The Berkeley Marine Center, a boatyard at the Berkeley Marina, has been ordered by the City of Berkeley’s Toxics Management Division to take immediate corrective actions or else halt significant portions of its operations. At stake is an issue that pits deep environmental concerns against a popular local small business—and which involves a lease on City of Berkeley property that won’t expire until 2028. From the perspective of the city, the boatyard has dragged its feet on urgent environmental clean-ups for years. From the perspective of the boatyard, the City is overreaching and threatens to shut down a vital local business. Whichever side is closer to correct, push is coming to shove in the legal process.
The Orders Come Down, Late Negotiations Begin
On July 16, 2010, the Toxics Management Division of Berkeley’s Planning and Development Department issued a memo to Berkeley Marine Center titled “Notice of Violations: Corrective Actions Required”. The memo implies that there will be significant potential penalties if the orders it lists are not obeyed. This communication brings to a head a dispute between the city and the boatyard that started in 2006.
The Berkeley Marine Center (“BMC”) operates the boatyard—a boat repair, construction, and storage facility—at the Berkeley Marina. According to its website, the company has been owned and operated by Cree Partridge and his family since 1999. It’s on a 4.5 acre property leased to the firm by the City of Berkeley.
According to a survey of comparable rentals done for the city of Alameda in 2005, BMC’s lease runs for 50 years, starting in 1978 under a previous owner and running until 2028. In 2005, according to the survey, BMC was paying a base rent of $1,700 per month for the 4.5 acres, adjustable upward if according to the company’s gross receipts.
The Toxics Management Division (“TMD “) issued its orders as Berkeley’s state-recognized “CUPA” authority. A CUPA (Certified Unified Program Agency) is a local governmental agency authorized by the state of California to coordinate the enforcement of a wide variety of state environmental programs. The orders to the boat yard are signed by Nabil Al-Hadithy, TMD’s Hazardous Materials Manager.
The memo gave BMC a July 31 deadline to change practices regarded as environmentally hazardous. The date has come and gone, but BMC continues to operate. Both sides of the dispute report that this is because negotiations towards a resolution are underway.
Because of the scope and seriousness of the TMD’s orders, and as part of a policy to encourage fair and uniform enforcement state-wide, the complaints against BMC and the resulting negotiations are now in the hands of the Alameda County District Attorney’s office.
The Main Environmental Issues
The idea of a boat yard seems innocent enough to the uninitiated: Boats are lifted out of the water, cleaned off, and brought ashore for repairs for sanding and repainting or even just for storage. In another part of the boat yard, perhaps an entirely new vessel is being built. What could be wrong with that?
From an environmental perspective, the situation is not so simple.
One significant issue is that the paint used on the bottoms(below water portions) of some boats. Sitting in the water, a boat will tend to accumulate barnacles, worms, seaweed, dirt and other threats.
To help discourage biological pests, many boats are painted with special paints containing copper and lead compounds. The poisonous copper and lead in these paints act roughly like common pesticides to get rid of the invading species. Nasty critters and weeds might attach themselves, but the metal-rich paints help kill them. Like some pesticides, these paints present significant environmental threats:
The coatings are designed to be “ablative” which means, roughly, that they “flake off” as needed. When unwanted life forms get started on a boat, the metals are designed to kill or weaken them before they “dig in” very far, and the paint on the affected area will flake off either spontaneously or at the next washing.
Periodically, it is necessary to clean the hull (with high pressure water). Less frequently but still periodically necessary, the hull must be sanded down a bit and repainted. Both of these activities can t spread the copper and lead into the surrounding land environment and the nearby ocean.
Copper can be extremely damaging towards sea life. Lead in any concentration is very dangerous for both sea life and humans, especially children and pregnant women (and the offspring they are developing).
The washing process generates clouds of dust and the water carries off paint flakes. Additionally, it generates a kind of sludge—the paint, dirt, and life washed off the boat. Both kinds of discharges can be rich in tiny particles of copper and lead, so washing boats tends to generate toxic waste
When a boat needs to be repainted, the first step is to sand the hull.. Sanding generates large quantities of dust particles which can contain metals as well.
In a boatyard, it’s a significant challenge to ensure that the waste from washing, and the waste from sanding are captured rather than being released into the environment, and that these hazardous wastes are disposed of appropriately. The city of Berkeley’s view is that BMC is failing on both points.
Workers sanding boats at BMC can be seen wearing full-body protection suits and gas masks. Nevertheless, the city contends that the dust generated by sanding spreads to the surrounding environment and into the ocean.
Berkeley’s contention (backed up by measurements) is that the Berkeley Marine Center has failed badly to prevent leaks of copper and lead toxics into both the human and ocean environment. Samples of ambient dust and soil in and around BMC confirm high concentrations of copper and lead. There are indications that BMC’s boat washing facilities cause problems-- troublingly close to the open bay, public parking, and to the recreational public space at Cesar Chavez Park.
Speaking to the Berkeley Daily Planet, Cree Partridge of BMC agreed with the city that BMC had caused some contamination, but argued that while BMC owed (and was engaged in) some clean-up, the city had been demanding an unfair level of performance, holding BMC to a higher standard than the law requires.
The July 16th orders from the city reveal that the city is confident that it is asking for a legally mandatory level of clean-up. Public records indicate that the city began attempting to negotiate corrections beginning in 2006, and turns to final orders in 2010 only out of frustration from the failure of past attempts to work cooperatively with BMC.
The city demands (among other things): Permanent cessation of open-air “dry sanding” at BMC, installation and permitting of suitable management equipment for hazardous waste from sanding and cleaning, enclosure and at least partial relocation of the cleaning facility, and remedial clean-up of top-soils evincing hazardous waste from BMC.
The list of environmental concerns is long—this summary touches on only a few of them.
Contrasting View PointsCree Partridge, of BMC, expressed resentment to the Planet about the recent legal action by the city. “I’d rather be paying for clean-up, not a lawyer,” he said..
He argued that the city is asking him to clean up legacy waste from the underlying landfill which preceded the marina and the adjoining park, over and above the lesser cleanup of his company’s wastes which he is happy to carry out.
The city’s complaint, however, contends that measurements during the clean-up process will be used to make sure that BMC cleans up its own mess, but is not held responsible for legacy messes. Nabil Al-Hadithy of TMD seems a bit relieved that after four years of attempted negotiations, at least now things are in the hand of the higher authority of the Alameda County District Attorney, and a legal resolution and more important, effective environmental action, may at last be in sight.