Not Superfund
Driven by the EPA. Four MGPs evaluated. Resulted in Not Superfund status.
Key Points
EPA initiated, information supplied by PG&E
- Purpose: determine if MGP should be a Superfund site
- Triage rather than a full investigation
- Included the four MGPs along San Francisco’s northern waterfront
PG&E’s actions
- Tested surface soil on about 25 parcels in Marina and Fisherman’s Wharf
- Searched records for nearby drinking water wells
- Wrote reports with short histories for each MGP
Results
- EPA gave NFAs to the four MGPs, including one attaboy
- Key factor: responsible party stepping forward
- Thorough investigations expected later
EPA beginnings and its focus on MGPs
The EPA was formed when people became aware of the harm caused by contamination. Lake Erie never burned, but there was a very destructive fire in Cleveland in 1952 caused by spontaneous combustion on the highly polluted Cuyahoga river. Rachel Carson published “Silent Spring” ten years later. In 1969, an oil rig spilled 3 million gallons of crude into the ocean off Santa Barbara. That same year the Cuyahoga river spontaneously burst into flames, again. The country was appalled, environmentalism took root, and the President ordered the formation of the Environmental Protection Agency in 1970. Congress reacted by passing the Clean Water Act in 1972 and the awkwardly named Resource Conservation and Recovery Act (RCRA) in 1976.
The EPA began studying the role of tar and PAHs in MGP byproducts in 1974. Concern grew as information became available. Starting in 1978, owners of former MGPs were required to report the location of these sites. The requirement was largely ignored. By 1983, the threat from MGPs was better focused and the EPA ordered a report listing all the known sites and background on the threat from byproducts of gas manufacturing. It was called the Radian report because its author was Radian Corporation of McLean, Virginia. Parts of the report became public in 1984 and the full report was released in 1985. The Radian report listed 1500 MGPs but more recent studies estimate upwards of 5000 MGPs throughout the country.
There were many kinds of MGP, big and small, but the Radian report focused on ‘Town Gas’ which were plants large enough to serve local communities. In the early days of gas manufacturing, the companies that owned Town Gas plants often merged or were acquired. It was a competitive period, pre-regulation, during which the industry consolidated into the system of regional utility companies covering the country today. The EPA decided an investigation of Town Gas MGPs was needed and it turned to the utilities.
EPA and PG&E
Because today’s regional utilities are the successor to companies that owned MGPs — or are the beneficiary of the former MGP’s facilities, distribution networks, customers, etc. — the EPA looked to them as the obvious choice to investigate MGPs in their area. Fifty-six MGPs listed in the Radian report were located in PG&E’s service area. Talks between the EPA and PG&E began in 1984.
PG&E met with the EPA on 21 February 1986 to discuss the company’s plan for MGPs in Northern California. By this time, 8 years after the discovery of extensive contamination on Marina Boulevard and more than a year after parts of the Radian report became known, PG&E was prepared. The company had a Project Manager for its ‘Manufactured Gas Plant Program’ and a plan. One month after the meeting, PG&E sent a letter to the EPA memorializing the meeting and outlining the company’s plan.
The letter indicated a willingness to cooperate with the EPA. The Radian report had listed only 56 MGPs in PG&E’s service area while the company’s records had 74. PG&E shared the locations for all 74 MGPs with the EPA and with other agencies. In its letter, PG&E was clear about what it was going to do: test surface soils and test groundwater if there were known potable (drinking water) wells nearby. The letter did not state what PG&E would not do.
Determining Superfund sites
The initiative the EPA started in 1984 was enabled by the Superfund legislation enacted in 1980. Using the Radian report as a basis, the EPA instructed each regional utility to gather information about MGPs in its service area. The information obtained was then used to decide which MGPs to elevate to the National Priorities List. Sites on this list are generally known as Superfund sites. Superfund sites received immediate attention and were eligible for government funds for clean-up. MGPs not elevated to the National Priorities List remained in Superfund’s information system at a lower priority. The lower priority MGPs would presumably receive a more comprehensive evaluation sometime in the future.
The evaluation process was a relatively simple triage that did not involve extensive testing. In the 1980s the EPA was in catch-up mode trying to deal with literally thousands of hazardous waste sites across the United States. The EPA used a triage system called the Hazard Ranking System to evaluate sites and raise the priority on the most dangerous ones while leaving the others to resolve later. Candidate sites were listed in an information system known as CERCLIS, which stands for Comprehensive Environmental Response, Compensation and Liability Information System. The two Marina MGPs were added to CERCLIS in June 1986. The two Fisherman’s Wharf MGPs were added later.
Twenty-five letters and the Not Superfund project
Four MGPs along San Francisco’s northern waterfront were evaluated under the Superfund’s triage system. No one summary report has been discovered, but many records including twenty-five letters documenting test results have been found in the files of different government agencies. From these records, it is known that PG&E tested surface soil on a number of parcels in the Marina and Fisherman’s Wharf in late 1986 and 1987. The exact number has not been established. There was at least one parcel tested on or near each of the four MGPs. Most parcels were in the Marina which is understandable given the number of homes located on top of the former MGPs there. Except for one straggler in 1988 and another in 1998, all the letters are dated November 1986 or January 1987. The testing did not include subsurface soil, nor did it include groundwater. The twenty-five letters were not found on the internet. Copies were obtained under Freedom of Information Act and Public Records Act requests.
In addition to testing surface soil on roughly twenty-five parcels, PG&E also did a records search and determined there were no drinking wells in the vicinity. The company then prepared a report with historical information about each MGP and submitted it to the EPA. Those actions, together with the fact that a responsible party, PG&E, was stepping forward, were evidently sufficient. By the end of 1987, PG&E had received a pass, called a ‘no further action’ (NFA) in regulatory parlance, from the EPA for all four MGPs. It appears that PG&E might have worked closely with the EPA to get the job done because one of the NFAs has a handwritten attaboy by the EPA administrator on it.
The EPA became inactive in the investigation after 1987. It had become involved in the first place because the sites contained hazardous waste and possibly were an immediate danger or neglected. The EPA’s triage indicated (incorrectly it is now known) that the sites were not an immediate danger. The fact that a responsible party stepped forward meant the sites were not neglected. In addition, the EPA had a long-standing policy to defer to the states wherever practical. The EPA backed away and left California to follow-up on whatever was needed to deal with these sites.
That was how the four MGPs along San Francisco’s northern waterfront became “Not Superfund” sites. The project was successful in achieving PG&E’s evident goal, but some aspects are worth examining further.
Liability and persuasion
It is evident that the legal aspect was a priority from the beginning, and that liability was the issue. After meeting with the EPA, PG&E sent a letter to property owners near the four MGPs along San Francisco’s northern waterfront and offered to test the owner’s property. By sending this letter, PG&E informed owners of the MGPs location, history, and the possibility that contamination may be present on the owner’s property. That was notification. For the owners that did not respond to the overture, PG&E sent a second letter reminding them of the possibility of MGP contamination and the company’s offer to test. That was a second notification. For the owners that responded positively to the offer, they were asked to sign a statement that they would not to use the fact that PG&E was testing for MGP contamination as an admission or evidence of PG&E’s liability. It is believed that PG&E retained copies of all these letters.
The test-results letter sent to owners who allowed testing was a skillful work. It was obviously meant to persuade without exposing the company. PG&E did not interpret the test results. It did not give advice or draw conclusions. The letter was worded in a way that left it up to each owner to interpret the results and decide whether his or her property was contaminated. The letter led the owner to the desired conclusion (no problem here) while avoiding liability (you’ve received notification that your property might be contaminated and PG&E never stated that your property was not contaminated, that was your decision). Twenty-five of these test-result letters were sent so there was a form letter needing only minor modification to customize for each owner. Every letter states the same facts: 1) testing was done on a sample from the owner’s property, 2) the work was done with the owner’s permission, and 3) the numerical results are being given to the owner and to two government agencies. The letter concludes by saying that questions should be directed to the government agencies.
To persuade the owner in the right direction, PG&E assembled certain background information and included it with each letter. The chemicals that had been tested on the owner’s property were those closely associated with MGPs: PAHs, lead, arsenic, mercury, and cyanide. The background information included the concentration of PAHs in food such as spinach, margarine, charcoaled meats and steaks, in soils found in various environments from alpine forests to adjacent to highways in urban areas, and in a few commercial products. The commercial products selected by PG&E included motor oil, creosote, coal tar, etc. Curiously, PG&E also included over-the-counter dandruff shampoos and medicated soaps. Dandruff is not in the limelight today but was considered a problem in the 1980s. Dandruff shampoos were heavily advertised. Coal tar, which contains chemicals known to cause cancer, is the active ingredient in many dandruff shampoos. The use of coal tar in dandruff shampoos had been the subject of lawsuits. Except for the dandruff shampoos and medicated soap, all concentrations included in the background information were sourced from scientific literature. The concentrations for dandruff shampoos and medicated soap, however, came from an unpublished analysis done by PG&E. There must have been a reason the company went the extra mile to add dandruff shampoo and medicated soap to the mix.
Crafty as they might be, the methods were successful. One owner had his parcel retested because it had high concentrations of lead. Otherwise, no one questioned the results and everyone apparently assumed their property was safe. At the end of the day, PG&E had achieved a notable feat: every owner had been given at least two notifications of the possible danger; the company could claim it made an effort to investigate every property; yet, no alarms were raised; and the company had not increased its exposure.
Other criticisms
Despite the ‘success’ of Not Superfund, troubling aspects linger.
The reliability of surface soil testing on the 25 properties is poor. Thirty years later, ten of the 25 properties were retested. Of the ten retested, eight require soil removal and/or deed restrictions to render the parcels completely safe from a human health perspective.
From an environmental perspective, the threat to San Francisco Bay was not considered a part of triage. The MGPs are adjacent to the Bay but groundwater was not tested. The irony is that this project was driven by the Environmental Protection Agency.
Then there is the matter of the “extensive” contamination discovered in 1977 in the former lagoon bordering the Bay. Nothing in the record indicates that the EPA considered it when performing triage. Nothing in the record indicates that the EPA was informed of it. The owner of this website alleges that such an omission is probably unlawful. In any case, the fact that the extensive contamination was not considered in the mid-1980s has had obvious consequences. Among the consequences is the volume of contamination that has entered the Bay from the Known Seep in three decades.
Lastly, although the four MGPs were determined Not Superfund sites, they were and are still in CERCLIS. That meant a thorough investigation was expected in a reasonable timeframe. It did not happen. Indeed, the owner of this website alleges there has never been a thorough, comprehensive, and honest investigation, there is not one taking place now, and there will never be as long as the status quo remains.