“We are operating in different universes,” said Joel Freid, attorney for the Bay Area Air Quality Monitoring District (BAAQMD), after listening to the opening statement made by Marc Shapp, attorney for the City of Berkeley, in the BAAQMD Board Hearing in San Francisco on Tuesday January 23. The City and the Air District are fighting over the future of the landfill gas collection and control system whose central flare stack sits inside a green fence near the center of Cesar Chavez Park.
If the District has its way, the City will have to spend at least $2 million to dig a huge network of pits and trenches in the park, replacing the entire system of wells and lateral piping that was installed in 1988. The park will be a torn-up noisy mess for a year or more. If the City wins, the major change is that the existing flare station will run part time, instead of full time. Different universes, indeed.
The venue is the Air District’s modern hearing room, similar to a courtroom with dozens of screens. Valerie Armento, an attorney who chaired the proceedings, swore in witnesses as in a courtroom trial, but allowed much broader latitude for testimony than would be admissible in a real courtroom. Accordingly, each side took several hours to present its case, often in a rambling fashion, and the matter was not finished at the end of the day. The list of exhibits runs to more than 1800 pages.
The Air District made clear that it demands strict. unquestioning obedience to its rules, with every i dotted and t crossed. Its leverage is the permit. The City operates the landfill under a permit that the Air District issues. The permit contains a tight hashwork of detailed requirements with limited exemptions. One requirement is that the flare station must operate continuously, except for an allowance of 240 hours of downtime annually for maintenance. The District issued a series of Notices of Violations to the City during 2023, charging that the downtime came to 474 hours, almost twice the allowance. The District also charged that the City “lost” five of the 42 originally built extraction wells without notifying the District, as it was required to do. Moreover, there were instances where hardware system components at the wellheads showed gas leaks, as documented in City records.
The SCS Engineering firm has had the landfill maintenance contract with the City since the system was built. SCS engineers testified on behalf of the City that a small part of the excess downtime last year was due to elusive malfunctions of thermocouples in the flare stack. There were also problems due to heavy winter rainstorms flooding the lateral pipes and throttling gas flow from wells to flare. But most of the downtime, SCS argued, was due to low gas levels. Even with clear and dry feeder pipes, the garbage in the landfill is 40 to 60 years old, ancient as landfills go, and isn’t producing enough methane to keep the flare burning full time. No matter what we do, the City said, the flare cannot and will not operate continuously. Therefore, the Air District should modify its permit to allow LTC — less than continuous operation.
As for the lost wells, the City said that Park landscaping had buried the wellheads. The GPS coordinates for each well set in the 1980s were not accurate. The City had searched intensively but failed to locate the wells, and therefore took them out of the system. Its failure to report the losses to the Air District was a paperwork oversight. The loss of the five wells did not impact the safety or effectiveness of the system as a whole. As for gas leaks recorded at wellheads from time to time, none of these were in excess of permitted levels, and all were transitory.
Bottom line, the City is arguing that the landfill is near the end of its productive life, as far as gas is concerned, and it would be inequitable to tear up the park to build a brand new and very expensive system to collect the last exhalations of this dying body of garbage.
The scenario recalled the period 2011-2016, when the original flare station in the park sputtered and flamed out repeatedly, due to lack of sufficient methane to drive it. At that time, the Air District allowed the City to shift to part time operation. The new flare unit installed in 2016 was much smaller and required less gas to drive it. Once it was up and running, the Air District once again required continuous operation. Now, as was predictable and predicted, gas volume has dropped further, and the new unit is too big for the gas available. According to SCS engineer Anton Svorinich, the one we have is the smallest unit made.
At this point, one of the Board members asked a very intelligent question. Amelia Timbers, an environmental planner, said she did not understand why Berkeley is seeking part time operation, and not a complete shutdown. (Air District rules allow a system to be shut down if gas levels drop below a threshold amount, and the Chavez Park system has been hovering around that threshold for years.) Two SCS witnesses, Patrick Sullivan and Anton Svorinich, addressed that issue. The answer, in a word, is the hotel. Something still needs to be running, Svorinich said, because of the gas at the hotel complex. If you shut it down, where do you put the gas from the hotel area?
To underline the point, witnesses produced maps and tables showing that high levels of methane gas were coming from the extraction wells around the hotel buildings. Robert Healy, a senior waste management engineer for CalRecycle, testified that gas concentrations around the hotel are at potentially explosive levels and would present a hazard to persons if not removed.
The presence of high methane levels around the hotel complex raised the legal question whether the Air District has jurisdiction there, since the area south of Spinnaker Way lies outside of the permitted landfill. The District has demanded that the City conduct a “fingerprint” study to determine, if possible, whether the methane seen on the hotel grounds is native there or has migrated from Chavez Park. If it’s migrant gas, the District could claim jurisdiction.
Several times during the Jan. 23 proceedings, the City was asked whether landfill gas came to the surface in the park during periods when the flare station was down. The City had its answer ready. On four occasions during 2023, including during system downtimes, SCS technicians walked the park in a tight grid pattern with rolling gas sniffer devices. At no time did they detect any landfill gas at the surface. These surface monitoring sweeps have been conducted in the park at least annually since 1988 and have never detected surface leakage, whether the flare was on or off. The word “bioremediation” didn’t escape any lips at the hearing, but it’s been known to scientists since at least 1989 that a class of beneficial bacteria resident in the upper layers of the park soil has been very effectively cleaning up methane without the need for expensive hardware. But those bacteria can’t operate south of Spinnaker Way where the hotel sits because that area is almost entirely paved over.
The City of Berkeley’s current contract with SCS Engineers to maintain the landfill gas system at Chavez Park runs to $714,022. What emerged from the first day of the hearing is that the principal beneficiary of this system, the main reason to keep it running, is the Hilton Doubletree Hotel.
The session adjourned before either side completed its case. The hearing resumes February 6 in the same venue. The Air District has the home field advantage. The District’s Board is the judge and jury. For the City to win, the Board has to rule against its own staff.
If the City loses, the City should take BAAQMD to court for bureaucratic overreach, if there is such a cause of action. Air District witnesses had fun kicking the City’s butt for losing five wells, letting pipes get flooded, and taking too long to fix thermocouples, and that was deserved. But the Air District also had gaps. It tried to beat up the City for transitory wellhead leaks that were within allowable levels. It tried to indict the City for violating a five percent oxygen level at a number of wells, when that standard has been repudiated as groundless everywhere except at BAAQMD. And it had no rejoinder for the historic fact that gas volume declines with time. District representatives radiated the smug arrogance of petty paper-pushing bureaucrats. They came from a punitive place, not a place of pragmatic collaboration and help. They were right, but they weren’t smart. An ordinary jury would kill them.
At this point the matter between the City and the District is up in the air, but there is one definite loser. The Hilton came out of Tuesday’s hearing with a cloud. Although witnesses were clear that there was no methane inside the hotel buildings, ever, the testimony about potentially explosive methane levels around the buildings probably won’t help bookings.
For background, check this post on chavezpark.org.