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TO: HONORABLE MAYOR AND COUNCILMEMBERS
FROM: CAROL LYNCH, CITY ATTORNEY
DATE: APRIL 4, 2006
SUBJECT: RECORDATION OF A COVENANT AGAINST THE PROPERTY WHERE THE POINT VICENTE INTERPRETIVE CENTER IS LOCATED
Approve the attached covenant so that it can be recorded against the property where the Point Vicente Interpretive Center is located.
Shortly after the City commenced construction of the addition to the Point Vicente Interpretive Center, lead contamination was discovered on the lower Point Vicente property (the “Property”). The contamination was the result of the former use of the Property by the Army as a firing range and the fact that bullets containing lead were left on the Property after use of the firing range was discontinued. The Army did not remove the lead from the site prior to the time when the United States Government conveyed the site to the County of Los Angeles, and the lead was not removed before the City leased the Property from the County for use as a park or before the development of the original Interpretive Center.
Pursuant to an agreement between the City and the Army Corps of Engineers (“the Corps”), the Corps agreed to remove any lead that exceeded a threshold determined by the California Department of Toxic Substances Control (“DTSC”) of 250 parts per million from the portion of the Property that could be accessed by the public and from the area where the expansion project was to be constructed. That standard was determined by DTSC as an action level protective of children in a playground or residential back yard. The remediation work that the Corps performed was under DTSC’s oversight. The goal of the work was to ensure that all members of the public, including children, could safely use the Property as a park facility.
The City, DTSC and the Corps (“the parties”) all recognized that it was likely that lead, which exceeded the 250 ppm threshold might be present underneath the former Interpretive Center structure, the parking lot and the access road. However, because those areas were not to be altered by the construction of the PVIC addition, and because removal of lead from the area under the existing building was impractical, the parties
agreed that the Corps would not remove lead from those areas, which are referred to as the “capped areas.” Section 67391.1 of DTSC’s regulations (22 C.C.R. Section 67391.1) require a land use covenant be signed by the property owner whenever a site is proposed to be closed with residual amounts of contamination beneath the property at levels which do not allow for unrestricted use of the site.
Because of the continued presence of lead on the Property that could exceed the action level of 250 ppm, the City and the Corps agreed that if soil containing lead exceeding that threshold is found anywhere on the Property, or if the capped areas are to be disturbed due to future construction activities and lead exceeding the 250 ppm standard is discovered: (1) the City will notify the Corps; (2) the Property will be returned to the Formerly Used Defense Site (“FUDS”) Program, and (3) the Corps would be responsible to take the appropriate actions to respond to the situation.
The parties also agreed that it was important to record a covenant against the Property so that, if activities ever are undertaken in the future that affect the capped areas, such as changing the alignment of the access road, the City would not inadvertently disturb or alter the capped areas without first notifying DTSC and without developing a plan, which must be approved by DTSC, to address any remaining lead contamination that is present in the affected area of the Property.
The covenant that is attached to this report, which will be required to be recorded against the Property, will serve as a perpetual reminder to the City that any change to the Property that disturbs the ground, must be undertaken with care. In particular, no change may be made to the areas beneath the cap without prior review and approval by DTSC.
The City also is agreeing to prepare the annual compliance report and to pay for the costs incurred by DTSC in administering the covenant. This includes DTSC’s annual oversight costs that generally would be the review of the City’s annual report, which have been estimated by DTSC to be in the vicinity of $2000 to $4000 per year, and the cost of DTSC’s five-year review of the condition of the Property, which has been estimated to be in the vicinity of $5000.
However, the City’s responsibility to reimburse DTSC does not include any oversight costs that would be required, if lead exceeding 250 ppm is discovered on the site, so that the Corps is required to return to the Property to address the situation. In that case, the Corps should pay for all of the remediation costs, including DTSC’s supervision of any work that is performed by the Corps.
The attached covenant is consistent with the City’s agreement with the Corps and memorializes its negotiations with DTSC’s representatives and attorneys. Accordingly, the City Attorney and Staff recommend that the City Council approve the covenant and record it against the PVIC Property.
If the City Council does not approve the covenant, DTSC will not issue its closure letter, which demonstrates that the lead remediation work was performed to DTSC’s satisfaction. If that were to occur, it is likely that DTSC will find that the Property is not in compliance and will initiate an enforcement action against the City.
DTSC will charge the City for its annual oversight costs, which have been estimated to be in the range of $2000 to $4000 per year, and the DTSC’s cost to perform the five-year review, which has been estimated to be in the vicinity of $5000. Because these are only estimates, and because it is uncertain whether the City will want to undertake a project that would affect the capped areas, which also would require DTSC oversight, it is impossible to determine accurately the total fiscal impact to the City.