Toxic cleanup throws timing of Burbank plan into doubt: scope of problem at site remains to be determined.

While the City of Burbank has been talking enthusiastically about redeveloping Lockheed Corp. property near the Burbank airport with a retail power center and major sports arena, those involved in the clean-up of toxic waste on the site indicated such redevelopment looks unlikely anytime in this century.

While the city is talking to developers and the media about a 1994 sale of the property by Lockheed and development breaking ground, others involved with the clean-up of what may become a federal Superfund site said they have virtually no idea when such work will be safe and feasible.

The development plans, said experts, may depend upon a yet-to-be-determined government finding on whether such development is safe or whether it must wait, possibly for years, until all the toxic contamination on the property is cleaned up.

The city hopes to sign up developers to build around Lockheed's toxic groundwater and soil contamination clean-up facilities, since the clean-up of the 89-acre site "could take decades," in the words of City Manager Bud Ovrom.

Practically speaking, in order for such development to take place concurrent with clean-up, the lead government agency on the soil clean-up must first make a determination that soil contamination is buried deep enough that it can be extracted and cleaned without the clean-up affecting or being affected by surface development, said experts.

A report released last fall by the federal General Accounting Office estimated it will cost about $219 million to clean up the Burbank Superfund site, with the taxpayers' tab approaching $135 million.

In March of last year, a federal judge approved a consent decree with the U.S. Environmental Protection Agency in which Lockheed agreed to pay $125 million toward the cost of pumping and treating tainted groundwater. However, the GAO added in the soil clean-up and estimated Lockheed's share of the costs at $194 million.

Lockheed may seek reimbursement of 70 percent of its costs from the Pentagon for cleaning up a Superfund project, which is why the taxpayers' bill may be more than half of the clean-up's total costs.

Lockheed, the city and Weber Aircraft Inc. have agreed to build a facility by April 2, 1994, that will eventually produce about 12,000 gallons of drinking water per minute and provide 41 percent of Burbank's water supply. Weber had a manufacturing plant in Burbank for almost 40 years, employing about 1,000 people. It closed its doors in the late 1980s, citing high labor costs, and moved to Fullerton.

There are no restrictions on building on land which is contaminated, according to EPA officials. But private and public attorneys said that building without government agreement is a recipe for possible future disaster.

If there is no agreement, the EPA or a state agency could later insist on more testing or remediation where the new building sits, said Steven Broiles, an environmental partner at the law firm of Heller Ehrman White & McAuliffe.

"If you just go ahead and build a sports arena, they (the government) could come back later and say, 'We want you to drill a hole over there,'" he said.

William Keener, assistant regional counsel for the EPA in San Francisco, agreed: "That's a possibility, that we might want to investigate an area that they are building on."

A top Lockheed official said he doesn't know why the city keeps talking about 1994 groundbreakings when the property's future is so uncertain.

"Ovrom is throwing out 1994, but we don't know what the dates are. Nobody at Lockheed has told the City of Burbank beans about dates," said Ken Philbrick, corporate real estate director at Lockheed. "The city keeps asking us, 'Will you be done in 1994?' And we keep saying, 'We don't know.'"

The EPA is expected to decide in the next year whether or not the contamination in the soil will qualify the Lockheed property as a Superfund site for soil clean-up purposes, said Colette Kostelec, project manager for the site for the U.S. EPA.

The EPA had designated the groundwater under the Burbank site as a Superfund project in 1986, but the federal agency has just begun an investigation on whether the soil should also be part of the Superfund site, Kostelec said.

Currently, the California Regional Water Quality Control Board is the lead agency in charge of the Burbank property's soil clean-up, but the EPA would become the lead agency if the soil is designated as a Superfund site, Kostelec said.

A decision on whether to include the soil in the Superfund designation will probably not be made until after 1993 and will depend "on the level of contamination and the depth of the contamination," among other things, Kostelec said.

The soil and the groundwater are contaminated with perchlorethylene (PCE) and trichloroethylene (TCE) solvents which are used to degrease metals and are suspected to cause cancer, Kostelec said.

Already the EPA is in charge of operations to contain a plume of contaminated groundwater that stretches at least 12 miles south of the site, Kostelec said. The PCEs and TCEs in the soil are leaking into the groundwater, Kostelec said.

Meanwhile, a recent U.S. Appeals Court ruling suggests that builders of any development on the property might be at risk of liability if they unearth any contaminated soil Lockheed hasn't yet cleaned, said a legal expert.

Eric Haas, an attorney with the law firm Larson & Burnham, said any builder planning to start construction on contaminated property "had better read very carefully" the case of Kaiser Aluminum & Chemical Corp. vs. Catellus Development Corp.

In the Kaiser vs. Catellus case, the Ninth Circuit Court of Appeals in Northern California concluded that when the contractor displaced and spread contaminated soil, the contractor became liable for the contamination under the Comprehensive Environmental Response, Compensation and Liability Act of 1980.

Lockheed plans to be in Burbank until at least June of 1994 and is still using buildings on adjacent land that has been earmarked for development of a new airport terminal, said Lockheed spokesman Keith Mordoff.

Ovrom conceded that the airport terminal is "several years off," as the city expects the environmental impact report on the project to be challenged in court. "We expect to be tied up in litigation for years," he admitted.

Ovrom said Lockheed is planning to clean the soil using a "vapor extraction" process that allows development to proceed while toxins are still being cleaned up if the contamination is buried deep enough.

If the government rules against such a plan, the city and Lockheed will find clean-up methods "that are faster, but more expensive," Ovrom vowed.

"There's a lot of people who think this can't be developed for years, and that's simply not true," said Ovrom.

But Philbrick at Lockheed said the clean-up will indeed "take several years." He said vapor extraction only partially cleans toxins from the soil.

"It's not black and white. As we speak, there are discussions going on with the EPA and with the water quality board," said Philbrick. "A lot of it depends on what technology we want to use and what the Water Quality Board approves."

Obtaining a "prospective purchase agreement" in order to prevent the EPA from -- at some point in the future -- ordering new structures to be torn down if more contamination is discovered would be "kind of unusual" but not unprecedented, said Keener.

"We have not done an agreement in the region of that scale," he said.

If a builder makes such an agreement with the EPA it is "very unlikely" that the agency will come back later and tear up buildings, said Paula Bruin, EPA spokeswoman. But the EPA must first study the level of contamination before such an agreement can be reached, Bruin and Keener said.

There have been a handful of such agreements around the country, but most have involved industrial developments, in which a new owner has come in and agreed to clean up an existing polluting factory, Keener said.

The EPA "looks favorably" on agreements with industrial developers, but may be "more neutral" on a shopping center and sports arena, Keener said. "The agency doesn't really want to get involved in private commercial building," he said.

If such an agreement is entered into, it could take a long time to consummate, he said. "It has to be signed off (on) by (EPA) headquarters and the Department of Justice," Keener noted.

City Manager Ovrom said another stumbling block to the city's ambitious development plan may be difficulty obtaining construction financing for a project on contaminated land.

However, Haas said lenders "are becoming more sophisticated" about such developments.

"Basically, they will negotiate some sort of indemnity clause," said Haas.

If the Lockheed site is designated as a Superfund site, that designation could also carry problems, Keener said. For example, under Superfund law, new owners of property are responsible for clean up even if they didn't cause the contamination.

Despite all this, Ovrom reiterated his timetable for the sports arena and retail center last week, saying he expects to have deals with developers worked out by this summer, with the land sold for development in early 1994.

"Lockheed tells us it's no problem, but we can't get them to say that publicly," Ovrom said.