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HomeMy WebLinkAboutMINUTES - 09091997 - D4 .......... '� - • . Contra Costa TO: BOARD OF SUPERVISORS County FROM: DENNIS M. BARRY, AICP ••, 3 ;, � INTERMIM COMMUNITY DEVELOPMENT DIRECTOR o°Sra------ DATE: September 9, 1997 SUBJECT: APPEAL BY COMMUNITIES , FOR A BETTER ENVIRONMENT OF THE ZONING ADMINISTRATOR'S JULY 21, 1997 FINDING THAT TOSCO (RODEO) IS COMPLYING WITH CONDITION OF APPROVAL 75 OF LAND USE PERMIT (LUP #932038) . SPECIFIC REQUEST(S) OR RECOMMENDATIONS) & BACKGROUND AND JUSTIFICATION RECOMMENDATIONS Deny this appeal and uphold the Zoning Administrator's July 21, 1997 decision concerning Tosco' s compliance with Condition of Approval 75 (Land Use Permit #932038) . FISCAL IMPACT NONE BACKGROUND/REASONS FOR RECOMMENDATIONS A. Introduction: Condition 75 requires Tosco (Rodeo) to design, install and operate an improved fence line monitoring system. On December 3, 1996, the Zoning Administrator found Tosco (Rodeo) in compliance with Condition of Approval 75 and established a schedule for installing and operating the system. On December. 10, 1997, the County Planning Commission approved the final design for this monitoring system, which includes provisions to provide monitoring results (both in monthly summaries and as real-time data) to the Signatories of the Good Neighbor Agreement. CONTINUED ON ATTACHMENT: X YES SIGNATURE RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMM EE APPROVE OTHER SIGNATURE(S) : ACTION OF BOARD ON September 9, 1997 APPROVED AS RECOMMENDED OTHER X See the attached Addendum for Board action: VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A x_ UNANIMOUS (ABSENT. TRUE AND CORRECT COPY OF AN AYES: NOES: ACTION TAKEN AND ENTERED ON THE ABSENT: ABSTAIN: MINUTES OF THE BOARD OF SUPERVISORS ON THE DATE SHOWN. Contact:Debbie Sanderson 335-1208 Orig: Community Development Department ATTESTED September 9. 1997 cc: PHIL BATCHELOR, CLERK OF THE BOARD OF SUPERVISORS AND COUNTY MINISTRATOR BY 4 l , DEPUTY DS/df bo3:coa75.bo 2 On June 9, 1997, the Zoning Administrator opened Tosco (Rodeo) Is second Annual Compliance Hearing, for its 1996 Clean Fuels Project year. Staff reported that the deadlines for Condition 75 established by the Zoning Administrator had been met, with the exception of the final installation and the final report (June 30, 1997) . As discussed at that hearing, installation of one piece of equipment was delayed from early May until mid-June due to delays in manufacturing. The Zoning Administrator continued the hearing to July 21, 1997 for further discussion of compliance with Condition of Approval 75. At the continued hearing on July 21, 1997 staff reported that the monitoring equipment had been installed, the equipment was operating, and that the system was connected to Tosco (Rodeo) Is alarm and emergency response systems. The Zoning Administrator made a finding that (1) Tosco (Rodeo) is complying with Condition of Approval 75 and (2) that compliance is ongoing (i.e. , that additional actions are necessary prior to concluding that the condition is fully met) . The Zoning Administrator further required Tosco (Rodeo) to continue the Monthly Monitoring Reports for two years and to summarize the monitoring system's overall performance in its next Annual Compliance Report. On August 20, 1997, Communities for a Better Environment appealed the Zoning Administrator's decision that Tosco (Rodeo) is in compliance with Condition 75 of its Land Use Permit. [See Exhibit A. ] B. Nature of the Appeal: The grounds for this appeal, as stated in Paragraph 4 of the appellant' s 17, 1997 letter, is that there is no independent confirmation that the equipment is operating properly. The appellant further requests that the Board of Supervisors require a third party expert to verify that the system is calibrated and operating properly before certifying compliance. The only acceptable ground for an appeal, as defined by County Code, which relates to CBE's August 20, 1997 appeal, requires demonstration that "Specified findings of the planning division appealed from are not supported by the evidence before it; " [See Section 26-2 . 2404 (C) (3) ] . C . Discussion and Staff Evaluation: The decision of the Zoning Administrator included a finding that Tosco (Rodeo) is currently complying with Condition of Approval 75, in that the monitoring equipment had been installed, was operating, and was connected to the emergency response system. These actions were consistent with the December 3, 1996 Resolution of the Zoning Administrator. However, the finding specified that compliance was not yet complete - i.e. , other actions and confirmations are required before the Zoning Administrator would rule that compliance was complete. As staff reported during this hearing, • additional time is needed to confirm that the system is operating properly, since the monthly reports did not yet reflect the monitors installed in June. Previous experience demonstrated that it takes about 6 months to ensure that the equipment is operating and integrated properly; • the on-line computer monitor was not yet installed, which was to provide real-time monitoring data to the Signatories of the Good Neighbor Agreement. Tosco (Rodeo) had committed to installing the equipment; ' I 3 • Amendments to the Memorandum of Understanding between Tosco (Rodeo) and the Signatories of the Good Neighbor Agreement had been agreed upon, but the final document had not yet been drafted and signed. [Note: this document includes provisions for disseminating monitoring information to these Signatories. ] The Zoning Administrator' s finding was based on the following evidence: • Several site inspections by staff; • Hiring of a third-party firm to install and operate the equipment, at the request of the Signatories of the Good Neighbor Agreement; • Signed statements from Tosco (Rodeo) confirming installation and operations, according to the schedule established in the December 3 , 1996 Resolution; • Review of monthly reports prepared by Terra Air Services; • Discussions between staff and some of the Signatories of the Good Neighbor Agreement, confirming the problems that remained to be resolved; Staff Evaluations: Staff disagrees with the appellant's assertion that this finding is not supported by the evidence before it, as follows: • Paragraphs (1) , (2) , (3) , and (7) do not address the grounds for the appeal. No further staff analysis or comment is warranted. • Paragraph (4) asserts that the evidence does not support the finding because it was not presented by an independent third- party expert. Staff disagrees with this assertion since the appellant has offered no evidence that the review by staff and the assertions by Tosco (Rodeo) were in error or lacking. • Paragraph (5) asserts that the equipment may not be working properly because it didn't register hydrogen sulfide releases on April 16, 1997 . However, the fence line monitors for hydrogen sulfide, the Tunable Diode Lasers (TDLS) , were not installed until mid-June, 1997 . Thus, lack of data for that period is not evidence that the system was not operating properly. • Paragraph (6) is consistent with the staff report. Staff used this evidence to justify changing its recommendation from "condition met" to "condition met; compliance ongoing", since not all requirements of the Condition have yet been satisfied. Therefore staff finds that the decision by the Zoning Administrator was supported by the evidence before her. D. Conclusions Staff finds that the information before the Zoning Administrator was sufficient to support the finding that Tosco (Rodeo) is complying with Condition 75 of its Land Use Permit and that its compliance is ongoing. Therefore, staff recommends that the Board of Supervisors deny this appeal and uphold the Zoning Administrator' s finding that Tosco (Rodeo) is currently complying with Condition of Approval 75 of its Land Use Permit. ADDENDUM TO ITEM DA Agenda September 9, 1997 This is the time noticed by the Clerk of the Board of Supervisors for the hearing on the Administrative Appeal by Communities for a Better Environment from the Zoning Administrator's July 21, 1997 finding that Tosco (Rodeo) is in compliance with Condition of Approval #75, County File LUP #2038-93, Rodeo area. Debbie Sanderson, Community Development Department, presented the staff report and recommendations. Ms. Sanderson advised the Board that in part, the Zoning Administrator's decision was based on monthly reports from Tosco, and those monthly reports will continue for two years for monitoring purposes. The public hearing was opened, and Denny Larson, Communities for a Better Environment, 500 Howard Street, #506, San Francisco and Richard Bonner, Tosco, 860 Shell Drive, Martinez, appeared for comment. During their testimony, both speakers confirmed that they were in agreement with the Communities for a Better Environment's request to withdraw the appeal. Those desiring to speak having been heard, the public hearing was closed, and the Board discussed the matter. Supervisor Uilkema moved that the Board accept the withdrawal of the appeal, and Supervisor Rogers seconded the motion. IT IS BY THE BOARD ORDERED that the withdrawal of the Administrative Appeal by Communities for a Better Environment from the decision of the Zoning Administrator regarding Tosco's (Rodeo) compliance with Land Use Permit 92038-93, Condition #75 is ACCEPTED. ' EXHIBIT A!' COMMUNITIES FORA fi RECEIVED August 19, 1997 BETTER . Board of Supervisors Z 0 Contra Costa County ENVIRONMIENT Jim OARD OF SUPERVISORS Formed Citizens'for a.Better Environment-California 651 Pine Street y` CONTRA COSTA CO. Martinez, CA 94553 RE: Appeal of TOSCO:Rodeo Refinery LUP #932038 - Non Compliance Dear Board of Supervisors: Communities for a Better Environment (CBE) hereby appeals the administrative. decision of the County Zoning Administrator that TOSCO (RODEO) REFINERY is in compliance with its Land"Use Permit #932038, specifically.Condition 75, which requires the.facility to install, operate, and share information from new air monitoring systems. CBE represents several thousand of our members who live in Contra Costa County, many.of whom, live in close proximity to the TOSCO facility -in Rodeo. C � Contra Costa County adopted Condition 75 as part of.the.Land Use`Permit when. Unocal operated the facility in order.to prevent another"Catacarb Disaster" which occurred in August-September.of 1994. For 16 days, the refinery continued to operate with a leaking tower that spewed tons of toxic chemicals on workers and unsuspecting neighbors in Rodeo and Crockett. Officials at the.refinery-had informed County Hazardous Materials staff of the leak, but minimized the threat. No-one'from the county`or the public had air monitoring data to verify the safety or harm from the emissions. -As.a result, thousands of people were unnecessarily exposed.to toxic. chemicals and many.were made seriously ill._ The County can never allow- this kind of situation to happen again. C3 *It is imperative to the health and safety of thousands of residents that.the County ensures.that advanced air monitoring system is operating properly and that data.is available:to the public because they have aright to know what they may be exposed to. Cc+) To date, according to County Development Staff's own r=ort on this issue,. there is no independent confirmation that the equipment is operating propel Presumably the County should have learned.from the "Catacarb.Disaster' that a. refinery can not be completely trusted. Instead,in their report to the County Zoning Administrator, the following statement of:proof of proper operation is-offered: "staff'perceives that operation problems have been corrected. CBE contends that more than TOSCO's :assurances and staff's perceptions are required to protect the health and safet,v of residents given the history of problems at the Rodeo refinery. We urge.the Board to require a third party expert to verify the,system is calibrated properly:and operating correctly, b'.fore certifying compliance. 500 Howard Street, Suite 5:06 San Francisco, CA 94105 • (415.) 243-8373 In Southern California.:.605 W. Olympic Blvd*. Suite.850 • Los Angeles, CA 90015 (:213)486-5114 Chlorine-Free loo%post-consumer 8 (S� According to the data supplied by TOSCO on the April 16, 1997, Sulfur Plant Upset that resulted in the use of sirens and the CAN system to warn 6,000 residents to seek shelter in their homes from potentially dangerous emissions of hydrogen sulfide, sulfur dioxide, and other compounds which overwhelmed the Sulfur Recovery Unit and flares, the advanced air monitoring system was registering a "clean air" spectrum. Ground level monitors in the area however registered up to 49 parts per billion of Hydrogen Sulfide according to the Bay Area Air District Incident Report. This further draws into question whether the new equipment is operating properly. (a) TOSCO is also not in compliance because there is currently no sufficient agreemen between TOSCO and the Good Neighbor signatories concerning data sharing_ Without a comprehensive understanding between the parties, the County leaves itself open to the possibility of another "Catacarb Disaster". (7� Currently the County officials have no plans to receive the data from the new air monitors in "real time" in order to inform their decisions about appropriate warnings or actions to protect the community. CBE recommends that County Hazardous Materials staff be required to monitor the air monitoring data in real time rather than in monthly reports in order to more fully j2rotect residents. I verify the above statements are true under penalty of perjury. Sincerely, Denny A. Larson ------------------------ Northern California Director location and date Communities for a Better Environment 8-19-1997 3: 18AM FROM ###########KESSLER 5107871929 P. 2 AMR LOW RIMMIA &LLIA�9C�f� FIB 225. Crockett, Ca. 94525 August 19, 1997 BOARD OF SUPERVISORS Contra Costa County 6 51 Pine Street Martinez, Ca. 94553 Re; Appeal of Zoning Administrator decision/TOSCO (Rodeo) Refinery LUP a 932038-Non Compliance Dear Board of Supervisors; We at the Shoreline Environmental Alliance (SEA) wholeheartedly join in the appeal of TOSCO Land Use Permit # 932038, permit condition 75, filed by Communities for a Better Environment (CBE). The SEA has appeared at Zoning Administrator meetings in,June, 1997 to protest TOSCO's lack of compliance not only under the Good Neighbor Agreement (GNA), but also under the County's LUP. We feel staff's recommendations at that time, and presently, are inadequate to insure the fence line monitoring data gets to the proper regulatory agencies, the County Health Department and the communities directly effected by a toxic release. Additionally, at the current date, there is no agreement between TOSCO and the GNA signatory group to receive data from the new fence line air monitors. Nor, at this time, does SEA and the GNA signatory group know if the data is accurate, real time data even if iwe had access to it. We do not know if the required equipment under both the County LUP and the GNA has been installed, or if existing equipment has been operating properly. These are important issues that are unresolved dearly indicating. non-compliance on TOSCO's part. Please join with us in making sure another disaster like the August, 1994 Catacarb toxic release never happens again!-Please do not issue TOSCO a LUP until they comply with Condition 75 of LUP a 932038. I certify the above statements to be true and correct: Respectf idly, asha.Kessler, 8/19/97,Crockett,Ca. Chair, Shoreline Environmental or