Judging by its editorials, The Bee seems to think that Curtis Park Village is primarily a test of the city’s ability to do an infill project.
It’s not that simple.
The Curtis Park railyard is a state Superfund site. Its soil is laced with lead, arsenic and other cancer-causing pollutants. The central issue that’s haunted this piece of property for 23 years is that every time someone sticks a shovel into the ground, more hazardous waste turns up. That’s because this property was more than a “railyard.” For decades, it was a large, very dirty, locomotive repair shop and unlicensed, unlined industrial landfill.
So what should be done with the mountain of hazardous waste that has been dug up and left piled up in recent years?
The developer Paul Petrovich and Union Pacific want to renege on the railroad’s 1995 cleanup agreement to ship the hazardous waste to a licensed landfill in Utah owned by the railroad. They prefer to bury the waste on site beneath a planned 7 acre “park.” Petrovich told the City Council the other night that he would “try” to bury it under other on-site locations, but he makes no enforceable promise. In fact, he issued a not-so-thinly-veiled threat: Prohibit use of the park as a disposal site, he told the council, and I will walk away from this project.
Many Curtis Park residents and city officials fear Petrovich will do exactly that and leave the hazardous waste stacked high on the site. But it’s an empty threat. First, it’s illegal. The soil he has dug up is a public nuisance, and he and the railroad can be prosecuted for leaving it in its current condition.
Even more significant, more than 10 years ago, Mayor Joe Serna and the City Council sponsored Senate Bill 120 (Deborah Ortiz-Darrell Steinberg) that gives the city the authority to use its zoning powers to force the promised cleanup. This law requires the Department of Toxic Substances Control (DTSC) to order a cleanup based on the city’s land-use plan for the site. Councilwoman Lauren Hammond erroneously stated: “DTSC, not the City Council, determines the final cleanup.” That’s flat wrong.
The city attorney read from SB 120: DTSC can’t give final approval on cleanup until “all response actions necessary to conform to the approved land-use plan are complete.”
When Gov. Gray Davis signed the measure into law, he stated: “SB 120 provides additional assurance that Union Pacific will clean up the Union Pacific Railroad site to allow land uses consistent with a final land use plan.”
Ignoring the authority granted under SB 120, the council voted 9-0 to approve an inadequate environmental impact report and kicked the cleanup decision back to DTSC. Instead of exercising its SB 120 authority and rezoning the 7-acre “park” to prohibit the “toxic park,” the council passed a “compromise” resolution asking DTSC to tell them where the disposal site should be placed.
The developer persuaded the council to ask DTSC what it should do about allowing a hazardous waste facility to be placed beneath a city park. The developer hopes DTSC will bless this mess so a judge might be persuaded to certify the massive development on top of a Superfund site without adequate cleanup legal. It isn’t.
It’s time for the city to get tough with Petrovich and Union Pacific Railroad. The city should:
• Rezone the 7-acre “park” to prohibit its use as a hazardous waste disposal facility.
• Require Petrovich to make public the contract between him and Union Pacific Railroad that he claims ties his hands and makes off-site disposal impossible.
• Request a state audit of Union Pacific’s compliance with its DTSC cleanup plan and SB 120.
The protection contained in the Ortiz-Steinberg law terminates at the point the city approves the final land-use plan. That’s why flatly prohibiting the toxic park must be made a part of any rezoning of the property. After the compliance audit is complete, then and only then, should the city consider other disposal alternatives.
As for the threat to “walk away,” it’s important to realize that the railroad is under a legally enforceable DTSC cleanup order. SB 120 specifically forbids DTSC from releasing Union Pacific from any liability for cleanup until the city approves the final land-use plan. If either the railroad or Petrovich attempts to walk away from the mess they’ve created at the Curtis Park railyard, the city attorney can and should prosecute.