To: Cal Environmental Protection Agency
Air Resources Board (CARB) Enforcement Division
1001 I Street, Sacramento, CA 95814
From L A Wood, Berkeley Citizen, April 19, 2016
RE: CARB complaint regarding BAAQMD permitting practices
In September 2015, the US Environmental Protection Agency (US EPA) received a formal request to investigate the permitting process of the Bay Area Air Quality Management District (BAAQMD), and more specifically, to address the regulatory actions that have allowed Pacific Steel Casting (PSC), located at 1333 - 2nd Street, Berkeley, to illegally evade regulatory compliance with Title V and to be in violation of their Synthetic Minor Operating Permit (SMOP) for nearly a quarter of a century.
Whether by regulatory negligence, the discretion of the air district’s Air Pollution Control Officer (APCO) or simple political accommodation, PSC was allowed to bifurcate its permit into two SMOPs. This allowed the Berkeley foundry to falsely represent its emissions as though it were two smaller, independent companies. It also allowed PSC to profit from this BAAQMD-sanctioned downgrade. Of course, these illegal actions by the air district came at the expense of detriment to the surrounding west Berkeley community.
The lower reporting numbers for PSC’s two SMOP permits were quite effective in shielding PSC from regulatory demands to make more adequate upgrades to its three facilities or to expand the foundry’s capacity to monitor its emissions. It has also propped up the BAAQMD's insistence that the company was operating within the bounds of the law. From the air district's perspective, PSC had become nearly too small to pollute.
2005 Title V Violation
The first time the US EPA was asked to investigate the downgrade of Title V requirements for PSC's operating permit occurred in 2005. The US EPA responded to the complaint and directed BAAQMD to consolidate the permits as required by law. (See Attachment 1.) Unfortunately, the SMOPs were never consolidated by BAAQMD nor did the US EPA follow up on their request to the air district and PSC to consolidate the permits.
In 2006, there was a public challenge to PSC’s operating permit and its permitted emissions limits. In the subsequent court settlement, PSC agreed to make upgrades to its facility that would result in at least a two-ton reduction in emissions levels. (See Attachment 2.) However, after 2008 and the completion of the upgrades, PSC's emissions began to rise. This swing upward in emissions volumes was in direct violation of PSC’s signed court agreement. Clear evidence of this rise in emissions comes from PSC's annual state emissions inventory reporting. (See Attachment 3.)
The lawsuit implied that PSC was very close to being reevaluated as a Major Facility under Title V. However, the foundry's owners were able to dodge any regulatory changes in the foundry’s permit with their promise that PSC would reduce emissions. Because PSC had not been forced to consolidate their SMOP at that time, this became the contributing force to the district’s inability to monitor their permits.
In January 2009, BAAQMD sent out a press release in support of PSC's permits. Not only wasthisan unprecedented actby the district, but the public statement revealed that BAAQMD had still not consolidated the permits, four years after being ordered to do so by the US EPA. (See Attachment 4.) It stated in part:
“District staff is preparing revisions to PSC’s Synthetic Minor Operating Permit (SMOP) that will provide additional limits and monitoring to assure that the emissions of regulated air pollutants from all three plants do not exceed Major Facility thresholds.”
The air district’s “additional limits and monitoring” as it was referred to in the press release remains an unfulfilled promise to the community. Over the last seven years, the air district has also faltered on its second promise that inspection staff would continue to conduct frequent compliance inspections of PSC. It is hard to believe that BAAQMD has conducted frequent compliance inspections since they have failed to manage the other more basic aspects of the permit.
BAAQMD and the court-driven settlement and subsequent changes at PSC were all unsuccessful in controlling the foundry’s emission levels. Yet, BAAQMD's changes to the permits were very effective in bolstering the appearance that PSC was in compliance with its operating permit, thus facilitating a dishonest Health Risk Assessment in 2008 for the foundry, eliminating any challenges to PSC’s city use permit and silencing all those who would rightly criticize this failed local regulatory agency and its procedures.
2015 Title V Violation
As was referenced earlier, the US EPA received a second Title V complaint on September 30, 2015 regarding BAAQMD's SMOP. The complaint was directed at the failure of the BAAQMD to force a consolidation of PSC permits as was requested 16 years ago by the US EPA in 2005. This second complaint came with a request to again investigate the failure of BAAQMD to comply with the 2005 order to consolidate PSC’s SMOP. It also addressed the violation of the court order from the 2006 lawsuit, questions over the high emission levels from 2005 to the present and to regulatory periods in which the BAAQMD-issued permit for PSC was out of compliance.
In February 2016, an email communication was sent from BAAQMD’s Title V engineering staffer, Mr. Maiden, who is directly responsible for PSC permitting. He clearly stated that PSC’s permit for Facility No. 1 was then under review. (See Attachment 5.) He also revealed that as of February 16, 2016, PSC had still not consolidated it permits as required under Title V. A public records request in February also revealed in March that PSC’s legacy permits from 2007 through 2015 were not consolidated prior to February 19, 2016.
It should be noted that after a courtesy call was given to the BAAQMD's legal counsel on February 18, 2016 regarding my US EPA complaint and permit investigation, BAAQMD updated the SMOP one day later. The race to upgrade the permit was not driven by the US EPA, despite the fact that they hold some responsibility to this BAAQMD Title V process and permit review. Moreover, they held my complaint for nearly five months without any evidence that they had conducted an investigation. The update certainly was not driven by PSC. The steel foundry can’t be held more libel than the air district for its violation of its SMOP permit since BAAQMD had approved the splitting of the SMOP into two permits so many years ago.
Logically, the air district had the most to be concerned about. The actions of BAAQMD's legal counsel to quickly update the permit were predictable and easily initiated with a simple phone call and an email. BAAQMD's counsel certainly knew that an injunction could have temporarily shut down some, if not all, operations at the steel foundry. The publicity from such an action probably would have been much more harmful to the air district than to PSC since BAAQMD holds the lion’s share of responsibility for this long-term violation of the operating permit and the public's trust.
The rules should never be waived to afford one company special consideration, especially at the expense of an entire community. The air district does not possess that particular regulatory discretion. However, in the case of Pacific Steel Casting, BAAQMD continues to support a historic environmental injustice in west Berkeley with little regulatory accountability. (See Attachment 6.)
Community Health
This violation of the SMOP is more than just an issue of counting tons or pounds of pollutants. It is about the health of a downwind community, a growing community that includes many childcare facilities, schools and children's play spaces. It is a residential community without buffer from PSC's three plants. It is about the large volumes of airborne pollutants, including nickel, manganese, benzene, formaldehyde, and high levels of particulate matter. Again, it is about health. The linked evaluation below will help bring this into focus. It is worth your consideration.
In 2006, Dr. Michael Wilson authored a paper regarding PSC emissions and production levels as they relate to children’s health. His assertions are clearly more relevant today given the increases in PSC's emissions as well as the large growth of residential housing downwind from the foundry in the last decade. Dr. Wilson is currently chief scientist with the State of California Industrial Relations.
Continuing Assessment of Pacific Steel Casting, Berkeley, California Michael P. Wilson, Ph.D, MPH Assistant Research Scientist Center for Occupational and Environmental Health School of Public Health University of California, Berkeley, California October 18, 2006
Another lawsuit will not change the regulatory mindset of the air district nor will it raise the creditability of BAAQMD's oversight of PSC, although it certainly challenges the legal accountability of this permitting process. From a community perspective, PSC has simply been given a permit to pollute. As PSC's permit now reveals, the data, the reporting and the SMOP have never been more than a paper-pushing activity for BAAQMD. And even that has not been done well.
The calculations of district staff and paid consultants have minimized the health impacts from PSC's emissions. In the last decade, our community has begun to demand an evidentiary approach to monitoring emissions beyond the fence line of PSC. This is the only way to make sense of the actual health impacts to residents from harmful emissions. Our community monitoring grant from the air district in 2007, and other sampling activities in the past decade, have provided more than enough anecdotal evidence pointing to potentially serious health exposure for downwind residents. The attached monitoring proposal gives some background to this history of offsite monitoring at PSC. (See Attachment 7.)
The US EPA and BAAQMD have both been offered this community monitoring proposal for review and comment. Each agency has been asked to contribute to this proposed monitoring effort by giving the community the tools to monitor emissions downwind from PSC. Each of these agencies is responsible for this longtime environmental injustice. Monitoring is the only remedy to resolve this regulatory debacle. The PSC permits are without value in a BAAQMD process that underestimates both off-site emissions and their potential health impacts. Our Berkeley community deserves better. We have the right to set a community standard and to have BAAQMD enforce that standard. Our affected community has the right to know how much we are being poisoned.
I respectfully request that the California Air Resource Board (ARB) investigate PSC’s operating permit process for each of the last ten years. It is also requested that ARB undertake a review of BAAQMD’s regulatory compliance and actions as they pertain to permitting under Title V. This should include the 2005 request for consolidation of PSC permits, SMOP applications and emission volumes for each of the last ten years. And most importantly, ARB must impose requirements for stack and fence line monitoring at Pacific Steel Casting. Clean Air begins with honest regulation.
Attached:
1. BAAQMD letter to PSC September 9, 2005
2. Final PSC Court Consent Degree 2006
3. West Berkeley Alliance: PSC Emission 2005 & 2012
4. BAAQMD 2009 Press Release for Pacific Steel Casting
5. BAAQMD 2016 Title V staff engineer comments on PSC ‘s SMOP
6. Berkeley Planet news article: April 19, 2005 on BAAQMD regulation
7. West Berkeley Community monitoring history and proposal
