"Waiving the Rules" Air quality board lets Bay Area Companies poison the sky
By A.C. Thompson, September 21, 2001
In a small room on the seventh floor of an unremarkable office tower on Ellis Street in San Francisco, loopholes are routinely cut in the federal Clean Air Act.
The snipping isn't done by far-right politicians who think global warming is a myth. It isn't the work of cigar-smoking industry tycoons. It's the Bay Area Air Quality Management District -the region - agency charged with enforcing federal and state air pollution regulations that's loosening the regs.
Say you own a chemical plant. Say your company is illegally coughing toy ics into the atmosphere. Say you cant find the leak. Rather than temporarily shutting down, you call up the district and ask for a waiver of the emissions regulations.
And in all likelihood the district (also) known as BAAQMD) will say, 'Sure, problem."
Since 1999 the agency has granted at least 45 such waivers, a Bay Guardian review of BAAQMD records shows. The agency rejected only 16 requests for legal exemption -a 26 percent rejection rate.
Pleas for legal laxity go to BAAQMD's Hearing Board, a five-person quasi judicial body that votes yea or - occasionally - nay on the requests. The board considers six criteria when deciding whether to dole out exemptions, which are known as "variances" in regulatory jargon. A few key factors: Will compliance with the law cause the business financial harm? Is that harm justified by a major reduction in air contaminants? Are conditions "beyond the applicant's reasonable control?" causing the company to break the law?
"The whole process is a mess' said Tiffany Schauer, an ex-board member who served from 1997 to 2000. "The Hearing Board has no standards that are consistently applied to variance decisions. [It's] basically willy-nilly law." Schauer now heads a nonprofit called Our Children's Earth.
Many of the requests the board grants are perfectly reasonable. Last year the city of Palo Alto was given permission to briefly disconnect gas-extraction equipment at the municipal landfill; the city was building a concrete cap over the trash heap. In 1999 when air-purifying machinery broke at a Silicon Valley cardboard factory, the board could've pulled the plug on the company. Instead the factory was given 12 hours to fix the problem.
In other cases the waivers resulted in pretty minuscule amounts of atmospheric filth - a few toxic ounces here and there.
But in several instances the board doled out questionable exemptions, allowing companies to run way over legal pollution limits. A few examples:
In May 1999 biotech giant Monsanto was given permission to belch 475 pounds of smog-causing sulfur dioxide from its Avon pesticide plant.
• Herman Goelitz Candy Company, the makers of Jelly Belly jellybeans, was allowed to emit 64 tons of ethyl alcohol from its Fairfield factory during 1999.
• BAAQMID gave Macaulay Foundry in Berkeley, a steel-casting company, a waiver for 18 months, during which time the foundry put out 1,784 pounds of sulfur dioxide and 6,740 pounds of carbon monoxide. The waiver ran from 1999 to 2000.
• In February 2001 the district let Fleischmann's Vinegar emit acetaldehyde, a possible carcinogen, at levels BAAQMD's own scientists say could pose a human health threat. The plant is located in east Oakland.
"We think some of these cases are problematic' said Ken Kioc, a public health expert who is studying the waivers for the Environmental Law and Justice Clinic at the Golden Gate University law school. "We'd like to see the district do some analytical work and make sure that there are no health risks associated with the various emissions. And for the most part they don't do that."
Another possible problem: the cumulative damage of all the exemptions. Nearly a sixth of the waivers were given to facilities in western Contra Costa County, subjecting the area - already a hub of heavy industry - to even more fumes.
So why does it look like the Hearing Board is cutting polluters so much slack? We put that question to board chair Alvin Greenberg. "Whether it's in Contra Costa County or Livermore or San Francisco, we need to make a finding that there won't be a harm to public health or air quality [in order to issue a waiver]:' said Greenberg, a toxicologist and five-year veteran of the board.
The stats aren't as bad as they seem, Greenberg argues. For one thing, most companies are dissuaded by the district from even asking for permission to spew huge amounts of pollutants -so when rules are bent, the offenses tend to be minor.
And for another thing, Greenberg contends, the board has driven some 'hard bargains with the refineries in recent years, giving the oil companies 'in economic incentive" to comply with the law.
However, the board chair thinks BAAQMD should do more research on the potential environmental impact in particular cases. Beyond the policy questions, the waiver requests reveal how some of the region's dirtiest corporations conduct business.
Prime example: In the spring of 1999, Chevron's Richmond refinery asked permission to leak methyl-ethylketone and toluene - two nasty, neurologically damaging solvents- for more than four months. Chevron's problems started May 12, 1999, when company staffers discovered the chemicals seeping from outdoor pipes. After several failed attempts to plug the holes, the company made an appeal to BAAQMD, hoping to save money by running the malfunctioning plant until its next scheduled shutdown date, Sept. 30, 1999.
Chevron "believes that leaks will reappear intermittently and the refinery will be unable to maintain compliance on a regular basis," the corporation explained in documents filed with the district. BAAQMID gave Chevron seven days to fix the problem. By mid June it was oozing toxins once again.
"Waiving the Rules" is the second installment in an occasional series.
AC. Thompson, San Francisco Bay Guardian
Corbett Miller contributed to this report.