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Home My WebLink AboutMINUTES - 12091997 - D15 � Contra Costa TO: BOARD OF SUPERVISORS _ County FROM: DENNIS M. BARRY, AICP COMMUNITY DEVELOPMENT DIRECTOR DATE: DECEMBER 9, 1997 SUBJECT: REPORT ON ORDINANCE 96-50 (CHAPTER 84-63) [LAND USE PERMITS FOR DEVELOPMENT PROJECTS INVOLVING HAZARDOUS WASTE OR HAZARDOUS MATERIALS] CODE COMPLIANCE ISSUES SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION RECOMMENDATIONS ACCEPT Report from the Community Development Director. FISCAL IMPACT None BACKGROUND !, Status of Complaints & Investigations: The County has received two letters alleging !, violations of the Good Neighbor Ordinance, i.e., Chapter 84-63 of the County Code, as amended by Ordinance 96-50. One letter (September 5, 1997) from Communities for a Better Environment, alleges that Shell Martinez Refining Company (Shell) is conducting a major maintenance project without a land use permit in violation of Chapter 84-63. The second letter (November 11, 1997) from four parties alleges that there are (or are about to be) similar violations at both Tosco refineries and an additional violation at Shell. CONTINUED ON ATTACHMENT: YES SIGNATURE ACTION OF BOARD ON December 9, 1997 APPROVED AS RECOMMENDED x OTHER_ VOTE OF SUPERVISORS I 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 ABSENT: ABSTAIN: BOARD OF SUPERVISORS ON THE DATE SHOWN. Contact: Debra Sanderson, CDD (510/335-1208) ATTESTED December 9, 1997 cc: Community Development Department (CDD) PHIL BATCHELOR, CLERK OF County Administrator THE BOARD OF SUPERVISORS County Counsel AChristine UNTY AD INIST R Health Services Director DS\ aw\misc-1:\code.bo m er aw\misc-1:\code.bo Good Neighbor Ordinance-Code Enforcement December 9, 1997 Page 2 Investigations of the complaints against Shell have recently been completed. This first investigation has been complex and time consuming due to the issues described below. The investigation of the complaint against Tosco has just begun. There are 18 process units involved on the Shell site. We have yet to determine the numbers involved on the Tosco sites. Regulatory Background: Chapter 84-63 requires land use permits for certain development projects involving hazardous waste or hazardous materials. • Effective Date: The law took effect April 1, 1997. • Exemption during the first year: Section 63.604(h) exempts from this chapter a "major maintenance project for which construction has commenced prior to June 1, 1997, and is completed by January 1, 1998." These deadlines were tolled 70 days by court order signed on April 1, 1997. Thus the applicable deadlines are August 9, 1997 and March 12, 1998, respectively. • Major Maintenance Project: Chapter 84-63.421.5 defines a major maintenance project as "the scheduled, periodic cleaning, inspection, repair of process units, piping, or process or storage vessels which handles hazardous materials or hazardous waste. . . . " Issues: The two complaints against Shell have raised the following key issues: 1. What constitutes a single a major maintenance project: The definition specifies those activities included within a major maintenance project (i.e., cleaning, testing, and repair) and indicates that a single project may involve multiple units, vessels and piping. However, County code does not provide guidance on how to determine if a group of units scheduled for maintenance is one or more such projects. County Precedent. There is no precedent under the revised Chapter 84-63. The administrative practice for previous refinery land use permits (I. e., the Clean Fuels Projects) treated as one project all changes in the refinery necessary and essential to construct and operate the proposed modification or expansion of the facility. Thus, these projects included changes in throughput, changes in types of materials to be stored in existing tanks, wharf modifications to receive or ship products, as well as tank and unit construction and modifications. If the activities were broadly linked and would occur in a closely related time frame, then the administrative practice was to treat the activities as one project. Under CEQA, the project definition is drawn broadly, so as to avoid "piecemealing", since "piecemealing" projects can make it difficult to assess the full impacts of proposed actions. 2. What constitutes "commencement of construction" for a major maintenance project? In essence, what activities are considered "construction" for a major maintenance project? County code provides no definition of construction, and major maintenance projects do not contain grading, which often triggers the beginning of construction for a major development project. A broad interpretation of construction would include on-site activities necessary and essential to the shut-down, such as installation of temporary electrical services, temporary piping, on-site fabrication, and testing. It would include any activities — such as testing —which are included in the definition of a major maintenance project and are directly related to the project in question. In addition, it appears that a broad interpretation is necessary to make the exemption in Section 63.604(h) meaningful. The exemption requires aMmisc-1 Acode.bo Good Neighbor Ordinance-Code Enforcement December 9, 1997 Page 3 commencement of construction prior to August 9 (the original language required it prior to June 1, 1997) and completion prior to March 12, 1998 (originally January 1, 1998). It is staffs understanding that local refineries do not schedule unit shut-downs in the summer, since that is their peak production period, although they do engage in pre-shutdown construction-type activities during the summer. Thus, if unit shut-down is required to trigger this exemption, then no refinery can avail itself of this exemption and the exemption becomes meaningless. A very narrow interpretation of construction would only include activities triggered by unit shut-down, such as opening and replacing valves, cleaning opened equipment, replacing pipes, etc. This interpretation assumes that the only construction activities within a maintenance project are those that involve direct changes to operating equipment. The Ordinance defines a major maintenance project to include actions (such as testing) taken prior to unit shut-down. (See 84-63.421.5, quoted above.) County Precedent. There is no precedent under the recently revised Chapter 84.63. The administrative practice for previous refinery land use permits (I. e., the Clean Fuels Projects) used a broad definition of construction activities. Enforcement of these permits treated as construction the installation of temporary electrical service, construction contract firm traffic, installation of temporary construction offices, and the use and location of project "lay down" and fabrication areas. These activities were evaluated under the Projects' EIRs and controlled by the permits' conditions of approvals. The administrative practice was to treat the whole of the project as construction, until the new or modified units were fully incorporated into refinery operations. However, on-site testing, engineering, and planning would not previously have been considered "construction". 3. Current County Staff Approach: Consistent with previous administrative practice, County staff currently considers the scheduled maintenance of a number of units as a single project if the units are functionally related, if the work is scheduled for approximately the same time frame, and if the work is continuous. County staff currently uses a broad interpretation of construction activities for the following reasons: (1) A broad definition is more consistent with previous Community Development Department administrative practices than a narrow one, (2) a narrow interpretation would seem to render the exemption meaningless, which appears to contradict the legislative intent of Ordinance 96-50, and (3) activities defined by the Ordinance to be part of the major maintenance project (i.e., testing and cleaning) should be considered in determining when construction has commenced on that type of project. Based upon a careful review of Shell's records, and given the foregoing analysis of Sections 84-63.4 and 84-63.604(h), staff has concluded that Shell is not currently in violation of the provisions of Ordinance 96-50 (Chapter 84- 63). Investigation of the two Tosco refineries is ongoing. Staff anticipates being able to provide a further status report in six to eight weeks time in conjunction with a report requested in the December 2, 1997 Board Order introduced by Supervisor Gerber. It is likely that staffs determination will be appealed to the Board of Supervisors. If so, it will be scheduled for hearing consistent with existing administrative procedures. aw\misc-1 Acode.bo