Update, April 4 The city of Berkeley has agreed to pay $130,000 in fines for mismanaging its old landfill buried under Cesar Chavez Park, the Bay Area Air Quality Management District announced Thursday.
The settlement, first reported by Berkeleyside on Feb. 9, covers seven air quality violations issued from 2019 to 2022, including six involving “failures of the landfill’s gas collection system and one for not submitting emissions testing results,” the district wrote in a press release.
The violations were issued because the city did not install a backup power supply system at the landfill. During power outages, the system was shut down for periods ranging from two hours to four and a half days, according to the air district.
Cesar Chavez Park was built atop the former Berkeley landfill. The city’s landfill gas collection system, when properly operated, turns the poisonous gas generated as trash rots — methane, carbon monoxide and other contaminates — into less-harmful carbon dioxide.
The air district has issued the city 21 notices of violation since 2019, and it’s unclear what will happen to the 15 remaining violations. A spokesperson for BAAQMD did not immediately respond to Berkeleyside’s request for comment.
Berkeley has dangerously mismanaged toxic gas below Cesar Chavez Park, air district says
Original post, Feb. 9 Berkeley is in trouble with Bay Area air regulators for poor maintenance of its 90-acre network of pipes, wells, blowers and burners designed to subdue the poisonous gasses beneath Cesar Chavez Park.
The park was built atop the city’s dump in the 1980s, and the landfill gas collection system is meant to collect the gas generated as trash rots — a mix of methane, carbon monoxide and other contaminants — and burn it at the flare station, an industrial-looking chimney on the east side of the park. If all works properly, it then rises into the air as carbon dioxide, which is less harmful than methane for the climate and people’s health.
The Bay Area Air Quality Management District (BAAQMD) has issued the city of Berkeley 21 notices of violation since 2019 related to missing gas collection wells, severe methane leaks, failure to continuously operate its gas collection system and other issues.
After an inspector found duct tape and metal foil being used to control the oxygen flow into the gas flare last July, the flare’s manufacturer said it was an “unsafe modification to the flare” and could be a fire hazard.
Elsewhere in the park, the inspector’s toxic vapor analyzer registered methane concentrations so high that they maxed out the range of her instrument. The gas was “potentially explosive,” the inspector, Grace Leung, confirmed in testimony at a hearing Tuesday.
When Leung returned two weeks later, the repairs still hadn’t been made. She asked what was taking so long. Stephen Harquail, the project manager of SCS Engineers, the city’s contractor for the collection system, said he needed more time to get the city’s authorization and find the right equipment for the repairs — plus, he lives in Oregon and had to drive down. Leung noted that nothing had been done to prevent the public from accessing the area; the only indicator was an orange cone marking the leak’s location.
Five of the park’s several dozen wells, designed for collecting methane before it burns, have been missing since they were covered over with soil during a construction project around a decade ago. Recently, crews have been looking for them by cordoning off small sections of the park and hacking several feet into the ground with a pickaxe. No luck so far.
On Tuesday, the BAAQMD’s hearing board voted 3-1 to impose an abatement order, requiring Berkeley to take steps to fix its gas collection system.
Berkeley will need to follow a detailed, multi-step regimen of compliance actions, most within specific deadlines of 30, 60, 90 or 120 days. They’ll include: locating the missing gas collection wells, conducting a drone study to search for gas leaks and undertaking a chemical fingerprinting analysis to reveal whether landfill gas is seeping offsite into the DoubleTree Hotel property, leased by the city to Hilton.
The air by the hotel “could explode under the right conditions, such as a passer-by dropping a lit cigarette on a still day,” said Joel Freid, an attorney for the air district.
The air district has offered a tentative settlement for seven violations in exchange for a $130,000 penalty, an attorney for the district said on Wednesday, noting the city had yet to sign it. City spokesperson Matthai Chakko declined an interview request for this story.
The extent and cost of the repairs needed for the city to come into compliance will become clearer as it moves through its list of compliance actions. It will also become clearer whether an entire overhaul of the system of tubes, wells and burners is needed. (In 2018, the city estimated that a full gas system replacement would cost $2 million, an amount it deemed not justifiable at the time.)
At a hearing on Tuesday, deputy city attorney Marc Shapp didn’t dispute findings related to improper maintenance but contended that the air district is handing the city an unreasonable task with its requirement to keep the system going 355 days a year.
There simply isn’t enough landfill gas underground to keep operating the flare full-time, Shapp argued.
Methane flows have declined steeply over the years, the result of a natural bioremediation process in which soil bacteria break down the toxic gas. In 2016, to comply with air district regulation, the city replaced its rusty flare station, which often sputtered because it requires a certain amount of gas to properly function, with a smaller one that requires less gas. (That’s around when the wells were lost.)
SCS Engineers wrote in a 2021 report that methane surface emissions at the park have dropped so low that the gas collection system might not be necessary.
But the air district says the city needs to back up its claims with the comprehensive surveys it’s being ordered to conduct in the abatement order. The city must run the system full time until it meets a list of requirements related to leak volume and methane destruction efficiency. Then, the city could apply to change its permit and run the system part-time.
A major point of contention at the Tuesday hearing came down to the definition of a functioning or broken landfill gas system. Newer landfills in the Bay Area are required by the air district to have oxygen concentrations of no more than 5%. Older ones, including the one at Cesar Chavez Park, which stopped receiving waste in 1983, are exempt from this rule.
The air district has recorded oxygen readings of 20% at Cesar Chavez Park and attributes this “oxygen intrusion” to “poor maintenance and disrepair.” From the air district’s perspective, high oxygen levels could indicate a leak: If the system is drawing in clean air, it’s not collecting toxic landfill gas.
The city argued high oxygen levels could just mean there’s not much toxic gas left.
Still, air district staff argued that they weren’t “enforcing” a 5% oxygen limit; rather, they were using it as a “trigger” to flag a potential leak for further investigation.
Valerie Armento, the BAAQMD hearing board’s chair, voted against issuing an abatement notice, as she felt the district was “trying to find a way to impose something that it otherwise doesn’t have the legal right to impose.”
But the other three members of the board disagreed.
“These arguments about 5%, in large part … [are] being used to take our eye off the ball here, which is that we have a mismanaged facility, high liability, very dangerous downside risk that has been managed in a lackadaisical approach,” hearing board member Amelia Timbers said.
Following hours of debate at Tuesday’s hearing, the BAAQMD board told both parties to figure out their disagreements after the hearing. The city and air district regulators have until Feb. 15 to revise the abatement order, but the compliance actions required will not change.
One argument raised by the city for why it’s failing to stay open continuously didn’t carry water with the hearing board.
The city argued more downtime was needed last year due to an intense rain season. In spring 2023, the city requested a variance — an official exemption from the law — seeking an “unknown” amount of additional downtime due to heavy rain from atmospheric rivers in winter 2023, which resulted in an “unprecedented amount of liquid infiltrating” the system, plus an equipment failure.
But the hearing board wasn’t swayed and during Tuesday’s hearing denied the variance request, in part, it said, because no other Bay Area landfill needed more downtime due to heavy rain.
“The idea that the petitioner did not have ample warning of these risks is to me unreasonable,” Timbers said. “At this point every single year, we move further into a climate-impacted world; we should expect more intense storms.”
Robert Healy, a senior waste management engineer at CalRecycle, testified at the hearing supporting “the continuous and improved operation of the 24/7 operation of the Berkeley Landfill gas extraction system.”
“CalRecycle’s regulatory focus is on protecting human health and the environment, and in relation to waste disposal facilities like this one,” Healy said, noting that CalRecycle is particularly concerned about the methane levels in the hotel area.
Martin Nicolaus, a retired lawyer and longtime Cesar Chavez Park enthusiast, said he worried about the ecological impact should a large-scale replacement of the gas collection system be deemed necessary.
“The heavy equipment required to dig up and replace thousands of feet of the existing lateral piping and to repair or replace many of the existing vertical extraction wells would damage the vegetation, gouge the soil, pollute the air, disturb the wildlife habitat, and shatter the silence of the park environment,” he said in testimony at the hearing. “The original installation of the system in 1988, with its pits and trenches, opened the gates to an invasion of ruderals, including aggressives like kikuyu grass and foxtail barley, and doomed the early efforts to establish the park as a native plant habitat.”
Freid, the air district attorney, said he doesn’t expect Berkeley to appeal the abatement order.
