West Berkeley Zoning and the California Environmental Quality Act (CEQA)
Addendum to Complaint filed over BAAQMD permit practices, DSS-2016-503 / 4942 May 11, 2016
Recent revelations regarding the Bay Area Air Quality Management District's (BAAQMD) mismanagement of Pacific Steel Casting's (PSC) Synthetic Minor Operating Permit (SMOP) has raised many questions about the process, the air district's engineers, and more specifically, how the steel foundry has been allowed to operate outside the legal requirements of Title V and its SMOP.
Federal guidelines make PSC ultimately responsible for compliance to their permit. The task of issuing the SMOP for PSC's operations and for verifying the foundry's compliance is held by BAAQMD. Therefore, the air district should be held responsible for the many years of PSC’s noncompliance and their regulatory failure to accurately track the company’s emissions. If BAAQMD's forthcoming pronouncement holds true to its history, then the air district is likely to say that the long-term permit debacle doesn’t really make any difference. Perhaps to those at the district who have mismanaged this permit, it hasn’t, but for our downwind community, concerns over emissions, odors and possible health impacts have plagued residents and businesses as well as numerous children's play spaces and facilities for decades.
The air district certainly knows that two permits make a significant difference compared to one permit in accounting for total emission volumes when it comes to shielding the company’s actual impact on the surrounding community. More importantly, the permit’s discharge limits dictate BAAQMD's legal response to PSC’s operations. In the case of PSC, it has allowed the company to fly under the regulatory radar and increase their air emissions in tandem with diminishing requirements to make upgrades to their operations or to require any additional site monitoring. This flagrant disregard by both the air district and PSC has been to the detriment of local residents' health.
Perhaps at the time PSC's permit was first reconfigured into two separate SMOPs, the air district's engineers might have had some latitude then to argue that BAAQMD or PSC had misinterpreted the regulations that allowed for the SMOP downgrade. However, the idea that BAAQMD simply made a mistake in tracking the PSC permits over the last eleven years is simply inexcusable and a flagrant misuse of their regulatory discretion and mandate.
In 2005, the demand for the consolidation of the two SMOPs into one permit was unique as regulatory actions go, and not likely to have been forgotten by BAAQMD. In fact, some of today’s staff, including air engineers and permitting personnel, at the air district's office were signatories to the demand to enjoin PSC’s SMOPs at that time. However, BAAQMD was not the first regulatory agency to call for corrective action. If the community had waited for the air district to identify this breach of the permit, it might never have been discovered. That regulatory distinction belongs to the US Environmental Protection Agency, Region 9's Air Division (US EPA) in response to a Berkeley citizen's complaint.
Regulatory history also shows a direct link to PSC’s noncompliance in 2005 of its Title V permit and the community-driven lawsuit in 2006 against the Berkeley company. Although the lawsuit was not initiated in order to force the consolidation of the company's permits, it did, in part, focus on an evaluation of the total volumes of emissions for all of PSC’s operations. These calculations are central to the SMOP's regulatory compliance, but were absent from PSC’s permitting process for many years. In the resulting court action, PSC agreed to reduce its emissions by two tons. However, this condition of the permit, like the SMOP permits, was apparently never assimilated into the operating permit for PSC or tracked by BAAQMD to insure regulatory compliance with the court settlement.
CEQA and BAAQMD Permitting
The 2007 consent decree is not the first time that BAAQMD permitting practices sidestepped a court agreement with PSC. In the late 1990s, the steel foundry was under a Conditional Order of Abatement stemming back to the mid 1980s. BAAQMD was well aware of this regulatory sanction because of the many years of community complaints and regulatory focus. Nevertheless, the air district deliberately violated this court order and allowed for a new source at PSC that both increased emissions and generated odors.
The “bake oven", or "thermal recycler”, as it was described by the air district, burns away the chemical binders from spent foundry cores. In a BAAQMD Hearing Board discussion several years later, the air district's engineering staff reluctantly admitted that the permit conditions for the then-new incinerator allowed for temperature excursions that would result in odor production during operations. It was also revealed that BAAQMD staff never actually tested the new equipment’s excursions prior to its being permitted and operated. This permit process for PSC found BAAQMD to be more of a promoter of the new technology than of its regulator. (See Attachment 1, p. 6.)
It is uncertain whether our local congresswoman, Barbara Lee, or the City of Berkeley staff were actually aware of the legal restrictions at PSC at that time that prohibited this new odorous source or if they were just blindsided by the air district's approval of the new incinerator. Nevertheless, BAAQMD was quick to set aside their own regulatory responsibilities to their agency, the court and the community by allowing the permitting of what was basically an incinerator. The City of Berkeley later gave PSC an environmental award for this new and untested pollution source.
BAAQMD's permitting of the incinerator also set a precedent as to how the air district and the City of Berkeley would together manage future air quality impacts within the city’s zoning process under the California Environmental Quality Act (CEQA). Neither the city nor the air district chose to subject the PSC incinerator to an evaluation as required by CEQA, despite the fact that the Duck’s Nest, a childcare school, was within 1,000 feet of this pollution source. It should be noted that shortly after the air district's approval of the permit and the installation was completed, staff from the Duck’s Nest addressed BAAQMD's Hearing Board expressing public concerns over impacts from PSC's emissions on their business. (See Attachment 1, pp. 5 & 8.)
See link below: Maximum Sensitive Receptor: the Duck’s Nest Day Care Center (R57)
Evaluation of Final Health Risk Assessment for the Pacific Steel Casting Facility in West Berkeley. Dr. Mark Chernaik, Environmental Law Alliance Worldwide/Science for Citizens. (Dr. Chernaik’s written comments for Pacific Steel Casting V Evans, November 2011) http://berkeleyairmonitor.org/maximum-sensitive-receptor-the-ducks-nest-day-care-center-r57/
An evaluation under CEQA would have been problematic to the approval of the incinerator if there had been a full public disclosure of the proposed project and a honest community discussion of this new emission source. The air district's rationale for supporting the project was to control fugitive emissions from PSC company trucks hauling spent sand cores off site. Furthermore, BAAQMD asserted it would be more environmentally sensitive to incinerate, on site, the chemical binders used to construct the cores. What BAAQMD refused to acknowledge was the fact that the incinerator had been illegally permitted by the air district.
The regulatory choice to allow on-site burning was incompatible with the nearby neighborhoods since there is no buffer from the foundry’s operations. This most undesirable tradeoff dispersed the resulting chemical and particulate emissions from the incinerator over a wide range of west Berkeley at the expense of both residents and businesses. When the community requested an investigation of these permitting incongruities, even the Enforcement Division of the California Air Resources Board made a trip to Berkeley and chose to do nothing.
It should also be noted that BAAQMD led the drive to vacate the Conditional Order of Abatement in 2000 against the objections of a very vocal, affected community. This action by the air district supporting the termination of the court order would prove to be a serious error as the preceding years with its numerous notices of violation (NOVs) would testify to. The court restrictions went away, but the odors have remained. The air district's response has been to allow PSC to attempt to mask these odorous chemical emissions.
The HEPA Kids of West Berkeley
The misconfigured foundry's SMOP and the “creative” permitting practices under CEQA continue to impact the growing residential and commercial community in west Berkeley. After the permitting of the incinerator, the City of Berkeley, in the role of regulator, developer and owner, engaged in no less than four projects within a quarter mile of PSC. Each of these use permits focused on children’s play spaces. Each of the CEQA reviews for these projects was challenged with regard to air quality and the obvious impacts it would have on our youngest citizens. The city introduced a required environmental waiver from soccer parents of participating children, acknowledging they had be made aware of the poor air quality and high particulate levels at the play fields. This mitigation was never implemented.
In each of the four projects, requests were made for a more extensive environmental review that would evaluate the cumulative impacts from the manufacturing area’s other stationary sources, including the City of Berkeley's Solid Waste Transfer Station and Recycling Center. All these formal public requests were summarily rejected. The City of Berkeley, with no objection from BAAQMD, preferred a more piecemeal approach that would narrow the discussion of airborne emissions and their associated health risks. It would also limit the need for additional mitigations of these suspected risks. Like the SMOP permits, these abbreviated investigations would limit the record of significant airborne emissions, giving a distorted evaluation of the area’s actual air quality.
Of the city’s four use permits, the most egregious misuse of CEQA has been the Ursula Sherman transitional housing at 711 Harrison Street. Mothers and their children have been allowed to reside there for extended stays (nearly two years) in the middle of our light industrial sector, close to the PSC foundry and within yards of the city’s Solid Waste Transfer Station and Recycling Center. All of these projects down played the area's poor air quality and suggested that exposure to these airborne toxics is a fair trade off for the opportunity afforded children to live and exercise within our manufacturing district. The consultant for the transitional housing project, Environ, erroneously placed PSC several blocks downwind from the proposed site in making their evaluation. The City Council refused to address this fact despite it being brought to their attention during all their deliberations and consequent approval. This is but one of many distortions that skewed the zoning review process.
Another factor in the city's lack of action concerning the area’s air quality has been the city’s own discharge permit for its solid waste and recycling operations. The Ursula Sherman transitional housing is a mere 50 yards downwind from these city operations. In 2003, city staff conducted a brief study of emissions at the transfer station and installed a water suppression system only to discover that emissions had actually increased several months later. The transfer station, along with PSC, produces a substantial portion of the area’s stationary-source particulates. However, the city has failed to upgrade that facility in the more than a dozen years since this discovery.
The city's air quality mitigation for the transitional housing was to keep the children and their mothers indoors. Sealing up the windows and doors, installing rooftop HEPA-filters and keeping children inside seems more like a movie script from a sci-fi film than what has become the city’s zoning prescription in west Berkeley to "mitigate" its poor air quality. These measures do little to safeguard those who live, work and play in west Berkeley from exposure to toxic air emissions. For two decades, HEPA-filters have been the City of Berkeley’s only answer to mitigate the very real risks from poor air quality.
Throwing All Caution to the Winds
The BAAQMD regulatory process in Berkeley has been one of “Don’t look; don’t tell.” This has been the posture of the City of Berkeley as well, to fractionalize the understanding of both the emissions and their health impacts. This is a regulatory mindset that has been honed over two or more decades and that will not easily be changed. This crafted strategy has propped up an institutionalized environmental injustice in west Berkeley. Fair treatment should be afforded to people of all income levels with respect to housing, including the development, implementation and enforcement of laws, regulations and policies that safeguard people's health.
In the last twenty years, our community has watched first hand the dishonest permitting evaluations and health risk assessments of BAAQMD that have allowed for dispersion modeling of pollutants with improper wind parameters and outdated emissions data. These permitting allowances have enabled PSC to argue that its pollution is blowing away from Berkeley and not on its actual downwind neighbors.
West Berkeley is noticeably absent from any of the programs that BAAQMD promotes in other parts of the Bay Area that pertain to the evaluation of health impacts and risk reductions. Part of this blame should be directed at the City of Berkeley’s reluctance to go down this path, even after receiving formal requests from the community and our commission process. It is no wonder that west Berkeley toxic emissions have been allowed to grow as have the health risks. It is apparent who has benefited from these practices. The only question that remains to be answered is: "At what cost?"
1. Pacific Steel Casting Conditional Order of Abatement, Dissenting Opinion, Bay Area Air Quality Management District, Hearing Board. T. Stein, 2000