Motion to Terminate Conditional Order of Abatement Dissenting Argument

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BEFORE THE HEARING BOARD OF THE BAY AREA AIR QUALITY MANAGEMENT DISTRICT STATE OF CALIFORNIA AIR POLLUTION CONTROL OFFICER

Docket No. 832 OF BAY AREA AIR QUALITY MANAGEMENT DISTRICT ) ) ORDER TERMINATING Complainant CONDITIONAL ORDER OF ABATEMENT VS. PACIFIC STEEL CASTING COMPANY Respondent-Petitioner Tony Stein BAAQMD

This motion by PACIFIC STEEL CASTING COMPANY, entitled "Motion to Terminate Conditional Order of Abatement" was heard pursuant to notice and in accordance with the provisions of California Health and Safety Code on September 21, 2000 and November 2, 2000. Complainant, the AIR POLLUTION CONTROL OFFICER ("APCO") was represented by District Counsel ROBERT N. KWONG. Respondent-Petitioner, PACIFIC STEEL CASTING COMPANY (hereafter the "Petitioner") was represented by BRUCE C. PALTENGHI, ESQ. with the law firm of Gordon, DeFraga, Watrous & Pezzaglia. The Hearing Board having heard all persons desiring to be Background

The Conditional Order of Abatement dated October 28, 1999 explicitly states that the Hearing Board will terminate the Conditional Order of Abatement "...if it finds that Pacific Steel Casting Company has met the terms and conditions of this order..." To grant termination of the Conditional Order of Abatement the Hearing Board is required to find that Pacific Steel Casting Company has met the terms and conditions in the Conditional Order of Abatement as follows:

1) The Hearing Board must find that Pacific Steel Casting Company ceased or desisted any operations resulting in odorous emissions in violation of Health and Safety Code Section 41700.

2) The Hearing Board must find that Pacific Steel Casting Company held a minimum of two community meetings to address citizen complaints and concerns about odor emissions and explain efforts to reduce and eliminate such odor nuisances.

3) The Hearing Board must find that Pacific Steel Casting Company submitted a written report detailing all complaints received by Pacific Steel during the period of the Conditional Order of Abatement.

4) The Hearing Board must find that Pacific Steel Casting Company submitted a written report that included a description of the results of the community meetings and any actions taken by Pacific Steel Casting Company to address any issues identified in the community meetings, including what actions it is or will be taking to reduce and eliminate any odor nuisances.

Dissenting Argument

1. The necessary finding that Pacific Steel Casting Company ceased or desisted operations resulting in odorous emissions in violation of Health and Safety Code Section 41700 can not be made because there is evidence that complaint #26030 was handled by the District Enforcement Division improperly and not in accordance with District's Policies and Procedure for establishing public nuisance.

First and foremost, I dissent because it can not be found that Pacific Steel Casting Company has ceased or desisted operations resulting in odorous emissions in violation of Health and Safety Code Section 41700. To make this necessary finding, there must be evidence showing that while the Conditional Order of Abatement was in effect no notice of violations (NOV's) for Regulation 1 Section 301 were issued and that all enforcement actions of complaints filed against Pacific Steel Casting Company were handled properly and in accordance with the District's Policies and Procedures for establishing public nuisance. Note that there was concurrence by the Chair, Dr. Greenberg, Ms. Daly, and District Counsel, Mr. Kwong, that "it is relevant to inquire into how the Inspectors, for example, respond to an odor complaint pursuant to the District's Policy". (Transcript from 11/2/00, page 25)

It is my position that the Hearing Board is in no position to establish a violation of Health and Safety Code 41700. The Hearing Board has the authority, however, to decide if the District properly followed its own Policies and Procedures in establishing a violation of Health and Safety Code Section 41700. If the Hearing Board finds that the District did not properly follow its own Policies and Procedures in establishing a violation of Health and Safety Code Section 41700 then I feel that the Hearing Board cannot make the finding that Pacific Steel Casting has ceased and desisted operations resulting in emissions in violation of Health and Safety Code Section 41700. I argue that before this finding can be made full investigations of the District's improper actions must be resolved and any District errors corrected before a full determination of this finding may be made.

Although the record shows that there were no NOV's issued by the District while the Conditional Order of Abatement was in effect, I find that the record shows that District enforcement actions of complaint p26030 (see exhibit C-23) filed against Pacific Steel Casting Company was not handled properly and in accordance with the District's Policies and Procedures for establishing public nuisance (See exhibit HB-2). Therefore, I find that the necessary finding that Pacific Steel Casting Company ceased or desisted operations resulting in odorous emissions in violation of Health and Safety Code Section 41700 can not be made.

It is relevant to note that the District's Policies and Procedures were requested by the Hearing Board. Mr. Kwong noted in the record that there were two versions of the District's Policies and Procedures, and old version and an updated version. Mr. Kwong stated in that record that both versions would be entered into the record.(Transcript from 11/2/00, page 24, lines 21-23; page 25, lines 8-9) However only the old version was entered and provided to me as exhibit HB-2.

Also this version was not provided to the Hearing Board during the evidentiary portion of the hearing, instead it was distributed after closing statements began. Because of this error in the hearing I was not given an opportunity to review the document thoroughly relative to complaint #26030 and question any District employees on their understanding of and implementation of these rules relative to the odor complaints received relative to public nuisance according to Regulation 1 Section 301. I feel that this significant logistical error in this hearing is relevant in my dissent because not having the specific list of applicable Policies and Procedures in hand impacted my ability to have deliberated, and to have influenced other Hearing Board Members.

During the hearing I tried to ask pertinent questions on the District's Policies and Procedures as they related to the odor complaints in question and I was stopped by the Chair and not permitted to proceed with my line of questioning. For example, after I asked District Enforcement about their Policy and Procedure related to one complaint, the Chair intervened and said, "we can't take the time for him to read and refresh his memory on this one" (Transcript from 11/2/00, page 67) not allowing me to proceed with my line of questioning. Holding the minority position (as opposed to the Chairs majority position), I felt that my concerns and questions were truncated and not given a fair opportunity to be heard. For example, I was treated disrespectfully when deliberating my legitimate concerns when the Chair stated "...your questions are so very long and very involved that nobody can really follow what point it is your trying to make. You seem to ask questions over and over again, and quite frankly most of the time they are irrelevant." (Transcript from 11/2/00, page 106 [corrected from tapes])

The Policies and Procedures in HB-2 along with the District testimony provides evidence in the record that the single complaint #26030 of 5/18/2000 may rise to the level of a public nuisance. During the evidentiary portion of the hearing on September 22,2000, Hearing Board Member, Ms. Daly asked the District whether a Notice of Violation could be issued for the scenario where a single telephone complaint was received and where an inspector confirms that odor complaint. Mr. Kwong, Chief Counsel for the District responded that, "Under your scenario, an NOV may be issued under that circumstance. That decision is not the inspector's decision but the inspector in conference with his inspection manager." (transcripts from September 21, 2000, page 78 line 12-15.) In testimony to Ms. Daly, Mr. Lew, Inspector Bostick's manager affirmed that he was personally involved along with Inspector Bostick in the coordination and disposition of this complaint investigation. Additionally Mr. Lew stated o 11/2/2000 that a public nuisance violation that is "damage to a business can be issued on I complaint" (transcript from 11/2/2000, page 10)

The District's Policies and Procedures state that public nuisance may be established by, "receipt of one or more confirmed complaints that a source is discharging air contaminants which are causing injury or damage to a business or property." (see exhibit HB-2, page 8, Public Nuisance Section, Regulation 1 Section 301, California Health and Safety Code Section 41700, B. Criteria)

I argue that public nuisance may be established for confirmed business complaint #26030 since it meets the essential criteria defined by District Policies and Procedures. First there is evidence that complaint # 26030, is a District confirmed complaint. It is noted as a District confirmed complaint in the District's recorded log file (see exhibit C-20 page 5, Column 1). It is noted as a District confirmed complaint in the District's Complaint Report (see exhibit C-23 Response box on page 1 and 2). It is noted as a District confirmed complaint in the District's testimony from Mr. Lew, District Enforcement Supervisor on September 21, 2000 (transcripts from September 21, 2000, page 134 line 23).

Secondly, there is evidence in the record that the confirmed discharge of odorous air contaminants from Pacific Steel Casting caused damage to a business. Evidence of damage to a business may be found in the Complaint Report for #26030 when it is stated that "R/I spoke with the complainant who said that the odor had been much stronger earlier that morning and that it was making her and her staff nauseous. She said that she is concerned about the effects of the odor upon her clientele. She said that she is concerned about business revenue due to the negative effects of exposure to the odor. She said that it is present 2-3 times per week and that she is tired of it."(exhibit C-23, page 2 Section III.). Evidence that the complainant was a business may also be found in the Complaint Report for #26030 when it is stated, "At 12:15 District Staff arrived to sample the air around the complainant's business."

I believe that the Inspectors involved in complaint #26030 had a professional duty to explain to the complainant the regulations potentially involved and the evidence necessary to proceed with regulatory action for their complaint. Not only do the District's Policies and Procedures for a Field Investigation of a Complaint for conferring with the complainant explicitly state that, "Inspectors will explain the laws involved and evidence necessary to proceed with legal action." (HB-2, page 4), but I feel it is the practical due process of an enforcement encounter.

As a result I feel that the inspectors had a professional duty to explain Regulation I Section 301 for public nuisance to the complainant. The inspectors also had a professional duty to inform the complainant that to proceed with any regulatory action on Regulation 1 Section 301 the District requires proof of financial loss such as receipts for the cleanup and/or repair costs associated with remedying the alleged nuisance or other documentation of loss of business or revenue (see exhibit HB-2, page 8, Public Nuisance Section, Regulation 1 Section 301, California Health and Safety Code Section 41700, B. Criteria).

I find from the record that there is evidence in the Complaint Report for #26030 that the District Inspector failed to inform the business complainant, Kirsten Traynor that the District requires documentation or proof of financial loss to proceed with regulatory action on Regulation 1 Section 301. It is evident to me from the statements written in the Statements Section of the Complaint Report that the Inspector failed to inform the complainant that to proceed with a determination of violation of Health and Safety Code Section 41700 for this complaint the District requires documentation or proof of financial loss.

It is stated in this section of the report that, "R/I said that the odor was coming from P#1603 and that R/I would order a Source Test bag sample to be taken. A 12:15, district Staff arrived to sample the air around the complainant's business. The results ended u being negative and no violation of Regulation 7 occurred. R/I told the complainant about the results and advised her to call again when the odor recurs". (exhibit C-23, page 2) In particular, I felt that it was improper of the Inspector to have advised the complainant to call again when the odor recurs after telling the complainant about the negative bag sample results for Regulation 7 without informing them of Regulation 1 Section 301. Regulation 7 is clear not to exempt one from meeting Regulation 1 Section 301, instead Regulation 7 Section 101 clearly states that, "A person must meet all limitations of this Regulation, but meeting such limitations shall not exempt such person from any other requirements of the District, state or federal law . ..." I feel that it would have been proper for the Inspector to have stated in the Statement's Section of the Complaint Report that he advised the complainant that the District requires documentation or proof of financial loss to proceed with regulatory action on Regulation 1 Section 301.

Also in this Section of the report the Inspector I feel should have noted the disposition of the possible violation to Regulation 1 Section 301 including the understanding at that time of the complainants intent or lack of intent to submit proof of financial losses. I feel that without providing knowledge on the disposition of Regulation 1 Section 301, the Inspector erred in closing out the complaint with the following statement that "No further action is necessary." (exhibit C-23, page 2)

Additionally I found that there was evidence that the Inspector failed to obtain as required by District Policies and Procedures the "Names and addresses of the persons affected by the complaint." exhibit HB-2, page 5, Section 2 Field Investigation, Part C. Complaint Interview) Evidence in the Complaint Report shows that the company spokesperson, Ms. Traynor, who made complaint 426030, noted into the record that there were others adversely affected by the odorous annoyance (see exhibit C-23, page 2). I found that the Inspector failed to write into the Complaint Report the names and addresses of these adversely affected persons.

2) I dissent because I think termination is premature.

I believe that termination of the Conditional Order of Abatement should not be taken lightly. I believe that the termination decision should be based on sound analysis and firm findings so that this decision will not be at risk of being easily overturned or appealed. I believe that it would be detrimental to the Hearing Board, the District, Pacific Steel Casting Company, and the community to be flip-flopping in and out of Conditional Orders of Abatement. I believe that the terms and conditions of the Conditional Order of Abatement should be met with careful scrutiny prior to terminating. I believe that adequate abatement of all odorous concerns should be provided prior to termination to assure that Pacific Steel Casting Company will not bounce back into another Order of Abatement.

If the Conditional Order of Abatement is terminated without resolution to complaint #26030 I believe that the Complainant of #26030 (see Exhibit C-23), Kristen Traynor, could subsequently overturn this decision through eventual rehearing or appeal if she were to bring forward an Accusation of violation (according to Hearing Board Rule 4.1) of Regulation 1 Section 301 and the Conditional Order of Abatement to Pacific Steel Casting. I believe that she would have a compelling argument if she provided an affidavit stating that she was never properly informed by the District Inspector of her right to submit financial loss documentation for Regulation 1 Section 301 and if she provided the district proof of her financial loss of business revenue for her confirmed business complaint #26030.

Additionally I believe that she could also submit the names and addresses of all of the staff members that were adversely affected by the odor incident of 5/18/2000 and these persons could together proceed with an Accusation of violation Regulation 1 Section 301 for public nuisance which affects a considerable number of persons or the public for Complaint Report #26030.

And I believe that if Pacific Steel Casting Company were found to be in violation of Regulation 1 Section 301 on 5/18/2000 by the District after investigation of these accusations, then there would be sufficient grounds to invalidate the Hearing Boards decision to terminate the Conditional Order of Abatement either through rehearing or appeal or through the Accusations. Before terminating the Conditional Order of Abatement I believe that the issues surrounding complaint #26030 should be resolved. Specifically I believe that the relevant concerns and questions pertaining to complaint #26030 and other complaints and concerns should be fully investigated and addressed before terminating the Conditional Order of Abatement.

3) Secondly I dissent because I feel that Pacific Steel Casting Company did not comply with the other conditions of the Conditional Order of Abatement.

I dissent also because the evidence shows that Pacific Steel Casting Company did not address at their public meetings the legitimate citizen complaints and concerns about odor emissions as the Conditional Order of Abatement required. The citizen complaints that were not addressed were repeatedly echoed from citizen to citizen. For example the following three concerns were repeatedly brought to Pacific Steel Casting's attention but were not addressed:

1) Sandy Simon's concerns on "...what percentage of the total emissions actually go through the carbon units

2) L A Wood's concerns on "What sources are abated and what sources are not abated in each of the three facilities at 2 street." In the July 27th report, Mr. Wood specifically requested that Pacific Steel Casting Company "identify the buildings for the community and qualify them: abated-non-abated..." and Mr. Wood's legitimate concern that, "If BAAQMD Permit Services writes conditions which provide for temperature excursions, then why wasn't it required by BAAQMD Permit Services to test for odors while the equipment was under operation and at moments when there are temperature excursions? Where are the odor tests?..."

3) Paul Cox's ". . . Concerned that Pacific Steel Casting Company has not addressed all the areas where emissions (the smell) gets out. Thinks Pacific Steel Casting Company should try to get 100% of its air going through the carbon filters--not letting it escape through the doors." I believe that the Conditional Order of Abatement should remain in effect until these citizen concerns are addressed by Pacific Steel Casting Company. I believe that Pacific Steel Casting Company should continue to work with the concerned citizens in providing them with accurate and complete information to address their issues including:

a) A list and associated map of all emission sources plant by plant including ventilation exits.

b) A list of all abatement technology for odor on these emission sources including ventilation exits.

c) A list of all odor evaluation data associated with these sources including the date and test parameters relative to the permit allowable parameters.

If there is continued public concern about odor from any of the emission sources that do not have odor abatement technology such as from the ventilation systems in Plant 3 or the sand reclamation unit then I believe that Pacific Steel Casting Company should provide emission source odor evaluation test data or equivalent data for the worst permit allowable parameters to show that these emissions are below detectable odor limits. I believe that odor abatement technology should be added to the emission sources that can not be shown to be below the odor limits of detectability.

Terminating the Conditional Order of Abatement is premature since all complaints made to Pacific Steel Casting were not in my mind detailed in the written report of July 27th, 2000. In particular, Pacific Steel Casting Company in their written report states that Laurie H. Glass "Dropped off a letter a the end of the community meeting."(see exhibit P39) A copy of this person's complaints has not been included in the written report of July 27th, 2000. I dissent because I felt that this person's concerns should have been included in the report to determine if PSC addressed them according to the Conditional Order of Abatement.

Terminating the Conditional Order of Abatement is premature since in the report dating July 27th, 2000, in Section II page 2.1 the following two responses are listed with inadequate description and explanation: "Modified general ventilation in Plant 1 to minimize fugitive emission." . "Installed cooling fans in the Plant 1 and Plant 3 to reduce potential odor emission." How does this reduce potential odor emissions? On what date were these changes made? I dissent because I feel that Pacific Steel Casting Company needed to provide more information Conclusions

I dissent because I believe it can not be found that Pacific Steel Casting Company has ceased or desisted operations resulting in odorous emissions in violation of Health and Safety Code Section 41700. I found that there were outstanding unresolved enforcement actions of complaints filed against Pacific Steel Casting Company that I felt were handled improperly and not in accordance with the District's Policies and Procedures for establishing public nuisance. This case for me has been about citizen's complaints being overlooked by a yardstick of progress. Granted Pacific Steel Casting has made exceptional progress but it should not have overshadowed the legitimate remaining community concerns despite their lessened intensity compared to prior concern.

I believe the statements of the representative from the Neighborhood Watch Association of 1300 block of Kains Avenue have been overlooked, "We understand that the Unconditional Abatement Order has resulted in a lessening of the odors, but they are still much too strong. The odor problem from the noxious fumes which are blown by the wind into our neighborhood and homes, these fumes burn the eyes and nose and irritate the respiratory tract." (Transcript of July 1999)

And I believe the very touching statements of Mr. Foster who testified on July 8' have been overlooked. He stated that he has "...noticed this odor ongoing for the past 12 years. It is a sort of a thing that I notice -- I get a headache immediately and nauseous just stepping outside." (Transcript July 1999)

And he stated that he has "a son who is four years old and who has been in Children's Hospital twice with what the doctors call reactive airwaves disease..." and "...He has ridden in the ambulance. I have sat by his side telling him he is going to be okay."

And I believe statements of Ms. Kirsten Traynor at 1411 4th Street have been overlooked. Recall that she filed the confirmed complaint #26030 where business damages were claimed and where she stated that the odor caused her staff to be nauseous. (exhibit C23)

I dissent because I believe that the Conditional Order of Abatement should remain in effect until Pacific Steel Casting has addressed all violations of Health and Safety Code 41700, and the neighborhood concerns. I believe that they should abate the public nuisance odors that they emit into the community. I believe that they are part of a community and have an obligation work towards harmony with the citizens surrounding them on these public nuisance odor issues. I believe Pacific Steel Casting has the technical know how and capability to look at their current facilities and determine where odor abatement is needed to mitigate public nuisance odor and to install appropriate devices to avoid these public nuisances. I believe however that as in the past, they will only do so under the command of an order of abatement, therefore I dissent.

Antoinette W. Stein
DATED: 11-30 2000


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