Title: The State Board's Containment Zone Policy: Issues for Water Agencies
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Title: The State Board's Containment Zone Policy: Issues for Water Agencies
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Spatial Coverage: North America -- United States of America -- Florida
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Abstract: The State Board's Containment Zone Policy: Issues for Water Agencies By: Jeffrey Kightlinger
General Note: Box 8, Folder 7 ( Vail Conference, 1997 - 1997 ), Item 49
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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The State Board's Containment Zone Policy:
Issues for Water Agencies

by

Jeffrey Kightlinger'



On October 3, 1996, the California State Water Resources Control Board
("SWRCB") adopted a policy amendment to Resolution 92-49, "Policies and
Procedures for Investigation and Cleanup and Abatement of Discharges Under
Water Code 13304" for contaminated sites where it is determined that groundwater
cleanup to water quality objectives cannot reasonably or realistically be obtained.
The policy represents a shift from the SWRCB's traditional role of regulation based
on absolute numbers or cleanup levels to a policy based more on risk evaluations.
This shift will have major impacts not only on the parties directly govemed by this
policy, the regulators and the regulated community, but also for water agencies who
will be forced to respond to any side effects from implementation of this policy.

BACKGROUND AND STATUS

In December 1994, the SWRCB was asked by the Regional Water Quality Control
Boards ("RWQCBs") for the San Diego and San Francisco regions to approve Basin
Plans which allowed for non-attainment zones where contamination could not
practicably be cleaned up. The SWRCB instead sought to develop a statewide
policy which would achieve the objectives of these Basin Plans but with statewide
uniformity. Over the next two years, the SWRCB held a number of workshops and
hearings and issued several drafts of the proposed containment zone policy (during
the process the name of the proposal changed from "non-attainment zones" to
"containment zones").

The amendment process was slowed considerably when the Lawrence Livermore
Laboratory Report on cleanup of petroleum hydrocarbons from leaking underground
fuel tanks ("LUFTs") was released mid-way through drafting of a final containment
zone amendment. The Lawrence Livermore Report recommended discontinuing the
current policy of aggressive cleanup at many LUFT sites in favor of site closure and
passive bio-remediation. Essentially the Report concluded that at may of these
sites, the dollars spent on cleanup resulted in negligible, if any, benefits to the
environment The Lawrence Livermore Report was followed by another report on
cleanup issues issued by the Senate Bill ("SB") 1764 committee which
recommended adoption of many of the conclusions in the Lawrence Livermore
Report. The SWRCB considered incorporating the Lawrence Livermore and SB
1764 Committee findings into the containment zone policy which delayed the

Jeff Kightlinger is a Deputy General Counsel for The Metropolitan Water District of Southern
California. Views expressed herein are solely those of the author.


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process while that option was explored. Eventually it was decided to handle the
petroleum hydrocarbon LUFT cleanup issues separately from the containment zone
policy which allowed the policy to again move forward.'

The containment zone amendment was finally placed on the SWRCB's October
1996 agenda for adoption where it was adopted by unanimous vote of the SWRCB.
However, before the SWRCB adopted the policy, a memo was sent to the SWRCB
requesting further revisions to the amendment which would, it was argued, make the
containment zone policy more workable and easier to implement. The chief
complaint was that the policy was no longer as concerned with risk based analysis
as the policy was originally written. In adopting the policy, the SWRCB also formed
a committee of the chairs of the various RWQCB's to review and analyze the policy
with an eye towards making recommendations on adopting revisions to address
"risk-based" analysis issues.

THE CONTAINMENT ZONE POLICY

Currently, Resolution 92-49 incorporates the State's anti-degradation policy2, the
water quality objectives contained in each RWQCB's Basin Plans and the various
SWRCB adopted regulations dealing with water quality. Under current law, any
cleanup must be to background levels consistent with the anti-degradation policy
unless a less stringent cleanup would still meet the Basin Plan, would not
unreasonably affect the beneficial uses of water and would still provide maximum
benefit to the people of the State. This technically gave RWQCBs the right to allow
less stringent cleanup but as a practical matter this course was rarely followed
given the typically strict requirements found in most Basin Plans.

Numerous parties had complained for years that this policy resulted in the business
community being required to chase an unachievable goal of cleaning up
contaminated groundwater to maximum contaminant levels ("MCLs"). Typical
treatments involved "pump-and-treat" technology, where groundwater is removed,
cleaned and injected back into the groundwater basin, or vapor extraction systems,
where contaminants are removed from soil through an air suction process. At many
of these sites, these technologies produce good immediate results but have difficulty
removing the final increments of pollution to reach MCLs. Often a geology of clay or
other tightly packed soils made it virtually impossible to remove all the pollution, or
pockets of contaminants would be inaccessible due to a complex geology of
fractured rock. Cleanups would commonly reach asymptotic levels with continued
treatment removing only minute amounts of the remaining pollution. In these cases,
RWQCBs or a designated local oversight program would typically refuse to close the
site and halt cleanup because the levels of the remaining contamination remained

1 It should be noted that nothing in the containment zone policy excludes its application to petroleum
hydrocarbon contaminated LUFT sites. It is unlikely that dischargers would use the complicated
contianment zone policy for sites where hydrocarbons are the sole contaminant of concern.
2 SWRCB Resolution 68-11.
3 Title 23, California Code of Regulations.

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above MCLs. This resulted in continued site cleanup where there was little
environmental benefit realized while costs mounted, often beyond the property value
of the site. Containment zones are seen by many as a method of closing those sites
where it is technologically or economically unfeasible to cleanup groundwater to
MCLs.

Under the containment zone policy, eligible sites for containment zone status would
include those where either strong sorption of pollutants in soils, pollution entrapment,
or complex geology indicate that a cleanup to applicable water quality objectives
cannot reasonably be obtained.4 In making a containment zone determination, a
RWQCB shall determine what is technologically and economically feasible taking
into account the potential impact of the remaining pollutants and the hydrogeologic
characteristics of the groundwater basin.5

Technological feasibility is to be determined by assessing available technologies
which are proven to be effective for removing the instant contamination in similar
settings.6 Economic feasibility is to be determined by an "objective balancing" of the
benefits of removing further concentrations of pollution against the cost of removing
those pollutants. The economic evaluation is to include the current and future land
use of the site and impacts to the surrounding community. However, the ability to
pay of the discharger is not to be considered except in establishing a compliance
schedule.7

CONDITIONS AND RESTRICTIONS ON CONTAINMENT ZONES

There are a number of conditions that must be complied with before a containment
zone can be designated. The storage vessel or tanks must be removed, and to the
extent practicable, any floating free product.8 Where reasonable, the discharger may
be required to remove the pollutant mass from the groundwater if it will help to
control the pollution in the containment zone.9 The discharger must develop and
propose a management plan to assess, monitor and mitigate the impacts of the
pollution. The management plan may include land use controls such as recorded
instruments with restrictions on use of the property, and engineering controls such
as wells, berms, caps, etc. to control escape and migration of pollution.10

One of the key elements of a mitigation plan, and one of the most controversial, is
the option for the RWQCB to require the inclusion of mitigation measures.11 The
discharger may be required to provide alternative water supplies and reimbursement
for increased water treatment and well modification costs. Additional mitigation can

4 Adopted amendment to SWRCB Resolution 92-49, "Containment Zone Policy", III.H.
5 "Containment Zone Policy", III.H.1.
6 "Containment Zone Policy", III.H.1.a.
7 "Containment Zone Policy", III.H.1 .b.
8 "Containment Zone Policy", III.H.2.b.
9 "Containment Zone Policy", III.H.2.c.
10 "Containment Zone Policy", III.H.2.d.
1 "Containment Zone Policy", III.H.2.e.

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be proposed in the form of off-site cleanup projects as long as the mitigation project
is located in the same groundwater basin as the containment zone, and would
clearly improve the basin's water quality.12 In lieu of specific mitigation projects,
contributions may be made to the SWRCB's Cleanup and Abatement Account for
use in the basin. The contributions are not to exceed ten percent (10%) of the
estimated savings from not pursuing an active cleanup over a ten year period.13 The
mitigation requirements were objected to by many during development of the
containment zone policy as being inappropriate or even a form of extortion.

In addition to the conditions, there are a number of restrictions on the designation of
a containment zone. Containment zones are to be limited in vertical and lateral
extent, as protective of health, safety and the environment as possible and should
not result in violation of water quality objectives outside of the containment zone.14
They shall be no larger than necessary and shall not individually or cumulatively
cause a substantial decline in the yield or storage capacity of a groundwater basin.15
Containment zones shall not be designated in a critical recharge area and shall not
be inconsistent with local groundwater plans or court decrees.

Before designation of a containment zone, an evaluation of the impacts to water
quality, human health and the environment must be conducted which takes into
account thirteen listed factors. These factors include the characteristics of the
discharge, the potential for migration, the hydrogeologic characteristics of the site,
the quantity of ground and surface water and the flow directions, proximity and
production rate of groundwater use, proximity of site to surface water and rainfall
patterns, present and future probable uses of groundwater in the area, potential
impacts to human health and the environment, potential for the pollutants to
breakdown, and the potential adverse effects on local development.17

POLICY CONCERNS

Fiscal Concerns
Business and industry has generally embraced the concept of containment zones
based on the idea that it can be used to curtail long, expensive cleanup. There is
no doubt that our current cleanup policy does carry a substantial financial burden.
The Final Functional Equivalent Document ("FED"), the environmental document
prepared for the containment zone policy in lieu of an environmental impact report
under CEQA, cites studies which estimated that the total cleanup effort for point
source pollution in the United States will be $750 billion (in 1990 dollars) assuming
continuation of current policy over the next 75 years. The annual expenditure on
cleanup for the federal govemment was $10 billion in 1993 and it is estimated to

12 "Containment Zone Policy", III.H.2.e.1-4.
13 "Containment Zone Policy", Ill.H.2.e.5.
14 "Containment Zone Policy", III.H.3.
15 "Containment Zone Policy", III.H.3.a).
16 "Containment Zone Policy", IIl.H.3.d.
17 "Containment Zone Policy", Ill.H.3.b.

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reach $11.2 billion by 1999.'8 In addition to noting the astronomical costs, the FED
concludes that much of the pollution cannot be remediated by current technology
and that most of these funds are being wasted on a virtually unachievable goal of
reaching drinking water levels in contaminated groundwater.19

On the other hand, water suppliers are concerned that designation of containment
zones in groundwater basins may drastically reduce the storage and yield of water
from groundwater basins. California's economic development is tied to the
availability of a reliable source of high-quality water. A gross economic product of
$739 billion annually makes California's economy the seventh largest in the world
and Southern California accounts for approximately 60% of the state's jobs and
income. Southem California relies primarily on imported water and groundwater to
support its existence. There is also a heavy reliance on groundwater basins in
central California for storage purposes which helps support the agriculture of that
region. Without viable groundwater basins, much of California's economy is
threatened.

Cost-Shifting
Another concern of water agencies has been that the containment zone policy really
represents an attempt at cost-shifting the cost of cleanup from industry to the water
agencies, and ultimately to the rate-paying public. It may very well be true that the
conclusions of the FED are accurate and that much of the current groundwater
contamination cannot practicably or economically be cleaned up with current
technology. And it may be equally true that using wellhead treatment is a more cost-
effective method of "remediation". However, water agencies are the parties that
have funded most wellhead treatment systems as they are required to providing safe
drinking water. The cost of that treatment has not typically been bome by potentially
responsible parties under current law but rather by the public through their water
rates.

This is why the requirement for mitigation measures was welcomed by water
agencies. Possible mitigation measures could include the funding of wellhead
treatment to remove pollutants and produce drinking water from existing production
wells in a groundwater basin. This would be cost-effective "pump-and-treat"
remediation that actually serves a beneficial purpose.

Monitoring
One of the key concerns water agencies have with the containment zone policy
regards monitoring. The policy does contain requirements for monitoring of
containment zones to gauge their effectiveness at preventing the migration of
pollutants. However, extensive monitoring experience has shown that certain
contaminants have a tendency to sink (e.g., dense non-aqueous phase liquids or
DNAPLs such as chlorinated solvents). This makes design of an adequate
monitoring system extremely difficult; some pollutants may simply bypass typical

18 Functional Equivalent Document for Containment Zone Policy ("FED"), June 1996, p. 40.
19 Ibid.

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monitoring wells and remain undetected until they reach deeper municipal water
supply wells.

Water Supply
The Metropolitan Water District of Southern California is a public agency responsible
for providing supplemental water supply to 27 member agencies. Metropolitan's
service area consists of the Southern California coastal plain, which includes most of
the counties of Los Angeles, Orange, Riverside, San Bemardino, San Diego, and
Ventura. Metropolitan provides 60% of the water used by the 16,000,000 people in
its service area by importing that water from the Colorado River, the Bay Delta and
other sources. The remaining 40% is provided by local agencies mainly from
groundwater sources. Groundwater production in Metropolitan's area amounts to
about 1.33 million acre feet ("MAF") out of the total 3.5 MAF per year consumed.
Groundwater production is sustained by replenishment from 1.19 MAF of local
precipitation, return flow and reclaimed water supplement with 0.14 of Metropolitan's
imported water.20

Groundwater production provides over one third of the drinking water consumed in
Southem California. Maintaining the production of the groundwater basins is
essential as loss of this supply would cripple Southern California; there simply is not
enough replacement water available from other sources to offset this production.

Storage Capacity
Besides providing an important source of water, groundwater basins are an
extremely valuable resource for storage purposes. Metropolitan is currently
constructing the Eastside Reservoir Project in Riverside County near Hemet. The
Eastside Reservoir will hold 800,000 acre-feet or 269 billion gallons of water which
will almost double Southern California's surface storage capacity. The cost of the
Eastside Reservoir will be approximately $1.9 billion with another $600 million
earmarked for the various pipelines to bring water into the reservoir. By comparison,
the Main San Gabriel Valley Groundwater Basin has an estimated storage capacity
of 10,000,000 acre feet. To construct the spreading basins and pumping facilities
needed to create 800,000 acre-feet of storage capacity in a groundwater basin would
cost $50 million. This compares rather favorably with the nearly $2.5 billion total
price tag for the Eastside Reservoir.

Although Metropolitan is a surface water importer, Metropolitan has long recognized
the value of groundwater and basin storage. Metropolitan has invested heavily in
local groundwater programs to create incentives for the conjunctive use of
groundwater basins. Metropolitan has spent about $100 million in rate and price
incentives and will spend about $50 million per year on groundwater recovery
projects within the next decade. Metropolitan's 25-year planning horizon is captured
in its Integrated Resources Plan ("IRP"). Metropolitan's IRP calls for the Eastside
Reservoir to capture surface water supplies during winter months when water is

20 Groundwater Quality Regional Survey, Report No. 991, prepared by Metropolitan, p. 1-4 (May
1994).









available. During summer months, water from the Eastside Reservoir will be
available for both immediate use and for groundwater replenishment because local
spreading basins will not be occupied with rainwater runoff. This long-term strategy
relies on the availability of groundwater basins for storage capacity.

Groundwater basins for storage purpose and water supply are essentially priceless,
irreplaceable resources. However, the San Gabriel and the San Femando Basins,
which are the two largest unconfined basins in Los Angeles County, are both listed
on the National Priorities List as Superfund sites due to groundwater contamination.

Current Pollution
There are fifteen major groundwater basin groups located in Metropolitan's service
area. Each of these 15 basin groups has been impacted by groundwater pollution.
In these basins, there are approximately 3500 drinking water production wells. Over
a 14-year evaluation period, 46% of these wells were found to equal or exceed at
least one of the MCLs. This pollution has impacted over 640,000 acre feet of
production. Furthermore, the evaluation was based on current production wells and
does not reflect the fact that there have been wells so severely impacted that they
were previously closed.21

Water agencies are concerned that with the present level of pollution already in
groundwater, declaring containment zones too liberally may result in the write-off of
numerous groundwater basins. Loss of these basins would be devastating to water
agencies and could spark another round of water wars as lost groundwater basins in
Southem Califomia are replaced with more imported water from Northern California
and/or the Colorado River. It must be remembered that groundwater basins and
their production value vary widely from region to region. Los Angeles and Orange
Counties have very large, productive groundwater basins that are heavily utilized for
municipal water supply and storage. San Diego, Santa Barbara and San Francisco
on the other hand have very limited groundwater basins and receive little or no water
supply from their basins. This geographic fact explains why the containment zone
concept was begun by the San Diego and San Francisco RWQCBs and greeted with
some trepidation by the Los Angeles RWQCB.

CONCLUSION

The containment zone policy was heavily revised and a number of its provisions now
address the above stated concerns. With regards to monitoring, the amendment
requires a discharger to include a detailed description with the requirement that the
monitoring points must "clearly demonstrate containment such that water quality
objectives outside the containment zone are not violated as the result of the
discharge."2 The discharger must also establish a protocol for evaluation of
monitoring data and a planned response for migration of pollutants beyond the


21 Ibid, p. 5-16.
22 "Containment Zone Policy", IIl.H.2.f.

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containment zone.2 Other language in the containment zone policy addresses the
water supply, water-storage and cost-shifting concerns.

The difficulties, as always, will come in implementation of a containment zone policy.
Water agencies understand that much of the current cleanup effort is misguided and
wasteful of scarce resources. Designation of containment zones with funding for
groundwater basin mitigation measures could actually result in a net benefit to
groundwater not realized by the current cleanup to MCLs policy. On the other hand,
we have painfully learned that once contaminants have dispersed into flowing
groundwater, cleanup becomes infinitely more difficult and expensive. Incautious
use of containment zones could bring about serious harm to groundwater basins
with serious ramifications for California's critical water supply and water storage
needs. Ultimately, the RWQCBs will determine (hopefully with input from the local
groundwater agencies) how containment zones can be best and most wisely utilized
to relieve business and industry from wasting resources on sites where cleanup will
never be completed while protecting the groundwater basins which are essential for
California's economy.




























23 "Containment Zone Policy", Il.H.2.g.




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