Guest Column: Benicia Arsenal Cleanup is a Tangled Tale

By Mike Ioakimedes

It’s a given that democracy works best when citizens are informed of their government’s actions, but information alone isn’t always enough.  Sometimes what is more important than getting answers to your questions is knowing which questions to ask.

We’re very fortunate in Benicia that we have an informed and engaged group of citizens who study the issues and ask the hard questions.

I recently wrote a guest column that appeared in the Benicia Herald.  In that column I recounted some private meetings I had with Mr. Seeno and his staff concerning Mr. Seeno’s request that I reconsider my “no” vote on his project. 

It was perfectly appropriate for me to meet with Mr. Seeno privately as long as once I had decided whether I would ask for a vote reconsideration I would do so publicly (I did) and that I publicly disclose what had happened in those meetings with Mr. Seeno (again I did) and finally that I disclose my reasons for asking for a vote reconsideration (once again I did).

The fact that some citizens questioned the appropriateness of those meetings is true American democracy in action. I welcome that kind of public engagement.  We should always question all of our decision-makers.

All private meetings by elected officials should be disclosed and open to question. So it is somewhat curious to me why some are apparently selective as to who and what they question, and why.

 I took quite of bit of “heat” when I brought forward a new agreement on the Seeno project that dramatically changed the tone and tenor of the subsequent discussions.  I’m catching some “heat” now.  That’s OK, but as a community let’s not lose sight of the challenges that we face today.

What isn’t being discussed enough in our community is the current cloud that hangs over our Industrial Park. It is a cloud that has far reaching implications for all of Benicia.

The historical facts are clear.  For over 100 years, the US Army stored, manufactured, and tested almost every type of armament at the Benicia Arsenal.  When the military turned the Arsenal over to the City in the early 1960s, there were little or no environmental regulations in place that protected public health and safety. In simple terms, the Army handed the City of Benicia the keys to the Arsenal and said, “It’s all yours.

The Army left behind a mess of colossal proportions.  The maintenance and manufacturing areas were polluted, and some outer areas of the Arsenal were unsafe, since they’d been used for test firing.

The Army has done considerable cleanup in several areas, but this Council has been united that some areas still require cleanup of materials directly tied to Army use.  This Council is also united that this cleanup should be at the sole expense of the Army, and any interruption or impact to the existing property owners must be kept to a minimum.

In February,2010, the current City Council formally stated there were areas that the Army still needed to clean up.  There was considerable discussion about this issue, because several Council members were concerned with any potential impacts to existing business and property owners.  It was Council’s intent that their actions only improve the situation for the existing businesses and property owners, not in any way expose these existing owners to any new financial risk or potential business interruption.  Language was carefully chosen to express that balance:  the need for the Army to act while at the same time protecting the existing property ownership and business interests. 

That language noted that we would seek assistance with cleanup:

Ideally to be accomplished (1) by an enforceable voluntary Clean Up agreement between Cal-EPA/DTSC, with the Department of Defense, including all Potentially responsible Parties, or by Order of Cal EPA/DTSC with the Cooperation and Support of the City of Benicia, DOD, and All PRP’s…

Council chose this term because the language allowed the current property owners and/or business tenants the most flexibility and protection should their properties require Army cleanup.  As it turns out, the language was not specific enough.  As written, the resolution could have also been interpreted as asking for a Voluntary Consent Order.  Worse yet, in the months that followed it was interpreted by some to allow for the issuance of a much more punitive order. 

Recently there has been some veiled criticism of a Council member’s remarks; interpreting those remarks as a lack of commitment to the cleanup. When you hear current Council members express second thoughts about that resolution (myself included), it is not a reflection of our commitment to the cleanup effort.  It’s that, what we ended up with wasn’t what we asked for.

After Council took action in February 2010, I stayed involved in the Arsenal cleanup process by asking for Congressman Miller’s help in securing federal cleanup monies in the Defense Appropriations Bill then being discussed in Washington DC.  Despite Congressman Miller’s focused attention and his staff’s best efforts, the consistent message from Washington was that further clean up funds would not be made available because as the Army continued to assert the area had been cleaned up to the level necessary. Those early attempts gave us a better idea of the magnitude of the Arsenal cleanup issue as well as the complexity of securing potential funding for any cleanup activity.  At that time this was solely a federal issue.  I never had and saw no need to have any individual contact with any State representatives or officials.

So we were kind of stuck. This was a federal issue, but there was no federal money to help with the cleanup. Additionally, choices made by a previous Council may have inadvertently allowed the remaining federal cleanup funds to be directed toward another federal cleanup project outside Benicia. 

I thought we were in kind of a holding pattern.  This was troublesome, but while the lack of cleanup action might impact the future development of the lower Arsenal, it did not severely or negatively impact the existing commercial or industrial activities either in the lower Arsenal or the Industrial Park in general.   In our Industrial Park, business was still being conducted, and properties were still being purchased and sold.  Our Industrial Park was functioning well; as it had for the past 40 or so years.  

Fast-forward to early September of 2010.  I get a phone call from Amports representatives asking me if I know anything about a “Draft Imminent and Substantial Endangerment Order." I replied that I knew nothing about it, what is it, where did it come from, and what does it mean? 

What I learned that day was that the Draft Imminent and substantial Endangerment Order was coming from the State of California’s Department of Toxic Substance Control (DTSC).  I asked what prompted the state to take regulatory action.  I was told that the previous July Benicia had gone off the “FUDS list”. (Formerly Used Defense Site)  Basically the Army was saying they had done all that they were going to do, and Benicia was no longer their problem.

In essence, as soon as the Benicia Arsenal site was no longer considered an Army issue, Benicia ceased being a federal issue.  But now we came under the state’s direct jurisdiction, and one of the primary state agencies that would have regulatory control was DTSC (Department of Toxic Substance Control).

DTSC had been involved in monitoring the Arsenal cleanup for quite some time, but they’d been prevented from taking a regulatory role while the Arsenal cleanup was still under federal jurisdiction. 

DTSC was a great influence in why I voted for the resolution back in February 2010.  The agency had sent several letters to both the City of Benicia as well as the US Army expressing that the Army had failed to complete the required cleanup, and that the City of Benicia would face legal exposure if we accepted any environmental documents that did not specifically call out the hazards of the contamination left by the Army use.

But now DTSC was bypassing Council’s original request for a Voluntary Consent Agreement, which would have allowed the property owners in the lower Arsenal to participate, on a voluntary basis, in cleaning up their properties.  Instead, DTSC was preparing to issue an Imminent and Substantial Endangerment Order that would possibly cloud the title of every piece of property in the entire 2700 acres of Benicia’s Industrial Park.

Under an Endangerment Order the cleanup would no longer be voluntary, but mandatory.  The cleanup cost would have to be borne by the current property owners who would then have to take legal action if they wished to recover their costs from the federal government.  Council’s action was intended to preserve the existing business climate in our Industrial Park.  In no way did this Council intend for its action to in any way interrupt or interfere with any existing Industrial Park business. 

What the Council intended as formal notice to the US Army - that there was still cleanup work to be done in the lower Arsenal, and that any cleanup work should be done with no cost or interruption to the current property owners - had exploded into a State agency preparing to issue a regulatory order that would drive a spike right into the heart of our community’s biggest and most important job and revenue creator.   

How this happened outside of the view of the public and without the knowledge, participation, or consent of the majority of our City Council is the subject of my next column.