOP agency contracts with the State Water Board, the Water Board provides technical guidance and enforcement support as needed. Upon determination by the LOP agency that a case is ready for closure, the LOP agency submits a closure package to Water Board for review. If the Water Board concurs or fails to act within 30 days, the closure is deemed approved and the LOP agency issues the closure letter.

The following agencies are LOPs in the Region, as of 2005:

  • Alameda County Health Care Services, Department of Environmental Health
  • Napa County Department of Environmental Management
  • San Francisco Department of Public Health, Bureau of Environmental Health Management
  • San Mateo County Department of Health Services, Office of Environmental Health
  • Santa Clara County Department of Environmental Health
  • Solano County Department of Environmental Management
  • Sonoma County Department of Health Services, Environmental Health Division

Local Implementing Agencies (LIAs)

The Water Board provides technical and enforcement assistance to the LIAs, as necessary. However, these agencies essentially perform the same technical oversight duties (report requests, report review, etc.) that the Water Board would be expected to perform when overseeing case cleanups.

As part of this Region’s case closure protocol with the LIA agencies, the Water Board reviews the LIA’s case closure recommendation and case closure summary package (although in some cases the Water Board may prepare the summary package for the agency). If the Water Board concurs with the agency’s recommendation, the Water Board issues the closure letter.

The following agencies are LIAs in the Region, as of 2005:

  • Alameda County Water District
  • City of Berkeley Toxics Management Program
  • City of Hayward Fire Department
  • City of San Leandro

UST PROGRAM BACKGROUND

In 1995, the State Water Board commissioned the Lawrence Livermore National Laboratory (LLNL) and the University of California to conduct a review of the regulatory framework and cleanup process applied to LUFTs. The study titled, “Recommendations to Improve the Cleanup Process for California’s Leaking Underground Fuel Tanks (LUFTs)” concluded that fuel hydrocarbons have limited impact on human health, the environment, or California's groundwater resources, and recommended applying a modified ASTM risk-based corrective action (RBCA) process for closing leaking UST sites (ASTM E1739-95, 2002). A risk-based approach to leaking UST cleanups has been widely applied following this recommendation.

In the mid 1990's, methyl tert-butyl ether (MtBE) was recognized as a major threat to groundwater resources. MtBE had been added to gasoline sold in California since 1979 until January 1, 2004, first as an octane booster, and later as an oxygenate comprising up to 11 percent by volume. MtBE prioritization guidelines were developed based on a risk-based approach, and the expedited site assessment has been used to cleanup high threat MtBE sites (Expedited Site Assessment Tools for UST Sites (EPA 510-B-97-001, 1997)).

In 1998, the State Water Board commissioned LLNL to study the impacts of MtBE on groundwater in California. LLNL concluded that MtBE is a frequent and widespread contaminant in shallow groundwater throughout California and that MtBE plumes are more mobile than benzene, toluene, ethylbenzene, and xylenes (BTEX) plumes (An Evaluation of MTBE Impacts to California Groundwater Resources, 1998). Guidelines were developed by the State Water Board for investigation and cleanup of MtBE and other ether-based oxygenates (Guidelines for Investigation and Cleanup of MtBE and Other Ether-Based Oxygenates, 2001).

Since 1998 several studies have been conducted that evaluated the occurrence of MtBE releases at UST sites. These studies indicated that effectiveness of the existing UST leak detection systems has been limited, and that MtBE has impacted the majority of the UST sites (Report on MtBE Monitoring at Operating UST Facilities in Santa Clara County, 2004).

UST CLEANUP FUND

Federal and state laws require every owner and operator of a petroleum UST to maintain financial responsibility to pay for any damages arising from their tank operations. The Barry Keene Underground Storage Tank Cleanup Fund Act of 1989 (Cleanup Fund) was created by the California Legislature, and is administered by the State Water Board, to provide a means for petroleum UST owners and operators to meet the federal and state requirements. The Cleanup Fund also assists a large number of small businesses and individuals by providing reimbursement for unexpected and catastrophic expenses associated with the cleanup of leaking petroleum USTs.

If a leak occurs, responsible parties or their representative must notify the appropriate Water Board or county agency and submit an unauthorized release form (URF). The Cleanup Fund can only reimburse costs after the site investigation and cleanup of the tank release has been reported to the Water Board or county regulatory agency.

4.25.3.3 LANDFILL PROGRAM

Discharges of solid, semisolid, and liquid wastes to landfills, waste piles, surface impoundments, and land treatment facilities can create sources of pollution affecting the quality of waters of the state. Low-concentration liquid waste discharges can be assimilated by receiving waters, if the concentration of pollutants in the waste is regulated (i.e., treated wastewater from municipal or industrial facilities). Conversely, discharges of wastes to waste management units require long-term containment or active treatment in order to prevent waste or waste constituents from migrating to and impairing the beneficial uses of waters of the state. Pollutants from such discharges may continue to affect water quality long after the discharger has stopped discharging new wastes at a site, either because of undetermined releases from the site or because pollutants from the site have accumulated in underlying soils and are migrating to groundwater.

Landfills for disposal of municipal or industrial solid waste (solid waste disposal sites) are the major categories of waste management units located in the Region. The Water Board issues WDRs to ensure that these discharges are properly contained to protect the Region's water resources from degradation and to ensure that the dischargers undertake effective monitoring to verify continued compliance with requirements.

These discharges, and the waste management units at which the wastes are discharged, are subject to concurrent regulation by other state and local agencies responsible for land-use planning, solid waste management, and hazardous waste management. Local enforcement agencies (LEAs) implement the state's solid waste management laws and local ordinances governing the siting, design, and operation of solid waste disposal facilities (usually landfills) with the concurrence of the California Integrated Waste Management Board (CIWMB). The CIWMB also has direct responsibility for review and approval of plans for closure and post-closure maintenance of solid waste landfills. DTSC issues permits for all hazardous waste. The State Water Board, Regional Water Boards, the CIWMB, and DTSC have entered into a Memorandum of Understanding to coordinate their respective roles in the concurrent regulation of these discharges.

Oversight costs for sites in the landfill program at the Water Board and CIWMB are primarily funded through waste discharge permit fees and landfill waste tipping fees.

The Water Board regulates landfills receiving municipal solid wastes (MSW) and facilities receiving classified, nonhazardous, and industrial wastes of various types. Figure 4-6 shows the active and inactive municipal solid waste landfill sites within the Region as of 2005. The Water Board regulates these sites closely, but the required monitoring has revealed water quality problems at some sites that the respective owners or operators are addressing through appropriate remedial measures. As a result of federal laws in the area of hazardous waste regulation, more effort is being devoted to regulation of the onsite treatment, storage, and disposal of hazardous waste.

WASTE REGULATIONS

In 1997, the State revised and strengthened the laws and regulations governing the discharges of both hazardous and nonhazardous solid waste. The primary purpose of the regulations is to: 1) assure the protection of human health and the environment, 2) ensure waste is properly contained or cleaned-up as appropriate, and 3) protect surface water and groundwater from the discharge of waste to land. The primary regulation used by the Water Board in regulating nonhazardous waste treatment, storage, and disposal is the combined State Water Board and CIWMB regulations contained in CCR Title 27, Division 2 of the Solid Waste Regulations, formerly CCR Title 23, Division 3, Chapter 15. Title 27 includes very specific siting, construction, monitoring, and closure requirements for all existing and new nonhazardous waste treatment, storage, and disposal facilities. Title 27 also contains a provision requiring operators to provide assurances of financial responsibility for: landfill closure activities; post closure monitoring and maintenance; and corrective action for landfill releases. Title 27 establishes detailed technical criteria for establishing water quality protection standards, monitoring programs, and corrective action programs for releases from waste management units.

Title 27 defines three types of nonhazardous waste: 1) designated wastes; 2) nonhazardous solid waste; and 3) inert waste, as described below.

Unlike other waste classifications, designated waste is defined in Water Code Section 13173 (and in Title 27) as follows:

"Designated waste,” means either of the following:

  1. Hazardous waste that has been granted a variance from hazardous waste management requirements pursuant to Section 25143 of the Health and Safety Code.
  2. Nonhazardous waste that consists of, or contains, pollutants that, under ambient environmental conditions at a waste management unit, could be released in concentrations exceeding applicable water quality objectives or that could reasonably be expected to affect beneficial uses of the waters of the state as contained in the appropriate state water quality control plan.

Title 27 Section 20220 defines nonhazardous solid waste as waste normally associated with domestic, agricultural, and commercial activities. In addition to the regulations under Title 27, landfills that receive nonhazardous solid waste are subject to the State Water Board’s special regulations for municipal solid waste landfills (State Water Board Resolution No. 93-62), which adapt federal municipal solid waste landfill standards to the state’s landfill regulation scheme.

Title 27 Section 20230 defines inert waste as that subset of nonhazardous solid waste that does not contain hazardous waste or soluble pollutants at concentrations in excess of applicable water quality objectives, and does not contain significant quantities of decomposable waste. The Water Board regulates inert waste landfills outside of its Title 27 authority and only to the extent necessary to protect water quality from siltation and other indirect effects.

The Water Board regulates discharges of designated waste and nonhazardous solid waste pursuant to the regulations in Title 27; regulates discharges of municipal solid waste pursuant to both the Title 27 regulations and State Water Board Resolution No. 93-62; and regulates discharges of inert wastes only as necessary to protect water quality (e.g., to prevent sediment discharges to surface waters or to assure that such relatively unregulated units receive only inert waste).

Hazardous waste is defined by DTSC in CCR Title 22, Division 4.5, Chapter 11. Disposal of hazardous waste and hazardous waste sites located in the Region are regulated by DTSC.

The Water Board has been regulating nonhazardous solid waste facilities since the mid-1970's, and in some instances since to the early 1950's. Many of the small, older facilities have closed, and waste is now being disposed of at large regional nonhazardous solid waste facilities. The Water Board reviews and revises WDRs at active nonhazardous waste sites, and at closed sites, and assures consistency with the current regulations. These actions include defining the levels of designated wastes (see below), requiring the discharger to establish and operate groundwater monitoring systems capable of identifying whether water quality objectives are being violated, establishing corrective evaluation monitoring (investigation) and corrective action programs where standards are violated, and reviewing and overseeing the development and implementation of facility closure plans. Active landfills are also subject to construction and industrial stormwater NPDES permit requirements (Section 4.14 Urban Runoff Management).

To implement Title 27 at nonhazardous solid waste facilities, the Water Board must define designated wastes. Many wastes which are not hazardous still contain constituents of water quality concern that could become soluble in a nonhazardous solid waste facility and produce leachates and gases that could pose a threat to beneficial uses of state waters. Furthermore, a waste (e.g., salty solids) that might be a designated waste at a landfill that overlies potable water would not be a designated waste at one that overlies groundwater with non-potable water at comparable concentrations (i.e., salty solids are not a threat to salty groundwater).

The criteria for determining if a nonhazardous waste is a designated waste are based on water quality objectives in the vicinity of the site, the containment features of the solid waste facility, and the solubility/mobility of the waste constituents. Therefore, all owners and operators of active nonhazardous municipal solid waste facilities in the Region who wish to receive wastes other than municipal solid waste or inert wastes must propose waste constituent concentration criteria above which wastes will be considered designated waste and therefore, not suitable for disposal at their site. In determining whether a nonhazardous waste is designated waste, the Water Board will consider all relevant and scientifically valid evidence, including relevant and scientifically valid numerical criteria and guidelines developed and/or published by other sources, such as the Central Valley Water Board's report, "Designated Level Methodology for Waste Classification and Cleanup Level Determination," or an equivalent methodology acceptable to the Executive Officer.

RESOURCE CONSERVATION AND RECOVERY ACT (RCRA)

The state implements federally authorized regulations that are equivalent to those promulgated by the U.S. EPA under Subtitle C of RCRA -- Hazardous Waste Regulations for Treatment, Storage, and Disposal. In 1992, U.S. EPA formally delegated RCRA Subtitle C program implementation authority to DTSC. As described above, regulation of hazardous waste discharges is also included in CCR Title 23, Chapter 15. Chapter 15 monitoring requirements were amended in 1997 to be equivalent to RCRA requirements in regard to the discharge of hazardous waste to land.

The U.S. EPA promulgated federal regulations, as required by Subtitle D of the federal RCRA statute, applicable to municipal solid waste landfills (40 CFR 257 and 258). These regulations are self-implementing. The CIWMB and the State Water Board are jointly responsible for implementing the state program, which the U.S. EPA has approved as being equivalent. The Regional Water Boards implement the water quality aspects of the state program. The LEAs and the CIWMB implement the public health and safety aspects of the state program.

TOXIC PITS CLEANUP ACT

The Toxic Pits Cleanup Act of 1984 (TPCA) required that all impoundments containing liquid hazardous wastes or free liquids containing hazardous waste be retrofitted with a liner/leachate collection system or be dried out by July 1, 1988, and subsequently closed. In 1985, there were 26 sites in the Region with ponds subject to TPCA. As of 2005, one site is permitted to operate its ponds under TPCA's exemption requirement but is not accepting waste and is seeking closure. The remaining 25 sites have been closed.

BAYFRONT LANDFILL EXPANSIONS INTO WETLANDS

A significant issue that the Water Board has addressed is the expansion of existing Bayfront landfills into wetland areas. The Water Board, in a few cases, allowed modest expansions (and undesirable loss of wetlands) to allow local governments time to develop other disposal options. However, these expansions were only approved because there was a demonstrated immediate public need. One expansion permit was appealed to the State Water Board, which clearly indicated that the Water Board should disapprove future such expansions into wetlands, and that local governments must complete the necessary planning to avoid this problem. Given the State Water Board’s position and the wetland provisions contained elsewhere in this Basin Plan, the Water Board will not approve further expansions of Bayfront landfills into wetlands.

4.25.3.4 DEPARTMENT OF DEFENSE AND DEPARTMENT OF ENERGY PROGRAM

The goal of the DoD/DoE program is the investigation and cleanup of pollution at federal military sites. DoD sites include active and inactive military bases and formerly utilized defense (FUDs) sites. DoE sites include active federal energy agency sites. DoD and DoE sites in the Region as of 2005 are shown on Figure 4-7. An adjunct to cleanup, particularly with respect to DoD sites, is the return of these sites to productive, civilian use.

Investigation and cleanup at these sites follows the CERCLA process. For DoD sites, the DoD has elected to follow the CERCLA process even if the sites are not listed as “Superfund” sites. This process follows a rigorous sequence of document preparation and agency approvals including completion of the formal Preliminary Assessment, Site Investigation, Remedial Investigation, and Feasibility Study, all leading to a Record of Decision (ROD) on an acceptable Remedial Action Plan (RAP).

Groundwater cleanup must also adhere to the requirements of the Basin Plan and existing state law (the Water Code), relevant regulations (e.g., Title 27; Title 23, Chapter 16, etc.), and policies set forth by State Water Board Resolution Nos. 68-16, 88-63, and 92-49.

Under the Base Realignment and Closure Act of 1990 (amended 2005), the DoD has been conducting environmental investigation and cleanup at each of these sites with oversight from the Water Board and other agencies. There is considerable state and federal interest in moving these latter types of DoD sites into economically productive uses, in part to offset the negative economic impact of base closures on the local community or to invigorate the often depressed economies of local communities located near these sites. Progress has been slow in many cases due to competition for limited DoD cleanup funds, the complexities of the sites themselves, and uncertainty about the planned reuse. Cities have recently been pursuing “early transfers” that allow them to receive the military property prior to completion of cleanup. Local governments have contracted with developers and environmental firms to perform an integrated cleanup and redevelopment.

Closed military bases that are transferred to a local entity before the cleanup is complete may be subject to a land use covenant (LUC) issued by the Water Board to ensure the site cleanup is completed. The Water Board may issue SCRs per Water Code Section 13304 to allow investigation and cleanup after the military property is transferred. For additional regulatory tools, see Section 4.25.2 Requirements for Site Investigation, Cleanup, and Site Closure.

For the DoE program, all of the sites currently within the Region are active and are not expected to fall within public hands for the foreseeable future. Cleanup is ongoing at these sites. Contamination generally consists of discharges of solvents, petroleum hydrocarbons, PCBs, and/or metals to both soil and groundwater. In some cases, radionuclides have also been released. DoE has regulatory authority over radionuclide discharges, although the Water Board provides input into the investigation and cleanup activities related to them.

Federal funding for both the DoD and DoE programs covers all costs associated with Water Board and State Water Board staff oversight. The state signed a Cooperative Agreement with the Department of Defense (Defense-State Memorandum of Agreement, DSMOA)). In the Cooperative Agreement, DTSC acts as the state’s agent. Both the State Water Board and the Regional Water Boards coordinate with DTSC to allocate agency responsibility and funding and establish procedures under which site investigation and cleanup will proceed, decisions will be made, and disputes will be resolved. For the DoE program, a grant has been established which describes and funds Water Board oversight at DoE sites.

4.25.3.5 ABOVEGROUND PETROLEUM STORAGE ACT

The state's Aboveground Petroleum Storage Act was enacted in 1989 and amended in 1991. The Act became effective on January 1, 1990.

The purpose of this Act is to protect the public and the environment from the serious threat of spillage of millions of gallons of petroleum-derived chemicals stored in thousands of aboveground storage tanks. The Act requires that the Water Board inspect aboveground petroleum storage tanks used for crude oil and its fractions for their compliance with the federally required Spill Prevention, Control, and Countermeasure Plan (SPCCP). In the event that a release occurs that threatens surface or groundwater, the Act allows the state to recover reasonable costs incurred in the oversight and regulation of the cleanup. The Water Board oversees sites where releases from aboveground storage tanks have impacted groundwater under the SLIC cost recovery program.

4.25.4 GROUNDWATER PROTECTION STUDIES

The intimate ties among the land, surface water, groundwater, the Estuary, and human activity must be acknowledged in order to promote wise, balanced, and sustainable use of water resources. In this regard, the Water Board will encourage planning and management by supplying tools and information that will provide an integrated environmental management approach to problem solving. It also must be recognized that groundwater quality and quantity are inextricably linked. Because an informed and involved citizenry is crucial to realizing groundwater protection, policies and plans should encourage and promote research, education, and public involvement as an integral part of any protection program.

4.25.4.1 GROUNDWATER PROTECTION AND BENEFICIAL USE STUDIES

Water Board staff, with contributions from local agencies, evaluated existing groundwater protection programs and beneficial uses of groundwater in the Napa River Watershed (1996), San Francisco and Northern San Mateo Counties (1996), East Bay Plain, Alameda and Contra Costa Counties (1999), and South San Francisco Bay Basin, Alameda, San Mateo, and Santa Clara Counties (2003). Extensive research was conducted and numerous references were compiled to prepare these groundwater studies. In general, each study included the following goals:

  • Describe the hydrogeology and groundwater use for the groundwater basins;
  • Identify major threats to groundwater and groundwater protection programs;
  • Identify locations where groundwater is vulnerable to contamination;
  • Identify locations where groundwater monitoring is needed;
  • Use GIS to compile complex data sets to use as a decision-making tool for groundwater protection;
  • Refine beneficial use designations for some groundwater basins;
  • Identify inactive well locations;
  • Describe groundwater extraction for municipal, agricultural, and industrial water supply;
  • Summarize statewide initiatives for groundwater protection and data sharing; and
  • Evaluate special problem areas that are typically not addressed by groundwater protection programs.

The results of these groundwater protection studies identified several key groundwater protection issues that are summarized in Section 4.26 Emerging Program Areas. The reports are available at the Water Board website.

4.25.4.2 STATE WATER BOARD GROUNDWATER PROTECTION PLANNING CONTRACT

At the Water Board's request, the State Water Board funded a contract with the University of California at Berkeley to develop a regional groundwater protection plan. The project focused on several significant groundwater basins: Santa Clara Valley, Niles Cone, Livermore Valley, San Mateo Plain, and Half Moon Bay Terrace (Table 2-2). The vulnerability to pollution of each of the basins was determined using the U.S. EPA's DRASTIC Index Method (U.S. EPA Project No. 600/2-87-035, April 1987) on a GIS. The project was completed in 1994 by the Center for Environmental Design Research, University of California at Berkeley.

4.25.4.3 INTEGRATED ENVIRONMENTAL MANAGEMENT PROJECT

In 1987, the U.S. EPA completed the Integrated Environmental Management Plan (IEMP). This innovative study conducted in Santa Clara County sought to improve public health and environmental protection by integrating approaches for hazardous material management for land, air, and water. The IEMP's Drinking Water Subcommittee developed recommendations to address the question “How clean is clean?” The committee wrote, ".... because contamination and clean-up impacts vary significantly in different sites and different hydrogeologic zones, the Water Board should continue to develop and standardize a process for clean-up decision making, rather than establish across-the-board clean-up levels." The recommendations from this study were applied to developing site-specific cleanup levels.

4.25.4.4 GROUNDWATER RESOURCE STUDY

A basin-wide approach for implementing and prioritizing groundwater cleanup was recommended in a series of reports titled "San Francisco Bay Region Groundwater Resource Study" (1987). The reports were a cooperative effort by the Water Board and the University of California at Berkeley, School of Public Health, and Department of Landscape Architecture. The ten volume series covered eight high priority groundwater basins: Niles Cone, Livermore and Sunol Valley, Ygnacio/Pittsburg/Clayton/San Ramon Basins, Suisun/Fairfield Basin, Napa Valley, Sonoma Valley, and San Mateo Basin. The Water Board used the results of this study to prioritize its workload in addressing polluted sites.

4.25.4.5 SHALLOW DRAINAGE WELLS

The California Water Code, Section 13710, defines the term "well" or "water well" to mean any artificial excavation constructed by any method for the purpose of extracting water from, or injecting water into, the underground. The definition does not include (a) oil, gas, and geothermal wells, or (b) construction dewatering wells and hillside stabilization dewatering wells. Therefore, all shallow drainage wells (also known as dry wells, infiltration basins, and shallow injection wells) used for the purpose of disposing of stormwater or surface runoff are covered under this definition. The purpose of this Basin Plan section is to clarify the Water Board's position in regard to the construction, usage, and regulatory permitting aspects of shallow drainage wells.

In 1951, the Water Board adopted Resolution No. 81, "Statement of Policy on Sewer and Drainage Wells", which is incorporated by reference into this plan. This resolution states that the Water Board disapproves of the construction and use of wells for disposal of effluent from septic tanks and surface runoff from streets and highways except where such wells discharge into a formation that at no time will contain groundwater fit for domestic, agricultural, or industrial use. At the same time, the Water Board recognized that these wells already existed in the Region and that immediate abandonment may be impractical. Therefore no new installations were to be permitted, more satisfactory drainage methods were to be substituted for existing installations at the earliest practicable date, and the Water Board was to consider the matter of prescribing requirements for the discharge in granting any exceptions to the prohibition. After review of Water Board files, it does not appear as if any exceptions to the resolution were officially granted.

The Federal Underground Injection Control Program was established in 1984 with the adoption of the Safe Drinking Water Act. In California, the U. S. EPA is the lead agency in charge of administering the program. Under this program, wells used to dispose of surface water runoff are classified as Class V injection wells. The owner or operator of any existing Class V well is required to submit information on each well, including the nature and type of discharge and operating status. U.S. EPA is conducting a well inventory statewide to identify Class V wells.

There are a number of applicable state regulations pertaining to the construction and use of shallow drainage wells. AB2182 (Chapter 1131, Section 4458) of the California Health and Safety Code, passed in 1961, prohibits the use of drainage wells for the disposal of sewer water unless authorized by the Water Board. The Water Code (Chapter 10, Sections 13700 – 13806) defines the terms "well" and "water well" and states that any person who intends to dig, bore, or drill such a well must file a notice of intent with DWR or the designated local enforcement agency. A detailed report of completion must then be filed after construction. If the Water Board finds that standards of water well construction, maintenance, abandonment, and destruction are needed in any area to protect beneficial uses of groundwater, it shall determine the area to be involved and so report to each affected county and city in the area. Each such affected county shall, within 120 days of receipt of the report, adopt an ordinance establishing standards of water well construction, maintenance, abandonment, and destruction for the designated area. To date, standards and siting criteria for shallow drainage wells are non-existent in the Region and subsequently not included in the well-permitting process.

The Water Board issues NPDES permits for stormwater discharges to surface water for certain industrial and construction activities and to the larger municipalities in the Region (Section 4.14 Urban Runoff Management). The permits require the implementation of control measures to reduce pollutant loading, along with water quality monitoring to assure that the waters being discharged will not impact the beneficial uses of receiving waters. The discharge of industrial waste into the sanitary sewer system is now closely regulated under a pretreatment program. Likewise, the discharge of stormwater to the subsurface must also be regulated to assure the protection of groundwater supplies. Standards for shallow drainage well construction, maintenance, abandonment, destruction and siting criteria are needed throughout the Region. Land-use decisions, such as stormwater structural controls and well construction permitting, are most often made by local government agencies, including water districts, planning, and building departments. Many of these agencies are not aware of the Water Board's Resolution No. 81, or the rationale behind it.

GOAL

The goal of the Shallow Drainage Program is to eliminate the unregulated construction and use of shallow drainage wells in areas where municipal, domestic, agricultural, and industrial groundwater supplies are threatened.

This goal is to be attained by a coordinated effort on the part of U.S. EPA, the Water Board, DWR, and local government agencies to implement a shallow drainage well control program.

PROGRAM

The Water Board prohibits the unauthorized construction and use of shallow drainage wells. The shallow drainage well control program shall consist of two main elements: 1) locating existing wells; and 2) regulating the construction and use of existing and new wells.

1.Locating existing wells
U.S. EPA, the Water Board, and local government agencies will need to work together to identify all existing shallow drainage wells.
2.Regulating existing wells and new wells
Continued use of existing wells or construction of new wells may be authorized by a local enforcing agency through its well-permitting process. The Water Board will work with DWR and each city, county, and local water supply and flood control agency on developing standards for adoption by ordinance for the construction, maintenance, abandonment, and destruction of shallow drainage wells. Additionally, it must be demonstrated that the use of the well will not result in a discharge that may pose a threat to municipal, domestic, agricultural, and industrial groundwater supplies. If this cannot be adequately demonstrated, the well must be permanently closed. Closure of each well must be done in compliance with U.S. EPA Class V injection well closure guidelines and applicable local agency guidelines or regulations.

4.26 EMERGING PROGRAM AREAS

There are several aspects of protecting beneficial uses associated with aquatic systems and groundwater protection that have emerged as critical issues in recent years. This section presents a prospective view of emerging program areas that have increasingly become the focus of Water Board activity. Each involves both an integration of approaches used in current Water Board programs as well as innovative solutions.

4.26.1 WETLAND RESTORATION

As documented in the Habitat Goals reports, a large percentage of historic tidal marsh and mudflats around the Estuary have been diked, drained, and/or filled to serve various human purposes. Current planning efforts by multiple agencies recognize the importance of restoring wetland functions to the Estuary to protect and enhance beneficial uses. The Estuary Project’s Comprehensive Conservation and Management Plan (June 1994) proposes several goals for wetland management in the Estuary, and recommends large-scale restoration of salt ponds and other former wetlands in order to support sustainable populations of fish and wildlife as well as other benefits associated with wetlands. The Habitat Goals reports provide guidance to the Water Board and indicates where wetland restoration potential exists around the Estuary.

The Water Board participates in a number of wetland restoration projects in the Region, both in a regulatory role regarding proposed wetland fill and/or discharges, and in the role of an interested party or stakeholder, recognizing the multiple benefits of wetland restoration for water quality and beneficial uses. Major restoration projects underway include former salt ponds adjacent to South San Francisco Bay and San Pablo Bay, former DoD sites such as Hamilton Field in Marin County, and the Bair Island Ecological Reserve in South San Francisco Bay. While these projects are expected to have a positive impact on water quality and beneficial uses, certain challenges must be addressed, such as minimizing uptake of mercury into the food web, meeting water quality objectives for salinity and dissolved oxygen in discharges from ponds (impounded bay waters), protecting existing tidal mudflats, and controlling harmful invasive species such as Spartina alterniflora cordgrass and its hybrids.

4.26.2 DESALINATION

San Francisco Bay has only recently been identified as a potential drinking water source, and this has become an emerging program area for the Water Board. Producing drinking water from saltwater results in a concentrated brine stream that must be managed to protect water quality. In the late 1990s, some water supply agencies in the Region began investigating the feasibility of producing drinking water from the Estuary using desalination technology. As of 2005, several sites are being screened for potential desalination facilities by various agencies, and in 2005 the Water Board issued an NPDES permit to one pilot plant for the Marin Municipal Water District in the City of San Rafael.

Desalination plants are in operation throughout the world, with facilities most common in the Middle East, the Caribbean and Florida. To date, only a limited number of desalination plants have been built along the California coast, primarily because the cost of desalination is generally higher than the costs of other water supply alternatives available in California (e.g., water transfers and groundwater pumping). However, as drought conditions occur and concern over water availability increases, desalination projects are being proposed at numerous locations in the state.

Desalination plants produce liquid wastes that may contain all or some of the following constituents: high salt concentrations, chemicals used to clean plant equipment and used during pretreatment, and toxic metals (which are most likely to be present if the discharge water was in contact with metallic materials used in construction of the plant facilities). Potential alternatives for disposal of liquid waste include discharge into waters of the state, combination with other discharges (e.g., power plant cooling water or sewage treatment plant effluent) before discharge, discharge into a sewer for treatment in a sewage treatment plant, or drying and disposal in a landfill. Desalination plants also produce a small amount of solid waste (e.g., spent pretreatment filters and solid particles that are filtered out in the pretreatment process).

If water supply agencies implement desalination to augment supplies along with waste management practices that protect beneficial uses, the Water Board will consider amending the Basin Plan to designate the municipal and domestic supply (MUN) beneficial use for applicable marine or estuarine areas of the Region.

4.26.3 EMERGING TOXIC POLLUTANTS OF CONCERN

As noted in Section 4.1.2.1 Numeric Water Quality Objectives, Wasteload Allocations, there are pollutants of local concern for which water quality objectives have not been developed and adopted. Both regulatory and research surveillance programs periodically detect pollutants that are persisting in the aquatic environment, which may or may not have published guidelines for protecting beneficial uses. Such pollutants may be inducing toxicity or exhibiting bioaccumulation in the food web. The Regional Monitoring Program for the San Francisco Bay, described in Section 6.1 Regional Monitoring Program, includes studies to anticipate potential water quality problems by identifying previously unmonitored and/or unknown pollutants. It is through such efforts that the potential pollutant problems of the future can be identified and addressed before they become environmentally and economically costly “legacy” pollutants, such as mercury, PCBs, and chlorinated pesticides such as dichloro-diphenyl-trichloroethane (DDT). Absent regulatory objectives or published guidelines, the Water Board will encourage source identification and control of pollutants found in the Region’s waters that exhibit characteristics of concern, such as detectable and/or increasing levels in tissues of the Estuary’s organisms, as in the case of polybrominated diphenyl ethers (PBDEs). The Water Board will establish water quality objectives for selected pollutants as the necessary technical information becomes available.

Groundwater quality has been impacted by several emerging contaminants and by previously known contaminants that have undergone increased regulatory concern. Emerging contaminants, including N-nitrosodimethylamine (NDMA), disinfection byproducts such as trihalomethanes, haloacetic acids, bromate, and chlorite, endocrine disruptors, and pharmaceutically active compounds, may be present in sanitary wastewater, recycled water, imported water, and any other water source that receives sanitary wastewater. Emerging contaminants may pose a threat to groundwater quality when such waters are used for artificial recharge or are otherwise intentionally infiltrated. Other contaminants of concern affecting groundwater quality that are of concern include nitrate, total dissolved solids, perchlorate, solvent stabilizers (such as 1,4-dioxane), arsenic, and hexavalent chromium.

4.26.4 GROUNDWATER PROTECTION ISSUES

Groundwater protection studies conducted by Water Board staff identified several key groundwater protection issues and are summarized below.

4.26.4.1 VERTICAL CONDUITS

Vertical conduits can provide pathways for the migration of surface pollution or shallow groundwater pollution into deeper water bearing zones. Pollutants that enter groundwater through vertical conduits circumvent the natural migration process, which protects groundwater by filtering and other natural attenuation processes. Numerous agricultural and domestic wells installed in the Region have been abandoned or covered by subsequent development. Identification and proper destruction of these potential conduits is critical to include in any groundwater protection program.

4.26.4.2 HORIZONTAL CONDUITS/SANITARY SEWER LEAKS TO GROUNDWATER

Horizontal conduits also serve to spread contamination by providing preferential pathways for migration of contaminants and contaminated groundwater. Storm drain systems and their construction backfill can be significant pathways for migration of contaminated shallow groundwater to water bodies where the storm drains discharge. Similar protocols should be followed for investigating horizontal conduits as for vertical conduits. A horizontal conduit study should be conducted at all sites where releases of toxic or hazardous materials are documented and before development or new construction begins at sites where toxic or hazardous materials have been used or stored. This is particularly important at or near dry cleaners or other operations where chlorinated solvents have been used.

Sanitary sewer lines may also allow pollutants to migrate to groundwater. Exfiltration is leakage from sanitary sewer lines into the subsurface and, in most cases, into surrounding groundwater. This phenomenon usually occurs in areas where the water table is below the sewer line. Leaking sewer lines can introduce pathogens into surrounding groundwater. Of more significance are chemicals transported in sewer lines that are released and migrate to and affect both shallow and deeper aquifers. The most significant historical impacts of leaking sewer lines are often associated with dry cleaning operations and the use of chlorinated solvents in electronics industries, such as wafer fabricators, plating shops, and printed circuit board shops.

4.26.4.3 GROUNDWATER SURFACE WATER INTERACTIONS

Nearly all surface water features (streams, lakes, reservoirs, wetlands, and estuaries) interact with groundwater. Several issues have been identified that simultaneously affect the quality and quantity of surface water and groundwater due to the dynamic relationship between the two. The effects of these issues on water quality and quantity must be understood in order to develop effective water resource management strategies. These issues include the effect of surface water diversion and groundwater withdrawal on creek and riparian habitat, water quality, surface water infiltration to groundwater (e.g., recharge and stormwater infiltration), groundwater discharge to surface water (e.g., plume discharges), and changing land use (as it affects runoff and recharge).

4.26.4.4 SALTWATER INTRUSION

Saltwater from San Francisco Bay and adjacent salt ponds has intruded freshwater-bearing aquifers in the Niles Cone, Santa Clara Valley, and San Mateo Plain basins. In both the Niles Cone and Santa Clara Valley basins, local agencies have implemented measures to prevent saltwater intrusion. The threat of saltwater intrusion in the Niles Cone is primarily due to the basin’s proximity to San Francisco Bay and the large system of salt ponds that operate along the Bay’s margin. In Santa Clara County, land subsidence, resulting from historical pumping that lowered the water table, has caused the lower reaches of streams and rivers to be invaded by saline tidal waters, increasing salinity in shallow groundwater. Land subsidence is no long occurring in Santa Clara Valley.

4.26.4.5 TRACKING INSTITUTIONAL CONTROLS

Due to the difficulty of accomplishing rapid cleanup at most sites, it is usually necessary to manage site contamination to avoid or minimize exposure pending attainment of cleanup standards. Risk management measures include engineering controls (such as slurry walls or engineered caps) and institutional controls (such as notifications to site occupants or deed restrictions prohibiting sensitive land uses). Because risk management measures usually need to remain effective for many years, their effective implementation needs to be tracked and enforced. At issue is how best to do this. The solution will involve some combination of oversight by the Water Board or other cleanup oversight agency, the local permitting agency, and the discharger.

4.26.5 SEDIMENT

Sediments in the larger Estuary are both sources and sinks of pollutants. Under the Bay Protection and Toxic Cleanup Program in 1999, The Water Board completed a detailed assessment of (a) the levels of pollutants in sediment throughout the Bay, and (b) the risks and benefits of cleaning or otherwise managing existing hot spots.

Pollutant transport associated with sediments is also the subject of numerous studies, many of which are supported by the Water Board. The dynamics of sediment movement, uptake of pollutants through the benthic food web, measurement of pollutant levels on suspended material, and food web models associated with TMDL projects are examples of such studies.

Finally, the environmental effects associated with the disposal or reuse of Estuary sediments have been extensively investigated within the context of the Water Board's dredging management program. As part of this effort, the Water Board has supported detailed research on developing sediment toxicity tests and sediment quality objectives.

4.26.6 NATIONAL “PORTFIELDS” INITIATIVE

The U.S. EPA, National Oceanic and Atmospheric Administration (NOAA), and a number of other federal agencies announced the “Portfields” initiative in 2003. This effort is a renewed focus on revitalizing the nation’s port communities to protect the coastal environment and restore or maintain economic vitality. Many waterfront areas have suffered as waterfront-manufacturing industries changed their interests or went abroad. Abandoned properties with perceived contamination can prevent redevelopment, and local communities lose jobs and other economic benefit. Businesses that are today seeking viable waterfront lands for manufacturing, shipping, and tourism can benefit from Portfields revitalization projects. There are significant waterfront industrial areas in the Region that have undergone redevelopment, such as the Port of Oakland and Mission Bay, and more are expected as federal agencies direct funding to Brownfield project proponents in port areas.

4.26.7 HYDROMODIFICATION

Hydromodification is a general term that encompasses effects of projects on the natural hydrologic, geochemical and physical functions of streams and wetlands that maintain or enhance water quality. Regional Water Boards use this term to describe an alteration away from a natural state of stream flows or the beds or banks of rivers, streams, or creeks, including ephemeral streams, which results in hydrogeomorphic changes. Protecting beneficial uses within the Region consistent with the federal Clean Water Act and the Porter-Cologne Act requires careful consideration of projects that result in hydrogeomorphic changes and related adverse impacts to the water quality and beneficial uses of waters of the State.

An increasing number of Water Board regulatory actions pertain to the proposed hydromodification of stream and river systems in the Region. These actions include water quality certifications or waste discharge requirements for projects that apply for Clean Water Act Section 401 Certification, total maximum daily loads (TMDLs) for sediments and nutrients in some of the Region’s streams, and requirements for municipal stormwater management programs to develop Hydromodification Management Plans. Additionally, many of the grants for clean water awarded under voter-approved bond measures and managed by Water Board staff involve restoration proposals on various components of stream systems. To ensure protection of streams through its regulatory and grant programs, and increase efficiency of the application process, Water Board staff developed a technical reference circular (Circular) in 2003, entitled, “A Primer on Stream and River Protection for the Regulator and Program Manager.” The purpose of the Circular is to help various agency staff and permit applicants recognize the linkages between water quality and the good physical conditions of stream channels. The Water Board will consider amending the water quality standards and implementation program to clarify the dependence of water quality and beneficial uses on the functions and physical characteristics of water bodies.

FIGURES

Figure 4-1: Publicly Owned Treatment Works (POTWs)

Figure 4-2: Industrial Dischargers

Figure 4-3: Urban Areas in San Francisco Bay Basin

Figure 4-4: Dredged Material Disposal Sites

Figure 4-5: Inactive Mine Sites

Figure 4-6: Municipal Solid Waste Landfill Sites in the Region

Figure 4-7: Department of Defense and Department of Energy Sites

TABLES

Table 4-1: Discharge Prohibitions

Table 4-2: Effluent Limitations for Conventional Pollutants

Table 4-2A: Effluent Limitations for Bacteriological Indicators

Table 4-3: Acute Toxicity Effluent Limits

Table 4-4: Critical Life Stage Toxicity Test Species and Protocols

Table 4-5: Conditions that Require Monthly Monitoring of Toxicity Levels

Table 4-6: Dilution Credits for Calculation of Cyanide Water Quality-based Effluent Limits for Shallow Water Dischargers

Table 4-8: Publicly Owned Treatment Works (POTWs)

Table 4-9: Major Industrial Discharge Outfalls

Table 4-10: Status of Urban Runoff Control Programs

Table 4-11: Goals of Long Term Management Strategy

Table 4-12: Potential Consequences and Impacts of Dredging and Dredged Material Disposal

Table 4-13: Long Term Management Strategy Participants

Table 4-14: Dredged Material Volume Targets

Table 4-15: Transition Volume Targets for In-Bay Disposal of Dredged Materials

Table 4-16: Inactive Mine Sites

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