SUBJECT
Title
RETURN BACK ON OPTIONS AND ANALYSIS RELATED TO SUPERFUND TO UNLOCK STATE AND FEDERAL FUNDS FOR TOXIC REMEDIATION AND CLEANUP, AND CEQA EXEMPTION (DISTRICTS: ALL)
Body
OVERVIEW
On October 8, 2024 (13), the San Diego County Board of Supervisors (Board), directed the Chief Administration Officer (CAO) to return with recommendations for legal options and funding opportunities available at the State and federal levels to help address the Tijuana River Valley pollution crisis, and an assessment of how these options, including potential Superfund designation, would impact the communities most affected by the crisis. The term “Superfund” refers to a fund managed by the United States Environmental Protection Agency (USEPA) designed to clean up some of the nation’s most contaminated land and respond to environmental emergencies, oil spills and natural disasters pursuant to the federal Comprehensive Environmental Response, Compensation, and Liability Act.
Today’s item provides an update on research from County Counsel (Counsel) regarding potentially applicable hazardous materials laws and actions for remediation, as well as regulations governing water and air quality. This analysis includes a high-level overview of these laws without offering a legal opinion on whether facts support the County of San Diego (County) or any other party using these regulatory programs.
Today’s actions request the Board find that the proposed actions are not subject to the California Environmental Quality Act (CEQA) as the recommended actions are administrative in nature and not a project as defined in CEQA Guidelines Section 15378(b)(5) and to receive this update (refer to background) related to Superfund designations and other laws and regulations that can unlock State and federal funds for toxic remediation and cleanup.
RECOMMENDATION(S)
CHIEF ADMINISTRATIVE OFFICER
1. Find that the proposed actions are not subject to the California Environmental Quality Act (CEQA) as the recommended actions are administrative in nature and not a project as defined in CEQA Guidelines Section 15378(b)(5).
2. Receive this update related to Superfund designation and other laws and regulations that can unlock State and federal funds for toxic remediation and cleanup.
EQUITY IMPACT STATEMENT
The communities closest to the San Diego International Border, including the communities of Imperial Beach, San Ysidro, Otay Mesa-Nestor, and Tijuana River Valley are identified by SB 535 (2012) and CalEnviroScreen 4.0 as being Environmental Justice communities having high pollution burdens for impaired water bodies, elevated hazardous inhalable particulate matter, elevated linguistic isolation, and poverty rates. Local Environmental Justice communities have suffered for decades from various pollution sources, have been advocating and working to raise their concerns to the various agencies, and have elevated the need for data collection to document environmental injustices.
SUSTAINABILITY IMPACT STATEMENT
This update aligns with the County of San Diego’s (County) Sustainability Goals: protect health and wellbeing and the environment. The proposed action contributes to the County’s Sustainability Goal No. 6 to protect the environment and promote our natural resources, diverse habitats, and cultivate a natural environment for residents, visitors, and future generations to enjoy.
FISCAL IMPACT
There is no fiscal impact associated with today’s recommendations. There will be no change in net General Fund costs and no additional staff years. There may be future fiscal impacts associated with direction to pursue a specific action or direction within the TJRV that could impact the community if the action includes direction to County staff to explore additional opportunities for community input and engagement. Fiscal impacts will be identified and funding sources may include the reallocation of resource from another County program.
BUSINESS IMPACT STATEMENT
Increased beach water closures resulting from sewage impacts have a direct effect on the surrounding community due to decreased tourism, patronage of local businesses, and opportunities for youth recreation and camps. Through this action and others related to the Tijuana River Valley pollution crisis, the County continues to engage businesses, non-profit service providers and residents who are negatively impacted by this crisis with the goal of assisting in identifying ways to connect them to any State or federal relief programs and contributing to the regional efforts to resolve the crisis.
Details
ADVISORY BOARD STATEMENT
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BACKGROUND
For decades, the Tijuana River has been impacted with pollutants, such as trash and raw sewage, which move across the border into the Tijuana River Valley (TJRV) in the United States. This pollution has hit peak levels in recent years, as additional raw sewage from wastewater plants with failing infrastructure across the border is discharged into the ocean and causes impacts to water quality in San Diego, especially when there is a south swell and ocean currents push north. In response, the Board has taken several actions to address issues associated with transboundary flows (sewage that flows from Mexico into the United States).
On June 27, 2023 (16), the San Diego County Board of Supervisors (Board) issued a Proclamation of Local Emergency as a result of the continued conditions for detrimental impacts to the environment, economy, and property within San Diego County, caused by persistent impacts from cross-border sewage pollution and sewage impacted ocean waters. Subsequently, the Board found that there is a continuing need for the local emergency, and took action to keep the local emergency in effect every 60 days, with the most recent action on December 11, 2024 (1).
On October 8, 2024 (13), the Board directed the Chief Administration Officer (CAO) to return with recommendations for legal options and funding opportunities available at the State and federal levels and an assessment of how these options, including potential Superfund designation, would impact the communities most affected by the Tijuana River pollution crisis.
On October 22, 2024 (31) the Board directed the CAO to consult with County Counsel to explore legal options to file a complaint or join existing litigation against any potential responsible parties, such as but not limited to, Veolia North America (responsible for maintenance and operation of the South Bay International Wastewater Treatment), for damages caused to TJRV and surrounding communities. County Counsel will return to the Board in closed session every 90 days with updates and options.
A group of San Diego County residents and some local elected officials submitted a petition on October 24, 2024, to the United States Environmental Protection Agency (USEPA) to designate the 6-mile portion of the Lower TJRV as a Superfund site to unlock federal funding and get support from the federal government to clean-up the TJRV. This petition has been received by the USEPA and is currently under review.
Today, staff is providing the summaries below on the Superfund program process, research on various legal options that may help address the transboundary pollution crisis and preliminary finding on possible impacts to the community when Superfund designations are established.
United States Environmental Protection Agency (USEPA) Superfund Program
The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) also informally known as Superfund, was enacted by the United States Congress on December 11, 1980. Superfund established prohibitions and requirements concerning closed and abandoned hazardous waste sites; provides for liability of persons responsible for releases of hazardous waste at these sites; and established a trust fund to provide for cleanup when no responsible party could be identified. Being designated a Superfund site by USEPA allows the clean up of contaminated sites and forces the parties responsible for the contamination to either perform cleanups or reimburse the government for USEPA-led cleanup work. USEPA collects data through their Hazard Ranking System criteria to assess the relative potential of a site to pose a threat to human health or the environment, and if it meets its criteria, the most concerning sites are added to the National Priorities List (NPL). Thousands of contaminated sites exist nationally due to hazardous waste being dumped, left out in the open, or otherwise improperly managed. These sites include manufacturing facilities, processing plants, landfills and mining sites. The definition of hazardous waste under CERCLA (42 USC 6903) does not include sewage and municipal garbage.
USEPA Superfund Process
The Superfund cleanup process is a complex multi-phase effort led by the USEPA. It involves nine phases with varying timelines that can often take decades to complete. A brief overview of these nine phases is provided below:
1. Preliminary Assessment/Site Inspection: This phase involves reviewing past records and USEPA visiting the location to assess any potential for hazardous substance release. The USEPA evaluates whether the site presents a risk to human health and the environment and decides if immediate action is required or if further site data should be gathered.
2. NPL Site Listing Process: The NPL is a list of the most serious sites identified for long-term cleanup. It includes the most hazardous waste sites identified by Superfund, largely based on a site’s score from the Hazard Ranking System and a formal public comment period that demonstrated to USEPA that a site should be added.
3. Remedial Investigation: This phase entails assessing the type and scope of contamination at a site, along with evaluating potential risks to human health and the environment. It also involves examining the anticipated effectiveness and cost of the treatment options identified for the site.
4. Records of Decision (ROD): The ROD finalizes the formal environmental analysis of cleanup options under the National Environmental Policy Act and outlines the cleanup methods chosen for NPL sites. Before the ROD is issued, the USEPA suggests a preferred remedy and shares the cleanup proposal in a Proposed Plan, allowing for public feedback. After the comment period, the USEPA finalizes and issues the ROD.
5. Remedial Design/Remedial Action: In this phase, detailed cleanup plans are created and put into action. The remedial design phase involves preparing engineering drawings and specifications for the site’s cleanup, followed by the remedial action phase, which involves the actual construction or implementation of the cleanup process.
6. Construction Completion: This milestone signifies that all physical construction necessary for the site’s cleanup has been completed, even if final cleanup levels have not yet been reached. For instance, a groundwater treatment system may be in place, but it could require years of operations to fully remove contaminants from the groundwater.
7. Post Construction Completion: Activities in this phase help ensure that cleanup efforts at a site continue to protect human health and the environment. This work may include regular site monitoring, periodic reviews to confirm the effectiveness of the cleanup, and reinforcing any long-term site restrictions, such as institutional controls. Examples of institutional controls are the implementation of land use restrictions that could limit or restrict public access to park amenities, as well as stop habitat restoration activities that disturb the soil.
8. National Priorities List Deletion: USEPA can remove sites from the list if it determines that no further response is required to protect human health or the environment or if all clean up actions have been implemented.
9. Site Reuse/Redevelopment: USEPA aims to ensure that site cleanups align with the anticipated future use of the site. Reuse considerations can be integrated at any stage of the Superfund cleanup process, from initial investigations to removal from NPL. The USEPA collaborates with communities to ensure that sites, or parts of them, are repurposed safely.
Before considering whether the TJRV meets the criteria for a potential designation of a Superfund or if the Board should pursue this designation, the Board requested an analysis addressing several key questions regarding its potential implications for our region. Counsel has also comprised a legal analysis of other potentially applicable hazardous materials laws and actions for remediation, as well as regulations governing water and air quality that could be considered. This analysis includes a high-level overview of these laws without offering a legal opinion on whether the facts support the County or any other party using these regulatory tools.
Counsel Update on Federal and State Statutes That May Provide Funding and/or Guidance on Cleaning Up the TJRV
The Board action on October 8, 2024 (13), directed the CAO to work with County departments to return back with an analysis of legal options, and the Board action on October 22, 2024, and directed Counsel to explore litigation against potentially responsible parties. The information below summarizes State and federal environmental laws that could apply to hazardous waste and other toxics endangering public health. Analysis of whether the County could use these laws to address the problems in the TJRV will be provided to the Board in closed session.
The following State and federal laws provide authority for designated government agencies to initiate and regulate cleanup actions, force responsible parties to fund or reimburse the costs of cleanup actions and, in some cases, provide federal or State funding for cleanup actions where funding from the responsible parties is not forthcoming. Determining whether each of these statutes applies to waste present in the TJRV would require further factual inquiry and the engagement of the agency responsible for administering each statute. Below is a short summary of how each statute applies to the release of hazardous waste.
CERCLA
The federal CERCLA, enacted in 1980, established requirements for closed and abandoned hazardous waste sites, created statutory liability for parties responsible for releases of hazardous wastes at such sites, created a trust fund (Superfund) to pay for cleanup of these sites when no responsible party could be identified, and tasked the USEPA with administering these provisions. CERCLA provides for short-term removal actions when releases or threatened releases require prompt action, and for long-term remedial response actions for releases or threatened releases that are serious but not immediately life-threatening. These longer-term remedial response actions will be ordered by USEPA and potentially partially funded by the Superfund only for sites listed on the NPL. The process for adding a site to the NPL can be initiated by anyone and involves technical review, community engagement, and consultation with the respective state. A site that is not a federal facility will not generally be added to the NPL without state concurrence, as cleanup of a NPL site that is not a federal facility or on federal property requires a state cost share. Once a site is added to the NPL, USEPA continues to monitor and regulate the conduct of cleanup activities until the cleanup is fully executed and the site is removed from the NPL.
Under CERCLA, “responsible party” is defined to include (1) current and former owners of the site, whether or not they are at fault in the release unless an exception applies, (2) operators who were in charge of the site when the release occurred, (3) arrangers who arranged for the disposal of hazardous waste at the site, and (4) transporters who transported hazardous waste to the site. Any person, including a local government, can be held liable under any applicable prong of this definition. Among other exceptions, government entities may avoid liability under the owner prong of this definition if they came into ownership through the fulfillment of their function as a government entity, such as taking ownership due to failure to pay property taxes.
Domestic sewage and municipal garbage are excluded from the definition of hazardous waste under CERCLA, so Superfund would only be available to help clean up the TJRV if it can be demonstrated hazardous wastes have been released in the area in addition to sewage and municipal garbage.
Resource Conservation and Recovery Act (RCRA)
The federal RCRA, enacted in 1976, gave the USEPA regulatory authority over hazardous waste from “cradle to grave,” meaning from the time an object is determined to be waste to the time it is permanently disposed of or recycled. USEPA regulates solid waste (which is defined to include discarded solids, liquids, and gases) throughout the country, largely through implementation programs delegated to the states. USEPA regulations under RCRA define those wastes that are considered hazardous wastes, and set regulatory requirements for those who generate, transport, treat, store, and dispose of hazardous wastes. When there is a release or threatened release of hazardous waste, these entities may be subject to RCRA Corrective Action. In a RCRA Corrective Action, USEPA, through a process that includes opportunities for community input, orders the regulated part(ies) responsible for the release or threatened release to perform cleanup actions, then continues to monitor and regulate the conduct of the required cleanup activities to completion.
Again, domestic sewage and municipal garbage are excluded from the definition of hazardous waste under RCRA.
Clean Water Act (CWA)
Under section 311 of the federal CWA, codified at 42 USC 1321, USEPA may order removal actions consistent with the National Contingency Plan in response to discharges of oil or hazardous waste (as defined under RCRA) to waters of the United States. Responsible parties are required to take and/or fund the ordered removal actions. Substantial civil penalties may be imposed for the release itself and for any failure to complete ordered removal actions.
Enforcement for other (nonhazardous waste) unpermitted discharges such as untreated sewage is generally delegated to state governments. In California, the bulk of this type of enforcement falls to the Regional Water Quality Control Board (RWQCB). The San Diego RWQCB has relied upon its authority under the CWA and the Porter Cologne Water Quality Control Act to issue notices of violation to the International Boundary and Water Commission (IBWC) and its primary contractor, Veolia North America, for unpermitted discharges of raw sewage.
Clean Air Act (CAA)
The federal CAA provides for USEPA enforcement actions against sources of hazardous air pollutants (HAPs) that fail to obtain, or violate the terms of, required emission permits. HAPs are 188 specific contaminants known to cause cancer or other serious health effects. Under the CWA, there is little authority in the CAA to direct or fund the cleanup of releases of hazardous waste. Once a release has occurred, authority to order and fund cleanup actions more likely flows from RCRA or CERCLA.
Like the CWA, much of the enforcement, including emissions not containing HAPs, under the CAA is delegated to the states. In California, responsibility for the bulk of this type of enforcement falls through the California Air Resources Board to the local Air Pollution Control District (APCD), which also enforces the California Clean Air Act (CCAA). The CCAA authorizes APCD to require stricter standards than those set by USEPA under the CAA. The San Diego County APCD has drawn on its authority under both the CAA and CCAA to issue notices of violation to the IBWC and Veolia North America for unpermitted air emissions resulting in strong odors.
Hazardous Substance Account Act (HSAA)
The California HSAA is the state’s corresponding program to CERCLA. Under the HSAA, “hazardous waste” is defined to include federally defined hazardous wastes and excludes most federal exceptions to the definition of hazardous wastes, but also includes wastes meeting certain toxicity criteria, whether they are included under federal definitions or not. Domestic sewage and municipal garbage are excluded from the definition of hazardous waste under HSAA. However, components of municipal garbage may qualify as hazardous waste if they meet the toxicity requirements under the HSAA. The definition of “responsible party” under CERCLA is imported directly into the HSAA. Like CERCLA, HSAA establishes a program to respond to releases of hazardous waste, apportions liability for abandoned hazardous waste sites, guides cleanup standards and processes, provides for robust public input on cleanup actions, and provides funding for cleanup of certain sites. The California Department of Toxic Substance Control (DTSC) is primarily responsible for administering the HSAA. The HSAA creates a two-tiered list of sites for which cleanups are to be ordered and funding may be provided. Priority one sites present more of an immediate threat to human health and safety than do Priority two sites. No response actions taken by state or local agencies under HSAA shall duplicate federal response actions.
The respective state or RWQCB may, when it has jurisdiction over a release of hazardous waste, refer a site to DTSC for listing if the water board has ordered a responsible party to cleanup and/or abate the release, and the party has failed to do so.
Porter Cologne Water Quality Control Act
The California Water Code section 13304 empowers the regional water board to order parties responsible for discharges or threatened discharges of wastes (including untreated sewage) into the waters of the state, in violation or absence of a valid permit, to clean up the waste, abate and effects of the waste, and/or take other necessary remedial action. If the responsible party fails to act as ordered, the regional water board can take further administrative action, request the State Attorney General petition for an injunction, and/or expend available funds to undertake the required cleanup actions directly. The RWQCB may also refer the site to DTSC to be listed under the HSAA as described above.
Water Resources Development Act (WRDA)
While not a regulatory tool, the WRDA could be a process to help highlight remediation projects at a federal level to attract funds. WRDA is a biennial piece of legislation that authorizes projects for the Army Corps of Engineers (Army Corps) to implement. In the current WRDA bill text, $200 million is identified for projects in San Diego County regionwide and a separate $10 million is identified for the TJRV watershed. It is important to note that this bill does not actually fund any of the projects listed. Congress would still need to appropriate funds, but inclusion in WRDA indicates the projects for this are a priority. If WRDA is signed by the president, the Army Corps would then begin an outreach process to develop specific projects that would require appropriation. Staff will continue to track the status of the legislation.
Impact on Communities
In addition to seeking legal options, the Board action on October 8, 2024 (13), directed the CAO to return back with funding opportunities available at the State and federal levels and an assessment of how these options, including potential Superfund designation, would impact the communities most affected by the Tijuana River pollution crisis. The discussion below addresses potential community impacts with the best information available to staff at this time.
Property Values
Data on the impacts of Superfund sites to local property owners is very limited due to the significant length of time it takes for a site to be added to the NPL, the completion of litigation, and the unique needs of every site. According to a report from the USEPA in 2000, property owners subject to Superfund can expect property values to decrease between 2% and 8% until the cleanup is completed.
Restrictions on Use of Property
As part of the cleanup process, restrictions may be placed on the use of affected property to avoid human exposure and/or spreading contamination present on the site. These restrictions may be temporary, effective during part or all of the remediation phase of the cleanup, or they may be permanent institutional controls designed to avoid disturbing contamination that is left in place. These restrictions, if instituted, could impact the use of both public and private property within the boundaries of any site selected for cleanup under CERCLA/HSAA. Specific to the TJRV, if recreational uses are restricted, there could be a direct impact to members of the community that utilize existing facilities within the TJRV Regional Park, which includes an extensive trail system, a campground, a bird and butterfly garden, a sports complex, and a community garden. Additionally, there are multiple landowners in the TJRV that conduct soil-disturbing activities such as habitat restoration, channel maintenance, and trail maintenance. These regular maintenance and restoration activities could also be restricted under CERCLA, which could impact natural resources and hydrology in the area.
Jurisdiction
Issues regarding jurisdiction for potential affirmative litigation, whether cost recovery under CERCLA or otherwise, will be addressed in closed session.
County Liability
Under Superfund, cleanup is typically done by the polluter or in coordination with the property owner and the USEPA. If the County is an affected property owner, that will be addressed in closed session.
Funding Availability
Even if the TJRV is ultimately added to the NPL, making it eligible for Superfund resources, there is no guarantee as to the timing or amount of cleanup funding that might result. The USEPA has suggested it can take decades for a site to be placed on the NPL and become eligible for cleanup. Under current law, continued replenishment of the Superfund is contingent on continuation of the Federal Chemical Excise Tax, which is scheduled to sunset in 2031. Funding is also contingent on available State funds and/or available funds from the polluter.
Community Engagement
The County regularly communicates with the community and stakeholders in various capacities and receives feedback regarding environmental and public health concerns. There may be fiscal impacts associated with direction to pursue a specific action or direction within the TJRV that could impact the community if the action includes direction to County staff to explore additional opportunities for community input and engagement. Fiscal impacts will be identified and funding sources may include the reallocation of resource from another County program.
Today’s actions request the Board receive this update related to Superfund designation and other laws and regulations that can unlock State and federal funds for toxic remediation and cleanup.
ENVIRONMENTAL STATEMENT
This analysis is not subject to review under the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines Section CEQA Guidelines Section 15378(b)(5) because the action is an administrative action intended to facilitate state and federal funding, does not commit the County of San Diego to a specific project, and will not have a reasonably foreseeable direct or indirect effect on the environment.
LINKAGE TO THE COUNTY OF SAN DIEGO STRATEGIC PLAN
Today's proposed actions support Sustainability and Equity initiatives in the County's 2025-30 Strategic Plan by helping address environmental justice, health, and economic issues resulting from the decades long transboundary pollution environmental crisis.
Respectfully submitted,
Dahvia Lynch
Deputy Chief Administrative Officer
ATTACHMENT(S)
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