Although no one is truly happy about paying a fine, happiness is relative, I suppose. UC Berkeley seems to be pleased with the relatively small magnitude of the $510,000 settlement resulting from illegal disposal of hazardous wastes in Richmond. Click here for the DTSC press release and click here for the UC letter to City of Richmond.

On the other hand, a member of the Citizen’s Advisory Committee for the cleanup project accuses DTSC’s Deputy Director for Enforcement, Gale Filter, of selective amnesia, if not incompetence. According to the CAG source, Filter has been deputy director since July 2007 and claimed he had not previously heard from the Richmond Southeast Shoreline Area Community Advisory Group, claimed he did not know about the CAG’s need for funding  and claimed he did not know the Summary(ies) of Violations were such an important issue to the community. Click here for a copy of the CAGs letter to Filter dated May 8, 2008, that discusses potential fines.

Following are:

·         Story from West County Times June 16, 2009

·         Email from UC Berkeley

·         Memo from a CAG member with excerpts from California statutes

State fining UC, Zeneca too little for hazardous waste, activists say

By Karl Fischer
West County Times

Posted: 06/16/2009 12:30:29 PM PDT

Updated: 06/17/2009 06:17:13 AM PDT

The state will fine the University of California and Zeneca Inc. more than $500,000 for failing to properly clean up hazardous waste on property near a defunct South Richmond chemical plant.

But community activists say the fine amounts to a slap on the wrist.

The announcement from the Department of Toxic Substances Control follows a 2007 finding that UC and Zeneca — owners of the contaminated property between Interstate 580 and the Bay — failed to draw permits when they illegally moved, stored and attempted to treat massive piles of toxic muck during an earlier cleanup effort overseen by the Bay Water Quality Control Board.

The state took over supervision of the project in 2005.

"We want to make the point that breaking hazardous waste laws is serious, and can result in fines of up to $25,000 per day per incident," said Carol Northrup, a spokeswoman for the agency.

Community activists don't agree that the agency has made that point.

"We believe that Zeneca and UC have access to some of the world's best legal and environmental consulting talent. They knew full well they needed permits to do what they were doing," said Sherry Padgett, member of the Richmond Southeast Shoreline Area Community Advisory Group. "$510,000 is not the number. It can't be."

Decades of pollution from a defunct chemical factory left the 86-acre parcel full of PCBs (polychlorinated biphenyls), pesticides and toxic metals. The state investigated claims of cancer and other widespread health problems in the immediate area earlier this decade.

Stauffer Chemical Co., and later Zeneca, operated on the land. Chemical production ended in 1979. UC Berkeley built its Richmond Field Research Station nearby and, after Zeneca closed shop in 1997, developer Simeon/Cherokee Ventures bought the property with a plan to build a large residential subdivision.

Then the Bay Area Regional Water Quality Control Board ordered UC and Zeneca to perform a multimillion-dollar cleanup in 2002. For the next two years, under the board's oversight, crews buried about 350,000 cubic yards of hazardous soil and covered it with a thin "seal."

Community concern, political pressure and evidence of spreading hazard led the state Department of Toxic Substances Control to take over supervision of the cleanup in 2005. Also in 2005, environmental activists, including the late Ethel Dotson, formed the community advisory group to lend critical eyes and a community voice to the process.

In 2007, the state found that UC and Zeneca broke hazardous waste laws from 2002 to 2004 for storing, moving and treating the toxic material without proper permits or oversight. Dotson died the same year, from cancer she believed she contracted from a lifetime of exposure to toxics in Richmond, particularly Stauffer Chemical.

"Numerous persons living or working in the vicinity of the (UC and Zeneca) sites experienced symptoms consistent with exposure to toxic or hazardous substances, and several of those persons have died from their symptoms," CAG Chairman Joseph Robinson wrote in a May 2008 letter to the state, inquiring about fines for environmental safety violations documented during the first years of the cleanup.

Announcement of those fines finally arrived this month. Half the sum goes to Richmond BUILD, a city-run green technology job-training program.

"The site is safe in the sense that people are no longer being exposed to hazardous material," Northrup said. "But it's not cleaned up. That is in progress."

Locals remain concerned about long-term health implications, however, as there are no current plans to remove the toxic sludge.

"They want to cover it with a two-foot layer of concrete and build housing on top of it," Padgett said. "The landfill is still there. Nobody was asked to clean it up."

Reach Karl Fischer at 510-262-2728 or kfischer@bayareanewsgroup.com.

From: Doreen Moreno [mailto:dmoreno@berkeley.edu]
Sent: Wednesday, June 10, 2009 12:11 PM
To: Butt, Tom
Subject: UC Berkeley provides funding to Richmond BUILD as part of DTSC settlement agreement

Dear Councilmember Butt:    

I am happy to personally inform you that DTSC just issued a news release this morning announcing a $255,000 contribution to the Richmond BUILD Program as part of a settlement agreement reached with DTSC. 

Under the Consent Agreement, UC Berkeley will provide $142,500 to Richmond BUILD and $142,500 in civil penalties to DTSC. Separately, Zeneca, Inc. will provide $112,500 to Richmond BUILD and $112,500 in civil penalties to DTSC.

Combined a total of $255,000 will go back directly to the Richmond community to help support green job training and much needed job opportunities in the emerging green industry, and will position Richmond residents, particularly those from low-income neighborhoods to be prepared to take full advantage of the estimated billions of federal stimulus dollars that are slated for the construction and energy efficiency fields.

For your background, attached is a copy of the DTSC news release and a letter from Cathy Koshland, UC Berkley’s Vice Provost of Academic Planning & Facilities that outlines more details. I will send a separate email to the Mayor and each Councilmember.

Please feel free to contact me at 643-6781 or dmoreno@berkeley.edu if you have any questions.

Best regards,

~Doreen   

Fellow CAG Members –

Last night we heard comments and rationale from DTSC’s Deputy Director for Enforcement, Gale Filter, on why/how the decision was made to settle for $510,000 on the two 6/29/2007 Summary of Violations issued to Zeneca and UC (link below).  Just as important (or more important) was the lack of action to have the violation corrected – remove the hazards that created an illegal hazardous waste dump in our neighborhood. 

Creating an illegal hazardous waste dump is one of the worst violations on DTSC’s/Cal EPA’s books with fines up to $250,000 per day (that number is not a mistake – see below for California Health & Safety Code § 25189.5. Penalties for unauthorized waste disposal).   

Very brief background -- One of the primary charges in the SOVs is that Zeneca and UC created an unpermitted/unlicensed hazardous waste facility on the San Francisco Bay shoreline on Zeneca property.  DTSC is the licensing body for hazardous waste material storage in California.  Zeneca and UC did not obtain a license or permission from DTSC to permanently store UC’s hazardous waste on Zeneca’s property.  Regardless of whether a cleanup was being overseen by the San Francisco Bay Regional Water Quality Control Board, DTSC still needed to grant permission to create a hazardous waste facility/dump.  Other violations were included in the SOVs.

Mr. Filter said he has been the Deputy Director since July 2007 and claimed he had not heard from the Richmond Southeast Shoreline Area Community Advisory Group before last night . . .  He claimed he did not know about our need for funding . . .  He claimed he did not know the Summary(ies) of Violations were such an important issue to the community . . .

Attached is a 5/8/2008 formal CAG letter addressed directly to Mr. Filter . . . 

Decide for yourselves.

Mr. Filter said he will be back for the 8/13/2009 CAG meeting accompanied by US EPA . . .

Link to the 6/29/2009 Summary of Violations to Zeneca and UC Consent Agreement

http://www.envirostor.dtsc.ca.gov/public/community_involvement_documents.asp?global_id=07280002&rid=+AABl90AAGAAFt16AAK%2C+AABl90AAGAAFt16AAM%2C+AABl90AAGAAFt16AAT%2C+AABl90AAGAAFt16AAS

HEALTH AND SAFETY CODE

Division 20 Miscellaneous Health and Safety Provisions

§ 25189.5. Penalties for unauthorized waste disposal

(a) The disposal of any hazardous waste, or the causing

thereof, is prohibited when the disposal is at a facility which does

not have a permit from the department issued pursuant to this

chapter, or at any point which is not authorized according to this

chapter.

   (b) Any person who is convicted of knowingly disposing or causing

the disposal of any hazardous waste, or who reasonably should have

known that he or she was disposing or causing the disposal of any

hazardous waste, at a facility which does not have a permit from the

department issued pursuant to this chapter, or at any point which is

not authorized according to this chapter shall, upon conviction, be

punished by imprisonment in a county jail for not more than one year

or by imprisonment in the state prison.

   (c) Any person who knowingly transports or causes the

transportation of hazardous waste, or who reasonably should have

known that he or she was causing the transportation of any hazardous

waste, to a facility which does not have a permit from the department

issued pursuant to this chapter, or at any point which is not

authorized according to this chapter, shall, upon conviction, be

punished by imprisonment in a county jail for not more than one year

or by imprisonment in the state prison.

   (d) Any person who knowingly treats or stores any hazardous waste

at a facility which does not have a permit from the department issued

pursuant to this chapter, or at any point which is not authorized

according to this chapter, shall, upon conviction, be punished by

imprisonment in a county jail for not more than one year or by

imprisonment in the state prison.

   (e) The court also shall impose upon a person convicted of

violating subdivision (b), (c), or (d), a fine of not less than five

thousand dollars ($5,000) nor more than one hundred thousand dollars

($100,000) for each day of violation, except as further provided in

this subdivision.  If the act which violated subdivision (b), (c), or

(d) caused great bodily injury, or caused a substantial probability

that death could result, the person convicted of violating

subdivision (b), (c), or (d) may be punished by imprisonment in the

state prison for one, two, or three years, in addition and

consecutive to the term specified in subdivision (b), (c), or (d),

and may be fined up to two hundred fifty thousand dollars ($250,000)

for each day of violation.

   (f) For purposes of this section, except as otherwise provided in

this subdivision, "each day of violation" means each day on which a

violation continues.  In any case where a person has disposed or

caused the disposal of any hazardous waste in violation of this

section, each day that the waste remains disposed of in violation of

this section and the person has knowledge thereof is a separate

additional violation, unless the person has filed a report of the

disposal with the department and is complying with any order

concerning the disposal issued by the department, a hearing officer,

or court of competent jurisdiction.

California Health And Safety Code Section 25189.2

(a) A person who makes a false statement or representation

in an application, label, manifest, record, report, permit, or other

document, filed, maintained, or used for purposes of compliance with

this chapter, is liable for a civil penalty not to exceed

twenty-five thousand dollars ($25,000) for each separate violation

or, for continuing violations, for each day that the violation

continues.

   (b) Except as provided in subdivision (c) or (d), a person who

violates a provision of this chapter or a permit, rule, regulation,

standard, or requirement issued or adopted pursuant to this chapter,

is liable for a civil penalty not to exceed twenty-five thousand

dollars ($25,000) for each violation of a separate provision or, for

continuing violations, for each day that the violation continues.

   (c) A person who disposes, or causes the disposal of, a hazardous

or extremely hazardous waste at a point that is not authorized

according to the provisions of this chapter is liable for a civil

penalty of not more than twenty-five thousand dollars ($25,000) for

each violation and may be ordered to disclose the fact of this

violation or these violations to those persons as the court or, in

the case of an administrative action, a hearing officer, may direct.

Each day on which the deposit remains is a separate additional

violation, unless the person immediately files a report of the

deposit with the department and is complying with an order concerning

the deposit issued by the department, a hearing officer, or a court

of competent jurisdiction for the cleanup.

   (d) A person who treats or stores, or causes the treatment or

storage of, a hazardous waste at a point that is not authorized

according to this chapter, shall be liable for a civil penalty not to

exceed twenty-five thousand dollars ($25,000) for each separate

violation or, for continuing violations, for each day that the

violation continues.

   (e) For purposes of subdivisions (c) and (d), a person who offers

hazardous waste to a transporter that is registered pursuant to

Section 25163 or to a storage, treatment, transfer, resource

recovery, or disposal facility that holds a valid hazardous waste

facilities permit or other grant of authorization from the department

that authorizes the facility to accept the waste being offered shall

not be considered to have caused disposal, treatment, or storage of

hazardous waste at an unauthorized point solely on the basis of

having offered that person's waste, provided the person has taken

reasonable steps to determine that the transporter is registered or

the facility is authorized by the department to accept the hazardous

waste being offered.

   (f) A person shall not be liable for a civil penalty imposed under

this section and for a civil penalty imposed under Section 25189 for

the same act or failure to act.

   (g) Liability under this section may be imposed in a civil action

or liability may be imposed administratively pursuant to Section

25187.

California Health And Safety Code Section 25201

a) Except as provided in subdivisions (c) and (d), no owner

or operator of a storage facility, treatment facility, transfer

facility, resource recovery facility, or disposal site shall accept,

treat, store, or dispose of a hazardous waste at the facility, area,

or site, unless the owner or operator holds a hazardous waste

facilities permit or other grant of authorization from the department

to use and operate the facility, area, or site, or the owner or

operator is operating under a permit-by-rule pursuant to the

department's regulations, or a grant of conditional authorization or

conditional exemption pursuant to this chapter.

   (b) Except as necessary to comply with Section 25159.18, any

person planning to construct a new hazardous waste facility or a new

hazardous waste management unit, which would manage RCRA hazardous

waste, shall obtain a hazardous waste facilities permit or a permit

amendment from the department prior to commencing construction.

   (c) A hazardous waste facilities permit is not required for a

recycle-only household hazardous waste collection facility operated

in accordance with subdivision (b) of Section 25218.8.

   (d) A hazardous waste facilities permit is not required for a

facility that meets the requirements of Section 13263.2 of the Water

Code.

California Code of Regulations, Title 22

§66262.11. Hazardous Waste Determination.

A person who generates a waste, as defined in section 66261.2, shall determine if that waste is a hazardous

waste using the following method:

(a) the generator shall first determine if the waste is excluded from regulation under section 66261.4 or

section 25143.2 of the Health and Safety Code;

(b) the generator shall then determine if the waste is listed as a hazardous waste in articles 4 or 4.1 of

chapter 11 or in Appendix X of chapter 11 of this division. If the waste is listed in Appendix X and is not listed in

articles 4 or 4.1 of chapter 11, the generator may determine that the waste from his particular facility or operation is

not a hazardous waste by either:

(1) testing the waste according to the methods set forth in article 3 of chapter 11 of this division, or according

to an equivalent method approved by the Department pursuant to section 66260.21; or

(2) applying knowledge of the hazard characteristic of the waste in light of the materials or the processes

used and the characteristics set forth in article 3 of chapter 11 of this division.

(c) For purposes of compliance with chapter 18 of this division (commencing with section 66268.1), or if the

waste is not listed as a hazardous waste in article 4 (commencing with section 66261.30), in article 4.1 (commencing

with section 66261.50), or in Appendix X of chapter 11 of this division, the generator shall determine whether the

waste exhibits any of the characteristics set forth in article 3 of chapter 11 of this division by either:

(1) testing the waste according to the methods set forth in article 3 (commencing with section 66261.20) of

chapter 11 of this division, or according to an equivalent method approved by the Department under section

66260.21; or

(2) applying knowledge of the hazard characteristic of the waste in light of the materials or the processes

used.

(d) If the waste is determined to be hazardous, the generator shall refer to chapters 14, 15, 18, and 23 of

this division for possible exclusions or restrictions pertaining to management of the specific waste.

NOTE: Authority cited: Sections 25150, 25159 and 58012, Health and Safety Code. Reference: Sections 25115,

25117, 25159 and 25159.5, Health and Safety Code; 40 CFR Section 262.11.

HISTORY

1. New section filed 5-24-91; effective 7-1-91 (Register 91, No. 22).

2. Amendment of subsection (d) and NOTE filed 2-8-2002; operative 2-8-2002 (Register 2002, No. 6).

3. Amendment of subsections (b) and (c) filed 2-13-2003; operative 3-15-2003 (Register 2003, No. 7).

California Code of Regulations, Title 22, Section 66262.23

§66262.23. Use of the Manifest.

(a) The generator of any hazardous or extremely hazardous waste to be transported off-site or into

California shall:

(1) complete the generator and waste section and sign the manifest certification according to the instructions

in the Appendix to this chapter; and

(2) obtain the handwritten signature of the initial transporter and date of acceptance on the manifest; and

(3) retain one copy, in accordance with section 66262.40(a); and

(4) within 30 days of each shipment of hazardous waste submit to the Department a legible copy of each

manifest used; and

(5) on or after September 5, 2006, for hazardous waste that is not regulated as a hazardous waste by the

U.S. EPA (non-RCRA waste), describe these wastes in Item 9b of the manifest or Item 27b of the continuation sheet

as follows:

(A) describe non-RCRA hazardous wastes which do not have a U.S. DOT description indicating a generic

name of the waste and the phrase “Non-RCRA Hazardous Waste, Solid” or “Non-RCRA Hazardous Waste, Liquid”

for solid or liquid wastes, respectively. When possible, the generic name shall be obtained from chapter 11,

Appendix X, subsection (b) of this division. If not listed in chapter 11, Appendix X, subsection (b) of this division, the

commonly recognized industrial name of the waste shall be used.

(B) describe non-RCRA hazardous wastes which have a U.S. DOT description by the U.S. DOT description,

and

(6) The EPA hazardous waste number, if applicable, can be found in chapter 11, articles 3 and 4 and the

California Hazardous Waste Code Number can be found in chapter 11, Appendix XII.

(b) The generator shall give the transporter the remaining copies of the manifest.

(c) For shipments of hazardous waste within the United States solely by water (bulk shipments only), the

generator shall send three copies of the manifest dated and signed in accordance with this section to the owner or

operator of the designated facility or the last water (bulk shipment) transporter to handle the waste in the United

States if exported by water. Copies of the manifest are not required for each transporter.

 (d) For rail shipments of hazardous waste within the United States which originate at the site of generation,

the generator shall send at least three copies of the manifest dated and signed in accordance with this section to:

(1) the next non-rail transporter, if any; or

(2) the designated facility if transported solely by rail; or

(3) the last rail transporter to handle the waste in the United States if exported by rail.

(e) For shipments of hazardous waste to a designated facility in an authorized State which has not yet

obtained authorization to regulate that particular waste as hazardous, the generator shall assure that the designated

facility agrees to sign and return the manifest to the generator, and that any out-of-state transporter signs and

forwards the manifest to the designated facility.

NOTE: Authority cited: Sections 25150, 25159, 25161 and 58012 Health and Safety Code. Reference: Sections

25159, 25159.5 and 25160, Health and Safety Code; 40 Code of Federal Regulations Section 262.23.

HISTORY

1. New section filed 5-24-91; effective 7-1-91 (Register 91, No. 22).

2. Change without regulatory effect adding new subsection (e) and amending Note filed pursuant to section 100, title

1, California Code of Regulations (Register 92, No. 18).

3. Change without regulatory effect amending subsections (a) and (a)(3), adding subsections (a)(5)-(6) and amending

subsection (e) and Note filed 8-24-2006 pursuant to section 100, title 1, California Code of Regulations (Register

2006, No. 34).

Health and Safety Code

Transportation of Hazardous Waste

25163.  (a) (1) Except as otherwise provided in subdivisions (b), (c), (e), and (f), it is unlawful for any person to carry on, or engage in, the transportation of hazardous wastes unless the person holds a valid registration issued by the department, and it is unlawful for any person to transfer custody of a hazardous waste to a transporter who does not hold a valid registration issued by the department. A person who holds a valid registration issued by the department pursuant to this section is a registered hazardous waste transporter for purposes of this chapter. Any registration issued by the department to a transporter of hazardous waste is not transferable from the person to whom it was issued to any other person.