Benicia won’t pay $900K over possible toxic contamination, but discussions continue

The Benicia resident who spent a year gathering information about possible contamination of the land in the city’s Arsenal before the city asked for state and federal funding of an evaluation and cleanup said this month the city “has demonstrated leadership, seeking a solution to the problem.”

At least one property owner in the area, Historic Arsenal Park LLC, disagrees. It is seeking $900,000 in damages from the city related to one of two mitigation orders issued by the state Department of Toxic Substances Control.

Historic Arsenal Park says the city is responsible for toxic substances released on the property by industrial tenants during the city’s ownership, after the Army left in 1964. While the City Council on Tuesday voted to deny the claim, City Attorney Heather McLaughlin was given authority “to enter into an agreement with the claimants to extend the time for filing a lawsuit. This is to give the parties more time to do investigation and figure out the scope of the problem,” she said Wednesday.

Bardet said she has been focused on other matters, from Benicia Community Gardens to fighting a use permit request submitted by Valero Benicia Refinery to extend Union Pacific railroad lines into its property so crude oil could be delivered by rail.

“I have not been in the loop, so to speak, for a very long time as (the Arsenal issue) has been hashed and thrashed,” she said, adding that investigation and cleanup issues remain unresolved.

“It’s a very complex bit of unfinished business,” she said.

“The city’s aim has been to pursue a collective solution that would benefit private property owners and businesses in the Industrial Park and Lower Arsenal area.”

Saying she wasn’t familiar with Historic Arsenal Park’s claim against the city, she said she did have an understanding of disagreements going back to 2005 that have led to a “stalemate on questions hanging over the former military uses and subsequent uses” of Gordon Potter’s Lower Arsenal properties that go by that name.

“I have in the past worked rather extensively with Gordon Potter’s son, Randy, to understand their complaints regarding the Army’s characterization of the property’s pollution that the Army claims subsequent owners contributed to after the Army left,” she said.

That means the Army claims that — after what Bardet called “their limited investigation of the Lower Arsenal” as a formerly used defense site (FUDS) — subsequent property owners contributed to the trichloroethylene (TCE) said to be coming from their 50 Series building complex.

“That contention has been fought by the Potters since 2005, and they’ve gone to enormous trouble, traveling at their own expense to St. Louis to study historic maps and documents that are held on their property at the Army’s massive archives located there,” Bardet said.

“Randy insists that a close study of those maps reveals that former military use of their properties involved engine degreasing operations that used TCE and other chemicals,” she said. “The Potters contest that their uses of the property have never involved any sort of degreasing baths as the Army claims.”

Bardet said she finds fault with the Army, not Benicia officials, and said the Department of Defense should underwrite the Arsenal cleanup.

“But they refuse to, having basically sealed off funding for further investigations and cleanups under the federal FUDS program in California and in other states,” she said.

“There is no getting around the fact that the Arsenal has never been completely investigated for former military leftovers, whether contamination or ordnance,” she said.

“The DTSC Order for cleanup issued to the Potters was a literal followup on what was already-known contamination identified by the FUDS investigation, however limited the Army Corps’ investigation was.”

Bardet said the Arsenal’s closure in 1964 was the first time the Army had closed a base, and that it happened before the creation of the federal Environmental Protection Agency that was established in 1970 by President Richard Nixon.

“We are seeing the outfall of a very poor handling of the closure by DoD (Department of Defense) that ultimately left behind buried military wastes of every kind, from hazardous chemicals (to) TNT and explosive ordnance,” she said.

“What was dumped in the waters off the port and in the marsh is another question.”

After the Arsenal’s closure, its properties were sold at low prices to buyers, Bardet noted.

“Nobody looked at the issue of cleanup then as any sort of problem to worry about. Hand grenades that were subsequently found in landscaping were simply written up in police reports,” she said.

She said those who bought Arsenal land never received disclosures about “dangers lying around. Or maybe they didn’t pay attention to what little had been said.”

She said ordnance was found from ground level to 18 inches deep near the buildings that house the Benicia Historical Museum, in the buffer zones around what is now Valero Benicia Refinery, and on the refinery’s campus, some as recently as 2008 or 2009.

“And, of course, there was live ordnance found on the Tourtelot property that caused a seven-year investigation by the DTSC that was finally resolved with Granite Management (Ford Motor Co.) ponying up tens of millions of dollars for a ‘conservative cleanup’ for residential housing.” That development became Waters End.

Bardet said the city needs cooperation from individual property owners and private companies to form “some kind of collective unit” that can negotiate with insurance companies, DTSC and the city’s support contractor, the Walnut Creek coalition ERS.

Otherwise, “thanks to the DoD,” each property owner would be on his or her own to face “whatever DTSC hands down,” she said — an order or other recommended action.

Those individuals also would be on their own when they try to recover expenses from the Department of Defense, Bardet said.

“This is a terrible situation for the Potters and the city, thanks to the refusal of DoD to clean up its former properties left throughout California and across the country that are now in private hands for all kinds of uses,” she said.

“The Potters’ choice to file a lawsuit against the city is an unfortunate example of the failure of public-private partnering to solve a problem remaining, one that won’t go away revolving around the Arsenal’s former and current conditions.”