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HomeMy WebLinkAboutMINUTES - 02131990 - S.3 5. 3 TO: BOARD OF SUPERVISORS `...... Contra FROM: Costa Supervisor Nancy C. Fanden _ DATE: February 12, 1990 ���� �''' County r�'9 C()u SUBJECT: PROPOSED LEGISLATION ON AIR DISTRICT ENFORCEMENT POWERS SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION RECONVENIDATIONS 1. Authorize the County Administrator and County Counsel to draft legislation which will accomplish the following objectives: A. Reduce or eliminate the need to establish proof of intent or negligence as a part of imposing a fine for air pollution violations. B. Increase the maximum fines which can be imposed by the Air District to more closely equal those which can be imposed for violations of the Hazardous Waste Control Act and divide revenue from such fines equally between the enforcement agency (Air District) and the prosecuting agency (District Attorney or Attorney General) to be used solely to enforce air pollution violations. C. Encourage swift and aggressive enforcement action by the BAAQMD. 2. Authorize the Chair of the Board, County Administrator, County Counsel, other appropriate County staff and the County' s legislative representative to meet with Assemblyman Robert Campbell and/or other members of this County' s legislative delegation to solicit authorship for the above legislation. CONTINUED ON ATTACHMENTYeS YES SIGNATURE: D_ RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE G� APPROVE OTHER SIGNATURE(S): ACTION OF BOARD ON FPhri i a Yy_ 13 , 1990 APPROVED AS RECOMMENDED X OTHER VOTE OF SUPERVISORS 1 HEREBY CERTIFY THAT THIS IS A TRUE X UNANIMOUS(ABSENT ) AND CORRECT COPY OF AN ACTION TAKEN AYES: NOES: AND ENTERED ON THE MINUTES OF THE BOARD ABSENT: ABSTAIN: OF SUPERVISORS ON THE DATE SHOWN. CC: ATTESTED y /J 19,90 ,Please see Page 3 . PHIL BATCHELOR, LERK OF THE BOARD OF SUPERVISORS AND COUNTY ADMINISTRATOR M382 (10/88) BY DEPUTY 3. Request the County Administrator to forward a draft of such legislation to the Bay Area Air Quality Management District through this County' s representatives on the Air Board, requesting that they solicit the support and/or co-sponsorship of the Air Board for such legislation. 4. Request the County Administrator to forward a draft of such legislation, accompanied by a letter from the Chair of the Board, to the Boards of Supervisors of all counties which are a part of the Bay Area Air Quality Management District, soliciting their support and/or co-sponsorship of such legislation. 5. Request the County Administrator to keep the Board of Supervisors advised of progress in this regard. BACKGROUND: On January 9 , 1990 the Board of Supervisors authorized the Chair of the Board to write to this County' s legislative delegation, as well as the Executive Officer of the Bay Area Air Quality Management District, requesting that they support legislation which would increase the fines which can be imposed by the Air District for air pollution violations. On January 17, 1990 I wrote on my own to Milton Feldstein, noting that the Board of Supervisors had taken this action and asking that the District aggressively move to require corrective measures of long standing problems where violations are issued for the same problem year after year. On January 24 , 1990 Mr. Feldstein wrote back to me noting the limits which current legislation places on the ability of the Air District to impose fines and penalties. I shared this response with Deputy District Attorney Jim Sepulveda and on January 30, 1990 received the attached response from Mr. Sepulveda noting areas in which he believes the role of the Air District needs to be strengthened. On January 31, 1990 I wrote to Mr. Feldstein again as a follow-up to the presentation he made to the Board of Supervisors on January 30 , 1990 , noting my continuing concern with the failure of wastewater treatment ponds at some refineries in the County, and requesting that enclosed waste water treatment be required of all refineries. As a result of the letter authorized by the Board of Supervisors to our legislative delegation, several of them have contacted our legislative representative in Sacramento asking for clarification of what the Board' s plans and specific objectives are in terms of legislation. As a result of these contacts, our legislative representative in Sacramento asked to meet with me to discuss the background of this issue in more detail. On February 8 , 1990 I met with Les Spahnn, our legislative representative; Claude Van Marter, Assistant County Administrator; and Lillian Fujii, Deputy County Counsel. The above recommendations were formulated at this meeting and are presented to the Board today for action. These recommendations , if enacted into law by the Legislature, should go a long way toward resolving the deficiencies pointed out by Jim Sepulveda. Assemblyman Campbell has Bill No. AB (soon to be introduced) which is germane to this subject and into which our amendments could be placed. Copies of all relevant correspondence are attached for the information of the Board members. cc: County Administrator County Counsel Health Services Director County Health Officer/Environmental Health Director Community Development Director District Attorney Les Spahnn, SRJ. Jackson, Barish & Associates James L. Sepulveda, Deputy District Attorney Lillian Fujii, Deputy County Counsel Milton Feldstein, Air Pollution Control Officer Bay Area Air Quality Management District BAYAREA AIR QUALITY MANAGEMENT DISTRICT ALAMEDA COUNTY Edward R.Campbell Shirley J.Campbell (Chairperson) January 24, 1990 Chuck Conca Frank H.Ogawa CONTRA COSTA COUNTY Honorable Nancy Cardinalli Fanden Paul L Cooper Contra Costa County Board of Supervisors (Secretary) Supervisorial District Two Sunne Wright McPeak o05 ISS Juntas MARIN COUNTY OVS At Aramburu Martinez, California 94553 NAPA COUNTY Bob white Dear Supervisor Fanden: SAN FRANCISCO COUNTY Harry G. Britt I appreciate receiving your letter of January 17, 1990 concerning the issue Jim Gonzalez of fines for violation of airuality rules. This matter was discussed at our Board SAN COUNTY Meeting of January 17, 1990 in an effort to clarify the penalty process. It is true Gu J.Nic Anna Eslos hoo that Assemblyman Campbell authored a bill in the recent past which increased SANTA CLARA COUNTY ma.)dmum penalties under certain conditions. Martha Clevenger Rod Oiridon Hug Roberta H. ughan The Health and Safety Code sets up three tiers of penalty levels which Susanne Wilson would authorize the District to seek Civil penalties under the following SOLANO COUNTY circumstances: Osby Davis (Vice Chairperson) SONOMA COUNTY a) (42402) Up to $1,000 for a violation of a rule, order, permit Jim Harberson or state law. (no liability if the person establishes that the violation was not the result of intent or negligence). b) (42402.1) Up to $10,000 for a) negligent violation of a rule or order pertaining to an emission limit b) causes actual injury to a considerable number of persons. c) (42402.2) Up to $25,000 for a) emission of an air contaminant in violation of a rule or order of an emission limit, and the person had knowledge of the emission and failed to take corrective action; b) any person who knowingly falsified information C) any emission in violation of 41700 which causes injury to a considerable number of persons and corrective action was not taken. [Actual injury means physical injury which requires medical treatment.] 939 ELLIS STREET • SAN FRANCISCO, CALIFORNIA 94109 • (415) 771-6000 Supervisor Faliden January 24, 1990 Page 2 As you can see, the conditions and proof necessary to seek the higher penalties are extremely rigorous, and even the lowest category relieves the person if the violation was not the result of intent or negligence. I must emphasize that the District cannot levy penalties, but must seek settlements based on the conditions set by the Legislature. Even were we to pursue penalty action in the courts, the statute requires the courts to consider all relevant circumstances in assessing a penalty: 42403.The civil penalties prescribed in Sections 42401, 42402, 42402.1, and 42402.2 shall be assessed and recovered in a civil action brought in the name of the people of the State of California by the Attorney General, by any district attorney, or by the attorney for any district in which the violation occurs in any court of competent jurisdiction. In determining the amount assessed pursuant to Sections 42401, 42402, 42402.1, and 42402.2, the court shall take into consideration all relevant circumstances, including, but not limited to, the following: (a) The extent of harm caused by the violation. (b) The nature and persistence of the violation. (c) The length of time over which the violation occurs. (d) The frequency of past violations. (e) The record of maintenance. - (f) The unproven or innovative nature of the control equipment. (g) Any action taken by the defendant to mitigate the violation. (h) The financial burden to the defendant. Our Mutual Settlement Program collected an average of$500.00 per notice, and collected$430,000.00 in 1989 for violations subject to the maximum $1000.00 penalty. In arriving at a settlement, the dollar amount which is offered depends on such factors as frequency of violation from the same source, severity of the excess, and the extent of public nuisance. A first time violation settlement offer ranges from $200.00 to$500.00 and is increased to the maximum $1000.00 as repeats from the same source occurs. In the case of a public nuisances, the maximum of$1000.00 is offered as a settlement. The bottom line of our entire program is to bring the source into compliance. Often, the settlement of several violation notices for a $500.00 average has achieved the result of requiring the source to spend hundreds of thousands of dollars to bring the source into compliance. Supervisor Fanden January 24, 1990 Page 3 The Board has asked its Legislative Committee to review the possibilities of seeking further legislation to increase the lowest tier penalty level. Your assistance in this effort would be most appreciated. Sincerely, Milton Feldstein Air Pollution Control Officer NII-:gp cc: Contra Costa Times/Editorial Section Board of Directors of the BAAQMD TO: Nancy Fanden supervisor FROM: James L. Sepulveda Deputy District Attorn DATE: January 30 , 1990 SUBJECT: BAAQMD Letter of January 24 , 1990 ----------------------------------------------------------------- My comments concerning the above referenced letter are as follows: 1 . 1 find it ironic that many enforcement statutes for land and water pollution are strict liability but air contamination statutes require proof of intent or negligence. The clear message to polluters is to burn your waste instead of dumping it on the ground or in the water. It is time to bring air statutes in line with other environmental enforcement statutes. 2. A restructuring of the air enforcement statutes should also include penalty sanctions similar to those in the Hazardous Waste Control Act; i.e. , $25 ,000 per day for civil violations and up to $100 , 000 per day for criminal violations. 3 . Real enforcement will only take place if the penalties can be divided between the enforcement agency and the prosecuting agency. All the penalties under the current system go to the Air District and therefore local prosecutors have no incentive to do these cases. 4 . Also, the Air District has to change its mind set from being a "compliance" agency to being an "enforcement" agency. In over eight years of doing environmental prosecutions, I have never had a case referred to me by the BAAQMD! In my experience,. the "compliance" method of regulating is totally useless when dealing with persons who do not care about or do not want to follow the laws. ... .... ... 805 LAS JUNTAS MARTINEZ,CALIFORNIA 94553 (415)646-2080 4300 GARDEN ROAD EL SOBRANTE,CALIFORNIA 94803 3338 MT.DIABLO BOULEVARD (415)374-3922 LAFAYETTE.CALIFORNIA 94549 (415)284-4733 NANCY CARDINALLI FAHDEN Contra Costa County Board of Supervisors Supervisorial District Two January 31, 1990 Milton Feldstein Air Pollution Control officer 939 Ellis Street San Francisco, 94109 Dear Milt, Thank you for attending the 1/27/90 Board of Supervisors meeting, and addressing the Henderson ruling. I must share my thoughts with you about that ruling: First of all I think it highly unfortunate that community groups such as the Sierra Club and C.B.E. must initiate a law suit in order to move regulators such as B.A.A.Q.M.D. to meet federal air quality standards, which are not that restrictive. As I mentioned at Tuesday' s meeting, it is unconscionable for a District spokesman (Dario Levaggi three years ago, ) to say that industry has done all it can to reduce emissions and that the burden is now up to individuals. I firmly believe that had District requirements- been more restrictive for industrial polluters, we would not now be discussing consumer solvents as a method of gaining compliance. I have three refineries in my Supervisorial District. only one of them, Unocal has installed a closed wastewater treatment system, I 'm told they did it on their own without District involvement. This system has significantly reduced the number of complaints from those downwind from that refinery. Many of the complaints I hear from neighbors to Shell and Pacific concern wastewater pond failures. These complaints have continued well over the last decade without resolution. Why doesn' t the District move to require enclosed wastewater systems now that the technology is readily available? I am enclosing a letter I received this week from the Rodeo Citizens Association complaining again about emission problems from Pacific Refinery, noting that the fines are so pitifully small that they are not a deterrent to make corrections to avoid polluting. He asks that again, I set Milton Feldstein t January 30, 1990 Page 2 up meetings to try to move your District to require the necessary improvements. I, again am making that request, although, based on past District performance, I anticipate no noticeable improvements. Please remember five years Ago the air pollution was so bad that our District Attorney filed a nuisance abatement suit because your District had failed to act. When you finally took Pacific to court, the action achieved required small improvements and lasted for only six months. Utterly disgusting for the many months of hearings the community, our Health Department and I sat through. As the Supervisor representing Rodeo, I again will sit through those meetings and will advocate action to stop all possible venting to the atmosphere. The community was present long before Pacific was allowed to locate in Hercules. They shouldn' t suffer. Frankly Milt, I 'm tired of it. . Why can' t the District clean up the thousands of tons of contaminants that industry is pumping into the air? Up until about eight years ago, if anyone asked, I would say our Air District did a bang up job. I can' t say that now. The momentum has stopped. The air has not significantly improved. It saddens me that the Bay Area, with it' s wonderful location next to the Pacific ocean, providing a built-in venting system, still has polluted air. Assemblyman Bob Campbell will be represented at the Pacific Refinery meetings this time along with members of the community, our health department and myself . Please contact Barbara Herendeen in my office to arrange a meeting date and location. Sincerely, CC: Board of Supervisors B.A.A.Q.M.D. Board of Directors Assembly Member Campbell Terrance Marrinan, RCA Judge Patsey District Attorney Yancey 6A--The Times Monday,'January 15, 1990 EDITORIALS �Refineries. need . tig .ht re Mations Contra Costa County ,supervisors have set much-needed increased regulation of the five oil refineries in the county as,a priority. Supervisor Nancy Fanden, referring to find- ings in'a Times investigative series, proposed that the board seek state legislative action to increase fines for refineries that violate anti- pollution regulations and also 'called on the board to pressure the California Occupational Health and Safety'Administration to conduct more frequent 'inspections:of refineries. The benefits of the Chevron, Pacific Refin- ing, Exxon, Shell, Tosco and.Unocal refineries are substantial. They- bring 4,300 jobs to the area with an annual payroll of $200 million. And they pay millions in property, utility and sales taxes. But the refineries cannot be al- lowed to volate safety and anti-pollution regula- tions with little consequence, as they have in the past. The Times found that the average fine for air quality violations for the refineries was $552. We developed information, indicating that the - oil companies were accepting those fines as a cost of doing business rather than investing in relatively costly equipment..to address the pol- lution problems as they should have. 0 ur series also found at unacceptably high level of apprehension among refinery workers and those who live close to the pro- cessing facilities about the safety of the opera- tions. Inspections by state and federal OSHA inspectors are infrequent and there is no pro- gram for a systematic inspection of all refinery operations. A part of the inspection problem is associated with low Ievels of staffing in the reg- ulatory agencies . Fanden correctly said it is incumbent upon government to be watchdogs to the highest de- gree. With this in mind, she established an en- vironmental committee for the board, which unanimously voted to implement her proposals. The Times welcomes the action of the super- visors and urges the county's state and federal legislators to take the initiative in sponsoring legislation that will create realistic fines for air quality regulations, provide direction to the air quality board whose approach is not adequate, approve staffing and resources for state and federal OSHA'that will allow the agencies to adequately oversee refinery operations, 805 LAS JUNTAS MARTINEZ,CALIFORNIA 94553 (415)646-2080 od 4300 GARDEN ROAD EL SOBRANTE.CALIFORNIA 94803 3338 MT DIABLO BOULEVARD (415)374-3922 LAFAYETTE.CALIFORNIA 94549 NANCY CARDINALLI FAHDEN (415)284-4733 Contra Costa County Board of Supervisors Supervisorial District Two January 17, 1990 Milton Feldstein Air Pollution Control Officer B.A.A.B.M.D. 939 Ellis Street San Francisco, CA 94109 Dear Milt, As you know the Contra Costa County Board of Supervisors is on record in requesting that B.A.A.Q.M.D. increase fines applying the legislation that Assemblyman Robert Campbell of Contra Costa County authored a few years ago which gave the district the right to raise the maximum fine to $25,000, certainly higher than the $552. 00 average which is a mere slap on the wrist. I further request that besides increasing fines, that the district aggressively move to require corrective measures of long standing problems where violations are issued for the same problem year after year. Sincerely, 17 Nancy Fanden NCF:dp enc: CC Times Editorial 1/15/90 CC: Board of Supervisors Air District Directors ABAG