BAAQMD Beats up on Berkeley

The City of Berkeley lost its case, and visitors will see lasting disruption and damage in Chavez Park, thanks to a majority of the Bay Area Air Quality Monitoring District (BAAQMD) board that yesterday decreed a far-reaching reconstruction of the buried landfill gas collection system in the park. The decision came after 5 pm on a long second day of testimony at the Air District’s offices in downtown San Francisco.

The testimony was dense with references to federal, state, and District rules and regulations, many of them detailed and technical. Key among them was the 5 percent rule. The District maintained that a landfill extraction well that pulled in more than 5 percent oxygen was broken. The City must repair or replace such a well. The City’s attorney, Marc Shapp, argued sharply that the City was exempt by law from the 5 percent requirement. The District conceded the point, but weaseled that it wasn’t “requiring” the 5 percent, it was just using that number as a “trigger” to require investigation and repair – repair which would pass inspection if the oxygen pull dropped below 5 percent.

To her credit, board chair Valerie Armento saw through the District’s game. In her statement as the votes were tallied, she said that the District was “backdooring” the 5 percent requirement, and had no authority to do so. Hers was the sole vote favoring the City.

Board member Amelia Timbers, who in the first day of hearing had demonstrated a keen sense of analysis, here tossed analysis aside and flipped to voting her outraged feelings. She dismissed the 5 percent issue as irrelevant and focused instead on last year’s atmospheric rivers that had flooded part of the connector lines and forced the flare station to shut down for more hours than permitted. She felt that this flooding was foreseeable and had in fact been foreseen as early as 2018 in a memo authored by SCS Engineering, the contractor that operates the landfill for the City. She felt the City’s explanations for not being ready for the deluge were unbelievable. Board member Danny Cullenward was inclined to take even harsher measures against Berkeley than the District asked. The fourth board member, Rajiv Dabir, went along, offering little. The final vote on the main issue was 3-1 for the District.

The District’s attorney, Joel Freid, was well prepared and led his witnesses through the exhibits with efficiency, even though much of his questioning was a robotic script. He apparently knew his jury and steered wide of the rules and the law to focus instead on anecdotes. He got District specialist Gracie Leung, the beat cop who wrote most of the tickets against the City, to testify that she smelled a foul odor from one of the wells. She went to test it and found a methane leak from a cracked pipe joint. The SCS project leader, Stephen Harquail, was with her and saw it, but took more than ten days to repair it, offering various lame excuses for the delay. Later, she went to the flare station and saw that the base of the flare stack, where the burner sits, had been patched with duct tape and foil, which she felt highly improper. At another time, she wrote a ticket because too much methane had been pulled into the flare on one day, apparently in an effort by SCS to clear water from the tubes. Freid summarized these anecdotes in his closing, saying that the City and SCS had “shoddily maintained the landfill.” Even though each of these anecdotes was an isolated case and had little bearing on the larger issues at stake, they painted the City and SCS as bad guys who deserved whatever the District could throw at them. That worked with the Board majority.

City attorney Shapp knew the technical rules forward and backward and, if the BAAQMD Board went by the rules, he would have won handily. He excelled at picking holes in the detailed data that District staff presented. But he was not prepared for the emotional impact of the damaging anecdotes. Instead of admitting that mistakes were made but let’s look at the big picture, he wasted time attacking Ms. Leung’s credibility, which fell flat. He didn’t tackle head-on the troublesome 2018 memo in which SCS advised the City that problems with the Air District lay ahead if it didn’t act. He did not hammer on the landfill’s age issue, where he could have pulled damaging admissions from the District’s experts. He didn’t highlight the experience of the years 2011-2016 when the old flare station, with District permission, was shut down about half the time and no terrible consequences followed. He didn’t emphasize hard enough the consistent findings, year after year, whether the flare was up or down, that no landfill gas ever escaped to the park surface.

District attorney Freid, in his closing, summed up the indictment against the City and SCS in the words, “They ran the landfill as a park rather than as a landfill.” Unless the City successfully appeals the BAAQMD decision in court, we visitors to the scene will soon learn that Cesar Chavez is not a park that we can love, it’s a landfill on which we are barely tolerated. The exact scale of the ripping, gouging, trenching and drilling that lies ahead remains to be determined, but it will be extensive and will cover every quarter of the park. The District’s witnesses testified that options such as large-scale regrading and elimination of ground squirrel burrows are on the table. And when it’s all done, millions of taxpayer dollars later, the District is most likely to discover – surprise! — that the reason why the flare station isn’t drawing enough gas to run the flare burner full time is that this very old and exhausted dump doesn’t have enough gas left in it. And then the District might in its royal discretion allow the flare station to run part time, which is all that the City is asking today.

A festering side issue in this controversy is the landfill gas around the Hilton Doubletree Hotel. When the original gas system was installed in 1988, the builders extended a branch of it outside the official landfill south across Spinnaker Way into the grounds of the hotel, the parking lots west of it, and the boat yard. This area was not treated as an official landfill by having a clay cap and a soil cover installed, as in the park. Without apparent inquiry into the nature of the foundation, developers erected buildings on it and laid pavement over most of the open space. The landfill gas extraction devices installed there are not the deep vertical wells found in the park but horizontal pipes buried in shallow trenches under the pavement. Some of these wells have consistently shown high levels of methane.

Part of the Air District’s decision against the City requires the City to perform a so-called fingerprint analysis of the gas found around the hotel. The idea is to compare the chemical signature of the hotel gas with the gas found inside the park. If they are the same, this would allegedly prove that gas from the park is migrating subsurface to the hotel area. If so, BAAQMD has jurisdiction over it, as being gas from the area covered by its permit, and it can force the City to do whatever the District deems necessary to fix it.

The details of the “fingerprinting” lab analysis belong to the experts, but a few nontechnical observations are in order. If the hotel gas and the park gas are identical, It does not prove migration. The most economical explanation is that there is identical garbage under the hotel and under the park. The only way to prove actual migration is to inject a tracer, such as a radioactive gas, into the park grounds and wait to see whether it shows up under the hotel.

A more useful starting point would be to drill a few boreholes into the hotel grounds and pull up a soil core. If no garbage is discovered, the migration hypothesis has legs. If there is garbage, migration is bunk.

The map is not friendly to the migration hypothesis. The area of the park adjacent to Spinnaker Way and to the hotel was the earliest official dumping site. The waste here is around 60 years old. Air District exhibits showed that the wells in the park nearest to the hotel are functioning properly. There’s no indication of a problem that might cause migration, even in the very unlikely case that a gas surplus existed there.

Spinnaker Way was built to carry heavy equipment such as dump trucks and earth movers. Its foundation is about as dense and hard-packed as a roadbed can be. It has low permeability and acts as a wall to block gas migration from the park.

It’s also notable that the highest gas readings around the hotel lie directly across Marina Boulevard from what used to be called the Berkeley Meadow, now the Sylvia McLaughlin Eastshore State Park. The Meadow is a thin soil cover over at least 12 feet of municipal garbage, where landfill gas generation is a long-known issue. If the hotel gas is migrant gas, not generated on the hotel site, it is more likely to be Meadow gas than Chavez Park gas.

Somehow these issues have escaped Air District notice. Instead, we are fated to rely on expert opinions based on spectrographic gas analysis that, absent a tracer, will prove nothing. The Air District’s posture in these recent hearings has been that of a dimwitted bully. It finds satisfaction not in helping solve problems but in demonstrating dominance and meting out punishment for disobedience to its decrees, even when those decrees are unauthorized, nonsensical, and wasteful of public resources.