Staff recommends that the City Council adopt an Urgency Ordinance and conduct a first reading of an Ordinance of the City of Union City, adding to Chapter 13.42 to the Union City Municipal Code giving the City of Union City the necessary authority to ensure PCBs do not enter municipal separate storm sewers systems (MS4s) from Polychlorinated Biphenyls (PCBs)-containing materials in applicable structures at the time such structures undergo demolition.

The purpose of this Urgency Ordinance and Ordinance (the “Ordinances”) is to implement urban water runoff requirements to reduce PCBs entering the water systems of the Bay. PCBs have been detected in elevated levels in certain fish within the San Francisco Bay. Some PCBs contain toxic compounds that are often carried into the Bay by rain and contaminate soul. Urban stormwater runoff is considered a significant pathway for PCBs into the Bay. Targeting PCBs will address the contaminants entering the Bay through MS4s. Accordingly, regulatory agencies are requiring San Francisco Bay Area (“Bay Area”) municipalities to address sources of PCBs in stormwater runoff discharged to the Bay through MS4s. During demolition, PCBs-containing Building Material in buildings may be released to the environment and transported to the Bay by stormwater runoff.

Water quality in the San Francisco Bay Region (“Bay Region”) is regulated by the Regional Water Board. The Region encompasses portions of Alameda, Contra Costa, Marin, Napa, Santa Clara, San Francisco, San Mateo, Solano, and Sonoma Counties.

In 2015 the Regional Water Board reissued the Municipal Regional Permit (“MRP”), a National Pollutant Discharge Elimination System (“NPDES”) permit that regulates discharges of stormwater runoff from MS4s. The MRP contains provisions implementing the PCBs TMLD requirements regarding discharges of PCBs through stormwater into the Bay. This includes Provision C.12.f., which requires Permittees to provide authority to the Permittee to develop new programs and to manage PCBs-containing materials exposed to the environment during building demolition. The MRP requires that these new programs are adopted and implementation begin by July 1, 2019.

The City of Union City (“City”) is required by the MRP to reduce PCB discharges in stormwater runoff. The Ordinances target Priority Building Materials that may contain relatively high levels of PCBs, specifically buildings constructed between 1950 and 1980.

The Ordinances require the City to implement an assessment process for PCBs in Building Materials. It requires the City notify demolition permit applicants about the new requirement to conduct a PCBs in Priority Building Materials Screening Assessment.

The PCBs in Priority Building Materials Screening Assessment is a two-step process to determine whether 1) the building proposed for demolition is high priority for PCBs-containing Building Materials based on the structure age, use, and construction type; and if so 2) demonstrate the presence or absence and concentration of PCBs in Priority Building Materials through existing information and/or representative sampling and chemical analysis.

When the Screening Assessment identifies one or more Priority Building Materials containing PCBs, the Applicant must comply with all related applicable federal and state laws, including potential notification to the appropriate regulatory agencies such as the U.S. Environmental Protection Agency (“USEPA”), the Regional Water Board, and/or the DTSC. Depending on the method of sampling and removing building materials containing PCBs, the Applicant may need to notify or seek advance approval from USEPA before building demolition. Even in circumstances where advance notification to or approval from USEPA is not required before demolition, the disposal of PCBs waste is regulated under Toxic Substances Control Act (“TSCA”).

The focus of the Ordinances is to prevent PCBs runoff to protect water quality. The Ordinances do not:

            - Ask for municipal oversight or enforcement of human health protection standards.

            - Ask for municipal oversight of PCBs abatement or remediation of materials or lands             contaminated by PCBs.

            - Establish remediation standards.

The purpose for adopting the Urgency Ordinance and simultaneously conducting the first reading of the Ordinance is due to the deadline for establishment of this regulation (July 1, 2019).  The Urgency Ordinance will only be in effect until the effective date of the Ordinance.  Adoption of the Urgency Ordinance requires a 4/5 vote.

There is no fiscal impact as a result of adopting the Ordinances.

Staff recommends that the City Council adopt an Urgency Ordinance, and conduct a first reading of an Ordinance, adding to Chapter 13.42 to the Union City Municipal Code.

Kristopher J. Kokotaylo, City Attorney