Pacific Steel Casting Title V Complaint


Please note: Prior to the Environmental Law and Justice Clinic or BAAQMD's involvement in the complaint over Title V Permit for Pacific Steel Castings in 2005 US EPA Region 9 was contacted by Berkeley CItizen. After a formal complaint was lodged records show that USEPA responded (Title V is a Federal Program) by contacting BAAQMD and raising a similar concern over the illegal changes to Pacific Steel's Title Permit in 1993.
Berkeley Citizen

Mr. Joe Emmenchs Vice President - General Manage
r Pacific Steel Casting Company
1333 Second Street Berkeley, CA 94710
Re: Pacific Steel Casting Permits to Operate
September 9, 2005

Dear Mr. Emmerichs:

I am writing concerning the permits to operate three steel casting plants issued to Pacific Steel Casting (PSC) by the Bay Area Air Quality Management District (District).

Currently, you operate the three plants under District Permit Nos. 187 (Plant #1), 703 (Plant #2), and 1603 (Plant #3). Plant #2 and Plant #3, which are contiguous, also operate under a synthetic minor operating permit pursuant to District Rule 2-6-310. However, based on the District's review of Pacific Steel Casting's current operations, it appears the three plants must be treated as one facility subject to requirements of District Regulation 2, Rule 6, which implements the federal Title V operating permit program.

Multiple plants constitute a single Title V "major source" - and may be a "major facility" or "synthetic minor facility" under District Regulation 2, Rule 6 - if they are under the same ownership or control, they belong to the same industrial classification (based on the facilities' primary activity), and they are adjacent or contiguous to each other. PSC owns and controls Plants #1, #2, and #3 and produces steel castings at each of them. The District has determined that the three plants are adjacent or contiguous to each other.

Plants are contiguous if they are touching, especially along a border. Plants #2 and #3, which are separated by Second Street, are contiguous. See e.g. Section 2.3 of "Questions and Answers on the Requirements of Operating Permits Program Regulations," United States Environmental Protection Agency (EPA), July 7, 1993.1 Plant #1 is not contiguous to the other two plants, but it is adjacent to them pursuant to 40 C.F.R. sec. 70.2.

'See e.g. Letter to Iowa Air Quality Bureau, dated October 1, 2004, from JoAnn M. Heir nan, Chief, Air Permitting and Compliance Branch, EPA, concerning the definition of "contiguous" under Part 63 (hazardous air pollutants), in which she confirms that two facilities separated by a public right of way are contiguous (66 Fed. Greg. 16324).

Plants are "adjacent" to each other if they lie near or adjoin each other. See e.g.

Shorter Oxford English Dictionary, Fifth Edition, 2002. 2 In other words, Plant #1 need not border the others to be adjacent to them. Whether Plant #1 is adjacent to the other two plants is a "case-by-case determination" based upon their proximity to each other and interrelatedness. 45 Fed. Reg. 52965 ("EPA is unable to say ... precisely how far apart activities must be in order to be treated separately."3) It is the "common sense notion" of a single facility that controls in this determination. Id. 4

PSC operates its business out of its administrative office building, located at 1333 Second Street, Berkeley, and at its three foundries. The office building and Plant #3 are on the east side of the street. Plant #1, which faces the office building, is located on the west side of Second Street and is separated from Plant #2, approximately 210 feet away, by another industrial business, Berkeley Forge and Tool.

It is evident that the three plants are functionally interrelated and are sufficiently proximate that they operate together as a single steel foundry business., PSC operates out of its administrative office, where it receives orders for steel goods and determines which plant fills the orders. PSC's general manager, plant operator, and environmental manager are responsible for and shuttle between the three plants. 6 Whether PSC casts steel components at one or another plant is a function of the size of the casting requested by a customer and the availability of a specific plant to fill an order. In fact, the proximity of the plants to each other

2 EPA has relied on the dictionary definitions of "adjacent' 'and "contiguous" in its inquiries of whether facilities are adjacent or contiguous and thus constitute one source. See e.g. letter dated May 21, 1998, Ref 8P2-A, to Utah Division of Air Quality from Richard Long, Director, Air Program, Region 8 EPA; Letter dated August 7, 1997 to Oregon Department of Environmental Quality from Joan Cabreza, Office of Air Quality, Region 10 EPA.

"A physical separation of property does not in itself constitute separate sources." Letter dated May 19, 1999 to Mecklenburg County Department of Environmental Protection, North Carolina from Winston A. Smith, Air, Pesticides and Toxics Management Division, EPA Region 4. "Use of documents not directly related to Title V is appropriate because the Title V definition of major source is an outgrowth of the definitions used for [prevention of significant deterioration] and nonattainment area new source review purposes." Id.

"The determination of whether two sources are adjacent is based on the 'common sense' notion of source, and whether the distance between two facilities is sufficiently small that it enables

them to operate as a single source." Undated letter to Pennsylvania Department of Environmental Protection (DEP) re: Northeast Hub Partners, from Judith M. Kaiz, Director, Air Protection

Division, EPA Region 8. See also undated letter to Pennsylvania DEP from Kathleen Henry, Chief, Permits and Technical Assessment Branch, EPA Region 8, in response to December 9, 1998 Pennsylvania DEP letter to EPA, describing EPA's "common sense notion" of a plant.

See Footnote 4. 6 See e.g. EPA Region 8 letter, Ref. 8P2-A (finding that "managers or other workers," such as "maintenance and repair crews, or security or administrative personnel," who "frequently shuttle back and forth to be involved actively" in the facilities, can demonstrate the facilities are a single source) and undated Kathleen Henry, EPA Region 8, letter.

enables integrated operation of the plants. 7 The only significant difference between the steel casting plants is the range of cast sizes each plant can manufacture. (The size of the mold designates the type of binding material used in the mold.) Plant #2 produces castings from one ounce to 60 pounds; Plant #1 produces castings from one pound to 1500 pounds; Plant #3 produces castings up to 7,000 pounds. Indeed, PSC prides itself on the flexibility it provides customers, by offering "with our three plants[,] ... precision-made components from one ounce to 7,000 pounds."8 The three plants would not be any more functionally integrated if they were directly contiguous to each other. PSC acknowledges that Plant #2 and Plant #3 share some operations and support each other, but has stated that Plant #1 does not support, and is not supported by, the other two plants. However, plants need not support each other to be treated as one facility. 9

Because Plants #1, #2, and #3 are adjacent and/or contiguous and thus constitute a single facility for purposes of District Regulation 2, Rule 6, the District has determined that Pacific Steel Casting must submit an application to modify the synthetic minor operating permit to include Plant #1, in accordance with District Rule 2-6-422. It may be that the emissions calculations required pursuant to District Rule 2-6-422.4 cannot demonstrate that the potential to emit remains below the emissions thresholds for a "major facility" (District Rules 2-6-212, 26-237). In that event, Pacific Steel Casting must submit a major facility review permit application. The appropriate application, including all required documents, must be submitted by no later than December 31, 2005.

If you have any further questions concerning this matter, please contact Gregory Solomon at (415) 749-4715 or me at (415) 749-4653.

Brian Bateman Director of Engineering
Bay Area Air Quality Management District (BAAQMD

In addition, selecting a new location primarily because of its proximity to the existing facility to enable an integrated operation indicates the two facilities are one source. See, EPA Region 8 letter, Ref. 8P2-A. In the instant matter, PSC expanded its operation at Plant #1, installed in the 1930s, by adding Plant #2 in the 1970s and Plant #3 in the 1980s. Pacific Steel Casting website, www.pacific steeel.cornlinfo. See e.g. EPA Region 10 letter dated August 7, 1997 (finding that "where two sources are on contiguous or adjacent properties, are under common ownership, and are within the same SIC code, there would be only one stationary source and there would be no need to assign the support facility to one source or the other").

Environmental Law and Justice Clinic

Jack Broadbent Air Pollution Control Officer
Bay Area Air Quality Management District
939 Ellis Street San Francisco, California 94109
February 27, 2006

Re: Pacific Steel Casting Co. (Facility Numbers A 0703, A1603, A 0187) Public Notice and Comment & Availability of Public Records

Dear Mr. Broadbent,

The Environmental Law and Justice Clinic ("ELJC") at Golden Gate University School of Law is a public interest legal clinic that provides legal services and education on environmental justice issues to San Francisco Bay Area residents, community groups and public interest organizations. I am writing on behalf of Berkeley Citizen regarding the Pacific Steel Castings Co. ("PSC") facility in West Berkeley, operated at the three plant numbers listed above.

First, given the broad public interest in PSC, we were pleased to hear at the public meeting on February 15 that the Bay Area Air Quality Management District ("District") intends to issue public notice and provide a public comment period for any new revised Synthetic Minor Operating Permit ("SMOP") proposed for issuance to PSC.

We are aware that PSC recently submitted two applications to revise its SMOP, both of which are still pending. We understand that in October 2005, PSC applied to increase its allowable emissions of precursor organic compounds ("POCs") from 90 to 95 tons per year for facility numbers A0703 and A1603 (also known as co-plants 2 and 3). Then in December 2005, PSC applied to add facility number AO 187 (also known as plant 1) to its SMOP, in accordance with the District's proper determination that the three plants in fact operate as one "facility."

Prior to approving a modification to a SMOP, the District is required to provide for public participation, including public notice of and comment on the proposed permit. According to SIP Rule 2-6-423.3, which was adopted and approved into the Bay Area State Implementation Plan ("SIP") in 1995, see 60 Fed. Reg. 32,606 (June 23, 1995), the District is required to comply with the following procedures for SMOPs:


Public Participation: Prior to any determination by the APCO that a facility may be issued a synthetic minor operating permit, the APCO shall notify the public in accordance with the following procedures:

3.1 The notice shall provide at least 30 days for public comment.

3.2 The APCO shall publish a notice in a major newspaper in the area where the facility is located.

3.3 The notice shall state that permit conditions for the facility will be modified to provide a facility wide emission limit in accordance with Section 2-6-310 and shall include information as to how the public may obtain copies of the permit conditions associated with the limit, any information regarding the modification submitted by the owner or operator of the facility, the APCO's analysis of this information, and of the effect, if any, of the modification on air quality.

Although this rule appears to have been deleted from the District's regulations on October 20, 1999, Rule 2-6-423.3 remains an enforceable part of the EPA-approved SIP. Given the public's concern about PSC, we are therefore pleased to hear of the District's intent to provide for full public participation for any SMOP revision proposed for issuance. We expect the District would also provide public notice to interested persons on the District's notification list for PSC.

Second, we are concerned about the lack of availability of certain documents related to PSC's operations. At the community meeting on January 31, 2005 and again at the meeting on February 15, District staff assured members of the public that specific documents regarding PSC's emissions were readily available upon request. However, after submitting several requests under the California Public Records Act ("PRA") and inspecting public records related to PSC on several recent occasions, we are still unable to obtain from the District any annual emissions data or reports for plant #A1603, for instance.

On November 2, 2005, we requested to inspect various types of emissions-related data for the three PSC plants, including all reports submitted by PSC to the District since November 2000, as required by applicable permit conditions. Our review of the plant files revealed no recent annual emissions reports for plant #A1603. PSC was issued Notice of Violation ("NOV") #A47502 on September 22, 2005 for failure to submit an annual POC emissions report for plant #A1603 and for incomplete record keeping (for Source 18), both of which are required by SMOP condition #20207. According to the District's resolved NOV. PSC submitted a copy of the annual POC emissions report by October 11, 2005. However, no such reports have been provided by the District in response to our requests for annual emissions reports for the facility. In addition, in response to our most recent PRA request of January 25, 2006 for "annual update forms" containing emissions data for plant #A1603, Susan Adams informed me that the District has been unable to locate and is currently searching for any forms PSC may have submitted with its annual permit renewal. (This letter is attached for your reference.)

Given the community's strong concerns about PSC's odorous and toxic emissions for over 20 years, it is astounding that critical public records related the facility's emissions can not be located. Under the circumstances, the District's public statements that such records are readily available are especially troubling. We request that the District promptly disclose records related to PSC's emissions to any interested member of the public, including immediate disclosure of any annual POC emissions reports and annual updates when they are located by District staff. If the District is unable to locate such records for whatever reason, we suggest that the District request copies of the documents from PSC. Please let us know when these records will be available to the public.

In the meantime, if you have any questions regarding this matter, please do not hesitate to contact me at 415.442.6656. Thank you.
Amy S. Cohen

cc: Susan Adams, Assistant Counsel, BAAQMD Brian Bateman, Director of Engineering, BAAQMD Peter Hess, Deputy APCO, BAAQMD

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