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HomeMy WebLinkAboutMINUTES - 12042001 - D.4 . �:._...L. o TO: BOARD OF SUPERVISORS ..`'' Contra FROM: INTERNAL OPERATIONS COMMITTEE Costa DATE: DECEMBER 4, 2001 -------- `�' County SUBJECT: PROPOSED AMENDMENTS TO THE INDUSTRIAL SAFETY ORDINANCE P �[ SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION RECOMMENDATIONS: 1. ACCEPT report on the operational and staff impacts, and California Environmental Quality Act (CEQA) issues related to implementation of the amendments to the Industrial Safety Ordinance, as proposed by Supervisor Gerber on June 12, 2001. 2. ACKNOWLEDGE and CONSIDER alternative amendments to the Industrial Safety Ordinance as proposed by the Health Services Department, Hazardous Materials Division (HazMat), and REFER these amendments to the Hazardous Materials Commission and the Public and Environment Health Advisory Board for analysis and comment. BACKGROUND: On June 12, 2001, the Board of Supervisors directed staff to review draft language prepared by the County Counsel to amend the Industrial Safety Ordinance (ISO), and directed the Internal Operations Committee (IOC) to analyze the relevant California Environmental Quality Act (CEQA) issues and any comments received by other agencies, and report back to the Board some time in October 2001. Due to other pressing issues, the IOC was prevented from returning to the Board in October, and the Board rescheduled the issue for discussion today, December 4. Over the last few months, the IOC has met several times (September 17, October 1 and November 19, 2001) with staff from HazMat, Community Development Department and County Counsel, and with representatives of the local refineries, the Hazardous Materials Commission, the Public and Environmental Health Advisory Board (PEHAB), PACE, Communities for a Better Environment, and interested members of the general public, to discuss the amendments to the Industrial Safety CONTINUED ON ATTACHMENT: YES SIGNATURE: RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE APPROVE OTHER SIGNATURE(S): 44 O N GIOIA,CHAIR MAM NSAULNIER ACTION OF BOARD ON APPROVE AS RECOMMENDED— X — OTHER K — SEE ADDE0UM FOR BOARD ACTION VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A TRUE AND CORRECT COPY OF AN ACTION TAKEN UNANIMOUS(ABSENT ) AND ENTERED ON THE MINUTES OF THE BOARD OF SU RVISORS ON THE DATE AYES: NOES: .2Z: SHOWN. ABSENT: ABSTAIN: IVOA!/c"_ ATTESTED CONTACT: JULIE ENEA(925)335-10T7 JOHN SWEETEN,CLERK OF THE BOARD OF SUPERVISORS AND COUNTY ADMINISTRATOR CC: INTERNAL OPERATIONS COMMITTEE STAFF HEALTH SERVICES DEPARTMENT,HAZARDOUS MATERIALS PROGRAM COMMUNITY DEVELOPMENT DIRECTOR COUNTY COUNSEL COUNTY ADMINISTRATOR HAZARDOUS MATERIALS COMMISSION PUBLIC AND ENVIRONMENTAL HEALTH ADVISORY BOARD10' AFFECTED STATIONARY SOURCES(VIA CAO) BY �l�BEPUTY Proposed Amendments to the Industrial Safety Ordinance December 4, 2001 Internal Operations Committee Page 2 Ordinance proposed on June 12 ("June 12 amendments"). In these discussions, we explored what would occur, the applicability of the California Environmental Quality Act (CEQA), and how the regulatory and procedural changes might impact program operations and staffing requirements, if the June 12 amendments were enacted. As part of our discussions, we considered the written comments submitted by the Hazardous Materials Commission and PEHAB. Attached are the staff reports and comments from other agencies that the Committee considered. Following is a brief summary of the attachments. A. Annotated June 12, 2001 Board Order from Supervisor Gerber proposing the June 12 ISO amendments and directing the IOC to analyze the relevant CEQA issues and comments from regulatory and advisory agencies, with June 12 amendments and the Attorney General's opinion attached. The June 12 amendments propose to give HazMat the discretion to determine whether an inherently safer system or process hazard analysis action item must be implemented. The Order addresses concerns expressed by staff in March 2000 that the County would not be immune from liability should the County order changes in facility operations that were not derived from the County's review of a Safety Program and were not supported by the stationary source. The Attorney General issued the attached opinion concluding that the County has the authority to require inherently safer systems and action items, and will not take on added liability risk in doing so. B. September 17, 2001 Memo from the Community Development Director on CEQA Review of the June 12 Amendments. This memo provides an analysis of the CEQA requirements related to the adoption of the June 12 amendments. The Community Development Director's opinion is that the Board of Supervisors may rely on the negative declaration prepared for Ordinance 98-48 (the Industrial Safety Ordinance) and that no further documentation is necessary under CEQA. This memo also provides a history of the legal challenge brought against the County by Communities for a Better Environment, objecting to the use of a CEQA exemption in the adoption of the ISO. Attached to the memo are the Initial Study that culminated in the negative declaration and related documents. C. Comments from Other Agencies. On July 23, 2001, the Internal Operations Committee solicited comments from relevant regulatory and advisory bodies on the June 12 amendments and the Attorney General's opinion. Attached are comments received from the California Environmental Protection Agency (CalEPA), Department of Toxic Substances Control, dated August 21, 2001; the Hazardous Material Commission, dated October 5, 2001; and PEHAB, dated October 4, 2001. 1. CaIEPA indicated that it had no comments. 2. The Hazardous Materials Commission commented that it does not endorse the proposed amendments due to concerns about anticipated delays in implementing safety improvements that may result from CEQA, and undue increases in workload. 3. PEHAB commented that it does not endorse the amendments as proposed, but will endorse the proposed amendments if additional language is developed to address its concerns: clarify which process hazard analyses will be reviewed, ensure that delays are minimized, ensure full disclosure of hazards and safety problems, improve public access to information, and ensure that sufficient staff with adequate expertise are in place to address the issues likely to be presented. D. Operational Impacts. The IOC considered the following reports on operational impacts related to the implementation of the June 12 amendments. 1. April 3, 2001 Report from Health Services Department on the implementation of inherently safer systems by stationary sources under the ISO, as amended on April 27, 2000. This report defines inherently safer systems and design strategies for evaluating such systems, discusses a public outreach initiative (which has already been implemented by the Board of Supervisors), and provides a summary of inherently safer Proposed Amendments to the Industrial Safety Ordinance December 4, 2001 Internal Operations Committee Page 3 systems scheduled for implementation as.a result of the ISO. 2. Report from the Health Services Department(HazMat), submitted October 1, 2001, addressing the ISO requirements for Human Factors, Root Cause Analyses, and Process Hazard Analyses. This report expresses staff endorsement of those amendments to sections 430-8.016 (D)(3) and (4) that increase consistency, and expresses staff reservations that the proposed requirement for HazMat to approve or disapprove inherently safer systems and the recommended actions items not implemented, would require CEQA review and could delay the implementation of safety improvements. The report also expresses concern over increased workload and staffing requirements to meet the increased workload. 3. October 1, 2001 Report from the Community Development Director on CEQA issues related to the review of inherently safer systems under the June 12 amendments. This memo analyzes whether requiring inherently safer systems would be a "project' subject to CEQA, and whether CEQA would still apply if the determination was made not to require action items and inherently safer systems as outlined in the June 12 amendments. In the report, the Community Development Director concludes that the discretion exercised by the Health Services Department in requiring or not requiring implementation of action items or inherently safer systems that had been considered and rejected by a stationary source, would be subject to CEQA. The report also describes the CEQA process and timing for the conduct of initial studies and environmental impact reports. E. Staffing Impacts. Staff from HazMat, Community Development Department, County Counsel and County Administrator met to review the proposed amendments and CEQA issues, and determine the related potential impacts on workload and staffing. Staff determined that in order to properly evaluate those inherently safer systems and process hazard analysis action items rejected by a stationary source, as would be required by the June 12 amendments, a review and evaluation of all inherently safer systems and action items should be conducted. Based upon that determination, staff projected that from the seven stationary sources, an average annual 50 Process Hazard Analyses would be conducted (the most at any one time being 4), containing 10 to 15 recommendations each. Each recommendation is anticipated to involve an estimated 3 action items or inherently safer systems requiring review. Therefore, on an annual basis, the projected additional workload is an average of 1,500 to 2,250 action items or inherently safer systems requiring review. Estimated staffing requirements were based on these annual workload projections. 1. October 11, 2001 Memo from Hazardous Materials Program Director estimating the additional staff resources necessary to implement the June 12 amendments. The Hazardous Materials Program Director indicates that 3 1/2 to 4 additional full time equivalent personnel would be required to implement the June 12 amendments. 2. November 13, 2001 Memo from Community Development Director estimating the additional staff and other resources necessary to implement the June 12 amendments. The Community Development Director indicates that an additional Senior Planner would need to be allocated to meet the additional requirements to implement the June 12 amendments. F. Dispute Resolution/Scientific Review Panels. The IOC recognized a need, under the June 12 amendments, for a process for resolving disputes, should they arise, between HazMat and the stationary sources on inherently safer systems. Issues related to complex refinery processes and inherently safer systems require technical knowledge and experience to properly resolve. HazMat staff advised the IOC that other governmental agencies have no standards for peer review of disputes on regulatory requirements. It was reported that the Bay Area Air Quality Management District (BAAQMD) has a specific appeal procedure, review panel and occasionally employs consultants on technical reviews. Likewise, the Office of Environmental Health refers its issues to an academic or scientific review board on medical issues. Proposed Amendments to the Industrial Safety Ordinance December 4, 2001 Internal Operations Committee Page 4 Attached is an October 11, 2002 memorandum from the Hazardous Materials Program Manager discussing the concepts associated with scientific peer review, the various levels of peer review(extensive, moderate and limited)and the process for conducting external scientific peer reviews. G. Proposed Requirement for a Contra Costa County approved Safety Plan to Operate. On June 12, 2001, the Board of Supervisors requested the County Counsel to consider the legal impact of an ISO language amendment requiring a Contra Costa County approved Safety Plan for a stationary source to operate. Attached is an August 30, 2001 memo from County Counsel, discussing thelegal issues related to amending the ISO to require regulated stationary sources to have an approved safety plan as a condition of operation. This memo summarizes the current requirements and prevention elements of the ISO, and explains the distinction between a Safety Plan and Safety Programs. H. Proposed Alternative ISO Amendments. In response to concerns that the proposed requirement for the Health Services Department to approve or disapprove the inherently safer systems and the recommended actions items not implemented would require CEQA review and could delay the implementation of safety improvements, and concerns about workload and staffing impacts, the HazMat staff has developed alternative ISO amendments that would change the way inherently safer systems are considered. Attached is a November 27, 2001 issue paper prepared by HazMat at the request of the Internal Operations Committee describing the newly proposed ISO amendments. This report explains the newly proposed ISO amendments that would redefine "inherently safer systems" to include only the inherent layer of protection, one of four process risk management strategies. The inherent layer considers ways of reducing hazards, while the passive, active, and procedural layers look at ways of reducing the risks. HazMat is proposing to concentrate on reducing the hazards of existing process, not just reducing the risk, and to evaluate complete processes instead of only portions of the processes. In the existing ordinance, as interpreted by HazMat, the reduction of existing hazards at the stationary sources is minimal if it all, and only a portion of each of the processes is considered. HazMat is proposing a separate study of existing processes to consider if inherently safer systems exist. The IOC recommends that the newly proposed amendments be given similar consideration to the June 12 amendments and be referred for review and comment to the Hazardous Materials Commission and the Public and Environmental Health Advisory Board. TO: • BOARD OF SUPERVISORS - Contra FROM: Supervisor John Gioia ' `s Co.sta Supervisor Mark DeSaulnier a`. _ °�°� ' DATE: December 4, 2001 saA•�o -� County SUBJECT: Industrial Safety Ordinance Amendments SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION RECOMMENDATION: REFER the attached language regarding Apprenticeship Training submitted by the Contra Costa Building and Construction Trades Council to the Hazardous Materials Commission and the Public Environmental Health Advisory Board (PEHAB) for their review and comment. BACKGROUND: The attached language regarding Apprenticeship Training requirements was submitted by the Contra Costa Building and Construction Trades Council after the Internal Operations Committee meeting of November 26, 2001. The 10 Committee also received, for the first time, some new proposed language from Randy Sawyer regarding Inherently Safer Systems. The established process has been to refer newly proposed language regarding the Industrial Safety Ordinance to the Hazardous Materials Commission and the Public Environmental Health Advisory Board (PEHAB) for their comment and review. The Committee has also recommended referring the proposed language by Randy Sawyer to PEHAB and the Hazardous Materials Commission for their review and comment. n CONTI E ATTACHMENT: YES SIGNATURE: ECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE APPROVE OTHER SIGNATURE(S):. ACTION OF BOARD ONJU. a APPROVE AS RECOMMENDED _ OTH£R" SEE ADDENDLZI FOR BOARD ACTION VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A TRUE AND CORRECT COPY OF AN ACTION TAKEN UNANIMOUS(ABSENT ) AND ENTERED ON THE MINUTES OF THE BOARD OF SUPERVISORS ON THE DATE AYES: 11 NOES: IJI SHOWN. ABSENT:'� ABSTAIN: / ATTESTE gHN CONTACT: JOHN GIOIA (510)3743231 OSWEETEN,CLER F THE BOARD OF SUPERVISORS AND COUNTY ADMINISTRATOR CC: COUNTY ADMINISTRATOR COUNTY COUNSEL HEALTH SERVICES DEPARTMENT B ti_nFPUTY ADDENDUM DA-A December 4, 2001 On this date, the Board of Supervisors considered a recommendation to refer language regarding Apprenticeship Training, as submitted by the Contra Costa Building and Construction Trades Council to the Hazardous Material Commission and the Public Environmental Health Advisory Board, in conjuction with the discussion of proposed amendments to the Industrial Safety Ordinance (See Board Order and Addendum D.4-B). Following discussion and public comment on the matter, the Board took the following actions: REFERRED to the Hazardous Materials Commission and the Public and Environmental Health Advisory Board the following: a) Language proposed by the Hazardous Materials Division related to the definition of inherently safer systems and the process, b) issues raised and identified in the study completed by the Unwin Company: c) a safety training system known as the Triangle of Prevention Program, as administered by PACE (Paper,Allied-Industrial,Chemical&Energy Workers International Union); and DIRECTED that the referred items be considered by the Hazardous Materials Commission in the context of their comprehensive review of the Industrial Safety Ordinance; FURTHER DIRECTED that an update on the referrals be reported to the Board in 90 days,the complete report and recommendations to be prepared for Board consideration in 180 days. (AYES: 1, IV, V, and 11; NOES: III; ABSENT: None; ABSTAIN: None ) Speaker list is attached to boardorder D.413 Proposed Amendments Ordinance 98 - 48 1. Delete Section 450-8.016(A)(11) and renumber Sections 450- 8.016(A)(12) and (13) as Sections 450-8.016(A)(11) and (12). 2. Renumber Sections 450-8.016(C), (D), (E) and (F) to Sections 450- 8.016(D), (E), (F) and (G) respectively. 3. Add new Section 450.016(C) as follows: (C) Contractor Safety. (1) Application. This section applies to contractors performing new construction, maintenance or repair, turnaround, major renovation, or specialty work on or adjacent to a covered process at a Stationary Source. It does not apply to contractors providing incidental services which do not influence process safety, such as janitorial work, food or drink services, laundry, or other supply services. (2) Stationary Source responsibilities. (a) The Stationary Source, when selecting a contractor, shall obtain and evaluate information regarding the contractor's safety performance and programs. (b) The Stationary Source shall inform the contractor of the known potential fire, explosion, or toxic release hazards related to the contractor's work and the process. (c) The Stationary Source shall explain to the contractor the applicable provisions of the emergency response program as required by Section 450-8.016(A)(11). (d) The Stationary Source shall develop and implement safe work practices consistent with Section 450- 8.016(A)(2)(f) to control the entrance, presence and 1 exit of the contractor and contractor employees in Covered Process areas. (e) The Stationary Source shall hire only contractors who comply with the provisions of Section 450- 8.016(C)(3) below. (f) The Stationary Source shall periodically evaluate the performance of the contractor in fulfilling its obligations as specified in Section 450-8.016(C)(3). (3) Contractor responsibilities. (a) Every contractor performing work to which this section applies pursuant to Section 450-8.016(C)(1) shall, during the first three years after the effective date of this Section either (i) have executed an apprenticeship agreement with a bona fide apprenticeship program for each apprenticeable occupation employed by the contractor at the Stationary Source; or (ii) employ a journey level workforce in which 50% of the workers in each apprenticeable occupation employed by that contractor at the Stationary Source are graduates of an apprenticeship program for that occupation approved by the California Apprenticeship Council. (b) Commencing three years after the effective date of this section, each contractor performing work to which this subsection applies pursuant to Section 450-8.016(C)(1) shall employ (i) only journey level workers in an apprenticeable occupation who have graduated from an apprenticeship program for that occupation approved by the California Apprenticeship Council or who have obtained a certificate of equivalent training as provided in Section 450-8.016(C)(3)(d) below, (ii) employ only apprentices in an apprenticeable occupation who are enrolled in an apprenticeship program for that occupation which has been approved by the California Apprenticeship Council, and (iii) employ only journey level workers in an apprenticeable occupation who have completed at least 20 hours of training in skills, construction techniques and safety 2 for that occupation within the last 12 months,at a bona fide apprenticeship program for that occupation. (c) Each contractor is required to meet its need for workers by hiring trained workers in each apprenticeable occupation to the extent that trained workers are available from labor hiring facilities in Contra Costa, Alameda and Solano Counties. If a contractor attempts to obtain trained workers from labor hiring facilities in Contra Costa, Alameda, and Solano Counties for two normal business days and is unable to obtain all the workers it needs, it may hire other workers only to the extent that trained workers are unavailable. In the event of workforce reductions, a contractor shall lay-off other workers before trained workers. A contractor who hires workers other than trained workers shall comply with subdivision (e) below; and the contractor shall provide such supplemental supervision as may be necessary for workers other than trained workers. (d) A journey level worker may obtain a certificate of equivalent training for an apprenticeable occupation by completing a test consisting of both a written examination and a manual skill demonstration which shows that the skills of the worker are at least equivalent to the skills of a worker who has graduated from a bona fide apprenticeship program for that occupation. The test shall be one that is administered by a bona fide apprenticeship program for that occupation or one that has been approved by the California Apprenticeship Council for that occupation and administered by an accredited four year college with adequate facilities for both the written and manual portions of the test for that occupation. (e) (i) The contractor shall assure that each contract employee is trained in the work practices necessary to safely perform his/her job. (ii) The contractor shall assure that each contract employee is instructed in the known potential fire, explosion, or toxic release hazards related to his/her job and the 3 process, and the applicable provisions of the emergency action plan. (iii) The contractor shall document that each contract employee has received and understood the training required by this section. The contractor shall prepare a record which contains the identity of the contract employee, the date of training and the means used to verify that the employee completed the training. (iv) The contractor shall assure that each contract employee follows the safety rules of the Stationary Source including the safe work practices required by Section 450-8.016(A)(2). (v) The contractor shall advise the Stationary Source of any unique hazards presented by the contractor's work or of any hazards found by the contractor's work. (f) The terms "apprentice" and "apprenticeable occupation" shall have the same meaning in this section as those terms do in the California Labor Code. The term "occupation" refers to an apprenticeable occupation. The term "journey level worker" shall have the same meaning as the term "journeyman" in the California Labor Code. A bona fide apprenticeship program is one which has been approved by the California Apprenticeship Council and which has graduated apprentices in each of the most recent five years, except, until April, 2005, in the case of an apprenticeship program for an occupation that was determined to be an apprenticeable occupation by the California Division of Apprenticeship Standards within the last nine years, one that has graduated apprentices in each of the most recent three years. The term "trained worker" means (i) during the three years after adoption of this ordinance: a journey level worker who is a graduate of an apprenticeship program for that worker's occupation approved by the California Apprenticeship Council; or (ii) more than three years after adoption of this ordinance: a journey level worker in an apprenticeable occupation who has graduated from an apprenticeship program for that worker's occupation approved by the California Apprenticeship Council or who has obtained a certificate of equivalent training as provided in 4 Section 450-8.016(C)(3)(d) above and, in either case, who has completed at least 20 hours of training in skills, construction techniques and safety for that worker's occupation within the last 12 months at a bona fide apprenticeship program for that occupation or an apprentice enrolled in an apprenticeship program for that apprentice's occupation which has been approved by the California Apprenticeship Council. 5 Office of the County Counsel Contra Costa County 651 Pine Street, 9th Floor Phone: (925) 335-1800 Martinez, CA 94553 Fax: (925)646-1078 Date: November 28, 2001 To: Board of Supervisors From: Silvano B. Marchesi, County Counsel Re: Legal Opinion on Proposed Amendments to Industrial Safety Ordinance On June 12, 2001, the Board discussed an opinion issued (at the Board's request) by the California Attorney General on potential additional exposure to liability based on the enactment of proposed amendments to the Industrial Safety Ordinance. On that date the Board directed County Counsel to obtain a legal opinion from an attorney in private practice, as a peer review of the Attorney General's opinion. As the result of the issuance of a Request for Proposal, this office selected Thomas G. Manning, of the firm of Craddick, Candland & Conti to provide the opinion. Mr. Manning has considerable experience in the field of tort litigation involving public agencies and is well familiar with the California Tort Claims Act. Attached is Mr. Manning's opinion. cc: John Sweeten, County Administrator William B. Walker, MD, Health Services Director Dennis M. Barry, AICP, Community Development Director LAW OFFICES OF D. [IARDJ.CONTI C.4NDI-.4ND RICIiARCRADDICK, CANDLAND & CONTI ROBERT W.HODGES PROFESSIONAL CORPORA'T'ION W.DAVID WALKER DANVILLE-SAN RAMON MEDICAL CEN'T'ER MARRS A.CRADDICK TIIOMAS G.MANNING 915 SAN RAMON VALLEY BOULEVARD,SUITE 260 (1928-1996) ANDREW S.MILLER DANVILLE,CALIFORNIA 945264020 S'T'EVEN L.BROWN JEAN L.PERRY KRIS]IN:KEALA MEREDITI I TELEPHONE 925-333-1100 MICI[AFL E.GATTO FACSTMTLE 925-743-0729 November 26, 2001ir�`a �11 �l I1 HAND DELIVERED NOV 2 7 2001 Silvano B. Marchesi, Esq. ; ,.iJY COUNSEL Contra Costa County MARTINEZ,CALIF. 651 Pine.Street, 9th Floor Martinez, CA 94553 RE: CONTRA COSTA COUNTY - INDUSTRIAL SAFETY ORDINANCE Dear Mr. Marchesi: The following will serve as our analysis of the applicable law governing the exercise of the county's police power over industrial facilities within the county and whether, in the exercise Of such powers, the county would be exposed to liability under the California Tort Claims Act. We conclude that the Attorney Generals written opinion and conclusions are sound and we concur. However, one might note that, although the Attorney General's opinion is analytically correct, it does not sufficiently recognize the realities of litigation. Our analysis follows: STATEMENT OF FACTS In reviewing the April 3, 2000, letter from County Counsel, Victor J. Westman, Esq., and Silvano B. :Marchesi, Esq., to Attorney General, Bill Lockyer, Esq., the following summarizes the matter at issue: In 1998, the Contra Costa County Board of Supervisors adopted an Industrial Safety Ordinance, called the "ISO." The ordinance is a risk management program, which imposes safety requirements on facilities, such as oil refineries, called "Stationary Sources." Among the safety requirements, a facility is required to conduct a process hazard analysis, to identify, evaluate, and control hazards involved in a process at a facility. Industrial Safety Ordinance, Sec. 450-8.016. Section 450-8.016(D)(3) states: Silvano B. M.archesi, Esq. November 26, 2001 CONTRA COSTA COUNTY.- INDUSTRIAL SAFETY ORDINANCE Page 2 "For all covered processes [processes at the facility], the stationary source [facility] shall consider the use of inherently safer systems in the development and analysis of mitigation items resulting from a process hazard analysis and in the design and review of new processes and facilities. The stationary source shall select and implement ifflierently safer systems to the greatest extent feasible. If a stationary source concludes that an inherently safer system is not feasible, the basis for this conclusion shall be documented in meaningful detail. This documentation shall include (i) sufficient evidence to demonstrate to the county's satisfaction that implementing this inherently safer system is impractical, and (ii) the reasons for this conclusion. A claim of'financial infeasibility' shall not be based solely on evidence of reduced profits or increased costs, but rather shall include evidence that the financial impacts would be sufficiently severe to render the inherently safer system as impractical." Section 450-8.014(c) and (g) define "Inherently Safer Systems" and "Feasible" as follows: "(g) 'Inherently safer systems' means inherently safer design strategies as discussed in the 1996 Center for Chemical Process Safety Publication 'Inherently Safer Chemical Processes' and means feasible alternative equipment, processes, materials, lay-outs, and procedures meant to eliminate, minimize, or reduce the risk of a major chemical accident or release by modifying a process rather than adding external layers of protection. Examples include, but are not limited to, substitution of materials with lower vapor pressure, lower flammability, or lower toxicity; isolation of hazardous processes; and use of processes which operate at lower temperatures and/or pressures." [emphasis added]. "(c)'Feasible' means capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, legal, social, and technological factors." Section 450-8.016(D)(4) states in pertinent part: "For all covered processes, the stationary source shall document the decision made to implement or not implement all process hazard analysis recommended action items.... For recommended actions not selected for implementation, the stationary source shall include the justification for not implementing the recommended action. ... Any documentation justifying a decision not to implement a process hazard analysis recommended action shall include (i) sufficient evidence to demonstrate to the county's satisfaction that implementing this inherently safer system is impractical, and (ii) the reasons for this conclusion. A claim of'financial infeasibility' shall not be based solely on evidence of reduced profits or increased costs, but rather shall include evidence that the financial impacts would be sufficiently severe to render the improvement as impractical." The matter at issue concerns a proposal (with no specific language) by persons interested in safety at oil refineries and chemical manufacturing facilities to amend the ordinance. The Silvano B-Marchesi, Esq. November 26, 2001 CONTRA COSTA COUNTY - INDUSTRIAL SAFETY ORDINANCE Page 2 "For all covered processes [processes at the facility], the stationary source [facility] shall consider the use of inherently safer systems in the development and analysis of mitigation items resulting from a process hazard analysis and in the design and review of new processes and facilities. The stationary source shall select and implement inherently safer systems to the greatest extent feasible. If a stationary source concludes that an inherently safer system is not feasible, the basis for this conclusion shall be documented in meaningful detail. This documentation shall include (i) sufficient evidence to demonstrate to the county's satisfaction that implementing this inherently safer system is impractical, and (ii) the reasons for this conclusion. A claim of'financial infeasibility' shall not be based solely on evidence of reduced profits or increased costs, but rather shall include evidence that the financial impacts would be sufficiently severe to render the inherently safer system as impractical." Section 450-8.014(c) and (g) define "In.herently Safer Systems" and "Feasible" as follows: "(g) 'Inherently safer systems' means inherently safer design strategies as discussed in the 1996 Center for Chemical Process Safety Publication ndierently Safer Chemical Processes' and means feasible alternative equipment, processes, materials, lay-outs, and procedures meant to eliminate, minimize, or reduce the risk of a major chemical accident or release by modifying a process rather than adding external layers of protection. Examples include, but are not limited to, substitution of materials with lower vapor pressure, lower flammability, or lower toxicity; isolation of hazardous processes; and use of processes which operate at lower temperatures and/or pressures." [emphasis added]. "(c)'Feasible' means capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, legal, social, and technological factors." Section 450-8.016(D)(4) states in pertinent part: "For all covered processes, the-stationary source shall document the decision made to implement or not implement all process hazard analysis recommended action items.... For recommended actions not selected for implementation, the stationary source shall include the justification for not implementing the recommended action. ... Any documentation justifying a decision not to implement a process hazard analysis recominended action shall include (i) sufficient evidence to demonstrate to the county's satisfaction that implementing this inherently safer system is impractical, and (ii) the reasons for this conclusion. A claim of'financial infeasibility' shall not be based solely on evidence of reduced profits or increased costs, but rather shall include evidence that the financial impacts would be sufficiently severe to render the improvement as impractical." The matter at issue concerns a proposal (with no specific language) by persons interested in safety at oil refineries and chemical manufacturing facilities to amend the ordinance. The Silvano B. Marchesi, Esq. November 26, 2001 CONTRA COSTA COUNTY - INDUST:RIAL SAFETY ORDINANCE Page 3 proposed amendment would authorize the County's Health Services Department to require a facility to use an "inherently safer system" or take a recommended action stated in its process hazard analysis, despite the facility's objection and conclusion that such use or action is not "feasible." Thus, under the proposal, the Department could require a facility to use particular equipment, manufacturing or refining processes, or management procedures. Proponents have testified that such additional authority could be exercised to require a facility to use equipment, processes, or other practices that already are in use in other similar facilities. County Counsel asked the Attorney General to assume that the facility asserts (with documentation) that a proposed inherently safer system or recommended action item is not feasible, in other words, that the proposed system or action is not capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, legal, social, and technological factors. As indicated above, by definition an "inherently safer system" is feasible. County Counsels' question to the Attorney General was: Question : Would the county expand its exposure to liability under the Tort Claims Act by taking a discretionary action to require the stationary source to use an inherently safer system or take a recommended action item? DISCUSSION (1) Liability based on the County's enactment or failure to enact the proposed amendment As the Attorney General notes, generally, under the California Tort Claims Act, a county is not liable for an injury "caused by adopting ... an enactment." Gov't Code, Sec. 818.2. Government Code, Section 821 confers.the identical immunity on public employees. "Enactment" includes ordinances. Gov't Code, Sec. 811.6. See, Land Waste Management v. Contra Costa County Board of Supervisors (1st Dist. 1990) 222 Cal.App.3d 950, 962-963,271 Cal.Rptr. 909; CEB, Cal. Government Tort Liability Prac., 4th ed. May 2001 Update, at Sec. 10.50,'p. 582. Generally, a county is also not liable for an injury "caused by ... failing to adopt an enactment." Gov't Code, Sec. 818.2. A substantially identical immunity is conferred on public employees by Government Code, Section 821. See, Land Waste, supra, at 962-963; CEB, supra, at Sec. 10.52, p. 584. Thus, the County and its employees would not be liable if the proposed ISO amendments were not enacted and someone sustained an injury. (2) Liability based on the County Health Services Department's requiring of a facility to use an inherently safer system or recommended action Silvano B. Marchesi, Esq. November 26, 2001 CONTRA COSTA COUNTY - INDUSTRIAL SAFETY ORDINANCE Page 4 As the Attorney General indicated, Washington v. County of Contra Costa (1995) 38 Cal.App.4`h 890, 45 Cal.Rptr.2d 646, is the case most closely on point, and provides a framework for analysis. The Washington Court explained that the first issue to be considered is the existence of a duty; if a duty exists, the second issue is whether statutory immunity provides a defense. In Washington, General Chemical Company, in Richmond, California, allegedly operated a sufiiric acid manufacturing facility. Hazardous materials allegedly leaked from rail,tank cars while the company's employees were unloading them. The plaintiffs sued the company as well as the County. Against the County, the plaintiffs asserted various causes of action. Their primary theory was that the County had failed in duties imposed on.it by Health and Safety Code, Chapter 6.95, pertaining to the regulation of handling, release and threatened release of hazardous materials. The plaintiffs alleged that the County failed to implement and enforce "mandatory enactments" and regulations designed to protect the public, and failed to take required actions to protect the public after the release of the hazardous materials. Washington, supra, at 894-895. The County demurred. The trial court took judicial notice of documents submitted by the County relating to its regulation of the company's activities, and sustained the demuiTers without leave to amend. Washington, su ra, at 895. The Washington Court held that the County had no duty to prevent release of hazardous materials on the facts. The Court reasoned that liability of a county for failure to take action must be based on statute. Government Code, Section 815.6, provides that where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind caused by its failure to discharge that duty. The Washington plaintiffs did not focus on any particular statute as the basis for their claim of statutory mandatory duty. Instead, they generally cited Health and Safety Code, Section 25500 et sem. The Court concluded that this general citation did not satisfy 'the requirement that the plaintiff specifically allege the applicable statute or regulation, in order to establish Section 815.6 liability. The Court concluded that none of the specific directives contained in Chapter 6.95 supported a cause of action under the facts alleged by plaintiffs. Washington, sura, at 896-897. The Court held that the complaint stated no grounds for holding the County liable for the breach of a mandatory statutory duty. Washington, sp_a, at 898. The Washington Court observed that "[w]e are unable to find anything in chapter 6.95 specifically directing an 'administrative agency,' such as the County, to prevent any release of hazardous materials...." Washington, sura, at 897. Chapter 6.95, entitled "Business and Area Plans," concerned the development and review of business plans relating to the handling and release or threatened release of hazardous materials. The business is required to submit to the County a plan for emergency response to the release of a hazardous material, and the County is directed to review the plan and develop an "area plan" for emergency response to a release. Health and Safety Code, Sec. 25503, 25503.5, and 25505. Washington, supra, at 897. Under Health and Safety Code, Section 25505.5, the County may not be held liable for any negligence in its review of the business plan. Ibid. Silvano B. Marchesi, Esq. November 26, 2001 CONTRA COSTA COUNTY - INDUST.RIAL SAFETY ORDINANCE Page 5 Under Health and Safety Code, Sections 25503(e)(1), 25508, and 25537, the County must submit a plan to conduct on-site inspections of businesses and must conduct inspections. Under Section 25503(e)(1) and Government Code, Section 818.6, the County is immune from liability for failure to make an inspection or for negligence in its inspections. Washington, supra, at 898. The Court found that under the circumstances it did not need to consider whether the general govenunent immunity for discretionary, as opposed to mandatory, acts, provided additional grounds for sustaining the demurrer. Washington, supra, at 899. The Court considered whether the County might be held liable on the grounds that it had a "'special relationship"' with the plaintiffs. The Court concluded that the County would not be liable because "[t]he County here did not create a foreseeable peril. Its duties were to oversee businesses...to see that such businesses did not create a foreseeable peril." Washington, supra, at 899 [emphasis added]. The Court had already concluded that the statutes defining the County's duty to oversee businesses for this purpose could not form the basis of any liability on the facts alleged in the complaint. Ibid. Additionally, it had been recognized that a duty to warn in "'special relationship"' cases arises only when there is a direct or continuing relationship between the state and a particular, identifiable plaintiff. Ibid. Further, even if there were a duty based on a "'special relationship"', Health and Safety Code, Section 25400, provided immunity under the facts alleged in the complaint. Washingrton, sup, at 899-900. Section 25400(b) provides in pertinent part: "a public entity ... shall not be liable for any injury or property damage caused by an act or omission taken by a county public health director, a public safety employee, ... a person authorized by a public entity, or a registered sanitarian employee acting within the scope of employment to abate or attempt to abate hazards reasonably believed to be an imminent peril to public health and safety caused by the discharge, spill or presence of a hazardous substance, unless the act taken or omission was performed in bad faith or in a grossly negligent manner." Section 25400(c) provides: "For the purposes of this section, it shall be presumed that the act or omission was performed in good faith and without gross negligence. This presumption shall be one affecting the burden of proof:" Section 25400(d) provides in pertinent part: "(2) 'Imminent peril' includes a period which, if not mitigated, threatens the public health or welfare, or the envirotunent." Silvano B. Marchesi, .Esq. November 26, 2001 CONTRA COSTA COUNTY - INDUSTRIAL SAFETY ORDINANCE Page 6 The Washing Court concluded that the County could not be held liable for allowing a public or private nuisance or allowing a dangerous condition to exist. Government Code, Section 835, permits such suits only if the property is owned or controlled by the public entity; the public entity may not be held liable for failing to abate a nuisance existing on private property. Washington, supra, at 900. The plaintiffs' cause of action for violation of civil rights failed because the County owed no duty to the plaintiffs to protect them from the effects of therclease of hazardous materials. Washington, sutra, at 900. Under Washinc-7ton the County will not be held liable under a mandatory duty, as long as the proposed amendment is drafted to constitute review of the facility's business.plan. In addition, however, as noted, under Washington, while immunity applies, a county has liability for failure to prevent release of hazardous materials if it violated a statute imposing a mandatory duty under Government Code, Section 815.6, or acted in bad faith, or acted in a grossly negligent manner in its review of a business plan or inspection of the company's property. A plaintiffs counsel presumably would argue that an issue exists as to whether the defendant acted in bad faith or was grossly negligent, and that such .findings are for the jury to determine. The first point is discussed below. (3) Liability based on acts or omissions constituting an exercise of discretion in making basic policy decisions at the planning, rather than the operational level of decision making. The County's query assumes that the County's official has taken "a discretionary action", rather than a ministerial action. As the Attorney General notes, Government Code, Section 820.2, provides for discretionary immunity for public employees. Section 820.2 states: "Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused." The Supreme Court explained in Caldwell v. Montoya (1995) 10 Ca1.4t" 972, 981, 42 Cal.Rptr.2d 842: "...a'workable definition' of immune discretionary acts draws the line between 'planning' and 'operational' functions of government. [citation]. Immunity is reserved for those basic policy decisions [which have] ... been [expressly] committed to coordinate branches of government,' and as to which judicial interference would thus be 'unseemly.' [citation]. Such 'areas of quasi-legislative policy-making ... are sufficiently sensitive' [citation] to call for judicial abstention from interference that 'might even in,the first instance affect the coordinate body's decision-making process.' [citation]. "On the other hand ... there is no basis for immunizing lower-level, or'ministerial,' decisions that merely implement a basic policy already formulated.' [citation]. Moreover, Silvano B. Marches], Esq. November 26, 2001 CONTRA COSTA COUNTY - INDUSTRIAL SAFETY ORDINANCE Page 7 we cautioned, immunity applies only to deliberate and considered policy decisions, in which a '[conscious] balancing [of] risks and advantages ... took place. ...' [citation]." [emphasis in original]. The discretionary immunity of public employees is made applicable to public entities. under Government Code, Section 815.2(b). For example, in Odello Brothers v. County of Monterey (1998) 63 Cal.App.4`h 778, 73 Cal.Rptr.2d 903, the county breached a levee in order to prevent flooding in residential and commercial areas. The breach flooded the plaintiffs property, creating lakes in the plaintiffs agricultural fields. The plaintiff sued the county for trespass and inverse condemnation. As to the tort claim for trespass, the appellate court concluded that Section 820.2 applied. The County's decision with respect to its flood plan, as well as its decision to breach the levee in a particular manner were plainly acts within the County's discretion. "These decisions reflect policy choices for which the responsibility has been committed to a coordinate branch of the govermnent rather than a determination at 'the ministerial. ning of official action."' [citation]. Odello, supra, at 793. The amendment to the ISO had not been drafted when the AG had considered this issue and, of course, a lawsuit has not been commenced based thereon. If only planning or discretionary action by the County officials, rather than operational or ministerial action, will be at issue and the Section 820.2, immunity will apply. The Washington Court explained that Health and Safety Code Section 25500 et sem., does not impose a mandatory duty to prevent the release of hazardous materials, (Washington, supra, at 898), however, if the County takes the additional step of enacting the proposed iSO, a potential issue will be created as to whether the ordinance imposes a mandatory duty. The California Supreme Court, in HaRis v. City of Los Angeles (2000) 22 Cal.41h 490, 93 Cal.Rptr.2d 327, 993 P.2d 983, explained that application of Section 815.6 requires that the enactment at issue be obligatory, rather than merely discretionary or permissive, in its directions to the public entity. It must require, rather than merely authorize or permit, that a particular action be taken or not taken. It is not enough that the public entity have been under an obligation to perform a function If the function itself involves the exercise of discretion. The question of whether an enactment creates a mandatory duty is a question of lave. Haggis, supra, at 499. The Supreme Court, in Barrer v. Leeds (2000) 24 Cal.41h 676, 102 Cal.Rptr.2d 97, explained that under Caldwell v. Montoya(1995) 10 Cal.4`h 972, 42 Cal:Rptr.2d 842, 897 P.2d 1320, not all acts requiring a public employee to choose among alternatives entail the use of "discretion" within the meaning of Government Code, Section 820.2, providing immunity for county employees. Under Section 820.2, immunity is reserved for those "basic-policy decisions" which have been expressly committed to coordinate branches of government and as to which judicial interference would thus be unseemly. There is no basis for immunizing lower level Silvano B. Marchesi, Esq. November 26, 2001 CONTRA COSTA COUNTY -INDUSTRIAL SAFETY ORDINANCE Page 8 decisions that merely implement a basic policy already formulated. Barrer, supra, at 684-685; Caldwell, sura, at 981. If members of the public are harmed by release of a hazardous material, presumably litigation would ensue on the question of whether the County's ordinance created a mandatory duty by requiring that a particular action be taken by the County employees. The Attorney General concludes that the County employees' conduct would be discretionary, because the mandated changes would be based upon relevant studies conducted at similar facilities located throughout the country. Therefore, each decision would be considered a policy determination, balancing the risks and advantages. However, it seems just as likely that a Court would find that the County employecs' conduct, pursuant to the proposed ISO, would fall within the operational functions of the County, the "basic policy decisions" being those made to formulate the factors which the County employees were directed to consider in enforcing the ordinance. Additionally, an issue might exists as to whether the County has potential liability to the stationary source for requiring it to use an inherently safer system or take a recommended action that the stationary source has documented is not feasible. Industrial Safety Ordinance Section 450-8.014(c) defines "feasible" as "capable of being accomplished in a successful manner within a reasonable period of time, taking'into account, economic, environmental, legal, social, and technological factors." Thus, the County would be ordering a stationary source to perform activities which it has determined, with appropriate documentation, it cannot perform without adverse effect. Govenunent Code, Section 818.4, provides that a public entity is not liable for an injury caused by the failure or refusal to issue any permit, license, certificate, approval, order, or similar authorization. However, Section 818.4 grants immunity only with respect to discretionary activities. Morris v. Marin Co. (1977) 18 Cal.3d 901, 136 Cal.Rptr. 251, 559 P.2d 606. Thus, the same issue noted above would exist with regard to liability to the stationary source, whether the County employees' conduct is mandatory or discretionary. Very truly yours, THOMAS G. AN IN TGM:sak NOTICE Professional services of Unwin Company have been performed with a degree of care and skill ordinarily exercised under similar circumstances by reputable consultants. No other warranty or representation,expressed or implied,is made as to the information contained herein. Unwin Company regards its work in the provision of consultation services, facilitation of PHAs, and performance of risk/reliability studies as advisory in nature,and assumes no responsibility for implementation of any recommendations contained herein. Review Of Ultramar Golden Eagle Refinery Inherent Safety Report for-Donna Gerber, District III Supervisor REVIEW OF ULTRAMAR GOLDEN EAGLE REFINERY INHERENT SAFETY REPORT TABLE OF CONTENTS Page 1. INTRODUCTION.................................................................................................................... 4 2. APPROACH............................................................................................................................ 5 3. FINDINGS ............................................................................................................................... 6 3.1 Inherently Safer Systems?................................................................................................ 6 3.2 ISS Report Categories...................................................................................................... 9 3.3 ISSs Not Implemented..................................................................................................... 11 4. CONCLUSIONS..................................................................................................................... 13 5. RECOMMENDATIONS........................................................................................................ 14 APPENDIX A: CCHS GUIDANCE AT TIME OF SUBMITTAL............................................. 16 APPENDIX B: DEFINING INHERENTLY SAFER SYSTEMS............................................... 19 i APPENDIX C: 2/9/2001 ISS REQUEST TO ISO FACILITIES FROM CCHS.........................22 I APPENDIX D: LISTINGS OF ISS CATEGORIES....................................................................24 REFERENCES..............................................................................................................................27 I I November 30, 2001 Page 3 Review Of Ultramar Golden Eagle Refinery Inherent Safety Report for-Donna Gerber,District III Supervisor REVIEW OF ULTRAMAR GOLDEN EAGLE REFINERY INHERENT SAFETY REPORT 1. INTRODUCTION Unwin Company, a process safety and risk management consultancy based in Columbus, Ohio, was contracted by Donna Gerber,Contra Costa County District III Supervisor,to review Ultramar Golden Eagle Refinery's 2/15/01 "List of Inherently Safer Systems" submittal to Contra Costa Health Services, in light of the definition of inherent safety published by the Center for Chemical Process Safety(CCPS) in its book Inherently Safer Chemical Processes:A Life Cycle Approach. The Ultramar Golden Eagle Refinery is a regulated stationary source covered by the County's Industrial Safety Ordinance (ISO). As such, it is required to consider inherently safer systems as specified in section 450-8.016(D)(3)of the County Ordinance Codes as amended by Ordinance No. 2000-20 and which states the following: "For all Covered Processes, the Stationary Source shall consider the use of Inherently Safer Systems in the development and analysis of mitigation items resulting from a process hazard analysis and in the design and review of new processes and facilities. The Stationary Source shall select and implement Inherently Safer Systems to the greatest extent Feasible. If a Stationary Source concludes that an Inherently Safer System is not Feasible, the basis for this conclusion shall be documented in meaningful detail. This documentation shall include (1)sufficient evidence to demonstrate to the County's satisfaction that implementing this inherently safer system is impractical, and(2) the reason for this conclusion. A claim of "financial infeasibility shall not be based solely on evidence of reduced profits or increased cost, but rather shall include evidence that the financial impacts would be sufficiently severe to render the inherently safer system as impractical." The ordinance defines inherently safer systems (ISSs)in section 450-8.014(g)of the County Ordinance Code as: "Inherently Safer Systems"means Inherently Safer Design Strategies as discussed in the 1996 Center for Chemical Process Safety Publication "Inherently Safer Chemical Processes"and means Feasible alternative equipment,processes, materials, lay-outs, and procedures meant to eliminate, minimize, or reduce the risk of a Major Chemical Accident or Release by modifying a process rather than adding external layers of protection. Examples include, but are not limited to, substitution of materials with lower vapor pressure, lower fiammability, or lower toxicity; isolation of hazardous processes; and use of processes which operate at lower temperatures and/or pressures. " The scope of Unwin Company's review is limited to a review of one ISS submittal. As such, this report will not be able to provide, in and of itself, comprehensive input to the process of seeing whether the CCPS definition of inherently safer systems can be made workable in the context of local government oversight. Nevertheless, it is hoped that our input is helpful to this end. November 30, 2001 Page 4 Review Of Ultramar Golden Eagle Refinery Inherent Safety Report for-Donna Gerber, District III Supervisor 2. APPROACH Unwin Company's intended approach to the reviewing of Ultramar's submittal was for Mr. Robert W. Johnson, Principal Consultant with Unwin Company,to perform as much as possible of the following steps: 1. Meet with the most appropriate County personnel to discuss and gain an understanding of the background to the Industrial Safety Ordinance requirement for considering Inherently Safer Systems(§450-8.016(D)(3)). 2. Meet with the most appropriate Refinery personnel to discuss and gain an understanding of the refinery's approach to fulfilling this requirement. 3. Review all of the Refinery's new projects and as many of the process hazard analysis (PHA) recommendations as on-site time allows for Refinery projects and PHAs completed between 4/27/2000 and 3/9/2001, as listed in the Refinery's"List of Inherently Safer Systems" document dated 2/15/2001, to give an opinion as to whether each listed improvement is clearly inherently safer,clearly not inherently safer, or somewhere in between. 4. Prepare and deliver a report summarizing our approach and findings, including any more general opinions and conclusions regarding the Industrial Safety Ordinance's requirement related to Inherently Safer Systems. 5. Attend the Contra Costa County Board of Supervisors meeting on December 4, 2001 and be prepared to answer questions related to our report. If, for whatever reason on the part of the County or the Refinery, Mr. Johnson was unable to meet with Refinery personnel and/or review the Refinery's PHA documentation on-site, he was to proceed with discussions with County personnel and our review of the Refinery's List of Inherently Safer Systems already submitted to the County, then prepare our suggestions and report with the information that could be made available. During the week of November 5-9, 2001, Mr. Johnson held separate phone conversations with Mr. Randy Sawyer of Costa County Health Services (CCHS) and with Ms. Donna Gerber, District III Supervisor. During the week of November 12-16, 2001, Mr. Johnson met personally with Mr. Sawyer at CCHS's offices and twice with Supervisor Gerber. He also met with Mr. Denny Larson, formerly with Communities for a Better Environment, and took a general tour of the area surrounding the Shell and Ultramar refineries in northern Contra Costa County. However, the Ultramar refinery declined a formal request to allow Mr. Johnson access to the refinery's PHA documents at that time. Consequently, at Supervisor Gerber's suggestion, Mr. Johnson presented Mr. Sawyer with a detailed list of questions relating to Ultramar's submittal to CCIIS. Mr. Sawyer prepared answers to these questions and delivered his responses to Mr. Johnson on November 24. Other documents relating to the ISO have also been provided to us during the course of our review. Hence, it should be noted that essentially all of the information used to prepare this report was November 30, 2001 Page 5 Review Of Ultramar Golden Eagle Refinery Inherent Safety Report for-Donna Gerber,District III Supervisor provided to Unwin Company by either CCHS or Supervisor Gerber's office, and that our evaluations were made without benefit of direct input from Ultramar personnel or on-site review of Ultramar documents. This limited us to an assessment that was only indirect in nature of the relationship between Ultramar's listed Inherently Safer Systems and the process hazard analyses and design projects to which they related. 3. FINDINGS Our findings are focused on answering three specific questions: 1. Are the Inherently Safer Systems included in Ultramar's 2/15/01 "List of Inherently Safer Systems" submittal to CCHS (a)clearly inherently safer,per the definition of Inherently Safer Systems in the ISO, (b) clearly not inherently safer, per the same definition, or(c) somewhere in between? 2. Are the Inherently Safer Systems Report Categories included in CCIIS' letter of request and used in Ultramar's Inherently Safer Systems submittal consistent with the ISO definition of Inherently Safer Systems? 3. Based on the information we have been able to gather, to what extent does Ultramar's Inherently Safer Systems submittal—in particular, the Explanations given for the Inherently Safer Systems (ISSs) that Ultramar did not implement—indicate that ISSs were selected and implemented to the "greatest extent Feasible" (per the ISO requirement)? In addressing these questions, it is recognized that changes are being made to CCHS' guidance to the ISO facilities, and, as such, future ISS submittals might differ significantly from Ultramar's 2/15/01 submittal. The guidance that was in effect at the time of Ultramar's submittal is included in Appendix A to this report. 3.1 Inherently Safer Systems? The first question addressed here is, "Are the Inherently Safer Systems included in Ultramar's 2/15/01 `List of Inherently Safer Systems' submittal to CCHS (a)clearly inherently safer,per the definition of Inherently Safer Systems in the ISO, (b) clearly not inherently safer, per the same definition,or(c) somewhere in between?" Part of the difficulty posed in answering this questions lies in the interpretation of the ISO's definition of Inherently Safer Systems. The issue of how to define an Inherently Safer System is discussed in more detail in Appendix B of our report. This report will use a two-fold definition of ISSs, since it is unclear from the examples given with the ISO definition, together with the guidance provided to ISO-covered facilities (Appendices A and C), which is intended. November 30, 2001 Page 6 Review Of Ultramar Golden Eagle Refrnery Inherent Safety Report-for=Donna Cerber, District III Supervisor • The narrowest interpretation that could be argued from the wording of the ISO definition would be that an ISS reduces the underlying hazard that must be contained and controlled for a Major Chemical Accident or Release to be avoided. • The broadest interpretation that could be argued form the wording of the ISO definition would be that an ISS reduces the risk of a Major Chemical Accident or Release by reducing the underlying hazard that must be contained and controlled or by improving layer(s) of protection in away that is permanent and inseparable and not easily weakened or removed i from the system. It should be noted that systems that do not address Major Chemical Accidents or Releases,as defined in the ISO, would not qualify for Inherently Safer Systems per the ISO definition. Two sets of Inherently Safer Systems are listed as being implemented by Ultramar in their 2/15/01 submittal—those associated with process hazard analysis (PHA)recommendations, and those associated with new projects. ISSs and PITA Recommendations. The ISO requires facilities to consider the use of Inherently c Safer Systems in the development and analysis of mitigation items resulting from a process hazard analysis. In its 2/15/01 submittal, Ultramar lists seven ISSs associated with PHA recommendations that were not implemented and 301 ISSs associated with PHA recommendations that were implemented. The seven that were not implemented will be addressed in Section 3.3. Ultramar's submittal for the 301 ISSs associated with PIIA action items that are included as having been implemented only lists the ISSs by operating unit, PHA recommendation number, and ISS Category. (These ISS Categories are discussed in Section 3.2.) This information by itself is not sufficient to understand the PHA action items and their relation to the ISS definition, and Mr. Johnson of Unwin Company did not have access to Ultramar's PHA documentation. Instead, Randy Sawyer of CCHS,using the before-mentioned ISS definitions, drew the following conclusions upon reviewing a cross-section of 66 of the 301 items, and provided this information to Unwin Company: one item reduces the underlying hazard that must be contained and controlled(i.e., falls into the narrowest definition of ISSs allowed by the ISO), 35 would not reduce the underlying hazard but were intended to reduce the risk of a Major Chemical Accident or Release by improving layer(s)of protection in a way that is permanent and inseparable and not easily weakened or removed from the system (i.e., fall within the broadest definition of ISSs allowed by the ISO), zero recommendations add external layer(s) of protection intended to reduce the risk of a Major Chemical Accident or Release, 27 were other recommendations not targeted at a Major Chemical Accident or Release or not intended to reduce either the hazard or the risk, and three were uncategorized. Only one of the 66 items reducing underlying hazards is not unexpected, in that the purpose of a PHA is to systematically review an existing facility or facility design and identify(a)what could go wrong that could lead to an abnormal situation, (b) the likelihood of such deviations from normal operation, (c) how severe the consequences could be if an abnormal situation progressed November 30, 2001 Page 7 :i �.S sF;E :Y� i I Review Of Ultramar Golden Eagle Refinery Inherent Safety Report for-Donna Gerber, District III Supervisor to a loss event such as a fire, explosion, or hazardous material release, and(d) whether existing safeguards are adequate. PHA action items ("mitigation items resulting from a process hazard analysis," in the language of the ISO) are primarily aimed at reducing the cause likelihood or consequence severity, improving the effectiveness of existing safeguards,or putting in additional safeguards where warranted. Hence,by the very nature of the PHA methodologies (such as Hazard and Operability[HAZOP] Studies and What-If Analyses), most PHA action items do not specifically address the underlying hazard that must be contained and controlled,but rather are aimed at ensuring that the containment and control measures are of high integrity. Based on the above numbers, 36 of the 63 categorized items could be construed to meet either the narrowly or the broadly interpreted ISO definitions of implementing an"Inherently Safer System." However, according to Randy Sawyer's analysis, most of the remaining PHA action items do not meet the ISO definition because they were aimed at preventing consequences that did not meet the ISO's"Major Chemical Accident or Release"definition; i.e., they were aimed at reducing the risk of more minor consequences,which could nevertheless cause injuries or other significant loss. This should not be considered a weakness per se, since it is appropriate for PHA action items to address both major and lesser consequences. Evidently,with respect to PHA recommendations, Ultramar's list of PHA action items that have been implemented in the timeframe of its 2/15/01 submittal is the same as its categorized list of Inherently Safer Systems that were included as having been implemented. This has been verified by Randy Sawyer of CCHS. The ISS categories used in preparing the submittal do not make a distinction between those measures addressing Major Chemical Accidents or Releases and those addressing lesser events, whereas the ISO requirement only addresses measures related to Major Chemical Accidents or Releases. The ISS categories are further discussed in Section 3.2 below. In our experience both facilitating PHAs and training others to do the same,we think it highly unusual to consider the use of ISSs during the process of implementing PHA action items, particularly if the narrower definition of reducing underlying hazards is intended. The primary objective of nearly all PHA methodologies is to identify loss event scenarios and determine the adequacy of safeguards, rather than address the underlying hazards that must be contained and controlled. On the other hand, with the broadest definition of ISSs, a substantial fraction of PHA recommendations that address Major Chemical Accidents and Releases would be expected to fall within the ISS definition (as borne out by the sampling of 66 PHA recommendations discussed above). As a result, for either the narrow or the broad definition of ISSs, little is expected to be gained by the requiring of ISSs to be developed and implemented in conjunction with action items ("mitigation items," in the language of the ISO) resulting from a PHA. Suggestions for an alternative approach are given in Section 5. ISSs and New Projects. The ISO also requires facilities to consider the use of Inherently Safety Systems in the design and review of new processes and facilities. In its 2/15/01 submittal, Ultramar listed 13 new projects for which a total of 16 Inherently Safer Designs were implemented and zero new projects for which no Inherently Safer Designs were implemented November 30, 2001 Page 8 Review Of Ultramar Golden Eagle Refinery Inherent Safety Report for-Donna Gerber,District III Supervisor within the timeframe of the submittal. The ISSs listed as being implemented are tabulated by process unit,project number,ISS category(as discussed in the next section), and project title. The project titles give some indication of the nature of the projects,but provide insufficient information for us to be able to determine to what extent ISSs were implemented as part of the projects. Further information on the nature of these new projects was obtained by Randy Sawyer of CCHS and provided to Unwin,Company. Using the before-mentioned ISS definitions, Mr. Sawyer drew the following conclusions upon reviewing information on the 13 new projects: two projects reduced the underlying hazard that must be contained and controlled, nine were intended to reduce the risk of a Major Chemical Accident or Release by improving layer(s)of protection in a way that is permanent and inseparable and not easily weakened or removed from the system, zero projects add external layer(s)of protection intended to reduce the risk of a Major Chemical Accident or Release, and two were not targeted at a Major Chemical Accident.or Release or not intended to reduce either the hazard or the risk. Thus,a much higher fraction of these new projects(11 out of 13)were judged to implement ISSs in either the narrow or broad interpretation of ISSs, as compared to the fraction associated with PHA recommendations as discussed above. This is to be expected, as it is a widely held tenet of inherent safety that it is generally more feasible to implement inherently safer systems the farther back you go in the facility life cycle stages. For example, the Center for Chemical Process Safety(CCPS) book on inherent safety that is referred to in the ISO (Reference 1,page 115) states, "If companies decide to incorporate inherent safety into existing systems and reviews,particular attention needs to be given the subject in R&D for product and process development. This is the life cycle stage where application of inherently safer design concepts can have the greatest impact." Mr. Sawyer noted that as part of one project in particular, a table was established to look at inherently safer systems in a Design Summary Table. The refinery looked at over 60 inherently safer systems, from egress,validation, replacing existing atmospheric tanks with pressure vessels, upgraded equipment with higher pressure rating,pressurized UPS building, and simplified electrical equipment. Mr. Sawyer considered that the work was well documented as to how the refinery looked at inherently safer systems for bringing this unit back online after being shut down for a number of years, including completion of numerous inherently safer system checklists; some of the work reduced the underlying hazard, some of the work reduced the risk. 3.2 ISS Report Categories The question addressed in this section is, "Are the Inherently Safer Systems Report Categories included in CCHS' letter of request and used in Ultramar's ISS submittal consistent with the ISO definition of Inherently Safer Systems?" The ISS report category definitions used in Ultramar's 2/15/2001 submittal are listed in Table 1. According to Randy Sawyer of CCHS,Ultramar and the other ISO-covered facilities developed these categories to list the different inherently safer systems. At the time of the original request November 30, 2001 Page 9 r— Review Of Ultramar Golden Eal le Rehnery.Inherent Safety Report-for-Donna Gerber, District III Supervisor for the information that was submitted, CCHS agreed to these categories(see CCHS' request letter in Appendix Q. The request letter from CCHS and the guidelines that were in effect at that time are what Ultramar used in the preparation of its submittal. TABLE 1 INHERENTLY SAFER SYSTEMS REPORT CATEGORY DEFINITIONS USED IN ULTRAMAR'S 2/15/01 ISS SUBMITTAL i CATEGORY DEFINITION Instrumentation and Electrical Instrument or electrical modifications Piping Systems & Equipment Evaluations/Modifications to equipment, specifications, inspection programs/records, replacements, etc. Pressure Safety Valves Installation of new relief valves, modifications to existing relief valves, service, maintenance, etc. Human Factors Evaluations/modifications to improve personnel and equipment interface Facility Siting Evaluations/modifications to equipment locations with respect to processes and their surroundings Operational Evaluations/modifications to improve operability (e.g., procedures, locking open valves, etc.) Fire Protection/Health and Safety Evaluations/modifications to emergency/health and safety equipment and procedures Environmental Evaluations/modifications to address environmental regulatory requirements Documentation Evaluations/modifications to process safety information We consider that the ISS report category definitions in Table 1, as well as the additional examples given in the facilities' expanded descriptions in Table D-2 of Appendix D, to be on the whole inconsistent, and in the particulars only marginally consistent,with any basic definition of Inherently Safer Systems, including the ISO definition of "...Feasible alternative equipment, Processes, materials, lay-outs, and procedures meant to eliminate, minimize, or reduce the risk of a Major Chemical Accident or Release by modifying a process rather than adding external layers of protection. Examples include, but are not limited to, substitution of materials with lower toxicity; isolation of hazardous processes; lower vapor pressure, lowerjlammability, of and use of processes which operate at lower temperatures and/or pressures. " Only one of the two specific examples in this ISO definition(as"changing to a less hazardous chemical") is included in the facilities' expanded list of dozens of examples in Table D-2 of Appendix D. By contrast,many of the examples in Table D-2 would generally be considered as"adding external layers of protection" rather than"modifying a process," unless they are associated with improving existing layers of protection. Examples include: November 30, 2001 Page 10 i 4 . Review Of Ultramar Golden Eagle Refinery Inherent Safety Report for-Donna Gerber,District III Supervisor • installation of new alarms, indicators, automatic shutdown devices • installation of new relief valves • installation of barricades • installation of detectors • installation of fire monitors • issuance of personal monitors • installation of eye washes and safety showers. This is not to imply that these are not valid risk-reduction measures, although some of the other items such as under the "Environmental"category(e.g., installation of new or modified environmental compliance monitoring devices)have little or nothing to do even with risk reduction, and some(e.g., improvements to walkways)would not be expected to pertain to a Major Chemical Accident or Release. Nevertheless,the ISS categories in Table 1 are a good summary of the types of action items that are likely to be developed by process hazard analysis (PHA)review teams that are examining refinery or chemical process facilities. As the ISS submittal was structured, allowing a description of implemented ISSs using the ISS categories, we have no way of knowing to what degree Ultramar considered Inherently Safer Systems when actually performing the PHA team reviews and developing the PHA action items. With respect to the PHA action items, it seems the ISS categories served as a convenient means of complying with the ISO reporting requirement. 3.3 ISSs Not Implemented The question addressed in this section.is, "Based on the information we have been able to gather, to what extent does Ultramar's ISS submittal—in particular, the Explanations given for the ISSs that Ultramar did not implement—indicate that ISSs were selected and implemented to the `greatest extent Feasible' (per the ISO requirement)?" The ISO definition of"Feasible" is capable of being accomplished in a successful manner within a reasonable period of titne, taking into account economic, environmental, legal, social, and technological factors. Ultramar's 2/15/01 submittal includes a list of what are presented as seven ISSs that were not implemented. In addition to listing these items by operating unit, PHA recommendation number, and ISS category with a brief description, a brief explanation is given for why each was not implemented. Two of the items are categorized as related to Human Factors, one to Piping Systems and Equipment, one to Facility Siting, one to Instrument and Electrical, and one to Operational. It appears from this listing that these seven items likely represent the action items that were developed by PHA review teams during the timeframe of this submittal and that were not implemented by the facility, for the reasons given. This was verified by Randy Sawyer of CCHS. • Four of the seven items (installation of a chain operator on pump discharge valve, evaluation of walkways, valve accessibility during outages and/or turnarounds, new sample station to November 30, 2001 Page 11 Review OjUltramar Golden EaYle Refinery Inherent Safety Report for-Donna Gerber,District III Supervisor detect off-spec product earlier) are probably not within the ISO definition of Inherently Safer j Systems, since they do not appear to address a Major Chemical Accident or Release. Mr. Sawyer's evaluation was that the possibility that these items relate to a Major Chemical Accident or Release is remote. • Ultramar's conclusion for the infeasibility of one item(eliminating false alarms with NH3 fenceline monitors) appears to be documented in meaningful detail, citing technological limitations. • Ultramar's reasons for rejecting the two remaining items(installing double block isolation for a pressure gauge and installing aircraft warning lights on a particular stack) are not along the lines of infeasibility,but rather that the facility assessed that the existing installation is .significant risk reduction would be gained. However, consistent with industry practice or no if the ISO wording is taken literally,then, since they could feasibly be implemented, they should have been implemented anyway,unless it could be demonstrated that the financial impacts would be sufficiently severe to render the inherently safer system as impractical. The best case in point for the last item is an identified"Inherently Safer System"on Ultramar's list that aircraft warning lights be installed on a furnace stack. The reason given for not implementing this ISS was that the air corridor at this stack is well protected by higher adjacent structures,which are equipped with aircraft warning lights, and that the FAA was consulted and agreed that additional warning lights are not required. This would generally be considered to be adequate cause for not implementing a PHA action item, since the argument is that it is not necessary to protect health and safety. However, implementing this ISS would be expected to be Feasible and not impractical, so, with the current wording of the ISO, it should be implemented if it is considered to fall within the ISO's definition of an Inherently Safer System. This same reasoning would apply to the other item in the last bullet as well. As we see it, the main issues that lead up to the preceding situation are (a) the requirement to consider the use of ISSs in the development and analysis of mitigation items resulting from a dy been discussed in Section 3.1, and(b)the requirement to process hazard analysis, as has alrea implement ISSs to the"greatest extent Feasible"without consideration as to whether implementation of a particular.ISS would have any effect on risk reduction, or may actually increase the risk of a Major Chemical Accident or Release if implemented. The possibility of the latter situation is recognized in the CCPS book(Reference 1) in a quote that was included in CCHS' 4/3/2001 ISO Report to the Board of Supervisors: Finally, in considering inherently safer design alternatives, it is essential to remember that there are often, perhaps always, conflicting benefits and deficiencies associated with the different options. Chemical processes usually have many potential hazards, and a change that reduces one hazard may create a new one or increase the magnitude of different existing hazard. It is essential that the process designer retain a broad overview of the process when considering alternatives, that he/she remains aware of all hazards associated with each process option, and that appropriate tools are applied to choose the overall best option. No 30 2001 page 12 y �r Review Of Ultramar Golden Eagle Refinery Inherent Safety Report for-Donna Gerber, District III Supervisor 4. CONCLUSIONS Our conclusions should be understood in the context of the limited scope of this study, which was to review one company's submittal in response to the ISO requirement for selecting and implementing Inherently Safer Systems. It does not speak to the appropriateness of considering inherently safer systems in the context of regulatory oversight, and it does not address the adequacy of safety measures implemented by Ultramar. In addition, since the refinery declined a formal request to allow Mr. Johnson as Supervisor Gerber's consultant to review PHA documents,we were limited to an assessment that was only indirect in nature of the relationship between Ultramar's listed Inherently Safer Systems and the.process hazard analyses and design projects to which they related. Although our findings in Section 3 may appear to be somewhat complex,we believe the main conclusions to be drawn from them are clear: 1. With respect to the manner in which Ultramar communicated to Contra Costa Health Services those inherently safer systems that they listed as being implemented,Ultramar's submittal was consistent with CCHS' request and guidance that allowed the reporting of the number of inherently safer practices by category. 2. The Inherently Safer Systems (ISS) categories that were included in CCHS' letter of request and used in Ultramar's ISS submittal included some measures that-are clearly outside the realm of Inherently Safer Systems, even with a broad interpretation of the definition of ISSs (although these measures may be entirely appropriate.in their own right). 3. It is apparent that a fundamental issue is how narrowly or broadly to interpret inherently safer systems. See Recommendation 1 in the next section. 4. The ISSs listed by Ultramar that were both accepted and rejected in the development and analysis of mitigation items resulting from a process hazard analysis were the same as those process hazard analysis (PHA) action items that were accepted and rejected for the period of time covered by the submittal. 5. Little is expected to be gained by the specific requirement that inherently safer systems be considered in the context of PHA mitigation items (action items developed during the course of the PHA). The primary objective of nearly all PHA methodologies is to identify loss event scenarios and determine the adequacy of safeguards, rather than address the underlying haz- ards that must be contained and controlled. On the other hand, with the broadest definition of ISSs, a substantial fraction of PHA recommendations that address Major Chemical Accidents and Releases would in any case fall within the ISS definition. See Recommendation 2. 6. Some of the Inherently Safer Systems listed by Ultramar as identified but not implemented could feasibly be implemented(e.g., installing aircraft warning lights on a particular furnace November 30, 2001 Page 13 4 Review Of Ultramar Golden Eagle Refinery Inherent Safety Report for—Donna Gerber,District III Supervisor stack), although they may not serve to significantly reduce the actual risk of a Major Chemical Accident or Release if implemented(in the case of this example, the reason given by Ultramar was that the air corridor at this stack is well protected by higher adjacent structures, and FAA was consulted and agreed that additional warning lights were not required). See Recommendation 4. 5. RECOMMENDATIONS The following recommendations are offered on the basis of our limited review of the ISO requirements and Ultramar's ISS submittal,as well as our own experience as it relates to Inherently Safer Systems. 1. The ISO would likely benefit from a more precise definition of Inherently Safer Systems that indicates whether the intent is to solely or primarily look at ways to reduce underlying hazards that must be contained and controlled to avoid a Major Chemical Accident or Release, or whether the broader CCPS definition is intended. A discussion of inherently safer system definitions is included in Appendix B of this report, along with suggested means of bounding what is to be considered as an inherently safer system. 2. We recommend the ISO-covered facilities conduct and document separate Inherent Safety Reviews, rather than have the consideration of inherently safer systems be tied to PHA action items as is specified in the current ISO. Chapter 7 of the CCPS Inherent Safety book (Reference 1) gives guidance for Inherent Safety Reviews and their timing throughout the life cycle of a facility. 3. The ISS report categories used or proposed to date (Appendixes C and D) do not appear to be helpful in achieving the desired results of the ISO as it relates to Inherently Safer Systems. A detailed Inherently Safer Process Checklist, such as is given in the Appendix to Reference 1, would provide a better means of prompting IS thinking during the course of a new facility design and/or an Inherent Safety Review, and provide a better basis for documentation of the review. Not tying the consideration of inherently safer systems to PHA action items (Recommendation 2 above) would likely reduce or eliminate the need for these ISS report categories. 4. As ISO-covered facilities consider ISSs,there may be valid reasons to reject possible ISSs that are identified during the course of an Inherent Safety Review besides being not Feasible. (An example from Ultramar's submittal is given in Conclusion 6 above.) Consideration should.be given to allowing documentation of possible ISSs that are identified but not implemented for reasons other than feasibility, such as the reasons currently allowed for the ±. rejection of PHA recommendations. These reasons and their Federal OSHA and Cal/OSHA sources are listed in CCHS' ISO Guidance Document, Section D.2 (included in Appendix A of this report). f '` November 30, 2001 Page 14 Review Of Ultramar Golden Eagle Refinery Inherent Safety Report for-Donna Gerber,District III Supervisor 5. The ISO and/or CCHS' guidance would benefit from a clearer statement of the limitations of considering Inherently Safer Systems,with particular emphasis that(a) implementation of ISSs does not automatically reduce risk; on the contrary, it is possible that implementing an ISSs that is aimed at reducing an underlying hazard may actually increase the overall risk of a Major Chemical Accident or Release,so that all life-cycle implications of changing a process to implement ISSs need to be carefully reviewed; and that(b)adding external layers of protection around physical and chemical hazards should not be seen as negative in and of itself, on the contrary,even though it is not considered as inherently safer, it can be an essential part of preventing Major Chemical Accidents and Releases where hazards must be contained and controlled. November 30, 2001 Page 15 1 )Iden a le Re ne Inherent Sae Report-for-Donna GerberDistrict III Supervisor Review O Ultramar GoEAPPENDIX A CCHS GUIDANCE AT TIME OF SUBMITTAL Included in this Appendix is Section D of the original guidance given to the ISO-covered ealth Services(CCHS),which addresses the Inherently Safer facilities by Contra Costa H Systems requirements of the IndustrialOrdinance, , as well as the broader Process Hazard Analysis/Action Items requirementstyThs the guidance that wan effect at the time of Ultramar's 2/15/2001 submittal. It has subsequently been revised, and hence does not reflect the most current guidance. FINAL Section D Date:December 1, 1999 SECTION D: PROCESS HAZARD ANALYSIS/ACTION ITEMS. of County Ordinance 98-48 requires facilities to conduct a process hazard Section 450-8.016(D) process at their facility not subject to federal program 3 prevention analysis(PHA's)on each covered p � tY J P � program element requirements. The PHA's must be conducted within 1 year of December 15, 1998 and no later than the submittal date of the Safety Plan. The PHA's should be conducted in conformance with Section 2760.2 of the CaIARP program regulations and Section 7.3 of the Contra r09ra Costa County CaIARP Pnz Guidance Document except in assessing whether seismic events must be considered. ;. ;. . Seismic events must be considered (i.e., a seismic assessment must be conducted) if the covered rsr , process (as defined in Section 450-8.014(a) of County Ordinance 98-48) contains a regulated on 2735.3(n) of the CaIARP program regulations) and the distance to substance(as defined in Secti . . orst case release scenario is within the distance to the toxic or the nearest public receptor for a w flammable endpoint.Z The seismic assessment should be conducted in accordance with Section 7.3.4 and Appendix B of the Contra Costa County CaIARP Program Guidance Document. Additionally, Section 450-8. 016(D)of County Ordinance 98-48 adds the following requirements for conducting PHA's. g iNS ^M kxYY D.1 INHERENTLY SAFER SYSTEMS Stationary sources roust consider the use of inherently safer systems in the development and analysis of mitigation items resulting from a PIIA and in the design and review of new processes and facilities. The stationary source must select and implement inherently safer 'V,V i As specified in California Code of Regulations,Title 19,Chapter 4.5,Section 2750.3 q� . 2 As specified in California Code of Regulations,Title 19,Chapter 4.5,Section 2750.2(a) y; November 30, 20 Page 16 f:19� FN'r'.L.• .�:.2'. Review Of Ultramar Golden Eagle Refinery Inherent Safety Report for-Donna Gerber, District III Supervisor systems to the greatest extent feasible3. The stationary source must document, in meaningful detail, the basis for concluding that an inherently safer system is infeasible. Stationary sources should provide guidance to personnel responsible for developing and analyzing mitigation items resulting from the PHA regarding the following approaches to inherently safer systems4: • Intensification—Using small quantities of hazardous substances • Substitution—Replacing a material with a less hazardous substance • Attenuation—Using less hazardous conditions or a less hazardous form of a material • Limitation of Effects — Designing facilities that minimize the impact of a release of hazardous material or energy • Simplification/Error Tolerance — Designing facilities that make operating errors less likely, and that are forgiving of errors that are made There should be sufficient documentation and detail for CCHS representatives to determine that inherently safer systems were considered for each mitigation item, what those inherently safer systems were, and why they were determined to be infeasible (if not implemented). D.2 COMPLETION OF RECOMMENDED ACTION ITEMS Stationary sources must document the decision made to implement or not implement all process hazard analysis recommended action items and the results of recommendations for additional study. This documentation must include the justification for not implementing any recommended actions. Federal OSHA provided guidance for justifiably declining recommendations from incident investigations in the September 1994, OSHA Instruction CPL 2-2.45A CH-1. These criteria have since been applied to recormnendations formulated during PHA's. NOTE: Additionally, CCHS encourages stationary sources to consider the impact on surrounding communities when declining recommendations. • The analysis upon which the recommendation is based contains material factual errors • The recommendation is not necessary to protect the health and safety of the employer's own employees, or the employees of contractors • An alternative measure would provide a sufficient level of protection • The recommendation is infeasible Cal/OSHA issued the following clarification in Part 4 of the June 1994 Process Safety Management Guidelines. "...CaUOSHA's intent is that an employer is required to 3 Feasible means capable of being accomplished in a successful manner within a reasonable period of time,taking into account economic,environmental,legal,social,and technological factors. 4 CCPS,Guidelines for Engineering Design for Process Safety, 1993 November 30, 2001 Page 17 Review Of Ultramar Golden Eagle Refinery Inherent Safety Report-for-Donna Gerber,District III Supervisor implement the teams' findings and recommendations except to the extent that an employer can document that an alternative will be at least as effective or efficient in addressing the safety concerns that are the subject of those findings and recommendations". The stationary source must complete the recommended actions selected for implementation, including those formulated during PHA revalidations, as follows: • All actions not requiring a process shutdown must be completed within one year after submittal of the Safety Plan or after completion of the PHA revalidation • All actions requiring a process shutdown shall be completed during the first regularly scheduled turnaround of the applicable process subsequent to one year after submittal of the Safety Plan or after completion of the PHA revalidation unless the stationary source demonstrates to the satisfaction of the Department that such a schedule is infeasible Examples of situations where the schedule may be infeasible include procuring equipment which requires substantial time to construct or implementing a recommended action which requires that a land use permit be applied for and therefore, that a CEQA analysis be conducted. NOTE: the stationary source must demonstrate that they initiated the land use permit process in a timely manner. The stationary source must retain documentation of closure and any associated justification of actions identified by the process hazard analysis. CCHS interprets"actions" to include, but not be limited to, all recommendations made for changes to physical equipment and procedures, and for additional studies and information. The stationary source must also retain documentation of communication to operating, maintenance, and other employees whose work assignments are in the process and who may be affected by the recommendations or actions. f t:. November 30, 1001 Page 18 t i i h Review Of Ultramar Golden Eagle Refinery Inherent Safety Report for-Donna Gerber,District III Supervisor APPENDIX B DEFINING INHERENTLY SAFER SYSTEMS Included in this Appendix is a discussion of the ISO's definition of Inherently Safer Systems (ISSs) and considerations for how to interpret this definition. Contra Costa County's current Industrial Safety Ordinance defines inherently safer systems in section 450-8.014(g) of the County Ordinance Code as: "Inherently Safer Systems"means Inherently Safer Design Strategies as discussed in the 1996 Center for Chemical Process Safety Publication `Inherently Safer Chemical Processes"and means Feasible alternative equipment,processes, materials, lay-outs, and procedures meant to eliminate, minimize, or reduce the risk of a Major Chemical Accident or Release by modifying a process rather than adding external layers of protection. Examples include, but are not limited to, substitution of materials with lower vapor pressure, lower flammability, or lower toxicity; isolation of hazardous processes; and use of processes which operate at lower temperatures and/or pressures. " It should be noted that systems that do not address Major Chemical Accidents or Releases would not qualify for Inherently Safer Systems per this ISO definition. The ISO states: "Major Chemical Accident or Release"means an incident that meets the definition of a Level 3 or Level 2 Incident in the Community Warning System incident level classification system defined in the September 27, 1997 Contra Costa County guideline for the Community Warning System as determined by the Department; or results in the release including, but not limited to, air, water, or soil of a Regulated Substance and meets one or more of the following criteria: (1) results in one or more fatalities; (2) results in greater than 24 hours of hospital treatment of three or more persons; (3) causes on andlor off-site property damage (including clean-up and restoration activities) initially estimated at$500,000 or more. On-site estimates shall be performed by the Stationary Source. Off-site estimates shall be performed by appropriate agencies and compiled by the Department.; (4) results in a flammable vapor cloud of more than 5000 pounds. The narrowest interpretation that could be argued from the wording of the ISO definition would be that an ISS reduces the underlying hazard that must be contained and controlled for a Major Chemical Accident or Release to be avoided. • A hazard is a physical or chemical characteristic that has the potential for causing harm to people, the environment, or property. The key to this definition is that the hazard is intrinsic to the material, or to its conditions of storage or use. (Reference 1,p. 7) November 30, 2001 Page 19 i:. r i. F Reti is n of Ultramar Golden Eagle Refinery Inherent Safety Report for-Donna Gerber,District III Supervisor The up-front definition of inherent safety in the CCPS book referenced in the ISO • (Reference 1,p. 7)is: "A chemical manufacturing process is inherently safer if it reduces or eliminates the hazards associated with materials and operations used in the process, and this reduction or elimination is permanent and inseparable." Many other examples could be given from the literature on inherent safety that indicate the • essence of inherent safety is hazard reduction. For example, the following quote is from Trevor Kletz, one of the earliest proponents of inherently safer systems: "The essence of the herently safer approach to plant design is the avoidance of hazards rather than their control by added-on protective equipment."(Reference 2) In a more recent article,he states, whenever possible, economically and practically, we should adopt inherently safer(IS) designs, those that avoid hazards instead of controlling them,particularly by removing or reducing the amount of hazardous material in the plant or the number of hazardous operations. The words `inherently safer' imply that the plant or operation is safer because of its very nature, and not because equipment has been added on to make it safer."(Reference 3) d Two of the three examples of ISSs in the ISO(substitution of materials with lower vapor pressure, lower flammability,or lower toxicity; use of processes which operate at lower temperatures and/or pressures) would fall into this narrow definition. • Likewise, three of the five approaches to inherently safer systems (Intensification, " Substitution, and Attenuation)that are listed in CCHS' original Guidance Document aflect this narrow definition. . (Appendix A) re The broadest interpretation that could be argued form the wording of the ISO definition would be *' f a Major Chemical Accident or Release by reducing the that an ISS reduces the risk o :{ � underlying hazard that must be contained and controlled or by improving layer(5) of Fr P that is permanent and inseparable and not easily weakened or removed protection in a way P y from the system. Note that this interpretation explicitly addresses risk reduction. $:fl • The CCPS book referenced in the ISO allows for.a broad interpretation of Inherently Safer 7' Systems. It states that"...for purposes of this text, any improvement in a layer of protection which is permanent and inseparable, and not easily weakened or removed from the system, is considered to be a process safety improvement in an inherently safer direction."(Reference 1, P. 11) • The CCPS book also discusses inherently safer systems in the context of human factors. It states that "Features that help the operators and maintainers run the plant in a safer way are .;..::� inherently safer if they are incorporated into a SYSTEM." Also, "a technique becomes ::;_. : :;.•: inherently safer if it is systematically designed into the process, equipment, and people systems in a unit, plant, or company." (Reference 1,p. 99) `:`'The ISO definition of ISSs as Feasible alternative equipment,processes, materials, lay-outs, and procedures meant to eliminate,minimize,or reduce the risk of a Major Chemical Accident or Release by modifying a process rather than adding external layers of protection Y • ;;:.<, �yr allows for a broader definition, in that, for example, a modified lay-out or procedure meant to a7 ti Page 20ov 6nber 30, 2001 Review Of Ultramar Golden Eagle Refinery Inherent Safety Report for-Donna Gerber,District III Supervisor reduce the risk of a Major Chemical Accident or Release would apparently fall within this definition, even though modifying the lay-out or procedure would not necessarily reduce the underlying hazard that must be contained and controlled. • To date, CCHS' Guidance Document for implementing the ISO at ISO-covered facilities has included a broad interpretation of inherently safer systems. Two of the five approaches to inherently safer systems(Limitation of Effects and Simplification/Error Tolerance) that are listed in CCHS' original Guidance Document(Appendix A) reflect a broader definition than hazard reduction. Depending on the intent of what is desired to be accomplished by the ISO, it may be desirable to attempt to define Inherently Safer Systems more precisely, somewhere between these two extremes. Interpreting ISSs too narrowly may not capture some of the benefit of inherent safety thinking in a broader sense. Isolation of hazardous processes, for example, would not be considered as an inherently safer option in the narrow sense of reducing the underlying hazard, but is given as an example of an ISS in the ISO definition. On the other hand, interpreting ISSs so broadly as to mean anything intended to permanently and inseparably reduce the risk of a Major Chemical Accident or Release has the potential for not being discernable from risk reduction in general. A couple of possibilities that could be considered are: • Focus only on the"strategic"categories of Inherent(interpreted in the first, narrow sense discussed above)and Passive(i.e.,not requiring the active functioning of any device and not requiring any human intervention) risk reduction strategies (Reference 1, pp. 12-15). Examples of passive risk reduction measures include physical separation,permanent barriers or secondary containment, and design for containment of maximum pressures generated under abnormal conditions. Most of the items in CCPS' sample Inherently Safer Process Checklist(Reference 1 Appendix) fall into the Inherent and Passive strategic categories. • Focus specifically on the inherent safety design strategies of Minimize, Substitute, Moderate, and Simplib,(Reference 1,p 22). This could probably best be done by example rather than definition. CCPS' sample Inherently Safer Process Checklist(Reference 1 Appendix) is structured using these categories, although it includes an additional category of Location/ Siting/Transportation. These strategies are included in CCHS' current ISO Guidance document. November 30, 2001 Page 21 i' Review Of Ultramar Golden Eagle Refinery Inherent Safety Report for-Donna Gerber, District III Supervisor APPENDIX C 2/9/2001 ISS REQUEST TO ISO FACILITIES FROM CCHS Included in this Appendix is the wording of the letter of request for inherently safer systems submittals that was sent from Contra Costa County's Health Services Department to each ISO- covered facility. February 9, 2001 [Click here.and type recipient's address] Dear Sir or Madam: SUBJECT: INHERENTLY SAFER SYSTEMS The regulated stationary sources that are covered by the County's Industrial Safety Ordinance are to consider inherently safer systems as specified in section 450-8.016(D)(3) of the County Ordinance Codes as amended by Ordinance No. 2000-20 and which states the following: "For all Covered Processes, the Stationary Source shall consider the use of Inherently Safety Systems in the development and analysis ofmitigation items resultingfrom a process hazard analysis and in the design and review of new processes and facilities. The Stationary Source shall select and implement Inherently Safer Systems to the greatest extent Feasible. If a Stationary Source concludes that an Inherently Safer System is not Feasible, the basis for this conclusion shall be documented in meaningful detail. This documentation shall include (1) sufficient evidence to demonstrate to the County's Satisfaction that implementing this inherently safer system is impractical, and (2) the reasons for this conclusion. A claim of"financial infeasibility"shall not be based solely on evidence of reduced profits or increased consists, but rather shall include evidence that the financial impacts would be sufficiently severe to render the inherently safer system as impractical. " The ordinance.defines inherently safer systems in section 450-8.014(g) of the County Ordinance Code as: "Inherently Safer Systems"means Inherently Safer Design Strategies as discussed in the 1996 Center for Chemical Process Safety Publication "Inherently Safer Chemical Processes"and means Feasible alternative equipment,processes, materials, lay-outs, and r procedures meant to eliminate, minimize, or reduce the risk of a Major Chemical Accident or Release by modifying a process rather than adding external layers of protection. Examples include, but are not limited to, substitution of materials with lower vapor pressure, lower flammability, or lower toxicity; isolation of hazardous processes; and use of processes which operate at lower temperatures and/or pressures. " 4. f November 30, 2001 Page 22 r k' s 6 F _T- Review Of U/tramar Golden Eagle Refinery Inherent Safety Report for-Donna Gerber,District III Supervisor Contra Costa Health Services is requesting a list with brief description of the Inherently Safety Systems considered in the development and analysis of mitigation items resulting from a new or revalidated process hazard analysis and in the design and review of new processes and facilities to be submitted to Contra Costa Health Services. This request is for all process hazard analyses that were not complete before January 15, 1999 and for all new processes and r facilities where the design phase was not started before January 15, 1999. The brief r description of the inherently safer practices that were implemented can be done by 4 categorizing for each process hazard analysis the number of inherently safer practices that have been implemented under any of the following: pInstrumentation and Electrical • Piping Systems • Pressure Safety Valves • Human Factors Facility Siting • operational • Fire Protection-Health and Safety • Environmental • Documentation Contra Costa Health Services is requesting a full description of all inherently safer practices that were considered and are not going to be implemented and the justification for why the inherently safer practice is not going to be implemented. We would like to have this request to be submitted to Randy Sawyer by March 9, 2001 at the following address: 4333 Pacheco Blvd., Martinez, CA 94553. ' Please call Randy Sawyer at(925) 646-2879 or myself at(925)646-2286 if you have any y questions. Sincerely, ;s w VL xl Lewis G. Pascalli, Jr. Hazardous Materials Programs Director cc: Accidental Release Prevention Team mow{ M1 }°'•s�' '' November 30, 2001 Page 23 1 o:, Review Of Ultramar Golden Eagle Refinery Inherent Safety Report for-Donna Gerber,District III Supervisor APPENDIX D LISTINGS OF ISS CATEGORIES Included in this Appendix are three listings of Inherently Safer Systems categories in use or proposed in 2001 by Contra Costa Health Services and/or ISO-covered facilities. The first listing in Table D-1 is the same as Table 1 in Section 3.2 of this report. TABLE D-1 INHERENTLY SAFER SYSTEMS REPORT CATEGORY DEFINITIONS USED IN ULTRAMAR'S 2/15/01 ISS SUBMITTAL CATEGORY DEFINITION Instrumentation and Electrical Instrument or electrical modifications Piping Systems & Equipment Evaluations/Modifications to equipment, specifications, inspection programs/records, replacements, etc. Pressure Safety Valves Installation of new relief valves, modifications to existing relief valves, service, maintenance, etc. Human Factors Evaluations/modifications to improve personnel and equipment interface Facility Siting Evaluations/modifications to equipment locations with respect to processes and their surroundings Operational Evaluations/modifications to improve operability (e.g., procedures, locking open valves, etc.) Fire Protection/Health and Safety Evaluations/modifications to emergency/health and safety equipment and procedures Environmental Evaluations/modifications to address environmental regulatory requirements Documentation Evaluations/modifications to process safety information li r: i; l P 4' November 30, 2001 Page 24 r: y i a Review Of Ultramar Golden Eagle Refinery Inherent Safety Report for-Donna Gerber,District III Supervisor TABLE D-2 MODIFIED WORDING TO ISS REPORT CATEGORY DEFINITIONS PROPOSED IN 5101 BY ISO-COVERED FACILITIES CATEGORY EXPANDED DESCRIPTIONS Instrumentation Instrument or electrical modifications. Some examples include improvement or installation of: and Electrical new reliability testing systems,alarms,indicators and controllers,new or modified automatic shutdown devices and conduct of electrical surveys and system changes Piping Systems Evaluations/modifications to equipment,specifications,inspection programs/records, and Equipment replacements,etc. Some examples include improvement or installation of pump seal upgrades,tube bundle upgrades,pressure vessel pressure or temperature design upgrades, upgrades to material classification for piping and equipment,removal of out-of-service equipment,and improvement to maintenance practices. Pressure Safety Relief systems. Some examples include: installation of new relief valves,modifications to Valves existing relief valves,changes to service and maintenance intervals,and routing relief valves to safe locations. Human Factors Evaluations/modifications to improve personnel and equipment interface. Some examples include improvements to:communications,labeling,walkways, lighting,location(or relocation) of valves and/or valve operators for better accessibility, and alarm management and prioritization in the control room. Facility Siting Evaluationslmodifications to equipment locations with respect to processes and their surroundings. Some examples include: conduct of facility siting studies,installation of barricades,ventilation improvements, improvements to containment,and improvements[to] walkways and lighting. Operational Evaluations/modifications to improve operability. Some examples include: improvements to procedures and training, upgrades to equipment lists,establishment of safe operating limits, and improvements to checklists for operators. Fire Protection/ Evaluations/modifications to emergency/health and safety equipment and procedures. Some Health and examples include:installation of detectors,installation and improvement of fire monitors, Safety issuance of personal monitors, installation of eye washes and safety showers,changing to a less hazardous chemical,development of emergency response procedures and improvements to the fireproofing of equipment. Environmental Evaluations/modifications to address environmental regulatory requirements. Some examples include: installation of NOx reduction facilities, installa tion of new or modified abatement devices,changing to a less hazardous chemical,and installation of new or modified environmental compliance monitoring devices. Documentation Evaluations/modifications to process safety information. Some examples include: evaluation k and verification of adequate equipment design,updates to Process Flow Diagrams(PFDs) and Piping and Instrument Diagrams(P&IDs), updating equipment records and updating Material Safety Data Sheets(MSDSs). i' November 30, 2001 Page 25 t Review Of Ultramar Golden Eagle Refinery Inherent Safety Report for-Donna Gerber, District III Supervisor TABLE D-3 REVISED INHERENTLY SAFER SYSTEMS CATEGORIES AND DEFINITIONS PROPOSED FOR INCLUSION IN CCHS REVISED ISO GUIDANCE DOCUMENT CATEGORY DEFINITION Instrumentation Instrumentation or electrical improvements*. Examples include improvement or installation of and Electrical new reliability testing systems,alarms,indicators,controllers,and automatic shutdown devices,and completing electrical system changeslupgrades. Piping Systems Improvements to equipment,specifications,inspection programs/records,replacements,etc. and Equipment Examples include improvement or installation of:pump seal upgrades,tube bundle upgrades, pressure vessel pressure or temperature design upgrades,upgrades to material classification for piping and equipment,and improvements to maintenance practices. Pressure Safety Relief systems. Examples include: installation of new relief valves,improvements to existing Valves relief valves,changes to service and maintenance intervals,routing relief valve discharge piping to safer locations,etc. Human Factors Improvements to personnel and equipment interface and/or personnel to personnel interface. Examples include improvements to communications,labeling,walkways,lighting,location(or relocation)of valves and/or valve operators for better accessibility, improvements to checklists for operators,and alarm management and prioritization in the control room(s). Facility Siting Improvements to equipment locations with respect to processes and their surroundings. Examples include installation of barricades,ventilation improvements, improvements to containment, and improvements to walkways and lighting. Operational Improvements to operability. Examples include improvements to procedures and training,and upgrades to equipment lists. Fire Protection/ Improvements to emergency/health and safety equipment and procedures. Examples include Health and installation of detectors,installation and improvement of fire monitors, issuance of personal Safety monitors,installation of eye washes and safety showers,changing to a less hazardous i. chemical,development of emergency response procedures and improvements to the fireproofing of equipment. Hazardous Changing to a less hazardous chemical,reducing inventory,or moderating process Materials and conditions. Substances Structural Improving the capacity of a building or structure to survive seismic events. System Performing evaluations that result in updating process safety information such as piping and Y Verification instrument diagrams, process flow diagrams,material safety data sheets,equipment data sheets, pump curves,etc; and performing evaluations to verify adequate equipment design, I as long as there is a perceived risk reduction that results from the evaluation. *Improvements defined as modifications or useful additions that result in risk reduction F t. F: Ei 4 t•: F' November 30,2001 Page 26 k G y Review Of Ultramar Golden Eagle Refinery Inherent Safety Report for-Donna Gerber,District III Supervisor REFERENCES All literature cited in this report is listed here. References are cited in the report by reference number. 1. Center for Chemical Process Safety,Inherently Safer Chemical Processes:A Life Cycle Approach. New York: American Institute of Chemical Engineers, 1996. 2. T. A. Kletz, Plant Design for Safety:A User-Friendly Approach. New York: Hemisphere, 1990. Originally published in 1984 as Cheaper, Safer Plants(Rugby,UK: Institution of Chemical Engineers). 3. T. A. Kletz, "Inherently Safer Design: Achievements and Prospects," in Center for Chemical Process Safety,International Conference and Workshop on Process Safety Management and Inherently Safer Processes. New York: American Institute of Chemical Engineers, 1996. i i i L I f November 30, 2001 Page 27 P. f f. k R ADDENDUM DA-B December 4, 2001 On this date, the Board of Supervisors considered the Internal Operations Committee report on proposed amendments to the Industrial Safety Ordinance and alternative amendments as proposed by the Hazardous Materials Division of Health Services Department. Following discussion and public comment (speaker list attached) on the matter, the Board took the following actions: 1. REFERRED items for review to the Hazardous Materials Commission and the Public and Environmental Health Advisory Board,as outlined in Board Order DA-A(attached),the referred items be considered by the Hazardous Materials Commission in the context of their comprehensive review of the Industrial Safety Ordinance; 3 DIRECTED staff to perform an analysis of California Environmental Quality Act(CEQA) issues related to the proposed amendments; 4. EXPRESSED a desire for the Safety Summit to be involved in the review; 5. and DIRECTED that an update on the referrals and CEQA analyses be reported to the Board in 90 days,the complete report and recommendations to be prepared for Board consideration in 180 days. (AYES: I, IV, V, and II; NOES: 11I; ABSENT: None; ABSTAIN: None) Loudty Administrator Contra Costa County Administration Building County Attachment "A" 651 Pine street, 11'' Floor E,.{- :-L, Martinez, California 94553-4068 V-925-335-1080 ' ,t _ '• Z-District F-925-335-1098 DONNAGER13ER b 3rd District John Sweeten ti County Administrator sra colu MARK DESAULNIER 4d'District FEDERAL D.GLOVER 5d'District July 23, 2001 The Contra Costa County Board of Supervisors is considering amending its Industrial Safety Ordinance to give discretion to the County's Health Services Department to determine whether an Inherently Safer System or a process hazard analysis recommended action must be implemented. Transmitted herewith is the proposed amendment for review by your agency. The Board of Supervisors would like to receive any comments you may have regarding the proposed amendments to the Industrial Safety Ordinance prior to the Board's consideration of the changes. The Board has asked its Internal Operations Committee to receive your comments. Please submit any comments you may have regarding the proposed amendments by Friday, August 31, 2001. to: Internal Operations Committee Contra Costa County Board of Supervisors Attn: Julie Enea, Staff 651 Pine Street, I Vh floor Martinez, CA 94553 Please direct any questions you may have to Lewis Pascalli, Contra Costa County Hazardous Materials Program Director at (925) 646-2286. T0: BOARD OF SUPERVISORS Contra FROM: Donna Gerber Costa a DATE: June 12, 20014° County SUBJECT: Consider Recommendations Regarding ardin the Industrial.Safety Ordinance and Inherently Safer Systems SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION RECOMMENDATIONS: 1. DIRECT staff to review the attached draft language from County Counsel (Attachment A) amending the Industrial,Safety Ordinance to give the Health Services Department discretion to determine whether an Inherently. Safer System or a process hazard analysis recommended action must be implemented. 2. SOLICIT from the County Administrator's Office, Health Services Department, Community Development Department and County Counsel's Office a comprehensive and integrated report on what those departments would need if the Board amends the Industrial Safety Ordinance to allow them to exercise discretion to require inherently safer systemsfactions. This report should include fiscal ramifications, if any. 3. REFER the draft amendment language to the Hazardous Materials Commission and the Public and Environmental Health Advisory Board for comments. Include with the referral a copy of State Attorney General Bill Lockyer's published opinion citing the County's police power authority to require inherently safer systems in order to protect the public health or safety without greater risk of liability under the Tort Claims Act. The same materials should be referred to industry representatives for their review. 4. REPORT to the Board of Supervisors during the month of September 2001 the comments of the Hazardous Materials Commission and the Public and Environmental Health Advisory Board, and the Staff Report cited in #2 above. (This date can be modified if staff advises.) At that time, County staff will also advise the Board of Supervisors what steps would be required to comply with CEQA and Health and Safety Code section 25534.06 in order to modify the Industrial Safety Ordinance with this amendment. 5. REQUEST, in the interest of promoting greater public participation, that the Board of Supervisors meeting at which this report will be presented and considered be scheduled to commence at 1:00 P.M. and this item b7111Trd at M. CONTINUED ON ATTACHMENT: x YES SIGNATURE: �,1LX RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMME DATION OF BOAR MMITTEE APPROVE OTHER SIGNATURE(S): ACTION OF BOARD ON JUne 12, 2001 APPROVE AS RECOMMENDED XX OTHER XX SEE ADDENUM FOR BOARD ACTION AND VOTE VOTE OF SUPE SOR$ I HEREBY CERTIFY THAT THIS IS A TRUE AND CORRECT CO OF AN ACTION TAKEN UNANIMOUS(A NT AND ENTERED ON THE MINUTES OF THE BOARD OF SUPER ORS ON THE DATE AYES: NOES: SHOWN. ABSENT: ABSTAIN: ATTESTED SWEETEN,CLERK O THE BOARD OF PERVISORS AND COUNTY ADMINISTRATOR x: CAO •- Supervisor Gerber 1 ADDENDUM D.2 June 12, 2001 On this date,the Board of Supervisors considered recommendations regarding the Industrial Safety Ordinance and Inherently Safer Systems. The Board discussed the matter. Supervisor Uilkema invited comment from the public. The following persons presented testimony: Denny Larson, Communities for a Better Environment,1611 Telegraph, Oakland; Margarita Flores, Communities for a Better Environment, Ballo Vista, Rodeo; Ethyl Dotson, Communities for a Better Environment, Richmond; Karen Susag, Communities for a Better Environment, Oakland; Lucia Flores,KAEP, Communities for a Better Environment, Rodeo; Wendy Banega, ,KAEP/Communities for a Better Environment, 1244 Tullibee Court, Rodeo; Beleu McQuistant, Communities for a Better Environment, 111 Dempsey Way 714, Rodeo; Cary Dyer, Industrial Association, 3377 Deer Valley Road, Antioch; Greg Feere, Contra Costa Building Trades Council, 935 Alhambra Ave, Martinez; Jim Payne, PACE,P.O. Box 349, Martinez; Tina Rosentino, Communities for a Better Environment, 1611 Telegraph Ave, Oakland. The following persons did not wish to speak,choosing to leave written comments or letters: Elizabeth Edelmann,(read by speaker Wendy Banega); Ralph J. Sattler, Communities for a Safe Environment, 1204 Ulfinian Way, Martinez; Maria Brown, 318 California Street, Rodeo; Concepcion Castaneda; Maria Alegria, Pinole City Council, Contra Costa County Mayor's Representative to the Hazardous Materials Commission, 2131 Pear Street, Pinole; Thomas Zimmerman,Public and Environmental Health Advisory Board, Contra Costa Health Services, 597 Center Avenue, Ste 200, Martinez. Following further discussion,the Board took the following actions: 1. DIRECTED staff to review draft language from County Counsel to amend the Industrial Safety Ordinance; 2. SOLICITED a comprehensive and integrated report from the County Administrator's Office, Health Services Department, Community Development Department and County Counsel regarding departmental needs should the Industrial Safety Ordinance be amended to allow departmental discretion in the Inherently Safer System actions; 3• REFERRED the draft amendment language and to the Hazardous Materials Commission, Public Environmental Health Advisory Board, PACE (Paper, Allied-Industrial, Chemical & Energy Workers International Union) Health and Safety Committee and the Internal Operations Committee for comments and DIRECTED that the Internal Operations Committee also analyze the relevant CEQA (California Environmental Quality Act) issues, these comments and report for Board consideration in October 2001; 4. REQUESTED feedback from the State Office of Emergency Services (OES), the California Environmental Protection Agency (CALEPA), and OSHA; DIRECTED that correspondence be coordinated by the Internal Operations Committee; DIRECTED the Board of Supervisors meeting at which this matter will be considered begin at 1:00 p.m. with this matter scheduled at 6:00 p.m. to promote greater public participation; and DIRECTED County Counsel to consider the legal impact of a language amendment to the Industrial Safety Ordinance requiring a Contra Costa County approved Safety Plan to operate; (AYES: I,III,IV,V and II;NOES: None;ABSENT:None;ABSTAIN: None); 5. ADDITIONALLY DIRECTED County Counsel to obtain a peer review regarding liability under the Tort Claims Act. (AYES: I,IV,V and II;NOES: III;ABSENT:None;ABSTAIN: None) BACKGROUND: When the Good Neighbor Safety Ordinance was replaced by the Industrial Safety Ordinance, several amendments were proposed which were not agreeable to a majority of the Board at that time. One of the amendments sought was to require inherently safer systems/actions so that County staff would have discretion and authority in reviewing industry practices. As part of this proposed amendment, industry would have access to an appeal process. In March 2000, the Board again considered amendments to the Industrial Safety Ordinance as a result of a stipulated Judgment with Communities for a Better Environment. Again, the issue of inherently safer systems authority was revisited. In the staff report, the reason cited for not recommending the Inherently Safer Systems amendment was as follows: "The staffs primary objection to this option centers on anticipated Increased exposure to liability for the County should it order changes In facility operations that are (1) not derived from the County's review of a Safety Program and (2) not supported by the Stationary Source. Staff concludes, that the County would not enjoy immunity from liability for these actions, since these actions would not derive from a state mandated program. Staff further concludes, that the liability exposure created would be excessive, placing at risk other County programs designed to protect public health and safety." Given the staffs concerns, I recommended, and the Board agreed, that County Counsel would prepare a letter requesting an opinion from'the State Attorney General in order to explore the reasons Staff had listed. Two questions were asked of the Attorney General's office. 1. "May a general law county exercise its police power authority to require an industrial facility, not seeking any entitlement from the county, to use an inherently safer system or take a specific action, such as the use of particular equipment, manufacturing or refining processes, or management procedures, in order to protect the public health and safety?" 2. "If so, would a county subject itself to a greater risk of liability under the Tort Claims Act by having its officers exercise their discretion in requiring an industrial facility to use an inherently safer system or take a specific action?" The Attorney General's Opinion and answers to the above .questions is attached. (Attachment B) The opinion by the State Attorney General clarifies that the County has the authority to require inherently safer systems/actions and will not take on added liability risk in doing so. Given this information,the Staffs stated objection has been resolved. Therefore, there is no objective barrier to amending the Industrial Safety Ordinance to provide the added safety protection of an Inherently Safer Systems requirement. It is appropriate to ask the County's Hazardous Materials Commission and the Public and Environmental Health Advisory Board to comment on the proposed amendment and advise the Board of Supervisors prior to the Board's consideration of the changes to the Industrial Safety Ordinance. AN EXAMPLE WHERE INHERENTLY SAFER MECHANISMS WOULD HAVE PREVENTED AN EXPLOSION AND FATALITY In 1997, at Tosco Avon, the hydrocracker exploded and killed one worker. As a result of the many investigations and the root cause analysis, we now know that the company ran the unit beyond its limits. We also know that there was a mechanism available, and now in place, that interrupts or stops operators from running the unit over its capacity. With this "inherently safer mechanism" in place, the same accident cannot occur. With the amendment proposed, the Industrial Safety Ordinance will give the Health Department staff the authority to require such a mechanism. The authority and discretion to do this will empower the Health Services staff and provide the leverage necessary to give refineries an added incentive to use inherently safer systems/actions. Therefore, given • that the transition of Contra Costa refineries from locally- owned and operated companies to being merged with or acquired by multi-national companies and the attendant changes in managerial personnel, and • that serious refinery/industry accidents play havoc with supply and contribute to a widely-held public perception that gasoline prices are manipulated and that the public is without protection, and • the history of accidents and releases in this County, and • the huge inventory of hazardous materials which are clustered in the industrial belt, and • the staggering impacts of a possible worse case scenario plume of toxic releases for all areas of the county, Contra Costa County, now more than ever, needs to have stronger regulatory oversight and a greater ability to protect and promote the health and safety of its residents with an amendment to the Industrial Safety Ordinance that requires industry to use inherently safer systems and practices. P. 12 -un '06 01 01 :02P ATTACMENT A -Office of the County Counsel Contra Costa oun y 651 Pine Street, 9th Floor Phone: (925)335-1800 Martinez, CA 94553 Fax: (925)646-1078 Date: September 26, 2000 To: Donna Gerber, Supervisor, District III T��i From: Victor J. Westman, County Counsel 4 r. By: Lillian T. Fujii, Deputy County Counsel Re: PROPOSED AMENDMENT TO INDUSTRIAL SAFETY.ORDINANCE RE INHERENTLY SAFER SYSTEMS AND RECOMMENDED ACTION ITEMS Pursuant to your request, this office has prepared for your consideration and possible utilization, a draft ordinance amending the Industrial Safety Ordinance, to give the Health Services Department to determine whether an Inherently Safer System or a process hazard analysis ecommended action item must be implemented. The draft ordinance is attached, as w II as a marked draft, showing the changes proposed to the existing ordinance. . �Q,�, e.4D A draft ordinance was previously sent to the Health Services Department's Hazardous Materials Division for comment. The adoption of the attached or a similar ordinance is subject to the California Environmental Quality Act and the notice and hearing requirements of Health and Safety Code section 25534.06. If we may be of further assistance, please advise. Attach.: Marked and clean drafts of ordinance cc: Supervisors Gioia, Uilkema, DeSaulnier and Canciamilla Phil Batchelor, County Administrator William B. Walker, M.D., Director, Health Services Dept. Lewis G. Pascalli, Jr-, Director, Hazardous Materials Programs Dennis Bary, Director, Community Development Department f tUNn+lAN1�OR0192000.vrpd J 4n °06 O 1 O 1 :02p p. 13 MARKED DRAFT ORDINANCE NO.2000-_ (AMENDING ORDINANCE CODE CHAPTER 450-8, ON INDUSTRIAL SAFETY,REGARDING INHERENTLY SAFER SYSTEMS AND ACTION ITEMS IDENTIFIED IN PROCESS HAZARD ANALYSES) The Contra Costa County Board of Supervisors ordains as follows(omitting the parenthetical footnotes from the official text of the enacted or amended provisions of the County Ordinance Code): SECTION I. Subdivision(D)of section 450-8.016 of the County Ordinance Code, added by- Section II of Ordinance No. 9848, and amended by Section I of Ordinance No. 2000-20, is amended,by adding subsection(5),.to expressly authorize the Health Services Department to review and approve or disapprove a Stationary Sources's determination not to implement an Inherently Safer System or process hazard analysis recommended action item,and by making certain clarifications and correct certain typographical errors,to read: (D) Process Hazard Analysis/Action Items. (1) Process hazard analyses will be conducted for each of the Covered Processes not included in the Federal program level 3 Risk Management Program according to one of the following methods: What-If,Checklist, What- If/Checklist,Hazard and Operability Study(HAZOP),Failure Mode and Effects Analysis (FMEA),Fault Tree Analysis or an appropriate equivalent methodology approved by the Department prior to conducting the process hazard analysis. The process hazard analysis shall be appropriate to the complexity of the Covered Process and shall identify,evaluate,and control the hazards involved in the Covered Process. The process hazard analysis shall address: the hazards of the process; the identification of any previous incident which had a likely potential for catastrophic consequences;engineering and administrative controls applicable to the hazards and their interrelationships such as appropriate application of detection methodologies to provide early warning of releases. methods might include process monitoring and control instrumentation with alarms,and detection hardware such as hydrocarbon sensors-);consequences of failure of engineering and administrative controls; Covered Process and Stationary Source siting;Human Factors;and a qualitative evaluation of a range of the possible safety and health effects of failure of controls. All process hazard analyses shall be performed by a team with expertise in engineering and process operations,and the team shall include at least one employee who has experience and knowledge specific to the process being evaluated. Also,one member of the team must be knowledgeable in the specific process hazard analysis methodology being used. (2) The process hazard analyses shall be conducted within I year of the effective date of this Chapter and no later than the submittal date of the Safety Plan. Previously completed process hazard analyses that comply with die-California Code of Regulations,Title 8, Section 5189,and/or tlie-California Code of Regulations,Title 19, Section 2760.2 are acceptable for the purposes of this Chapter. Process hazard analyses shall be updated and revalidated at least once ORD. 2000- - t _ _ . dun '06 01 01 : 03p P• 1 4 MARKED DRAFT every 5 years after completion of the initial process hazard analysis. Updated and revalidated process hazard analyses completed to comply with thc-California Code of Regulations,Title 8, Section 5189, and/or the-California Code of Regulations,Title 19, Section 2760 are acceptable for meeting the update and revalidation requirement. External events, including seismic events, shall be considered for processes containing a substance defined in the-California Code of Regulations,Title 19, Chapter 4.5 1, Section 2770.5, if the distance to the nearest public receptor for a worst case release scenario specified by the California Code of Regulations,Title 19, Chapter 4.5 1, Section 2750.3 is beyond the distance to a toxic or flammable endpoint as defined in California Code of Regulations,Title 19, Chapter 4.5 1, Section 2750.2(a). (3) For all Covered Processes,the Stationary Source shall consider the use of Inherently Safer Systems in the development and analysis of mitigation items resulting from a process hazard analysis and in the design and review of new processes and facilities. The Stationary Source shall select and implement Inherently Safer Systems to the greatest extent fe`A Feasible. If a Stationary Source concludes that an Inherently Safer System is not eas Feasible;the basis for this conclusion shall be documented in meaningful detail. This documentation shall include(1) sufficient evidence to demonstrate to the County's satisfaction that implementing this inherently safer system isrigt#el`e�intpractical, and(2)the reasons for this conclusion. A claim of"financial infeasibility"shall not be based solely on evidence of reduced profits or increased costs,but rather shall include evidence that the financial impacts would be sufficiently severe to render the inherently safer system as impractical. (4) For all Covered Processes,the Stationary Source shall document the decision made to implement or not implement all process hazard analysis recommended action items and the results of recommendations for additional study. The Stationary Source shall complete recommended actions identified by the process hazard analysis and selected for implementation by the Stationary Source as follows: all actions not requiring a process shutdown shall be completed within one year after submittal of the Safety Plan;all actions requiring a process shutdown shall be completed during the first regularly scheduled turnaround of the applicable process subsequent to one year after submittal of the Safety Plan unless the Stationary Source demonstrates to the satisfaction of the Department that such a schedule is infeasible. For recommended actions not selected for implementation,the Stationary Source shall include the justification for not implementing the recommended action. For all Covered Processes, the Stationary Source shall retain documentation of closure,and any associated justifications,of actions identified by the process hazard analysis. The Stationary Source shall communicate the actions to operating, maintenance, and other employees whose work assignments are in the process and who may be affected by the recommendations or actions. Any documentation justifying a decision not to implement a process hazard analysis recommended action shall include(1)sufficient evidence to demonstrate to the County's satisfaction that implementing this action iso `:. e1 impractical,and(2)the reasons for this conclusion. A claim of"financial infeasibility"shall not be based solely on evidence of reduced profits or increased costs,but rather shall include evidence that the financial impacts would be sufficiently severe to render the improvement as impractical. ORD. 2000-_ -2 - juin 06 O1 01z04p p. 15 MARKED DRAFT e: OM - ..... all.r viev►.uric pr r t i 1 s WIA State i� ': of zrexr [o:Ym lernen n>r l ereR1-s ,.' ib a +or a .:.......m.�Y'.-.:..........- ..-.....,,....._...P �s:..�,.._..... _,. reoomme.ended: ettstem> So ce:sh uz a _t e .. en;grtatl3 ; Mg'; ` �i�"'- a tiri�t�t.t�attt�ra � `'�5r:S. stem:oz ......-._._... .,. ... . ro shaz���na`1 . s-: a rn�ehilezl;ac o :�fe�i n t-�ea�i[S� �-: �� attme t:s 7 d' a. f a::tie^t inant7 notIbe :.`ett.;ar :I".` ` ritTstd `or:2i °rocess: azarc7 ,t sign; .... ... fin.. .. .. ... .. .,i. . ...-..., . . _'�.. _ •:SSa1 fii:. :�.. __ :. ' 'Sf<: .:::: .. .. .:rte Y ':•. .-:'.??: _:. : _ . : 1 OHIOle eri an k e: arbr tib-5 1' ,pro_va o a. gpaxy.;S- c. ?P.. .II1, TeX 5aer. etnor. rocess` rdaiihl s>s': eTh vyd tt� Sfatt shallah' �cb`riastte: _ s' p`eaise WN o: ui (Ords. 2000-_§ l;2000-20 § 1; 98-48, § 2; Health& Saf. Code, § 25543.06.) SECTION II. EFFECTIVE DATE. This ordinance becomes effective 30 days after passage, and within 15 days after passage shall be published once with the names of the Supervisors voting for and against it in the Contra Costa Times, a newspaper published in this County. PASSED on , by the following vote: . AYES: NOES: ABSENT: ABSTAIN: ATTEST: Phil Batchelor,Clerk of the Board of Supervisors and County Administrator By: Deputy Board Chair [SEAL] LTF H;*AZMA'NNDORDbrd92600r.wpd ORD. 2000-_ - 3 - Jun 06 01 12: 58p P. AUC-31-00 THU 04:0.0 PM COUNTY COUNSEL F - Sept by: A77ORNEY GENERALS OFF 9163222368) _ ATTP CHtT."IT A 'f0 HE PUBLISHED IN THF OFFICIAL REPORTS OFFICE OF THE ATI'ORNEY GENERAL State of California BILL LOCKYFR Attorney General OPINION No.00-405 of August 31,2000 BILL LOCKYER Attorney General GREGORY L. GONOT Deputy Attorney General THE HONORABLE VICTOR J. WESTMAN, COUNTY COUNSEL, C=OUNTY OF CONTRA COSTA,has requested an opinion on the following questions: 1. May a general law county exercise its police power authority to require an industrial facility,not seeking any entitlement from the county,to use an inherently Safer system or take a specific action, such as the use of particular equipment,manufacturing or refining processes,or management proeedares,in order to protect public health or safety? 2. If 9o,would a county subject itself to a greater risk of liability under the 'fort Claims Act by having its officers exercise their discretion in requiring an industrial facility to use an inherently safer system or take a specific action? t 00-405 •Jun 06 01 12: 59p p. 3 AUG-31-00 THU 04:01 PM COUNTY COUNSEL FAX N0. 9256461078 P. 04/13 Sent by. KrfORNEY (IENSALS OFF 0163222368; otmil1VV le:crrini,�x - CONCLUSIONS 1. A general law county may exercise its police power authority to require an industrial facility, not seeking any entitlement from the county, to use an inherently safer system or take a specific action,such as the use of particular equipment, manufacturing or refining processes,or management procedures, in order to protect public health or safcty. 2. A county would not subject itself to a greater risk of liability under the Tort Claims Act by having its officers exercise their discretion in requiring an industrial facility to use an inhurently safer system or take a specific action. ANALYSIS We are informed that A general law county has adopted an industrial safety ordinance ("ISO") which is primarily applicable to parolcum refineries and chetnicnl manufacturing facilities located within the county, Tho purpose of the ISO is to prevent accidental releases of hazardous materials into the environment. To provide an added . measure of safety,it has been proposed that the ISO be amended to require the refineries and facilities to make changes in their operations that are determined to be"inherently safer"by county officers based upon studies of similar facilities located throughout the country. The two questions presented for anulysis concern whether the proposed ISO amendment would be valid, end if so, would county officers, in exercising their authority under the amendment, have a greater risk of liability for injuries caused by subsequent: accidental releases of hazardous materials. We conclude generally that the eLmendment would he valid and that the county officers would not be subject to a greater risk of liability for exercising their authority under the amended ISO. 1. Noposod Ordinance Amendment The general authority of counties and cities to adopt local ordinances is set forth in article Xl,section 7 of the Constitution: "A county or city may make and enforce within its limits all local, policz, sanitary, and other ordinances and regulations not in conflict with gentmi laws," z 00-405 e%1 I1^_Z4_7f.nn 4L.-7c Q!7CC Ac 4lano •---''o�JJ_ .. ._-' Lra A._... . .dun 06 01 12: 59p p. 4 AUG-31-00 THU 04:01 PH COUNTY COUNSEL FAX NO. 9256461078 P. 05/13 Sent by' ATTORNEY OENERAL3 OFF 9163222368; voJalrvv This constitutional authority,often referred to as the "police power,"is subject to the two limitations mentioned--that the power be exercised within territorial limits and be subordinate to state law. Apart from these limitations,a county's or city's police power is as broad as the police power exercisable by the Legislature itself. (Candid Enterprises, inc. v. Gr•otsmont Union High School Dist. (1985) 39 CAM 878, 895; Airkenfeld v. Cih, of Berkeley (1976) 17 Ca1.3d 129, 140; 77 0ps.Cal.Atty.Gen. 137, .138 (1994); 73 Ops.CalAtty.Gcn. 28,29-30(1990); 73 Ops.Cal.Atty.Gen. 13-14(1990).) Of course,the exercise of the police power by the Legislature or by cities and counties is also subject to any other limitations imposed by the state or federal Constitutions. Among these limitatioms is the gdneral requirement that legislation be rationally related to a legititnate govmmental concern. (Metromedia, Inc. v. City of San Diego(1991)453 U.S. 490,515; Schad v. Mt.Ephraim(1981)452 V.S.61,65.) Ordinances that arc not in conflict with general laws will be upheld against constitutional challenge if they are reasonably related to promoting the health,safety,or welfwe of the public and if the means adopted to accomplish such goals arc reasonably appropriate to the purpose. (Sec.Tunset Amusement Co. v. Soard of Police Commissioners (1972) 7 Cal.3d 64, 72; Suter v. City of Lafayette (1997) 57 Cal.AppAth 1109, 1129.) In Consolidated Rock Products Co. v. Ciry oj'Lo.s Angeles(1962) 57 Cal.2d 515, 522,the Supreme Court observed: `'. . . (T)he determination of the necessity and form of such regulations, as is ttlic with all exercises of the police power,is primarily a legislative and nota judicial function,and is to be tested in the courts not by what the judges individually or collectively may think of the wisdom or necessity of a particular regulation, but solely by the answer to the question is there any reasonable basis in fact to support the legislative determination of the regulation's wisdom and necessity? Thus in Miller v.Hoare!of Public Works- ()925) 195 orks()925) 195 Ctrl,477),this court said in 195 CAL*page 490: 'The courts may differ with the legislature its to the wisdom and propriety of a particular enactment as a means of accomplishing a particular end,but as long as there am considerations of public health,safety, morals, or general welfare which the legislative body may have had in mind,which have justified the regulation, it must be 49eumed by the court that the legislative body had those considerations in mind and that those considerations did justify the regulation. . . . [W)hen the necessity or propriety of An enactment [is] a question upon which reasonable minds might differ, the propriety and necessity of such enactment(is] a matter of legislative determination."' 3 00.405 HUG-31-2601 I A:-3F, o•tZr-A c 4 nnn Jun 06 01 12: 59p P. 5 AUG-31-00 THU 04:02 PCI COUNTY COUNSEL FAX N0. 9256461078 P. 06/13 Sint by: ATTORNEY GENERALS OFF 9163222368; ua1�i��� ,t..,v, u,,�r� „__, . in detennining the rcasonableness of an ordinance,the courts will consider the degroc to which the regulated bu6iness is harmod by the regulation. In Anronello Y. City of Sun Diego(1971) 16 Cal.App.3d 161, 165-166,the court explained: ")t is fundamental a lawful business may not be destroyed under the guise,of regulation. [Citation.] On the other hand,the manner of its operation may be subject to regulation reasonably necessary to promote the public health, safety, and general welfare,oven though burdensome. [Citations.)" Accordingly, an ordinance will be upheld unless it results in undue oppression or a confiscation ofpropetty. (Harriman v. City ofBeverl},H114(1969)275 Cel.App.918,925; 0irtis v, City of Los Angeley(1916) 172 Cal. 230,234.) With respect to the application of the proposcd TSO amendment, a delerminalion by county officers could result in anything from a major improvement of a facility's operations to the shut-down of the facility depending upon the cireumstsnccs. We are,not given any facts to determine whether application of the proposed amendment could withstand judicial scrutiny if challenged in a particular situation. However,it is clear that the County may, within the scope of its police power authority, enact an ordinance which requires the operator of an industrial facility to implcmcat eeitain technical or procedural changes in ordcr to promote greater public safety. This,of course,would be contingent upon The ordinance not being in conflict with general law, an issue to which we now turn our attention. In keeping with the limitations imposed upori the constitutional grant ofpolice power authority, it has been repeatedly held that where a local ordinance conflicts with general law,it is void. (Cohen v.board of Supervisors(1985) 40 Cal.3d 277,290;A & B Cattle Co. v. CIO,of Escondido(1987) 192 Cel-App-3d 1032, 1038.) 1n Sherwin-Williams Co. v. Ciry of Los Angeles(1993)4 Cal.4th 893,the court described a proscribed"conflict" as follows! A conflict exists if the local legislation`duplicates, contradicts, or cntets an area fully occupied by general law,either expressly or by legislative implication.'"' [Citations.] "Local legislation is'duplicative'ofgeneral law when itis coextensive therewith, (Citation.) 4 00405 3urt 06 01 01 : 00P P. 6 AUG-31-00 THU 04:02 PM COUNTY COUNSEL. FAX N0, 9256461078 P. 07/13 Sent by, ATTORNEY GENERALS OFF 9103222360; Ud/:ft/uu lc:durmij9M vu. , ..W- "Similarly,local legislation is 'contradictory'to general law when it is inimical thereto. (Citation.) "Finally, local legislation enters an area that is 'fully occupied' by general law when the Legislature has expressly manifested its intent to'fully occupy'the area(citations)or when it has impliedly done so. —" Vd--at pp. 897-898.) In light of these governing constitutional principles,would a county ordinance that seeks to impost stricter regulation on the handling of hazardous materials at industrial facilities conflict with state law? The answer to this question requires consideration of the state statutory scheme which the ISO was intended to supplement.' The Hazardous Materials Release Response Piaus and Inventory Act(Health tit Saf.Code,§§25500-25547,2;"Act")2 wtts enncted to protect the public health and safety and enviromnent in connection with the handling and release or threatened release of hazardous materials. (§ 25500; County of Fresno v. State OfCdl#forma(1991)53 ULU 492,465;77 Ops.Cal,Arty.Gcn.227(1994); 70 Ops.Cal.Atty.Gen. 144, 146-148(1987).) Each county is responsible for impltmenfing the Act's mquirements, except that a City may assume responsibility within its own jurisdiction, ({ 25502, subds. (a), (b).) A county, or a city that assumes responsibility, adatinistcrs the Act by designating one of its dcpartments, offices.or other agencies as the "administering agency' (§ 25502,subd.(c).) The Act requires any"business"that handles haaardous materials to establish and implement a"business plan"foran emergency response to a release or threatened release t The ISO states in part: -11iis Ordinance adds Chapter 450-9 to the County Ordinance nance Code. Chapter450-8 imposes regulations which supplement the requirements of California Health snd Safety Code Article 2(commencing with section 2553 1)of Chapter 6.95 concerning hazardous materials m"ernent by enacting measures to prevent and roducr, the probability of accidental releases ofregulated substances that have the potential to cattsu significant han» to the public healihand incicaseparticipationby industryand the public to improve accident prcven.tian. 'These mcasums include submission of a Safety Plan to the eounry,stringent requuetneuts for the contents of a Safety Plan and Safety Program,public review of the Safety Platt, authorization for the County to require changes in the Safety Plan or Sarety 1'rrCmill, and expansion of the list of regulated substances beyond those oovered by Olt Federal and State Risk Management Program regulations,and authorization for tht County to expand oudits and inspections to all units within the Stationary Source;." All tefcrtnci s hereafter to the Health and Safety Code at by suction number only. S 00-405 AUG--31-2000 16:-5? -.3un 06 01 01 : 00P P. 7 AUG-31-00 THU 04;03 PM COUNTY COUNSEL FAX NO. 9256461078 P. 08/13 Sent by: ATTORNEY GENERALS OFF 9163222368; U01411Nu of hazardous materials Q 25503.5,subd,(a))and submit the plan to the local administering agency for review (§25505). The administering agency is required to maintain records of all business plans and p.eparc an "area plan" for an emergency response to an actual or thremened release of hazardous materials. (§25503, subd. (e).) Under sections 25531.25543.3, the administering agency has a direct role in the prevention of uncontrolled releases of hazardous materials, Subdivision(a) of section 25S34 requires the administering agency to make a preliminary determination"whether there is a significant likelihood that the handler's use of an acutely hazardous material may pose an acutely hazardous materials accident risk," If the administering agency determines that thety is such risk, "it shall require the handler to prepare and to submit an RMPP (risk management and prevention program)." (§25534, subd.(a)(t).) The administering agency is required.to inspect each site every three years to determine whether the business is in compliance with the Act's provisions. (§25537.) Regulations adopted to implement sections 25531-25543,3 are known as the California Accidental Release Prevention Program Regulations(Col.Code Regs.,tit. 19,§§ 2735.1.2785.1). The county's ISO is intended to supplement these regulations by extending the scope of some programs and by requiring additional programs such as the implementation of"inherently safer"systems. The ISO as amended would go beyond the Act's approval process for the safety plans and programs of covered facilities by requiring the operators of the facilities to t,se inherently safer systems or take specific actions. As the ISO neither duplicates nor contradicts the Act, we consider first whether the Legislature has expressly manifested its intent to"fully occupy"the area of hazardous materials management by industrial facilities or has impliedly done so, With respect to the business and area plan requirements of the Act, section 25500 states: . . . . . . . . .. . . . . . . . . . . . . . . I . . . . . . . . . , . . . "The Legislature further finds and declares that this chapter dons not occupy the whole area of regulating the inventorying of hazardous materials and the preparation of hazardous materials response plans by businesses and the Legislature does not intend to preempt any local actions, ordinances, or regulations which impose additional or more stringent'requirements on businesse3 which handle hazardous materials. Thus,in enacting this chapter, 6 R0-405 HUG-31-203 16:38 mCZr-Ar-I aux, �-•, � .,... -Jun 06 01 01 : 00p p. 8 AUG-31-00 THU 04:03 PH COUNTY COUNSEL FAX NO. 9256461078 P. 09/13 Sint by: ATIORNEY GENERALS OFF 9163222368; 081311uu 1e:;j1rM;,9= "WV, 4y.. .. .. it is not the intent of the Legislature to preempt or otherwise nullify any other statute or local ordinances containing the saint or gtzatcr standards and protections." Thera can be no implied preemption of an area where state law expressly allows supplementary local legislation. (niter v, City of Lafayette, supra, 57 Cal.App.4th at p. 1121.) With respect to the Act's requirements concerning the prevention of accidental rr.leases of airborne hazardous substances,section 25531 provides: "(a) The Legislature finds and declares that a significant number of chemical manufacturing and processing facilities generate,store,treat,handle, refine, process and transport hazardous materials. The Legislature further finds and declares that,because of the nature and volume of chemicals handled at these facilities, some of those operations may represent a threat to public health and safety if chemicals arc accidently released. "(b)The Legislature recognizes that the potential for explosions,fires, or releases of toxic chemicals into the environment exists. The protection of the public from uncontrolled releases or explosions of hazardous materials is of statewide concern. "(c)There is an increasing capacity to both minimize and respond to roleases of toxic sir contaminaMs and hazardous materials once they occur, and to formulate efficient plans to evacuate citizens if thcsc discharges or releases cannot be contained. However,programs designed to prevent these accidents are the most effective way to protect the community health and safety and the environment. These programs should anticipate the circumstancos that could result in their occurrence and require the taking of necessary precautionary and preemptive actions,consistent with the nitturc of the hazardous materials handled by the facility and the surrounding Cnvironment. "(d)As required by Clean Air Act amendments enacted in 1990(P.1.. 101-549),the Environmental Protection Agency has developed a program for the prevention of accidental releases of regulated substances. In developing the program, the Environmental Protection Agency thoroughly reviewed a wide variety of chemical and hacardous substances to identify substances that 7 00-405 AUG-31-;)aaa i r,:--4.Fi ax=,,iM,CI-0 --' , Sun Q6 01 01 : 00p p, g AUG-31-00 THU 04:04 PM COUNTY COUNSEL FAX NO, 9256461078 Sera by: 1�TT MEY OCNERALS OFF 9183222368; U01011vv $4,101t m,j%Rj" 4-1 P. 10/13 might pose a risk to public health or safety or to the environment in the event of an accidental release, The Environmental Protection Agency derelopcd a program to prevent accidental releases of those substances determined to potentially pose the greatest risk of imrnediate harm to the public and the environment. The federal program provides no options fbr implementing agencies to diminish the requirements or applicability of the federal progrem, "(c) In light of this new federal program, the Legislature finds and declares lltat the goals of reducing regulated substances accident risks and elimivating duplication of regulatory programs can best be accomplished by implementing the federal tisk management program in the state,with certain amendments that are specific to the state, Therefore, it is the intent of the Legislature that the state sock and receive delegation of the federal program for prevention of accidental releases of regulated substances established pursuant to Scction 112(r)of the federal Clearn Air Act(42 U.S.C.Section 7412(x)),by implementing the federal program as promulgated by the Environmental Protection Agency, with certain amendments that arc specific to the state." Unlike section 25500, section 25531 does not specifically "open the door' to local ordinances imposing additional or more stringent requirements on businesses that handle hazardous materials. Instead, it does two things. First, it stresses the importance of pre:ve:ntive programs in the protection of communities. Second, it defers to federal legislation, the Clean Air Act amendments of 1990, and expresses the intent that the regulalM program developed by the federal Environmental Protection Agency be implemented in this state. By expressly deferring to federal legislation and adopting the federal approach to both hazardous waste management and the prevention of accidental releases of regulated substances, the Legislature has, in effect, adopted Congress's intent exprfssed in the federal legislation. Of particular significance in this regard is 42 United States Code section 7412 (r)(11): "Nothing in this subsection shall preclude,deny or limit any right of a State or political subdivision thereof to adopt or enforce any regulation, requirement,limitation or atandard(including any procedural requirement)that is more stringent than a regulation,requirement,limitation or standard in effect under this subsection or that applies to a substance not subject to this subwztion." Hence, as a political subdivision of the state,a county is not precluded by the federal Clean Air Act frorn adopting and enforcing its own regulations pertaining to hazardous materials & 00-405 AUG-31-2000 16:39 917)Ss-dr-1 n1hA -- S. un 1]G 01 01 : 01p P. 10 AUG-31-00 THU 04:04 PM COUNTY COUNSEL FAX NO. 9256461078 Sant by-. ATTORNEY OENERALS OFF 91632223tiU; uo1.►.1vv P. 11/13 that may be released into the air. Given the Legislature's deference to federal legislation and programs,no such preclusion exists under the terms of sections 25531-25543.3. The county may thus adopt ordinances providing for stricter regulation than state or federal law in the handling of hazardous matzrials at industrial facilities? In answer to the first question,therefore,we conclude that n general law county may exercise its police power authority to re9pire an industrial facility, not seeking any entitlement from the county,to use an inherently safer system or take a specific action, such as the use of particular equipment, manufacturing or refining processes, or management proccdures,in order to protect public health or safety. 2. County Liability The second question presented concerns whether the county would increase its risk of liability under the fort Claims Act(Gov.Code,§§ 810-998.3)by having its officers extivisc their discretion under the proposed amended ISO in requiring an industrial facility to use an inherently safer system or take some other prescribed action. We conclude that the county would not increase its risk of liability. For purposes df our analysis,we may assume that the ISO has been amended, county olt'iccrb have required a stationary source to make changes in its operations,and the facility has had an accidental release of hazardous materials causing injuries to members of lite public. The persons injured sic considering whether to seek damages horn the county, on the grounds that the county-mandated changes caused or worsened the accident. The Tort Claims Act governs actions at law for civil liability against public agencies and their officers and employees. (8t Ops.Cal.Atty.Gen. 331, 332 (1998).) The suatutoiy scheme specifically addresses "the substantive liabilities and immunities of(§§ 810-895.8),the procedures for initiating claims against(§§900-935.6),rind the entitlement to defense of(§§995-996.6)and indemnification for(§§825-825.6)public employees." (t3 t Ops.Cal.Any.Gen. 199, 199-200(1998),fn.omitted.) A public entity is not generally liable for an injury except as othetwise provided by statute. (Gov. Code, § 815; Caldwell v. Montoya (1995) 10 CalAth 972, 980; fverson v. Muror Unifced Srhool Disr. (1995) 32 C'al.Anp.4th 218,227.) Scction 815.2 provides: s Our dixctt9aion of the proposed amended ISO's possible conflict with gcmrai laws is Ifinited to the type of accidental releme3 oovered by sections 25531.25543.1. The effect of the proposed aintndCcl ordinance,if any,on other statewide envimn,rental programs is beyond the scupo of Ibis opinion, 9 00-405 J.0 n, 06 01 01 :01P P. 1 1 AUG-31-00 THU 04:05 PM COUNTY COUNSEL FAX N0, 9256461078 P. 12/13 'Sent by: ATTORNEY GENERALS Off 9169222368; 09/31/uu Id:jcrmijCmM vvv, ..� _. ._ "(a) A public entity is liable for injury proximately causedby an actor omission of an employee of the public entity within the scope of his employment if the actor omission would,apart from this section,have given rise to a cause of action against that employee or his personal representative. "(b)Except as otherwise provided by statute,a public.entity isnot liable for an injury resulting from an act or omission of an employee of tho public entity where the employee is immune from liability." in determining whether liability may exist in a particular case,the threshold inquiry under the Torts Claims Act is whether the defendant owes a duty of care to the plaintiff. (Williams v. Scare of California(1953)34 Cal-3d 18,22-23;RonaldS. v. County of San Diego (1993) 16 Cal.App.4th 897, 893.) "The existence of a duty 'is entirely a question of law,to be determined by reference to the body of statutes,rules,principles and precedents which make up the law. ...' (Citation.]" (Stoat Y. City of Purlerville(1983) 148 C:al.App,3d 937, 941.) Where a duty of cage is found, the-next issue to bo determined is whether thea has been a breach of that duty. A finding of negligence tests upon a detetmination that the actor has failed to perform a duty of care owned to the injured pally, (Ronald S. v. Country of San Diego,supra, 16 Cal-App-4th at p. 893.) The breach of duty may be an affirmative act that places the person in peril or increases the risk of harm. (William Y. State of California,supra,34 Cal.3d at p.24;McCorkle v. Loo Angeles(1969) 70 C:al.3d 252.) Finally,if a duty of care is established and a breach of that duty found to cause the injury,it must be decided whether there exists a statutory immunity for tho public agency and its officers and employers which precludes recovery. In Washington v. County of Ceara Costa(1995)38 Cal.App.4th 890,the court found no duty of care owed by the county under the Act's mandatory provisions to provent releases of hazardous materials. (Id.,at pp.696.900.) Moreover,even if causation and negligence were established,tho court concluded that the county and its officers and employees were immune from liability, (Ibid.) Specifically, we note that no liability could attach un the basis that the proposed amended ISO itself was faulty or ill-advised. "A public employce is not liable for an injury caused by his adoption of or failure to adopt an enactment or by his failure to enforce an enactment." (Gov. Code, § 821.) An "enactment" is defined to include ordinances. (Gov.Code,§ 810.6,) If it were alleged that the injury resulted from errors in the conception or development of specific changes which the industrial facility was required to implement,a further immunity would be provided for the county officer's exercise of discretion. Government Codo section 820,2 states: 10 00-405 AUG-31-2000 i6:40 9256461079 93% F. 12 Attachment "B" t s. CONTRA COSTA COUNTY COMMUNITY DEVELOPMENT Ur-PAKI rite i 'a' .a 651 Pine Street, N. Wing - 4th Floor srA.�o..... Martinez, CA 94553 Telephone: 335-1276 Fax: 335-1299 TO: Internal Operations Committee Supervisor John Gioia, Chair Supervisor Mark Desaulnier FROM: Dennis M. BarhA1P, Community Development Director DATE: September 17, 2001 SUBJECT: CEQA REVIEW OF PROPOSED AMENDMENTS TO THE INDUSTRIAL SAFETY ORDINANCE On June 12, 2001, the Board of Supervisors directed staff, and others to review proposed changes to the Industrial Safety ordinance which would provide discretion for the county to require inclusion of Inherently Safer Systems in the review of industry safety plans. The Board requested the Internal Operations committee to review the CEQA issues associated with consideration of these proposed amendments, and report back to the Board of Supervisors in October 2001. Following the adoption of the Industrial Safety Ordinance (Ord. 98-48) Communities for a Better Environment brought suit against the County, objecting to the use of an exemption which had been found inappropriate by the state appellate Court on or about the date of adoption of the ordinance. (A complete regulatory listing is included in Attachment A.) Subsequently, the County and the Plaintiffs entered into a stipulated judgment, the result of which was a new review of the Industrial Safety Ordinance, with broad outreach on the conduct of the initial study under CEQA, and including, among other things, consideration of provisions requiring Inherently Safer Systems by the County in the review of industrial safety plans by regulated stationary sources. Memo to Internal Operations Committee CEQA Review of Proposed Amendments to the ISO September 17, 2001 Page 2 of 5 On- August 5, 1999, the Contra Costa County Community Development Department completed an Initial Study for comment by the interested parties. On September 28, 1999, A Notice of Intent to Adopt a Negative Declaration was published and posted with the County Clerk, and otherwise distributed in accordance with the CEQA guidelines and the stipulated judgment. The County Planning Commission considered the proposed Negative Declaration, and reported its recommendations to the Board of Supervisors, which on March 28, 2000 considered the Negative Declaration and adopted Ordinance 2000-20, amending ordinance 98-48, but not including discretion for the County to require inherently safer systems. The following excerpt from the CEQA Guidelines indicates that where a Negative declaration is adopted for a project, no new environmental document need be prepared unless one of the conditions contained in the section is present. iS162. Subsequent EIRs and Negative Declarations (a) When an EIR has been certified or a negative declaration adopted for a project, no subsequent EIR shall be prepared for that project unless the lead agency determines, on the basis of substantial evidence in the light of the whole record, one or more of the following: (1) Substantial changes are proposed in the project which will require major revisions of the previous EIR or negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; (2) Substantial changes occur with respect to the circumstances under which the project is undertaken which will require major revisions of the previous EIR or Negative Declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; or Memo to Internal Operations Committee CEQA Review of Proposed Amendments to the ISO September 17, 2001 Page 3 of 5 (3) New information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the previous EIR was certified as complete or the Negative Declaration was adopted, shows any of the following: (A) The project will have one or more significant effects not discussed in the previous EIR or negative declaration; (B) Significant effects previously examined will be substantially more severe than shown in the previous EIR; (C) Mitigation measures or alternatives previously found not to be feasible would in fact be feasible, and would substantially reduce one or more significant effects of the project, but the project proponents.decline to adopt the mitigation measure or alternative; or (D) Mitigation measures or alternatives which are considerably different from those analyzed in the previous EIR would substantially reduce one or more significant effects on the environment, but the project proponents decline to adopt the mitigation measure or alternative. (b) If changes to a project or its circumstances occur or new information becomes available after adoption of a negative declaration, the lead agency shall prepare a subsequent EIR if required under subsection (a). Otherwise the lead agency shall determine whether to prepare a subsequent negative declaration, an addendum, or no. further documentation. (c) Once a project has been approved, the lead agency's role in project approval is completed, unless further discretionary approval on that project is required. Information appearing after an approval does not require reopening of that approval. If after Memo to Internal Operations Committee CEQA Review of Proposed Amendments to the ISO September 17, 2001 Page 4of5 the project is approved, any of the conditions described in subsection (a) occurs, a subsequent EIR or negative declaration shall only be prepared by the public agency which grants the next discretionary approval for the project, if any. In this situation no other responsible agency shall grant an approval for the project until the subsequent EIR has been certified or subsequent negative declaration adopted. (d) A subsequent EIR or subsequent negative declaration shall be given the same notice and public review as required under Section 15087 or Section 15072. A subsequent EIR or negative declaration shall state where the previous document is available and can be reviewed. Note: Authority cited: Public Resources Code Sections 21083 and 21087; Reference: Section 21166, Public Resources Code; Bowman v. City of Petaluma (1986) 185 Cal.App.3d 1065; Benton v. Board of Supervisors(1991) 226 Cal.App.3d 1467; and FortMojave.1ndian Tribe v, California DepartmentofHealthServices etal (1995) 38 Cal.App.4th 1574. Discussion: This section implements the requirements in Section 21166 of CEQA which limit preparation of a subsequent EIR to certain situations. This section provides interpretation of the three situations in which the statute requires preparation of a subsequent EIR. These interpretations are necessary to add certainty to the process. This section also clarifies that a subsequent EIR may be prepared where a negative declaration had previously been adopted. Further, a subsequent negative declaration may be adopted where none of the situations described in subsection (a) have occurred. Subsections (b) and (c) explain which agency would have responsibility for preparing a subsequent EIR under different circumstances. A subsequent EIR must, of course, receive the same circulation and review as the previous EIR. Fund for Environmental Defense v. Orange (1988) 204 Cal. App. 3d 1538, contains a discussion of the application of §15162 and §15163. The Court in Bowman v. Petaluma (1986) 185 Cal. App. 3d 1065 Memo to Internal Operations Committee CEQA Review of Proposed Amendments,to the ISO September 17, 2001 Page 5 of 5 distinguished requirements for a subsequent EIR from the threshold required for initial EIR preparation, saying "whereas §15064 (§21151 PRC) requires an EIR if the initial project may have a significant effect on the environment, §15162 (§21166 PRC) indicates a quite different intent, namely, to restrict the powers of agencies by prohibiting them from requiring a subsequent or supplemental EIR unless "substantial changes" in the project or its circumstances will require major revisions to the EIR. §15162 (§21166 PRC) comes into play precisely because in- depth review has already occurred, the time for challenging the sufficiency of the original EIR has long since expired, and the question is whether circumstances have changed enough to justify repeating a substantial portion of the process. Please note that no suit was timely filed challenging the validity of the Negative Declaration prepared for consideration of the amendments to Ord. 98-48. Since the changes currently under consideration were included in the Initial Study, pursuant to the terms of the stipulated judgment, and none of the conditions specified for preparation of a new environmental document in Section 15162 are present, staff suggests that the Board of Supervisors rely on the previously prepared negative declaration in conjunction with the present amendment review; no further documentation is necessary. S Copies of the Initial Study, the comments received during the posted review period, the Notice of Intent to Adopt a Negative Declaration and Planning Commission staff reports are attached for consideration by the Board of Supervisors. Staff will be available at your meeting of September 17, 2001 to discuss this matter. DMB:gms dmb5\ISO-CEQA 2 IOC Attachments from the March 21, 1999 Board Order(4) c: County Administrator County Counsel Catherine Kutsuris,Community Development Department or 1 Attachment A: Initial Study and Propose Negative Declaration r Dennis M.Barry,AICP Community Contra Community Development Director Development Costa Department - County Administration Building County 651 Pine Street 4th Floor, North Wing Martinez,California 94553-0095 n ;S Phone: (510)335-1208 36 ro.,4o Ps .rr�.cb"tint'` August 5, 1999 Mr. Denny Larson Communities for a Better Environment 500 Howard Street, Suite 506 San Francisco, CA 94105 Re: Initial Study, Ordinance 98-48 Notice of Intent to Adopt a Negative Declaration Dear Mr. Larson: Attached is an August 5, 1999 revised Initial Study on Ordinance 98-48 and the four options identified in Item 7 of the Stipulated Judgment. In addition, a Notice of intent.to Adopt a 2vegative Declaration for this project is also enclosed. Consistent with the requirements of the Stipulated Judgetiient, we have revised the June 7, 1999 Initial Study and determined the nature of the environmental report by August 6, 1999. We are distributing this Notice of Intent to Interested Parties notifying thein that the revised Initial Study and the Negative Declaration are available for their review, inviting their comments by September 15, 1999. Please let me know if you have any questions on the process for making comcneuts oa this document. We took forward to your input. Sincerely, Debra R. Sanderson, Special Projects Manager cc: Dennis Barry County Counsel Nancy Kaufman Lewis Pascalli Office Hours Monday- Friday:8:00 a.m.-5:00 p.m. Office is closed the 1 st, 3rd &5th Fridays of each month L _ 1 ' Initial Study and Proposed Negative Declaration on the Adoption of County Ordinance 98-48 and on Stipulated Judgment Items 7(a), (b), and (c) Prepared by the Contra Costa County Community Development Department with assistance of the Contra Costa County Health Services Department and the City of Richmond Planning Department August 5, 1999 Initial Study,Ordinance 98-48 August 5, 1999 Page 2 Table of Contents I. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 3 II. Project Description:. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 7 A. Summary of Changes B. Chapter 450-8, the Risk Management Program C. Revisions to Chapter 84-63, Land Use Permits D. Applicability to the City of Richmond III. Major Changes and Potential Impacts . . . . . . . . . . . . . . . . . . . . . .. Page 12 A. Potential Impacts Due to Adoption of Chapter 450-8 . . . . . . . ..Page 12 1. Prevention & Emergency Response Programs 2. Human Factors Program 3. Root-Cause Analysis 4. Safety Plans and Programs 5. Increased Regulatory and Public Review 6. Summary B. Potential Impacts from Proposed Amendments to Chapter 84-63. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 16 1. Restricting Applicability to Non-agricultural Zoning Districts. 2. Expanding Land Use Permitting Requirements for Additional Types of Projects C. Options Presented in the Stipulated Judgment . . . . . . . . . . . . .Page 22 1. Option 1: Allow County to Mandate Improvements 2. Option 2: Technical Assistance Grants 3. Option 3 & 4: Lower the Hazard Score Threshold Comment on the Initial Study Checklist and Overall Conclusions N. Comments from Interested Parties . . . . . . . . . . ... . . . . . . . . . . . . . Page 30 A. Comment Period#1 (April 19 through May 20, 1999) B. Comment Period#2(June 7 through July 7, 1999) V. Summary Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 33 VI. Presentation of CEQA Checklist . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 34 VII. Notice of Intent to Prepare a Negative Declaration Attachments: A: Hazard Score Risk Scenarios, prepared by the Hazardous Materials Comm. B: "Interested Parties" Comment Letters Initial Study,Ordinance 98-48 August 5, 1999 Page 3 I. Background A. Regulatory History: Chapter 84-63 of the Contra Costa County Ordinance Code was first enacted in 1986 through adoption of Contra Costa County Ordinance 86-100. This Ordinance required certain facilities involving hazardous waste and/or hazardous materials to obtain a land use permit prior to construction of the facility or modification. Chapter 84-63 was amended, with minor changes, in 1990 and 1991. No facilities were actually required to obtain a land use permit under these provisions because the threshold for triggering the land use permit requirement was relatively high. In June 1996, the County adopted Ordinance 96-20, which amended Chapter 84-63 by introducing a risk-based system for determining which proposed projects must obtain a land use permit. In December 1996, the County adopted Ordinance 96-50 (commonly referred to as the"Good Neighbor Ordinance"), which further amended Chapter 84-63. On December 15, 1998, the County adopted Ordinance 98-48 (commonly referred to as the "Industrial Safety Ordinance"), which repealed Ordinance 96-50, amended Chapter 84-63, and added Chapter 450-8. In adopting these Ordinances, the County had determined that its actions were exempt from the California Environmental Quality Act (CEQA), relying on the Class 8 Categorical Exemption. On December 16, 1998, the State District Court of Appeal Court overturned the lower court, clearly stating that the County cannot use this exemption for adoption of amendments to Chapter 84-63. B. Stipulated Judgment: On April 8, 1999, Contra Costa County and Communities for a Better Environment(CBE) settled a lawsuit over the adoption of the Industrial Safety Ordinance (Ordinance 98-48). The settlement took the form of a"Stipulated Judgment" in which the County agreed to conduct an environmental review of this ordinance, in accordance with the California Environmental Quality Act(CEQA), with the ordinance remaining in effect pending completion of the environmental review. 1 Stipulated Judgment, Com►nunities for a Better Eauirorirttertit u. County of Corttra Costa,et al., Civil No. C99-00094. Initial Study,Ordinance 98-48 August 5, 1999 Page 4 Items 4 through 8 of this Stipulated Judgment obligate the County to do the following, as summarized: • Item 4: Prepare an initial study within 60 days of this Judgment (by June 7, 1999). ■ Item 5: Commence the appropriate environmental analysis within an additional sixty days (by August 6, 1999). ■ Item 6: Complete the environmental review process within twelve to fifteen months of the Judgment(by April 8 to July 8, 2000) ■ Item 7: Evaluate the Industrial Safety Ordinance as well as the four options described in the stipulated Judgment [Items 7(a), (b), and (c)]. ■ Item 8: Conduct the review of these specified options through an inclusive review process involving all interested parties." In addition, the County Board of Supervisors instructed the Community Development Department [the.Department] to conduct this review in cooperation with the City of Richmond and the County's Hazardous Materials Division of the Health Services Department [HSD]. C. Compliance with the Stipulated Judgement Items 4 & 7: The Stipulated Judgement (Item 4) requires the County to"prepare an initial study regarding the adoption of the ISO within sixty (60) days from entry of judgment." The County has-adopted the following plan to comply with this item: 1. The judgment was entered on April 8, 1999, making the deadline for completing the initial study June 7, 1999. 2. The initial study has focussed on changes due to the adoption of the Industrial Safety Ordinance (Ordinance 98-48), evaluating changes as if Ordinance 98-48 had not yet been adopted. The initial.study.has,also focussed on the four options identified in Item 7 of the Stipulated Judgment. (Item 7) .3. Section 15063(a)of the CEQA Guidelines specifies that the lead agency [in this case Contra Costa County] shall conduct an initial study to determine"if the project may have a significant effect on the environment." If the agency determines that there is "substantial evidence that any aspect of the project may cause a significant effect on the environment", then the Initial Study,Ordinance 98-48 August 5, 1999 Page 5 CEQA Guidelines instruct the County either to (1) prepare an environmental impact report or (2) use a previously prepared environmental impact report determined by the County to adequately analyze the project.2 4. Section 21068 of the CEQA Guidelines defines a "significant effect on the environment" as a"substantial, or potentially substantial, adverse change,in the environment." The CEQA Guideliness further obligate the Department to "prepare a negative declaration if there is no substantial evidence that the project or any of its aspects may cause a significant effect on the environment. In summary, this initial study has sought to determine if there is substantial evidence that any aspect of this project (as defined below) may cause a substantial, or potentially substantial, adverse change in the physical environment. Throughout this document"significant impact" refers only to "substantial, or potentially substantial, adverse change in the environment," consistent with the CEQA definition in Section 21068 of the CEQA Guidelines. Where beneficial impacts are likely, this initial study so indicates. However, since the requirement to prepare either an initial study or an environmental impact report is determined by substantial evidence of adverse impacts, staff has not continued to analyze an impact once it's impact is determined to be beneficial. Item 5 of the Stipulated Judgment requires the County to initiate environmental analysis by August 6, 1999. To meet this requirement, by August 6, 1999, the County has, as it considered appropriate, revised the June 7, 1999 Initial Study; however, the County has not revised its Preliminary Determination concerning the appropriate form of the environmental review. This action ensures that the appropriate form of environmental analysis would be initiated by this date, if not sooner. Item 8 of the Stipulated Judgment requires a review process that includes interested parties. To meet this requirement, the County and City created an extensive mailing list of"Interested Parties, invited their written comments at two points during the development of the Initial Study, and invited their participation in two discussion meetings. "Interested Party"comments are presented and summarized in this document and were considered in the preparation of this Initial Study. 2 CEQA Guidelines, Section 15063(b)(1). 3 CEQA Guidelines, Section 15063(b)(2). Initial Study, Ordinance 98-48 August 5, 1999 Page 6 D. Project Definition: On December 16, .1998, the State District Court of Appeal overturned the Good Neighbor Ordinance (Ordinance 96-50), the predecessor of the Industrial Safety Ordinance (Ordinance 98-48.) Ordinance 96-50 had repealed and replaced Ordinance 96-20. Since Ordinance 96-50 was overturned, or"set aside," Ordinance 96-20 becomes the predecessor of Ordinance 98-48. As a result, this initial study will evaluate a"project" comprised of(1) those changes that would occur by replacing Ordinance 96-20 with Ordinance 98-48 and(2) the four options identified in Items 7(a), (b), and (c) of the Stipulated Judgment [referred to hereafter as "Item 7 options."] E. Potential Impacts:. Consistent with the CEQA guidelines and definition summarized above, this Initial Study will focus on identifying potential significant impacts, i.e., substantial or potentially substantial adverse changes in the physical environment that may be caused by the adoption of Ordinance 98-48. The first step will be to identify changes in County procedures and requirements that would result by replacing Ordinance 96-20 with Ordinance 98-48 and by adopting any of the Item 7 options'. Next the analysis will determine whether the potential impacts would be positive or negative. If the impacts could be negative, the analysis would then determine whether there is substantial evidence that a particular aspect of the project may cause a substantial or potentially substantial adverse impact. Aspects of the.project that clearly could not cause a significant impact will not be evaluated further. F. Determination of the Appropriate Form of Environmental Analysis: If substantial evidence exists that any aspect of the project may cause a potential significant adverse impact to the environment, then staff would determine whether an EIR or a Negative Declaration should be prepared. Consistent with CEQA Guidelines, Section 15063(b)(2),,the Department must prepare a negative declaration if there is no substantial evidence that the project, or any aspect of the project, may cause a significant effect on the environment. If no EIR is required, the staff will then determine whether a negative declaration or a mitigated negative declaration should be prepared, to comply with CEQA. a Item 7(a), (b), and (c)of the Stipulated Judgment. Initial Study,Ordinance 98-48 August 5, 1999 Page 7 II. Project Description As explained above, the "project" evaluated by this Initial Study comprises (1) those changes in Contra Costa County Code that would occur by replacing Ordinance 96-20 with Ordinance 98-48 and (2) the four"Item 7" options.5 A. Summary of Changes Ordinance 98-48, the Industrial Safety Ordinance, contains two distinct parts. One part would create a new Chapter 450-8, entitled Risk Management. This chapter would require certain major industrial facilities in the County (1) to implement Safety Programs, (2) to prepare Safety Plans and to submit them for public and HSD review. This chapter would also allow the County Health Services Department to audit these Safety Programs and to evaluate major chemical accidents and releases. The other` part of Ordinance 98-48 would amend the existing Chapter 84-63, which under Ordinance 96-20 requires land use permits for certain industrial or commercial facilities. These amendments (1) would restrict application of the Ordinance to non-agricultural zoning districts and(2) would include three new categories of development projects that would be required to obtain land use permits, independent of their hazard scores. B. Chapter 450-8, the Risk Management Program Chapter 450-8 seeks to prevent and reduce the probability of accidental releases of regulated substances that have the potential to harm public health and to increase both industry and general public participation in industrial accident prevention. Chapter 450-8 would affect facilities located in unincorporated Contra Costa County that a. Have at least one industrial process covered by the federal "Program 3" regulations (as defined in Title 19 (T19) California Code of Regulations (CCR), Division 2, Chapter 4.5, the CaIAR.P program regulation), and b. Are classified as either 324 (petroleum and coal products manufacturing) or 325 (chemical manufacturing) industrial 5Ibid. Initial Study, Ordinance 98-48 August 5, 1999 Page 12 III. Major Changes and Potential Impacts A. Potential Impacts Due to Ado'option of Chapter 450-8 The adoption of Chapter 450-8 would change the regulatory framework in a manner that is likely to reduce potential risks associated with the operation of major industrial facilities. Referring to the five categories of program changes summarized in Section II.A.above, staff anticipates the following potential changes: 1. Prevention & Emergency Response Programs The expansion of the Prevention and Emergency Response Program would strengthen risk reduction activities throughout the facility. Chapter 450-8 would increase the number of processes subject.to Process Hazard Analyses (PHA). Process Hazard Analysis is a primary tool used in complex industrial facilities to predict and remedy potential weaknesses in their physical plants as well as in their management and safety systems. Chapter 450-8 would also provide the Health Services Department oversight of all prevention program elements, including Process Hazard Analyses, and would thus provide input from experts outside the company. These changes appear likely to generate either no changes in the implementation of prevention programs (when a company is implementing the programs as well as possible)or an improvement in the implementation of prevention programs (such as correction of more problems and weaknesses.) Thus,the risk of an accident would either stay the same or decrease, generating either no impact or a potentially beneficial impact on the physical . environment. Staff determines that there is no substantial evidence that this aspect of the project may cause a significant effect on the environment. 2. Human Factors Program The Human Factors Program would broaden the evaluation of potential causes of an accident, leading to a better understanding of those factors that cause "human error". The company would then be able to take action to minimize these factors, again reducing the possible severity or probability of an accident. r , � Initial Study,Ordinance 98-48 August 5, 1999 Page 17 packing plants; cold storage plants, and small foster home or day care facilities. ■ A-3 Heavy Agricultural Districts allow the A-2 permitted uses, except for single-family homes. However, residences are allowed for those owning or leasing land on which an agricultural use is located. ■ A-4 Agricultural Preserve Districts allow types of agricultural. production'similar to that allowed in an A-2 district, but related uses (such as warehouses, storage facilities, and packing plants) require a land use permit. ■ A-20 Districts allow all types of agriculture plus other agricultural uses, such as sheds, warehouses, dehydration plants, packing plants, and product storage facilities. Both A-40 and A-80 districts allow the same uses as allowed in an A-20 zoning district. In general all of these districts allow agriculture, and the A-2, A-3, A-20, A-40, and A-80 districts also allow agricultural uses (such as warehouses, packing plants, cold.storage plants). Only the A-2 and A-3 Districts allow small foster homesor childcare facilities. None.of these districts allow uses considered"sensitive receptors"13—i.e., churches, hospitals, community buildings, medical facilities,etc. —as a matter of right. Four of the seven districts (A-1, A-2;A-3, and A-20) allow such sensitive uses with a land use permit. The remaining three districts exclude such uses entirely. In addition, none of these districts allows hazardous material operations—with or without a land use permit -- that are unrelated to agriculture. Analysis: Given the existing zoning restrictions that apply to the seven agricultural zoning districts,.the potential is quite small for conflicting land uses between hazardous material facilities and sensitive land uses (such as hospitals, large day-care facilities, and community buildings). In these districts, "sensitive" land uses (as defined by Ordinance 98-48) either are not allowed or require a land use permit. Prior to granting a land.use permit for these "sensitive" uses, the County would be required to evaluate the proposed facility's compatibility with surrounding land uses and to determine that public health and safety would not be jeopardized. The types of"agricultural uses" allowed in five of the districts typically would not include facilities associated with a hazard score of 80 or more. Hazardous material storage would be allowed in a general agriculture zoning district, but only as necessary to -support an individual land owners' agricultural operations. 13 As defined by the Industrial Safety Ordinance, Section 84-63.434. ` Initial Study,Ordinance 98-48 August 5, 1999 Page 18 The agricultural sector is not expanding in Contra Costa County. No new facilities involving significant quantities of hazardous materials have been built in recent years; given the shrinking agricultural sector, new major facilities are not anticipated. The types of agricultural facilities (i.e., food packing plants, dehydration plants) that have been built typically use small amounts of hazardous materials that would not have triggered a requirement for a land use permit under Ordinance 98-48. In addition, agricultural facilities using hazardous materials are subject to the same requirements as other types of facilities to prepare and file Business Plans with the County, identifying the types and quantities of hazardous materials on-site.i4 The Agricultural Commission regulates and monitors the use of these materials. Thus, excluding development projects in agricultural districts from Chapter 84-63 would not decrease the numbers of projects that would otherwise be required.to obtain.land use permits. The types of facilities permitted by right in these districts typically would not use hazardous materials in sufficient quantities and types to require a land use permit under Chapter 84-63. This conclusion is consistent with the recommendation made by the National Institute for Chemical Studies to amend Chapter 96-20 so that it applied only in non-agricultural zoning districts.15 "Interested Parties" Comments and Responses: There were no comments on this portion of the Initial Study. Conclusion: In summary, staff has evaluated information summarized above and determines that there is no substantial evidence that this aspect of the project may cause a significant effect on the environment. 14 Telephone.Interview with Mr. Edward P. Meyer, CCC Agricultural Commission,July 28, 1999. 15 National Institute for Chemical Studies. "Report to the Contra Costa County.Board.of Supervisors," November 19, 1998, page 13. Initial Study,Ordinance 98-48 August 5, 1999 Page 19 2. Expanding Land Use Permitting Requirements for Additional Types of Projects The second change would require three types of development projects to acquire land use permits, independent of their hazard score. As a result, the number of projects subject to the County's existing land use permitting procedures may increase. The development projects in this category include (1) those storing industrial quantities (rather than planning quantities) of extremely hazardous substances (i.e., Category A)16; (2) those storing extremely large amounts of flammable materials and less dangerous corrosives and oxidizers (i. e., Category B)17; and(3) those adding a new process unit that uses either Category A or B materials. Note that these inclusions apply only to projects involving hazardous materials above the exemption thresholds specified in Section 84-63.604(c). The staff has insufficient information to-determine what number or portion of these three types of facilities would be required to obtain a land use permit due to this change.in applicability (Section 84-63.10). . Although staff can deduce that this change is likely to increase the number of development projects to obtain a land use permit, staff cannot draw this conclusion with certainty. Thus this change may increase public and agency scrutiny of certain proposed development projects (through the land use permitting process) but it clearly would not reduce the level of scrutiny. Analysis: The land use permitting process increases opportunities for both public and agency scrutiny of proposed projects, and often it generates Conditions of Approval that would reduce potential adverse impacts. To approve a land use permit requires a positive finding"that the proposed conditional land use shall not be detrimental to the health, safety and general welfare of the county."18 It also requires a positive finding"That it shall not create a nuisance and/or enforcement problem within the neighborhood or community."19 The process of evaluating a proposed project and making such a finding is highly unlikely to lead to negative impacts on the physical environment. 1s Category A materials include"forbidden materials", explosives, blasting agents, reactive materials, radioactive materials,oxidizers, and poisons. 17 Category B materials include flammable liquids, solids, and gases;oxidizers (DOT Group II);and corrosives(DOT Group I or II). 18 County Code Section 26-2.2008 (1). 19 County Code Section 26-2.2008(5). ` Initial Study,Ordinance 98-48 August 5, 1999 Page 20 However, this process could create beneficial environmental impacts by leading to reductions in risks of proposed projects. In the process of evaluating proposed projects for land use permits, previous experience by County staff indicates that project proponents often revise their projects so that staff can make the necessary findings of no detrimental impact to health, safety and general welfare. These projects also become subject to CEQA review. The CEQA process often generates additional information on how to reduce risks to public health and safety. Project proponents often revise their proposed projects in order to avoid or mitigate potential significant impacts, as defined by CEQA. Such changes are likely to lead to beneficial impacts on the environment. Staff has found no evidence that this process of increased public and agency review in and of itself would create adverse impacts on the physical environment. Thus staff concludes that these proposed changes to expand applicability of Chapter 84-63 would have either no impact or a beneficial impact on the physical environment. "Interested Parties" Comments and Responses: The July 7, 1999 letter from Communities for a Better Environment,20 (CBE) states that the Industrial Safety Ordinance would(1) raise the Hazard Score Threshold for requiring land use permits from 60 to 80 points and(2) add land use permitting requirements for certain limited uses. The letter then asserts that these changes would(a) lower the safety threshold for numerous facilities, (b) thereby greatly increasing the probability of"plant blow ups," (c) remove public scrutiny of these facilities prior to permitting, and (d) thus directly resulting in significant environmental impacts. The evidence provided quotes a study by the National Institute for Chemical Studies stating that the hazard score is not a true statement of risk. In response, staff disagrees with CBE that the Industrial Safety Ordinance raises the score from 60 to 80. As discussed above under"Project Description," staff concludes that adopting Ordinance 98-48 would continue the hazard score threshold of 80 which was set by Ordinance 96-20, its legally valid predecessor. Second, CBE has presented no"substantial evidence" to support its view. CEQA considers"substantial evidence" to be facts and opinions supported by facts. It excludes"speculation and conjecture" as well as "unsubstantiated opinions, concerns, and 20 Pages 1 and 2, Section A, of the July 7, 1999 letter from Denny Larson, Communities for a Better Environment, to Debbie Sanderson, CCC Community Development Department. Initial Study, Ordinance 98-48 August 5, 1999 Page 21 suspicions" from consideration as "substantial evidence."21 Thus, the CBE argument does not qualify as "substantial evidence." ..Third, CBE's presumption thatfailure to require a land use permit would directly lead to a great increase in the probability for"plant blow-up or accidents" entirely overlooks the steadily expanding safety requirements for industrial facilities—entirely independent of the County's Land Use Permitting Process. Fourth, staff concurs with CBE that the analysis prepared by the National Institute for Chemical Studies does conclude that the hazard scoring formula could be improved—it underestimates some risks while overestimating others.22 However, staff disagrees with CBE on the implications of this conclusion. The study authors did not in their conclusions recommend that the score be lowered from 80 to 60 or that the scoring formula be revised as part of the adoption of Ordinance 98-48. Instead, they concluded that"the Hazardous Materials Commission had done a good job in setting a reasonable threshold [of a hazard'score of 80] that would meet public safety needs."23 The report did not recommend lowering the hazard score. .Conclusion In summary, staff has considered comments by the interested parties, as well as other information discussed in the preceding paragraphs, and has determined that there is no substantial evidence that this aspect of the project may cause a significant effect on the environment. 21 See Michael Remey,et. al,."Guide to the Califoinia Environmental Quality Act(CEQA), 1996 Edition," pages 139-146. 22 Ibid.,Appendix D. 23 Ibid.,page 5. - Initial Study,Ordinance 98-48 August 5, 1999 Page 22 C. Options Presented in the Stipulated Judgment As indicated above, Section 7 of the Stipulated Judgment obligates the County to evaluate the potential environmental impacts of four options or alternatives to the Industrial Safety Ordinance. These options are as follows: 7. Through the environmental review process, the County shall analyze, at a minimum the following mitigation measures and/or alternatives to the ISO [Industrial Safety Ordinance]: (a) Amending the ISO to allow the County to require facilities to implement technical, managerial and/or other improvements at industrial facilities to promote public health and/or safety; (b) Establishing a technical assistance grant program with funding of$100,000 per year that will be available to community organizations to hire technical experts to assist with analysis of the safety plans submitted by industrial facilities; (c) Revising the thresholds contained in Section 84-63.1007 of the ISO for determining when new development projects are subject to environmental review to 60 and 70 hazard points. The County interprets item 7(c) to include two cases — reducing the hazard score threshold from 80 to 70 and from 80 to 60. Thus the County will evaluate these items as four potential changes to the Industrial Safety Ordinance. Option 1: Allow County to Mandate Improvements: Option 1 would allow the County(in this case the Health Services Department) to require a facility to implement some change— either technical or managerial—in its facility operations in order to promote public health and/or safety. For analytic purposes, the County assumes that"technical improvements" comprise improvements to the physical system and"managerial improvements" comprise improvements to programs and procedures. Analysis: Under Chapter 450-8 (an expansion of the CaIARP program) the Health Services Department could require only managerial changes that are necessary to ensure compliance with Chapter 450-8. If a facility fails to comply with the ordinance, Health Initial Study,Ordinance 98-48 August 5, 1999 Page 23 Services Department could issue a"Final Determination" identifying modifications in the Safety Plan or Safety Program necessary to bring the facility into compliance with Chapter 450- 8.23 The Health Services Department could enforce three types of compliance, as outlined in Chapter 450-8: (1) the Safety Plan (which summarizes the Safety Program) include all of the elements required by the Ordinance (such as Process Hazard Analyses, Management of Change procedures, training, etc.); (2) the facility's Safety Program is consistent with the Safety Plan submitted to the Health Services Department and the public. [This consistency is determined through an on-site audit of the Safety Program]; and (3) the facility's management practice is.consistent with its written Safety Program (also determined through an on-site audit.) Chapter 450-8 would require a facility operator to develop programs that help personnel prevent and mitigate potential hazards, as opposed to requiring installation of specific physical systems. The Safety Programs developed through this ordinance could vary substantially from facility to facility, and even from unit to unit within the same facility. For example, Section 450- 8.016(A)(11) of County Ordinance 98-48 would require a facility operator"...when selecting a contractor, [to] obtain and evaluate information regarding the contract owner or operator's safety performance or programs." Facilities may adopt different procedures for meeting this requirement. Option 1 would allow (although not mandate) Health Services Department to also require certain physical changes that it concludes would improve public health and safety. Such authority could have beneficial physical environmental impacts, depending on how this authority is applied and whether additional safety options actually exist. Option 1 specifies that the change would have to promote public health and safety. Health Services '_'Department has along history of working effectively with industrial facility operators to reduce risk and increase public safety. Assuming the Health Services Department continues to make decisions consistent with its previous practice, then the environmental impacts are likely to be beneficial. Should a company disagree with a change mandated by Health Services 23 Chapter 450-8, Section 8.018. Initial Study,Ordinance 98-48 August 5, 1999 Page 24 Department, it could appeal the decision to the Board of Supervisors, as with any administrative decision. In order for a negative impact to result from Option 1, Health Services Department would have to mandate a change that in some way compromised the industrial process, probably over the objections of the facility. Such a decision could be appealed to the Board of Supervisors. Staff can identify no reason why the opportunity to mandate physical improvements in an industrial facility would be any more likely to lead to adverse impacts than the opportunities already provided in Chapter 450-8. Thus staff concludes that Option 1 is likely to create beneficial impacts on the environment. "Interested Parties" Comments and Responses: Three letters commented on staffs evaluation of this option. Ms. Leslie Stewart24 commented that staff overlooked the possibility that a party might appeal HSD's lack of action, the Board of Supervisorswould have to choose among experts, and the Board of Supervisors might err. While staff concurs that this outcome is theoretically possible, Ms. Stewart presents no evidence to support this argument. Under CEQA arguments that are not inference from evidence do not qualify as"substantial evidence." Thus staff disagrees with the commenter that an EIR should be prepared. A second letter, from Tosco Refining Company, asserts that significant impacts are likely from the adoption of Option 7a. The letter presents as supporting evidence the story of U.S. EPA's 1994 adoption of ethylene oxide emission reduction regulations [40 CPR Part 63 Subpart O]. Over a three-year period, the EPA determined that the emission control equipment required by these regulations caused increased likelihood of explosions and the regulations were repealed. Tosco asserts that this story provides substantial evidence that allowing the Health Services Department to require safety improvements without the benefit of full public review of the requirement could lead to potential significant environmental impacts. Staff has evaluated this evidence and concludes that it does not apply in the consideration of adopting Option 7a. First, these EPA regulations were subject to a full public review process—staff analysis, public review, public comment, noticing, etc. After this full review of the requirement, EPA adopted the regulations. Three years later EPA determined that it had erred and withdrew the requirement. This evidence supports an argument that agencies and public decision-makers can err—even with full 24 Letter of June 25, 1999 from Leslie Stewart to Debbie Sanderson, CCC Community Development Department. Initial Study, Ordinance 98-48 August 5, 1999 Page 25 public, industry, and technical review of the proposed changes. It does not provide evidence that they are more likely to err without full public review prior to adoption of a requirement. One could argue_that agencies would be even more cautious without full public review and thus might be less likely to err. Staff does not concur with Tosco that this information comprises"substantial evidence" supporting an argument that an EIR should be prepared. A third letter, from Communities for a Better Environment (CBE), asserts that the failure to give the County discretionary authority may lead to significant environmental effects and thus triggers the requirement to prepare an Environmental Impact Report. CBE summarizes arguments both supporting and rejecting this position and then concludes that the ambiguity on this issue qualifies as "substantial evidence" and the County must therefore prepare an EIR to resolve this ambiguity. CBE presents no evidence to support either argument, and CEQA does not treat arguments and disagreements, ipso facto,as evidence. Disagreements among experts may trigger the requirement for an EIR, but in this case CBE has not presented any evidence that there is a disagreement among experts in the:field that addresses the question at hand.25 Conclusion: In summary, staff has considered these comments by the "interested parties", as well as other information referenced above, and finds no substantial evidence indicating that the impacts of Option 1 may cause a significant effect on the environment. Option 2: Technical Assistance Grants This option would establish a technical assistance grant program with funding of$100,000 per year made available to community organizations to hire technical experts to assist with analysis of the Safety Plans submitted by industrial facility operators. As background, recall that the Safety Plans are documents that summarize companies' on-site safety program. An audit performed by Health Services Department would determine whether a Safety Plan truly reflected a company's Safety Program and whether the Safety Program was actually being implemented on-site. Analysis: Providing communities with additional technical expertise to review Safety Plans could lead to much more intense public questioning of both the company that prepared a Safety Plan and 25 See M. Remy, et. al., page 144-145. Initial Study, Ordinance 98-48 August 5, 1999 Page 26 the staff who conducted an audit. This public scrutiny and discussion could create an incentive for companies to reduce risks by improving their Safety Programs, altering the chemicals handled, or modifying technology. There is at least anecdotal evidence that implementation of some Community Right to Know Programs and enforcement of Safety Programs has motivated some companies to reduce on-size hazards and improve work place safety. Staff analysis has determined no scenarios likely to lead to detrimental environmental impacts due to increased public access to technical experts to scrutinize a company's Safety Plan. On the other hand, the impacts could be positive due to increased public review of and input to companies' Safety Programs and Safety Plans. "Interested Parties" Comments and Responses: There were no new comments received addressing this option, other than Tosco Refining Company reiterating its earlier comments. Conclusion: As with Option 1, staff has considered comments by the "interested parties," as well as other information summarized above, and finds no substantial evidence indicating that the impacts of Option 2 may cause a significant effect on the environment. Option 3 and 4: Lower the Hazard Score Threshold The Industrial Safety Ordinance would not amend the hazard score threshold that triggers requirement of a land use permit. Projects with a.score of 80 or more would still be required to obtain a land use permit in order to build and/or operate the proposed development project. Those with a score between 70 and 79 would still be subject to public review and comment.on their risk scoring and on the Community Development Department's Determination of.Coverage. The score of eighty was initially recommended by the Hazardous Materials Commission, comprised of representatives of a wide variety of parties interested in developing a risk-based system for requiring land use permits. This group evaluated eighty-seven hypothetical development projects grouped by hazard scores, and determined that those in the Hazard Score 80 category(and higher) were.the types of facilities that should be required to obtain a land use permit prior to construction or operation. The Industrial Safety Ordinance would not alter this threshold hazard score or the formula for deriving a project's.hazard score. Initial Study, Ordinance 98-48 August 5, 1999 Page 27 Analysis: In order to evaluate the potential impacts of lowering the threshold score either to 70 or to 60, staff has reviewed information compiled previously by the Hazardous Materials Commission when.establishing the hazard score threshold of 80. These scenarios (Attachment A) provide examples of hypothetical development projects that would be in each of these groups—those with scores in the seventies and those with scores in the sixties. The purpose of this analysis in the Initial Study is to determine the potential environmental impacts of requiring land use permits of those projects with scores in the seventies and also of those with scores in the sixties. Attachment A presents the listing of the types of facilities that would have scores in each of these categories and explains the process original used by the Hazardous Materials Commission in choosing the threshold score of eighty. This Commission determined that numerous facilities with scores of eighty or more could be made safer, reducing their project hazard below eighty, while still remaining viable. However, the Hazardous Materials Commission determined that these facilities could not readily reduce their hazard scores below sixty and remain economically viable. The Commission also reasoned that requiring land use permits for projects with scores of 80 or above would create an incentive for applicants to make their projects safer—i.e., make a project safer, reduce the hazard score to below 80, and thereby avoid the lengthy land use permitting process. In keeping with the conclusions drawn by the Hazardous Materials Commission, one possible outcome of lowering the threshold hazard score would be a reduced number of projects with scores between under 80 and an increased number of projects with scores over 80. Applicants with projects that could be made safer would, in theory, not do so, since it would no longer help them avoid the land use permitting procedures. Without this incentive, applicants would simply propose projects with scores of 80 or more, even though they could have proposed safer projects that were economically viable. Staff has considered the analysis performed by the Hazardous Materials Commission and does not find substantial evidence that the resultm-i.e., projects that are eventually permitted and built— would be any more dangerous. In staffs experience, "proposed projects" do not equate to"built projects," largely because there are other incentives for applicants to lower the risks of their projects. For example, in order to find that either Option 3 or 4 may create a negative environmental impact, staff would have to conclude that the County could not deny permits or cause a proponent to alter Initial Study,Ordinance 98-48 August 5, 1999 Page 28 the proposed project in such a way that would reduce risks. Such conclusions contradict staff experiences with land use permitting, which frequently result in project proponents amending their proposed to reduce risk, for a variety of reasons -- to satisfy the County's performance criteria for issuance of land use permits; to satisfy concerned neighbors; to avoid a "significant impact" finding under CEQA;or to avoid other types of regulatory requirements. Thus staff concludes that there is no substantial evidence that adopting Option 3 or 4 may lead to potentially significant adverse environmental impacts. On the other hand, adopting either Option 3 or 4 could create an even greater incentive for proponents to reduce risks even further, to levels below a hazard score of either 70 or 60. This hypothesis, if true, could result in beneficial environmental impacts. The experience with hazardous waste generation in the United States provides extensive evidence that industry can, over time, develop new, less hazardous ways of operating in order to avoid costly regulations or permitting procedures. "Interested Parties" Comments and Responses: Leslie Stewart commented that lowering the threshold could reduce the incentive for a company to reduce risk, leading to proposed projects with higher than necessary risks. Ms. Stewart further infers that facilities would tend to become out-of-date. Staff concurs that this outcome is theoretically possible, but notes that Ms. Stewart has present no evidence supporting this position. As mentioned previously, inference or argument must be based on evidence to be considered as "substantial evidence" under CEQA. Tosco Refining.Company's letter encourages the Board of Supervisors to allow the threshold to remain at its current level. However, Tosco provides no evidence supporting an argument that significant impacts may follow if the Board of Supervisor's lowers the threshold. Conclusions: As.discussed above, staff has not identified substantial evidence supporting a conclusion that lowering the threshold either from eighty to seventy or from eighty to sixty may cause adverse environmental impacts. Staff finds some evidence that potential beneficial impacts arelikely to occur; but staff finds no substantial evidence indicating that Options 3 or 4 may cause a significant adverse effect on the environment. Continent on the Initial Study Checklist and Overall Conclusions: Section D of the CBE letter comments on the conclusion reflected in Section VII of the Initial Study Checklist attached to this Initial Study,Ordinance 98-48 August 5, 1999 Page 29 analysis. CBE asserts that since facilities transporting, using, or disposing of hazardous materials may be within one quarter mile of a school MI(c)], and since a toxic release may affect a school, then there is substantial evidence of potential significant impacts. CBE presents no evidence to support this argument or inference. To be considered"substantial evidence", CEQA requires that the inference be based on evidence, not logic. Indeed, schools themselves may transport and use hazardous materials, which does not lead to the conclusion that significant environmental impacts are present. Thus staff does not concur with CBE that they have submitted substantial evidence supporting a fair argument that significant environmental impacts may occur. Section B of the CBE letter asserts that there is a disagreement among technical experts about the adoption of the"Section 7 options", and that this disagreement automatically triggers a requirement that the County prepare an Environmental Impact Report. Staff has evaluated this assertion and disagrees with its application in this case. First, CBE has not presented evidence of a disagreement among technical experts. Second, staff review of the full record does not reveal a disagreement among technical experts based on evidence. The parties to this.debate have presented various.arguments, opinions, and inferences from opinions concerning the advisability of adopting one or more of these options. However, these are not disagreements based on evidence concerning the question at hand—that is, would adoption of an option lead to potential significant environmental impacts? In addition, staff does not consider all of these parties to be "technical experts" in the field of determining potential environmental impacts. Thus staff disagrees with CBE that in this case a review of the record supports the conclusion that CEQA requires preparation of an Environmental Impact Report. Initial Study,Ordinance 98-48 August 5, 1999 Page 30 IV. Comments from Interested Parties A. Comment Period #1 (April 19 through May 20, 1999). Request for Comments: Consistent with Items 7 and 8 of the stipulated Judgment, on April 19, 1999, the County Community Development Department distributed a letter to "Interested Parties" inviting them 1. to submit written comments by May 20, 1999 concerning potential adverse impacts of the adoption of Chapter 98-48, 2. to attend a meeting on April 28, 1999 to discuss the pending CEQA analysis, and 3. to suggest additions to the County's"Interested Parties" distribution list. In addition, on April 21, 1999, the City of Richmond distributed a similar letter to"Interested Parties" within Richmond. Over two hundred letters were distributed by the two agencies. The County and City distributed the letters to those in the County and City who had previously shown interest in this ordinance, plus the County's Municipal Advisory Councils, the City's Neighborhood Councils, and the Citizen Advisory Panels for industrial facilities. The County and City goal was to provide an opportunity for input to anyone who was interested. The County and City invited written public comments that would provide evidence of potential environmental impacts either (1) due to the adoption of the Industrial Safety- Ordinance or (2) due to the possible adoption of any of the four options identified in Item .7 of the Stipulated Judgment. Comments were requested by Thursday, May 20,. 1999. At the meeting on April 28, 1999, the County described the basis for the CEQA analysis, the baseline conditions (i.e., Chapter 84-63 as amended by Ordinance 96-20), and the type of public comments that would prove useful. Comment Period#1 —Letters received: The Department received comment letters from the following' individuals; these letters are included in Attachment B: 1. Mr. Stephen Linsley, member of the Hazardous Materials Commission 2. Mr. Chuck Flagg, Refinery Manager, Martinez Refining Company 3. Mr. Brent Babow, Vice President, California Contractors Alliance Initial Study, Ordinance 98-48 August 5, 1999 Page 31 4. Ms. Marjorie Hatter, Manager, Health & Safety, Tosco Refining Company In summary, the letters make minimal comments on the potential impacts from the adoption of Chapter 98-48. Commentors either make no comments or opine that the impacts are probably beneficial or at least not negative. No evidence is presented to support either'view. These letters were considered by staff in preparation of the Initial Study and Preliminary Negative Declaration, released June 7, 1999. The letters primarily focus on the options described in Item 7 of the Stipulated Judgment. As concerns Option 7a (County authority to mandate facility changes to improve public health and safety), commentors anticipate both negative and positive impacts, although no one submitted substantial evidence to support either type of impact. One commenter suggested that the Tosco accident and the Chevron fire were evidence indicating that adopting this option would have beneficial impacts. However, staff has found no clear nexus between these events and the lack of such County authority to justify the conclusion. As concerns Option 7b (grants to community groups) and 7c/d (reduction.in hazard score threshold from 80 to either 70 or 60), again comments ranged from negative to beneficial impacts but no commentor provided substantial evidence to support a conclusion of potential significant impacts. In conclusion, staff found no evidence of physical environmental impacts presented in these comment letters. Several commentors describe the same analysis presented in this Initial Study, which staff views as inconclusive evidence of physical environmental impact. Much of the content of these letters presents concerns that are more appropriately brought before the County or City decision- making body when considering the possible adoption of these four options. B. Comment Period #2 (June 7 through July 7, 1999) On June 7 —9, 1999, the Department and the City of Richmond notified interested parties of their Preliminary Determination to prepare a Negative Declaration for this project and invited written comments for the staff s consideration in making its final determination (due August 6, 1999). The staff made the Initial Study and Preliminary Negative Declaration available for public review, held an open-discussion meeting on June 30, 1999, and requested written comments by July 7, 1999. Staff received the Initial Study, Ordinance 98-48 August 5, 1999 Page 32 following comment letters, included in Appendix B of this document: 1. Ms. Leslie Stewart, dated June 25, 1999. 2. Mr. Denny Larson, Communities for a Better Environment, dated July 7, 1999. 3. Ms. Marjorie Hatter, Tosco Refining Company, dated July 7, 1999. Staff considered these comments in preparing this revision of the July 7 Initial Study, as summarized above. Initial Study,Ordinance 98-48 August 5, 1999 Page 33 V. Summary Conclusions In conclusion County and City staff find no substantial evidence of potential significant impacts due to 1. The adoption of Chapter 450-8, as presented in Ordinance 98- 48, or 2. The amendments to Chapter 84-63, as presented in Ordinance 98-48, or 3. The adoption of any of the four options presented in the Stipulated Judgement, Items 7(a), (b), or (c). Staff has identify potentially beneficial impacts from 1. The adoption of Chapter 450-8, as presented in Ordinance 98- 48, 2. The amendments to Chapter 84-63, as presented in Ordinance 98-48, and 3. The adoption of any of the four options presented in the Stipulated Judgement, Items 7(a), (b), or(c). While staff analysis concludes that the environmental impacts from these items appear likely to be beneficial, staff has not identified substantial evidence that would support this conclusion. As required by the Stipulated Judgment, the County has completed an initial study on the items as instructed and finds that a negative declaration is required by CEQA for this project. CEQA Guidelines Section 15063(b)(2) obligates the County or City to "prepare a negative declaration if there is no substantial evidence that the project or any of its aspects may cause a significant effect on the environment." CEQA(Section 21068) defines a"significant effect on the environment" to be "a substantial, or potentially substantial, adverse change in the environment." Thus to determine that any aspect of this projectwould create a significant impact, staff would have to determine that substantial evidence.exists that a specific aspect of this project may cause a substantial or potentially substantial adverse change in the environment. Staff has identified no such substantial evidence and thus recommends that a Negative Declaration be prepared for this project. n Initial Study,Ordinance 98-48 August 5, 1999 Page 34 VI. Presentation of CEQA Checklist (follows) Environmental Checklist Form 1. Project Title: Initial Study on the Contra Costa Counta Industrial Safety Ordinance (Ordinance 98-48) 2. Lead Agency Name and Address: Community Development Department Contra Costa County 651 Pine Street, 4th Floor, North Wing Martinez, CA 94553-0095 3. Contact Person and Phone Number. Debbie Sanderson, (925) 335-1208 4. Project Location: Contra Costa County 5. Project Sponsor's Name and Address: n.a. 6. General Plan Designation: n.a. 7. Zoning: any non-agricultural zoning district 8. Description of Project: (Describe the whole action involved, including but not limited to later phases of the project, and any secondary, support, or off-site features necessary for its implementation. Attach additional sheets if necessary.): This project is an Initial Study evaluating the potential environmental impacts of(1) changes that would occur by replacing Contra Costa County Ordinance 96-20 with Contra Costa County Ordinance 98-48 and(2) the four options identified in Items 7(a), (b), and(c) of the Stipulated Judgment(Civil No. C99-00094). 9. Surrounding Land Uses and Setting: Briefly describe the project's surroundings. Not applicable. 10. Other public agencies whose approval is required(e.g., permits, financing approval, or participation agreement). None ENVIRONMENTAL FACTORS POTENTIALLY AFFECTED: The environmental factors checked below would be potentially affected by this project, involving at least one impact that is a"Potentially Significant Impact" as indicated by the checklist on the following pages. Land Use and Planning _ Transportation/ — Public Services Population& Housing Circulation _ Utilities& Service _ Geological Problems _ Biological Resources Systems Water _ Energy&Mineral — Aesthetics Air Quality Resources _ Cultural Resources Mandatory Findings of _ Hazards Recreation Significance — Noise 2 DETERMINATION On the basis of this initial evaluation: X_ I find that the proposed project COULD NOT have a significant effect on the environment, and a NEGATIVE DECLARATION will be prepared. I find that although the proposed project could have a significant effect on the environment,there will not be a significant effect in this case because the mitigation measures described on an attached sheet have been added to the project. A MITIGATED NEGATIVE DECLARATION will be prepared.. I find that the proposed project MAY have a significant effect on the environment, and an ENVIRONMENTAL IMPACT REPORT is required. I find that the proposed.project MAY have a significant effect(s)on the environment, but at least one effect(.1)has been adequately analyzed in an earlier document pursuant to.applicable legal standards,and(2)has been addressed by mitigation measures based on the earlier analysis as described on attached sheets, if the effect is a"potentially significant impact"or"potentially significant unless mitigated." An ENVIRONMENTAL IMPACT REPORT is required,but it must analyze only the effects that remain to be addressed. I find that although the proposed project could have a significant effect on the environment,there WILL NOT be a significant effect in this case because all potentially significant effects(a)have been analyzed adequately in an earlier EIR pursuant to applicable standards and(b)have been avoided or mitigated pursuant to that earlier EIR, including revisions or mitigation measures that are imposed upon the proposed project. Signature Date Sa14d fv-sa7, _ C Printed Name or EVALUATION OF ENVIRONMENTAL IMPACTS: The attached"Initial Study Evaluation of the Industrial Safety Ordinance" provides the analysis supporting the conclusions reflected in this Initial Study Checklist. Staff concludes that the there are no potential significant impacts associated with the adoption of Ordinance 98-48 or with the adoption of any of the four options described in Item 7 of the above-referenced Stipulated Judgement. C. Be located on a geologic unit or soil that is unstable,or that would become unstable as a result of the project,and potentially result in on-or off-site landslide,lateral spreading,subsidence, liquefaction or collapse?() D. Be located on expansive soil,as defined in Table 18-1-B of the Uniform Building Code(1994), creating substantial risks to life or propeTty?() E. Have soils incapable of adequately supporting the use of septic tanks or alternative waste disposal systems where sewers are not available for the disposal of waste water?() SUMMARY: VI[. : HAZARDS AND HAZARDOUS MATERIALS- Would the project: A. Create a significant hazard to the public or the environment through the routine transport,use,or disposal of hazardous materials?() B. Create a significant hazard to the public or the environment through reasonably foreseeable upset and accident conditions involving the \ release of hazardous materials \V into the environment?() C. Emit hazardous emissions or handle hazardous or acutely hazardous materials,substances,or waste within one-quarter mile of an existing or proposed school? D. Be located on a site which is included on a list of hazardous materials sites compiled pursuant to Government Code Section 65862.5 and,as a result, would it create a significant hazard to the public or the environment?() 8 E. For a project located within an airport land use plan or,where such a plan has not been adopted,within two miles of a public airport or public use airport,would the project result in a safety hazard for people residing or working in the project area() F. For a project within the vicinity of a private airstrip,would the project result in a safety hazard for people residing or working in the project area? () G. Impair implementation of or physically interfere with an adopted emergency response plan or emergency evacuation plan?() K Expose people or structures to a significant risk of loss,injury or death involving wildland fires, including where wtIdlands are adjacent to urbanized areas or where residences are intermixed with wildlands?() SUMMARY: VIII. HYDROLOGY AND WATER QUALITY- Would the project: A. Violate any water quality standards or waste discharge requirements?() B. Substantially deplete groundwater supplies or interfere substantially with groundwater recharge such that there would be a net deficit in aquifer volume or a lowering of the local groundwater table level(e.g.,the production rate of pre-existing nearby wells would drop to a level which would not support existing land uses or planned uses for which permits have been granted)?() C. Substantially alter the existing drainage pattern of the site or area,including through the alteration of the course of a stream or river,in a manner which would result in substantial erosion or siltation on-or off- 3 SOURCES In the process of preparing the Checklist and conducting the evaluation, the following references (which are available for review at the Contra Costa County Community Development Department,651 Pine Street 5th Floor-North Wing, Martinez) were consulted: 1. Contra Costa County Ordinance 96-20. 2. Contra Costs County Ordinance 98-48. 3. Chapter 84-63 of the County Ordinance Code. Less than Significant Potentially with Less Than Significant Mitigation Significant No Impact Incorporation Impact Impact 1. AESTHETICS-Would the project: A. Have a substantial adverse effect on a scenic vista?(Source# ) _ B. Substantially damage scenic resources,including,but not limited to,trees,rock outcroppings, and historic buildings within a state scenic highway?() C. Substantially degrade the existing visual character or quality of the site and its surroundings?() D. Create a new source of substantial light or glare which would adversely affect day or 1 nighttime views in the area?() SUMMARY: II. AGRICULTURAL RESOURCES:In determining whether impacts to agricultural resources are significant environmental effects,lead agencies may refer to the California Agricultural Land Evaluation and Site Assessment Model(1997)prepared by the California Dept.Of Conservation as an optional model to use in assessing impacts on agricultural and farmland. Would the project: A. Convert Prime Farntland,Unique Farmland,or Farmland or Statewide Importance(Farmland),as shown on the maps prepared pursuant to the Farmland Mapping and Monitoring 4 Program of the California Resources Agency,to non-agricultural 'IV use?() B. Conflict with existing zoning for agricultural use,or a Williamson Act contract?() C. Involve other changes in the existing environment which,due to their location or nature,could result in conversion of Farniland, to non-agricultural use?() SUMMARY: III. AIR QUALITY-Where available,the significance criteria established by the applicable air quality management or air pollution control district may be relief upon to make the following determinations_ Would the project: A. Conflict with or obstruct implementation of the applicable .air quality plan?() B. Violate any air quality standard or contribute substantially to an existing or projected air quality violation?() C. Result in a cumulatively considera- able net increase of any criteria pollutant for which the project region is non-attainment under an applicable federal or state ambient air quality standard(including releasing emissions which exceed quantitative thresholds for ozone precursors)?() D. Expose sensitive receptors to substantial pollutant concentrations?() E. Create objectionable odors affecting a substantial number of people?() SUMMARY: 5 IV. BIOLOGICAL RESOURCES-Would the project: A. Have a substantial adverse effect, either directly or through habitat, modifications,on any species identified as a candidate, sensitive,or special status species in local or regional plans,polices, or regulations,or by the California Department of Fish and Game or U.S.Fish and Wildlife Service?() B. Have a substantial adverse effect on any riparian habitat or other sensitive natural community identified in local or regional plans,policies,regulations or by the California Department of Fish and Game or US Fish and Wildlife Service?() C_ Have a substantial adverse effect on federally protected wetlands as defined by Section 404 of the Clean Water Act(including,but not limited to,marsh,vernal pool,coastal,etc.)through direct removal,filling,hydrological interruption,or other means?() D. Interfere substantially with the movement of any native resident or migratory fish or wildlife species or with established native resident or migratory wildlife corridors,or impede the use of native wildlife nursery sites?() E. Conflict with any local policies or ordinances protecting biological resources,such as tree preservation policy or ordinance?() F. Conflict with the provisions of an adopted Habitat Conservation Plan,Natural Community Conservation Plan,or other \ approved local,regional,or state habitat conservation plan? SUMMARY: 6 V. CULTURAL RESOURCES-Would the project? A. Cause a substantial adverse change in the significance of a historical resource as defined in§15064.5? B. Cause a substantial adverse change in the significance of an archaeological resource pursuant to§15064.5?() C. Directly or indirectly destroy a unique paleontological resource or site or unique geologic feature? () . D. Disturb any human remains, including those interred outside of formal cemeteries?() SUMMARY: Vl. GEOLOGY AND SOILS-Would the project? A. Expose people or structures to potential substantial adverse effects,including the risk of loss,injury,or death involving: I. Rupture of a known earthquake fault,as delineated on the most recent Alquist-Priolo Earthquake Fault Zoning Map issued by the State Geologist for the area or based on other substantial evidence of a known fault? Refer to Division of Mines and Geology Special Publica- tion 42.() 2. Strong seismic ground shaking? 3. Seismic-related ground failure,including \ liquefaction?() V 4. Landslides?() B. Result in substantial soil erosion \ or the loss of topsoil?() V 9 site?() D. Substantially alter the existing drainage pattern of the site or area,including through the alteration of the course of a stream or river,or substantially increase the rate or amount of surface runoff in a manner which would result in flooding on-or off-site?() E. Create or contribute runoff water which would exceed the capacity of existing or planned storm water drainage systems or provide substantial additional sources of polluted runoff?() F. Otherwise substantially degrade water quality? G. Place housing within a 100-year flood hazard area as mapped on a federal Flood Hazard Boundary or Flood Insurance Rate Map or other flood hazard delineation map?() H. Place within a 100-year flood hazard area structures which would impede or redirect flood flows?() L Expose people or structures to a significant risk of loss,injury or death involving flooding, including flooding as a result of the failure of a levee or dam? J. Inundation by seiche,tsunami, or mudflow?() SUMMARY: LX LAND USE AND PLANNING-Would the project: A. Physically divide an established community?() B. Conflict with any applicable land use plan,policy,or regulation of an agency with jurisdiction over the project(including,but not limited to the general plan, Specific plan,local coastal program, or zoning ordinance)adopted for the purpose of avoiding or 10 mitigating an environmental effect? () C. Conflict with any applicable habitat conservation plan or natural community conservation plan?() SUMMARY: X MINERAL RESOURCES-Would the project: A. Result in the loss of availability of a(mown mineral resource that would be of value to the region and the residents of the state?() B. Result in the loss of availability of a locally-important mineral resource recovery site delineated on a local general plan,specific plan or other land use plan? SUMMARY: XI. NOISE-Would the project? A. Exposure of persons to or generation of noise levels in excess of standards established in the local general plan or noise ordinance,or applicable standards of other agencies? B. Exposure of persons to or generation of excessive ground- borne vibration or ground borne noise levels?() C. A substantial permanent increase . in ambient noise levels in the project vicinity above levels existing without the project? D. A substantial temporary or periodic increase in ambient noise levels in the project vicinity above levels existing without the project?() 11 E. For a project located within an airport land use plan or,where such a plan has not been adopted,within two miles of a public airport or public use airport,would the project expose people residing or working in the project area to excessive noise levels? F. For a project within the vicinity of a private airstrip,would the project expose people residing or working in the project area to excessive noise levels?() SUMMARY: XII. POPULATION AND HOUSING- Would the project: A. Induce substantial population gro%%Ih in an area,either directly(for example,by proposing new homes and businesses)or directly(for example,through extension of roads or other infrastructure)? B. Displace substantial numbers of existing housing,necessitating the construction of replacement housing elsewhere?() C. Displace substantial numbers of people,necessitating the construction of replacement housing elsewhere? () SUMMARY: XIII. PUBLIC SERVICES A. Would the project result in substantial adverse physical impacts associated with the provision of new or physically altered governmental facilities,need for new or physically altered governmental facilities,the construction of Kfiich could cause significant environmental impacts, 12 in order to maintain acceptable service ratios,response times or other performance objectives for any of the public services: 1. Fire Protection? 2. Police Protection? 3. Schools? 4. Parks? 5. Other Public facilities? SUMMARY: XIV. RECREATION- A. Would the project increase the use of existing neighborhood and regional parks or other recreational facilities such that substantial physical deterioration of the facility would occur or be accelerated?() B. Does the project include recreational facilities or require the construction or expansion of recreational facilities which might have an adverse physical effect on the environment?() SUMMARY: XV. TRANS PORTATION/IRAFF[C-Would the project: A. Cause an increase in traffic which is substantial in relation to the existing traffic load and capacity of the street system (i-e.,result in a substantial increase in either the number of vehicle trips,the volume to capacity ratio on roads,or congestion at intersections)? 13 B. Exceed,either individually or cumulatively,a level of service standard established by the county congestion manage- ment agency for designated \ roads or highways? () C. Result in a change in air traffic patterns,including either an increase in traffic levels or a change in location that results in substantial safety risks? D. Substantially increase hazards due to a design feature(e.g.,sharp curves or dangerous intersections) or incompatible uses(e.g.,farm equipment)?() E. Result in inadequate emergency access? () F. Result in inadequate parking capacity?() G. Conflict with adopted policies, plans,or programs supporting alternative transportation(e.g., bus turnouts,bicycle racks)? SUMMARY: XVI. UTILITIES AND SERVICE SYSTEMS- Would the project: A. Exceed wastewater treatment requirements of the applicable Regional Water Quality Control Board?() B. Require or result in the construction of new water or wastewater treatment facilities or expansion of existing facilities,the construction or which could cause significant environmental effects?() C. Require or result in the construction of new storm water drainage facilities or expansion of existing facilities,the construction of which could cause significant environmental 14 `, effects? () D. Have sufficient water supplies available to serve the project from existing entitlement and resources, or are new or expanded entitlement needed? () E. Result in a determination by the wastewater treatment provider which serves or may serve the project that it has adequate capacity to serve the project's projected demand in addition to the provider's existing commitments?() F. Be served by a landfill with sufficient permitted capacity to accommodate the project's solid waste disposal needs?() G. Comply with federal;state and Total statutes and regulations related to solid waste?() SUMMARY: XVIL MANDATORY FINDINGS OF SIGNIFICANCE A. Does the project have the potential to degrade the quality of the environment,substantially reduce the habitat of a fish and wildlife species,cause a fish or wildlife population to drop below self-sustaining levels,threaten to eliminate a plant or animal community,reduce the number or restrict the range of a rare or endangered plant or animal or eliminate important examples of the major periods of California history or prehistory?() B. Does the project have impacts that are individually limited but cumulatively considerable? ("Cumulatively considerable" means that the incremental effects of a project are considerable when viewed in connection with the effects of past projects,the effects of other current projects,and the effects of probable future projects)? C. Does the project have environ- mental effects which wall cause substantial adverse effects on 15 human beings,either directly or indirectly?() SUMMARY: j:\groups\cdadpool\shells\Checklis.n99 Initial Study, Ordinance 98-48 August 5, 1999 Page 35 VII. Notice of Intent to Adopt a Negative Declaration (follows) [Spg35.doc, 8/5/99,Page 1 -CommunityContra Dennis M.Barry,AICP Community Development Direcl Development Costa Department County County Administration Building 5E t 651 Pine Street 4th Floor, North Wing ' Martinez, California 94553-0095 n Phone: (925)335-1210 –e-u— August 5, 1999 NOTICE OF PUBLIC REVIEW AND INTENT TO ADOPT A PROPOSED NEGATIVE DECLARATION COUNTY ORDINANCE 98-48 (Industrial Safety Ordinance) Pursuant to the State of California Public Resources Code and the "Guidelines for Implementation of the California Environmental Quality Act of 1970" as amended to date, this is to advise you that the Community Development Department of Contra Costa County has prepared an initial study on the following project: The adoption of County Ordinance 98-48 (the Industrial Safety Ordinance) and on the Stipulated Judgement Items 7(a), (b) and (c). The proposed development will not result in any significant impacts. A copy of the negative declaration and all documents referenced in the negative declaration may be reviewed in the offices of the Community Development Department, and Application and Permit Center at the McBrien Administration Building, North Wing, Second Floor, 651 Pine Street, Martinez, during normal business hours. Public Comment Period -The period for accepting comments ori the adequacy of the environmental documents extends to 5:00 P.M., September 15, 1999. Any comments should be in writing and submitted to the following address: Name: Debbie Sanderson Community Development Department Contra Costa County 651 Pine Street, North Wing, 4th Floor Martinez CA 94553 AUG 5 1999 _J S.L.WEIR. CG�PJTY CLERK C01'4TRA CiiSTn C-OMTY BY—M?t-1 L -IC -G'=;'UTY Office Hours Monday- Friday:8:00 a.m. - 5:00 p.m. Office is closed the 1 st, 3rd&5th Fridays of each month It is anticipated that the proposed Negative Declaration will be considered for adoption at a meeting of the County Planning Commission on October 12, 1999 at 7:30 P.M. The hearing is anticipated to be held at the McBrien Administration Building, Room 107, Pine and Escobar Streets, Martinez. It is expected that die County Planning Commission will also conduct a hearing on the application at that same meeting. Additional meetings will be held by the County Community Development Department and the City of Richmond Planning Department at the following dates and times, in Room 108 of the McBrien Administration Building, concerning this proposed project (beyond the CEQA concerns); Thursday, August 26, 1999 at 10:00 A.M. Wednesday, September 8, 1999 at 1:30 P.M. Debbie Sanderson Special Projects Planner cc: County Clerk's Office (2 copies) noi.ltr Initial Study,Ordinance 98-48 August 5, 1999 Page 36 Attachment A: Hazard Score Risk Scenarios, prepared by the Hazardous Materials Commission (follows) Initial Study,Ordinance 9848 August 5, 1999 Page A-l Attachment A Prepared by Health Services Department for the Hazardous Materials Commission Staff reviewed approximately 87 land use scenarios originally evaluated by the Hazardous Materials Commission in 1996 and 1997. These scenarios were used as a basis for establishing the hazard score necessary to require facilities to obtain land use permits for development projects. The maximum hazard score possible using the Hazard Score Formula included in Section 84-63.1004 is 175. Many of the scenarios within the 50 to 80 point range are actually variations of original scenarios that scored greater than 80 points. Variables such as distance to receptor, material used, and size of project were manipulated to determine the lowest feasible hazard score that could be attained while keeping the development project a viable option. The Hazardous Materials Commission also identified the variables necessary to obtain a hazard score of 60. This often resulted in development projects that were not viable options (i.e., a hazard score of 60 was unattainable even by reducing the hazards associated with some development projects). The Hazardous Materials Commission concluded that if the hazard score required to obtain a land use permit was too low, there would be no incentive for facilities to incorporate hazard reduction measures into their original development project. For example, the first bullet in the 80-89 point range (Gasco Refinery) includes storage of a Hazard Category B material 3,400 feet from a receptor. The material is transported to and from the facility by rail. The second bullet in the 70-79 point range is the same scenario (Le., Gasco Refinery) only the facility has opted to move the storage vessel farther from receptors (3,850 feet as opposed 3,400 feet) and to transport to and from using marine vessels as opposed to rail. These changes _ decrease the hazards, and therefore, the hazard score, associated with the project. If the hazard score required to trigger a land use permit is 60, the facility may not elect to incorporate these changes into the original development project. They have to go through the land use permit process and may or may not be asked to incorporate these mitigations through the CEQA process. If the hazard score required to trigger a land use permit is 80, the facility will not have to go through the land use permit process if the elect to incorporate these changes. A representative sample of the scenarios between the 50 to 89 point range is shown below. NOTE: These scenarios are shown for demonstration purposes only. The difference between many of these scenarios is simply the type of receptor and distance to receptor. If these were actual scenarios, the facility would compute the hazard score based on each receptor type and distance to receptor combination and report the greatest hazard score. Initial Study,Ordinance 98-48 August 5, 1999 Page A-2 Revisions to the June 7, 1999 Initial Study: Italicized text represents additions to or corrections of these scenarios as presented in the earlier version of this Initial Study. 50-59 • Delta Chemical Company proposes switching from hydrogen chloride (Hazard Category A) to hydrochloric acid(Hazard Category B) and increasing storage capacity from 1,000 gallons to .8 tons. The new tank is 4801 feet from a residential receptor. There will be a 25% increase in truck transportation and a .74% increase in Hazard Category B storage. (59: not a viable alternative because of the small storage capacity) • Facility XYZ proposes to replace a 1000 gallon hydrochloric acid(37%) tank due to the tank's age and condition with a 2000 gallon tank. The tank is located approximately 3000 feet from residential receptors. The larger tank results in increased storage of 15%. (53) Revisions to the June 7, 1999 Initial Study: The point score 52 assumed that the development project included both removal of the old tank and construction of the new tank. The size of project was:incorrectly assumed to be 1000 gal. A point score of 53 is obtained if the development project only includes construction of the new tank. The size of project should therefore be 2000 gallons • The facility proposes to construct an MTBE manufacturing unit(producing about 2500 barrels/day) using 900 barrels/day of methanol and 2100 barrels/day of an existing isobutylene stream. The 46,000 tons/year of methanol would be delivered via rail and would result in a 15% increase in rail traffic. The project is construction of the processing unit and a 100,000 barrel tank. This is a less than 1% increase of hazardous materials use. The construction area is located 2 miles from a residential receptor (61). Revisions to the June 7, 1999 Initial Study: The project size, "A", was incorrectly assigned a value of 25 which corresponds to 4,000 tons to 6,000 tons. The correct value of"A"is 27 which corresponds to 10,000 tons to 18,000 tons. NOTE. this project would require a land use permit, regardless of score, because it is a new process unit with a hazard category B material(Section 84-63.1002(c)). • A major supplier of compressed gases proposes to store 62.5 tons of carbon dioxide (Hazard Category C) at a new site located 1584 feet from a residential receptor. The compressed gases will be shipped by truck. (59) • A major supplier of compressed gases proposes to store 62.5 tons of carbon dioxide (Hazard Category C) at a new site located 3696 feet from a sensitive receptor. The compressed gases will be shipped by truck. (55). Revisions to the June 7, 1999 Initial Study. NOTE.- The score was incorrectly calculated based on a distance to receptor of 3969 feet which corresponds to a "D"value of 16 as opposed to a distance to receptor of 3696 feet which corresponds to a `D"value of 17. Initial Study,Ordinance 98-48 August 5, 1999 Page A-3 • A facility,proposes adding a 5000 gallon storage tank to fuel trucks (Hazard Category B) doing maintenance on site. This results in a 2% increase in truck transportation and a .5% increase in storage capacity. The tank will be located 750 feet from a residential receptor. (55) 60-69 • Delta Chemical Company proposes switching from hydrogen chloride (Hazard Category A) to hydrochloric acid (Hazard Category B) and increasing storage capacity from 1,000 gallons to 5,500 gallons. The new tank is 4801 feet from a residential receptor. There will be a 25% increase in truck transportation and a 25%increase in Hazard Category B storage. (69) • The facility proposes to construct one additional tank (350 ton) to store petroleum-products (Hazard Category B material). The material will be moved to via pipeline and the tanks is located approximately 500 feet from a residential receptor. The additional tank results in a 1% increase of Hazard Category B material existing on site. (63) The facility proposes to construct one additional tank (100;000 barrel) to store petroleum products (Hazard Category B material). The material will be moved to via pipeline and the tanks are located approximately 1 mile from a sensitive receptor. The additional tank results in a 1% increase of Hazard Category B material existing on site. (60). Revisions to the June 7, 1999 Initial Study: There are two discrepancies. First, the transporta.tiora risk, "7"'was incorrectly assigned a value of 1 when in fact, it was a I% increase in pipeline usage which corresponds to a "T"value of 0. The second inaccuracy was that size of project "A" was incorrectly assigned a value of 25 which corresponds to 4000 tons to 6000 tons rather than a value of 27 which corresponds to 10,000 torts to 18,000 tons. • The facility proposes to construct one additional tank (100,000 barrel capacity) to store gasoline (Hazard Category B) in the tank farm. This represents a 5% change in the facility storage capacity. Materials will be moved to and from the tank by pipeline. The construction site is located 1 mile from a sensitive receptor. (63) 70-79 • Delta Chemical Company proposes switching from hydrogen chloride (Hazard Category A) to hydrochloric acid (Hazard Category B) and increasing storage .capacity from 1,000 gallons to 5,500 gallons. The new tank is 3000 feet from a residential receptor. There will be a 25% increase in truck transportation and a 25% increase in Hazard Category B storage. (76) • Gasoco Refinery proposes adding three methanol storage tanks. The refinery will provide methanol for it's own operations as well as supply a.neighboring refinery. This results in increased storage capacity of a Hazard Category B material of 52,000 tons or 10%. The tanks are located 3, 850 feet from a school Initial Study,Ordinance 9848 August 5, 1999 Page A-4 (sensitive receptor). The material will be transported by marine vessel into and out.of the facility resulting in increased traffic.of 6%. (79)) Revisions to the June 7, 1999 Initial Study: NOTE: This project would require a land use permit under 98-48, regardless of score, because the development project is in excess of 40,000 tons of hazard category B material(Section 84-63.1002(d)). • ABC Farms uses anhydrous ammonia in.their vapor-compression refrigeration system. They use chlorine, sodium hydroxide, and nitric acid in a small waste water treatment plant. They propose to build two new wash water storage tanks of 5000 gallons each and will need to add more storage for the water treatment chemicals. They also propose to switch from chlorine(Hazard Category A material) to 4 tons of hypochlorite solution (Hazard Category B). The plant is located 3700 feet from a sensitive receptor. The change results in a 22% increase in transportation and a 10% increase in storage capacity. (79). Revisions to the June 7, 1999 Initial Study: NOTE. The provisions of Chapter 84-63 of Co. Ord. 98-48 apply to any non-agricultural zoning districts. • A refinery proposes to build ten new storage tanks (100,000 barrels each) and ten new.processing units. The project involves a 20% increase in.truck traffic and a 15% increase in rail traffic. The total increase in volume is 1.5 million barrels. The expansion will be built 2 miles from a residential receptor(73). Revisions to the June 7, 1999 Initial Study: The project would result in a 6% increase in storage capacity. NOTE: this project would require a land use permit, regardless of score, because it is a new process unit with hazard category B materials (84- 63.1002(c)) • The facility proposes to construct one additional tank (100,000 barrel capacity) to store gasoline (Hazard Category B) in the tank farm. This represents a 5% change in the facility storage capacity. Materials«rill be moved to and from the tank by pipeline. The construction site is located 1000 feet from a residential receptor. (70) ■ The facility proposes to construct two additional 30,000 gallon tanks (each approximately 400 tons) for 93.6% nitric acid. The nitric acid will be moved to and from the site via pipeline. The facility is located 100 feet from a residential receptor. This results in an 81% increase in storage of hazardous materials. (97) Revisions to the June 7, 1999 Initial Study: The hazard score has been changed from 79 to 97. Nitric acid at 93.6% is considered "funning nitric acid" however, this information is not provided in the DOT guide, which is the first avenue for determining hazard category. The reader would have to review an MSDS to determine this information. "Red fuming nitric acid"is considered a hazard category A material, while nitric acid below 86% is considered a hazard category B material. The score of 79 incorrectly assumes that 93.6% nitric acid is a hazard category B, which corresponds to an "H"value of 3. The score of 97 assumes that 93.6% nitric acid is a hazard category A, which corresponds to an "H"value of 5. . Initial Study,Ordinance 98-48 August 5, 1999 Page A-5 • Currently a facility stores 10,000 gallons of acetone and 10,000 gallons of toluene. Transportation to and from the site is by truck. The proposed change in operation will continue to store 10000 gallons of acetone, but will double the number of trucks supplying the acetone. The use of toluene will increase so it will be brought in by 20,000 gallon railcars at the rate of one railcar a week. A second storage tank of 20,000 gallons will be installed. The proposed tank site is located 1.75 miles from a sensitive receptor(76). Revisions to the June 7, 1999 Initial Study. The Percentage Change, "Y' is 100%. 'T"was originally assigned a value of 4 which actually corresponds to >100%-200%. The correct value of'T" is actually 3 which corresponds to>50%-100°/x.. The score changes from. 79 to 76. • Currently a facility stores 10,000 gallons of acetone and 10,000 gallons of toluene. Transportation to and from the site is by truck. The proposed change in operation will continue to store 10000 gallons of acetone, but will double the number of trucks supplying the acetone. The use of toluene will increase so it will be brought in by 20,000 gallon railcars at the rate of one railcar a week. A second storage tank of 20,000 gallons will be installed. The proposed tank site is located 1.25 miles from a residential receptor (73). Revisions to the June 7, 1999 Initial Study: The hazard score changes from 76 to 73. The Percentage Change (P) is 100%. 'T"was originally assigned a value of 4 which actually corresponds to >I00%-200%. The correct value of'P"is actually 3 which corresponds to >50%- 100%. 80-89 • Gasoco Refinery proposes adding three methanol storage tanks. The refinery will provide methanol for it's own operations as well as supply a neighboring refinery. This results in increased storage capacity of a Hazard Category B material of 52,000 tons or 10%. The tanks are located 3, 400 feet from a school (sensitive receptor). The material will be transported by rail into and out of the facility resulting in increased traffic of 10%. (87) • ABC Farms uses anhydrous ammonia in their vapor-compression refrigeration system. They use chlorine, sodium hydroxide, and nitric acid in a small waste water treatment plant. They propose to build two new wash water storage tanks of 5000 gallons each and will need to add more storage for the water treatment chemicals. They also propose to switch from chlorine (Hazard Category A material) to 4 tons of hypochlorite solution (Hazard Category B). The plant is located 2250 feet from a sensitive receptor. The change results in a 22% increase in transportation and a 10% increase in storage capacity. (83). Revisions to the June 7, 1999 Initial Study: NOTE: The provisions of Chapter 84-63 of Co. Ord. 98-48 apply to any non-agricultural zoning districts. Also note that development projects in which both the size and monthly transportation quantity of hazard category B material are less than 51ons are exempt (84- 63.604). • A pool chemicals and toy supply business proposes to add a new line of carboys of bleach solution (total increase of 2000 pounds). This represents a 60% increase Initial Study,Ordinance 98-48 August 5, 1999 Page A-6 in hazardous materials stored. Trucks will be delivering the bleach solutions once per month through industrial areas. The facility is 500 feet from a residential receptor. (85) • Currently a facility stores 10000 gallons of acetone and 10000 gallons of toluene. Transportation to and from the site is by truck. The proposed change in operation will continue to store 10000 gallons of acetone, but will double the number of trucks supplying the acetone. The use of toluene will 'increase so it will be brought in by 20000 gallon railcars at the rate of one railcar a week. A second storage tank of 20,000 gallons will be installed. The proposed tank site is located 2640 feet from an industrial receptor (82). Revisions to the June 7, 1999 Initial Study: The hazard score changed from 85 to 82. The Percentage Change (P) is 100%. `P"was originally assigned a value of 4 which actually corresponds to >100%-200%. The correct value of`P"is actually 3 which corresponds to >50%- 100%. Initial Study,Ordinance 9848 August 5, 1999 Page 37 Attachment B: Comment Letters Received by County from "Interested Parties" (follows) 6753 Glen Mawr Avenue 99 KAY " p� El Cerrito, CA 94530 (t: 08 .May 14, 1999 ;r„ Debbie Sanderson Community Development Department 651 Pine Street, 4°i Floor Martinez, CA 94553-0095 Dear Ms. Sanderson: I have the following comment on the "Stipulated Judgment" on the Industrial Safety Ordinance (ISO). I believe that there have been environmental impacts by not adopting language pertinent to item 7.(a)of the judgment. This has been illustrated by the problems the Board of Supervisors has had addressing the two most recent releases, the 1999 Tosco and Chevron refinery fires. The inadequacy of the current ISO has been amply demonstrated by the inability of the County to halt all operations at the Tosco plant until the incident investigation was complete enough to prove whether a threat to the public existed, and by its inability to require Tosco to commit itself to a schedule to implement the Arthur D. Little recommendations before starting back up. Fortunately, Tosco voluntarily agreed to both of those steps,but what would have happened if Tosco had fought them? The impotence of the ISO within the city limits of Richmond was graphically illustrated by the Chevron fire. As I stated in the process of adopting the ISO, the County must be empowered "to require facilities to implement technical, managerial and/or other improvements at industrial facilities to promote public health and/or safety." I recommend that the ISO be amended to empower the Board of Supervisors to shut down any facility covered by the Ordinance immediately,before the incident investigation has been completed, in order to assure the health and/or safety of the public, and to set conditions for the facility to restart. I also recommend that the County work closely with the cities within the county, such as Richmond and Pittsburg, to amend the ISO so it applies equally to all equivalent facilities in the County, whether or not they fall within city limits. Sincerely, Step en Linsley, Member Hazardous Materials Commission A /' �. 94 MAY P.O.Box 711 MUG wwllvil"V� 2 4 PM 12: 0 4 Martinez,California 94553-0071 A DMslon of Equibn Enferyrises LLC Telephone: (925)313-3000 May 19, 1999 Dennis Barry Director Contra Costa County Community Development Department 651 Pine Street, 4th Floor,North Wing Martinez,CA 94553 Re: CBE Stipulated Judgement Dear Mr. Barry: Both in the County letter to "Interested Parties" dated April 19, 1999, and at the County sponsored meeting on the above topic held on April 28, 1999, written comments were solicited regarding the environmental impacts of the adoption of the Industrial Safety Ordinance("ISO")and the potential implementation of the CBE Stipulated Judgement. This letter provides the comments of the Martinez Refining Company("MRC"). MRC does not believe that either the adoption of the ISO or the adoption of the four options identified in Item 7 of the Stipulated Judgement("CBE Options")caused or will cause any potential adverse environmental impacts. The land use portion of the ISO is essentially the same as the provisions of the former Ordinance 96-20 which is the baseline for evaluating environmental impacts. The only substantive difference between the land use portion of Ordinance 96-20 and the ISO is the addition of a provision requiring land use permits for certain projects regardless of project score based on the volume of hazardous material to be handled. See Section 84-63-1002(b),(c),(d). This provision can only have a beneficial environmental impact. The second portion of the ISO imposes new requirements above and beyond Ordinance 96-20. These new requirements expand the application of the Federal and State RMP program to otherwise exempt processes,require the performance of root cause analysis for major accidental releases,and add enhanced auditing and inspection of stationary sources. These provisions also should only have a beneficial environmental impact. While the CBE Options do have potential adverse consequences,they do not appear to be adverse environmental impacts for the purposes of an Initial Study. MRC reserves the right to submit comments on the non-environmental impacts of the CBE Options at a later date as part of the County's process for the implementation of the CBE Stipulated Judgement. Sincerely, do Chuck Flagg Refinery Manager CALIFORNIA CONTRACTORS ALLIANCE P.O. Box 601,Benicia, CA 94510 Voice Mail (707)746-5594 9911,E Y 17 PM 3: ASPEN TIMCO,INC. May 17, 1999 V Mr. Dennis Barry BENICIA FABRICATION&MACHINE,INC. Director V CCC -. Development Department 651 Pine Street,North Wing COREY DELTA CONSTRUCTORS Martinez, CA 94553 V JEFFCO PAINTING&COATING,INC. Dear Mr. Bally: In the Contra Costa County's (County) role as lead agency under a stipulated NOVA GROUP,INC. judgment to perform an environmental review of the Industrial Safety V Ordinance (Ordinance 9848), you requested in a letter dated April 19, 1999 PETROCHEM INSULATION,INC. (see attached)that comments regarding "potential environmental impacts either V (1) due to the adoption of the Industrial Safety Ordinance(ISO) or(2) due to the possible adoption of any of the four options identified in Item 7 of the PUNT MAINTENANCE,INC. stipulated agreement(see attached)," be submitted not later than May 20, V 1999. In accordance with your request, please find below the comments of the SONNIKSON&STOROAHL California Contractors Alliance. CONSTRUCTION V It is the position of the California Contractors Alliance that the County's environmental analysis of the ISO must focus exclusively on safety, both for TIMEC the workers and for the communities in which industrial facilities exist. The environmental analysis should not be allowed to stray from the original TOTAL WESTERN,INC. elements contained in the ordinance or as required to be analyzed in the stipulated judgment. To do so would be to undermine the intent of the ordinance or to open it up to special interests seeking to achieve objectives UNDERGROUND CONSTRUCTION unrelated to industrial safety. Further, the analysis should avoid incorporating COMPANY,INC. issues unrelated to hazard assessment, such as worker training and T certification. It was the stated intent of the Contra Costa County Board of UCI CONSTRUCTION,INC. Supervisors in adopting the ISO that the issue of worker testing and certification, if required, should be dealt with in a separate venue through a process independent of the ISO. To that specific issue, CCA is not opposed to worker testing and certification, provided that it be objective, non- exclusionary, administered by an independent third-party, and affords all employees, regardless of affiliation, equal opportunity. Turning to the specifics of the stipulated judgment, Item 7 requires that the County's environmental review process shall, at a minimum, analyze the following mitigation measures and/or alternatives to ISO: i CALIFORNIA CONTRACTORS ALLIANCE P.O. Box 601, Benicia, CA 94510 Voice Mail(707)746-5594 ASPEN TIMCO,INC. (a) amending the ISO to allow the County to require facilities to implement technical, managerial and/or other improvements at industrial facilities to promote public health and/or safety; BENICIA FABRICATION&MACHINE,INC. (b) establishing a technical assistance grant program with funding T of$100,000 per year that will be available to community organizations to hire technical experts to assist with analyses of the safety plans submitted by COREY DELTA CONSTRUCTORS industrial facilities; (c) revising the thresholds contained in Section 84-63.1004 of the JEKCO PAINTING&COATING,INC. ISO for determining when new development projects are subject to environmental review to 60 and 70 hazard points. Nova GROUP,INC. Item 8 of the stipulated judgment requires that the County shall conduct the V review of the mitigation measures and/or alternatives outlined in paragraph 7 PETROCHEM INSULATION,INC. (above) to the ISO through an inclusive review process involving all interested parties, including the Petitioner(i.e., Communities for a Better Environment) in this action. PLANT MAINTENANCE,INC. Without dwelling on Communities for a Better Environment(CBE) essentially SONNIKSON&STOROAHL duplicating industry's successful challenge of its predecessor ordinance, the so- CONSTRUCTION called "Good Neighbor Ordinance(GNO)," it is somewhat ironic to note that those items to be evaluated in Item 7 are essentially an attempt by CBE to infuse back into the ISO elements that were found to be unrelated and, in fact, TIMEC contrary to industrial safety. Our comments regarding the specific elements in V Item 7 are as follows: TOTAL WESTERN,INC. V Item 7 (a) - Allowing the County to require industrial facilities to implement improvements to promote public health and/or safety, places the UNDERGROUND CONSTRUCTION County in jeopardy of mandating improvements which, if ineffective or COMPANY,INC. Counterproductive, raises serious questions regarding County liability. V Furthermore, numerous federal and state agencies, as well as professional UCI CONSTRUCTION,INC. organizations have, through their legislated authority or long-standing expertise, developed regulations and standards of practice that an expansion of the ISO might undermine, even to the level-of negatively impacting the health and safety of the workers and the communities surrounding industrial facilities. The CCA opposes such an amendment to the ISO. Item 7 (b) -Establishing a technical assistance grant program at a level of $100,000 per year that would be available to hire technical experts to assist with analyses of industrial safety plans is nothing short of using public moneys to fund a private organization. Recently, communities in the unincorporated 3 .. CALIFORNIA CONTRACTORS ALLIANCE P.O. Box 601, Benicia, CA 94510 Voice Mail (707)746-5594 areas of the County have strongly criticized the litigious and self-serving ASPEN TIMCO,INC. actions of CBE. It is the expectation that governmental agencies, charged to T protect the health and_safety, should fulfill that obligation and be responsible to BEN m FABRICATION&MACHINE,INC. the communities in which industrial facilities are located. Further, it is the right T and obligation of those truly community-based organizations to advocate for and represent the interests of their communities, not some special interest COREY DELTA CONSTRUCTORS organization located elsewhere. The CCA opposes such an amendment to the ISO. JEFFCO PAINTING&COATING,INC. Item 7 (c) -Revising the thresholds contained in Section 84-63.1004 of the ISO to 60 and 70 hazard points is contrary to the intent of the ordinance, NOVA GROUP,INC. Which was designed to encourage industries to reduce quantities of hazardous T materials and.establish buffer zones. The Contra Costa County Hazardous PETROCHEM INSULATION,INC. Materials Commission and numerous organizations, including those representing industrial workers, argued successfully that the intent of the point score in the land-use component of the ISO was to promote reductions in PLANT MAINTENANCE,INC. hazards in order to avoid the land-use entitlement process. To lower the score T would be to do exactly the opposite, i.e., to provide no advantage for reducing SONNIKSON&STOROAHL potential hazards. The CCA opposes such an amendment to the ISO. CONSTRUCTION Item 8 mandates that, through an inclusive review process involving all T interested parties, the County shall conduct its review of the mitigation TIMEC measures and/or alternatives outlined in Item 7. CCA formally requests its T inclusion in all aspects of the environmental review and any subsequent TOTAL WESTERN,INC. processes, including but not limited to receiving announcements, agendas, minutes and documents, participating in all informal and formal discussions and T proceedings leading up to and including the rendering of any decisions by the UNDERGROUND CONSTRUCTION Contra Costa Planning Commission, Hazardous Materials Commission, Board COMPANY,INC. of Supervisors or any other body that may deliberate on this issue, should any T of the measures in Item 7 be incorporated into the ISO. The CCA's UCI CONSTRUCTION,INC. membership includes many of the premier contractors performing a majority of the routine maintenance and turnaround services for the County's industrial facilities, making them vested stakeholders. To achieve the goal of an industrial safety ordinance that does not place the county at jeopardy, that does not bow to special interests and maintains an incentive to reduce industrial hazards, the environmental review, and subsequent deliberations and decision-making, must focus exclusively on the CALIFORNIA CONTRACTORS ALLIANCE IF P.O. Box 601, Benicia, CA 94510 Voice Mail (707)746-5594 issue of industrial safety. We are committed to working toward this objective ASPEN TIMCO,Inc. and participating in that process. BENICIA FABRICATION&MACHINE,INC. Sincerely yours, COREY DELTA CONSTRUCTORS EaUS V Brent Babow JEFFCO PAINTING&COATING,INC. Vice President Copies To: Contra Costa County Board of Supervisors NOVA GROUP,INC. Clerk of the Board of Supervisors Debbie Sanderson,.Contra Costa County Community PETROCHEM INSULATION,INC. Development Department V PLANT MAINTENANCE,INC. SONNIKSON&STOROAHL CONSTRUCTION V TIMEc TOTAL-WESTERN,INC.' UNDERGROUND CONSTRUCTION COMPANY,INC. UCI CONSTRUCTION,INC. Tosco Refining Company A Division of Tosco Corporation San Francisco Area Refinery Paw at Avon Martinez,California 94553-1487 Telephone:(510)228-1220 Tosco 0911AY 20 PM 1: 0- May : 0-May 19, 1999 Ms. Debbie Sanderson Contra Costa County Community Development Department County Administration Building 651 pine St., 2nd Floor, North Wing Martinez, CA 94553 DELIVERED BY HAND Re: CEQA Review of Industrial Safety Ordinance and four options listed in Contra Costa County/CBE settlement Dear Ms. Sanderson: The Tosco Refining Company wishes to submit written comments on the California Environmental Quality.Act (CEQA) Review of Ordinance 98-48, the Industrial Safety Ordinance (ISO), and the possible adoption of any of the four options identified in Item 7 of the stipulated agreement between CBE and Contra Costa County. Ordinance 98-48 has no adverse environmental impacts and offers environmental benefits beyond any of the previous County Ordinances 96-50, 96-20 or 86-100. Ordinance 98-48 is more stringent in its land use permitting requirements and it addresses industrial safety, which had not been previously addressed by any ordinance. Ordinance 98-48 was adopted under the County's authority to protect public health and safety by prevention of accidental releases of hazardous materials and to assure protection of the environment. Ordinance 98-48 establishes and expands safety measures for industrial processes beyond that required by state and federal law, it creates requirements for use of rigorous methods of investigating accidents and it creates the first human factors program in the nation. Furthermore, this ordinance iS locally enforced, allowing for greater regulatory oversight than previously existed. There are no negative environmental impacts in adopting Ordinance 98-48. CBE/Contra Costa County stipulated agreement Item 7(a) "amending the ISO to allow the County to require facilities to implement technical, managerial and/or other improvements at industrial facilities to promote public health and/or safety. " Item 7(a) in the stipulated agreement between CBE and Contra Costa County will have a negative environmental impact if Ordinance 98-48 is amended to include this language. Ordinance 98-48, as currently written, grants the County the authority to require changes in the safety program at an industrial facility. 4 Section 450-8.014 (n) of Ordinance 98-48 defines the Safety Program as follows: "Safety Program" means the documentation, development, implementation, and integration of management systems by the Stationary Source to comply with the safety requirements set forth in Section 450-8.016 of this chapter. Section 450-8.018 (11)(1) of Ordinance 98-48 grants the Health Services Director, or any of his authorized deputies, the authority to require changes to the safety program implemented at a facility. It states as follows: Based upon the Department's audits, safety inspection, or an incident inspection, the Department may require modifications or additions to the Safety Plan submitted by the Stationary Source or Safety Program to bring the Safety Plan or Safety Program into-compliance with the requirements of this chapter. Furthermore, if the Department's decision is appealed, :the Board of Supervisors has the same authority as the Department in requiring changes at a facility's safety program. Section 450-8.018 (11)(2) states: In acting on the appeal, the Board shall have the same authority over the Notice of Findings as the Department. The Board may require modifications or additions to the Safety Plan submitted by the Stationary Source or Safety Program: to bring the Safety Plan or Safety Program into compliance with the requirements of this chapter. Ordinance 98-48, as currently written, already provides the County the authority to require changes at a facility to promote public health or safety. However, Ordinance 98- 48 was carefully written to limit decision-making discretion to industrial safety measures contained within the ordinance. This was done purposefully to allow the County to require safety-based measures, yet avoid triggering CEQA. If CEQA was triggered each time the County required safety measures at a facility, the implementation of these safety measures would be significantly delayed by the CEQA process. This delay could have negative environmental impacts and serve to decrease public health and safety. CBE/Contra Costa County stipulated agreement Item 7(b) "establishing a technical assistance grant program with funding of$100,000 per year that will be available to community organizations to hire technical experts to assist with analysis of the safety plans submitted by industrial facilities. " Item 7(b) in the stipulated agreement between CBE and Contra Costa County offers no beneficial environmental impact if Ordinance 98-48 is amended to include this language. The County already has a Health Services Department, which regulates public health and safety and can act as a technical resource to the public. Health Services also employs an P Ombudsman to assist the public with issues involving hazardous materials, such as the issues covered in Ordinance 98-48. Finally, the County also has a Community 2 s Development Department, which serves as the environmental steward by assuring that specific development projects go the CEQA process and that environmental issues are addressed. CBE/Contra Costa County stipulated agreement Item 7(c) "revising the thresholds contained within Section 84-63.1004 of the ISO for determining when new development projects are subject to environmental [sic] review to 60 and 70 hazard points. " *It is assumed for purposes of this discussion that Item 7(c) contains a typographical error and was intended to reference Section 84-63.1002 rather than 84-63.1004. Ordinance 96-20 was the original ordinance containing the mathematical formula to determine land use permitting scores for industrial development projects. The threshold score for land use permits was set at 80 points by the Hazardous Materials Commission, which held more than three years of public meetings and hearings to develop the ordinance and that threshold score. The Commission scored many real and hypothetical .industrial development projects to determine the 80 score. Ordinance 98-48 contains the same mathematical formula and threshold score . as Ordinance 96-20. However, 98-48 contains additional language (Section 84-63.1002 (b)- (d) ) that requires large development projects to obtain a land use permit regardless of the score of those projects. This language was added in response to the concerns raised during public hearings for Ordinance 96-20 that certain large projects would not score as high as 80 and therefore not be required to obtain a land use permit. The language contained within Ordinance 98-48 states as follows: 84-63.1002 Hazard Score; Permit Required. Unless otherwise exempt from the requirements of this chapter, a land use permit shall be required for a development project proposed for the management of hazardous material and/or hazardous waste if anY of the following apply: (a) the development project obtains a hazard score of 80 or more pursuant to the formula set forth in section 84-63.1004; or (b) for hazard category A materials, the development project stores twice the quantity specified as the Threshold Planning Quantity on the Extremely Hazardous Materials List (Appendix A of 40 CFR Chapter I, Subchapter J Part 355), as amended from time to time, or 2000 pounds, whichever is less; or (c) for hazard category A or B materials, the development project will result in a new process unit(s) unless the process unit complies with Section 84-63.1004(d) 1-6 — Credit for reductions or projects to be closed. Modifications to an existing process unit does not constitute a new process unit; or 3 (d) for hazard category B materials, any development project that has a fill to the maximum capacity of 40,000 tons or more unless the , development project complies with Section 84-63.1004 (d) 1-6 — Credit for reductions or projects to be closed. The additional language in 84-63.1002 serves to catch large development projects that score below 80 points without capturing smaller business projects scoring below 80 points. We submit that the County should allow sufficient time to pass in order to determine the effects of this language on land use permitting, before making before any more changes to this section. In conclusion, the Tosco Refining Company supports Ordinance 98-48 as currently written and believes the ordinance should be given time to determine its effectiveness. The changes proposed by the CBE/Contra Costa County stipulated agreement offer negative environmental impacts or no environmental benefits and should not be incorporated into Ordinance 98-48. Sincerely, Marjor Hatter, Mana r, Health and Safety 4 3398 Wren Avenue Concord, CA 94519 June 25, 1999 99���28 P8 3: c Debbie Sanderson, Community Development Department �:•,,,� Contra Costa County 651 Pine Street, North Wing Martinez, CA 94553 Re: Initial Study on Ordinance 98-48 and Options Dear Ms. Sanderson, I am writing to disagree with the Community Development Department's proposal of a Negative Declaration for two of the Options under the Stipulated Agreement. I believe that adoption of Option 7a and/or Option 7c could have significant negative environmental effects on the County. Option 7a The CDD analysis of possible effects under Option 7a discusses the possibility that HSD staff might require a facility to make changes which would have a negative environmental effect, but notes that a facility could disagree and appeal the decision to the Board of Supervisors. CDD concludes that the Board could then make the environmentally desirable decision. In fact, the final decision would be made by elected officials who do not have expertise in the specialized field involved, relying on their personal determination of which expert group (HSD staff or facility personnel) was correct. The possibility certainly exists that the final decision by the Board might in fact be incorrect and have negative impacts. The CDD analysis also assumes that the facility would actually appeal the HSD requirement if it might have negative impacts. In fact, the facility might be unwilling to extend the process of approving the plan, or fear political and community reaction to an appeal, and thus the HSD decision might stand. The CDD analysis does not consider the possibility that the staff might not require a change, and that some other party which desires the change could then appeal the decision to the Board, although this is certainly allowed under the Option, and was in fact the rationale when this amendment was proposed during the initial adoption of 98-48. In this case, the Board would again be choosing between groups of experts, with the probable additional component of emotional community pressure. Again, the possibility exists that the Board might make an decision with the potential for environmental problems in the future. Based on these three scenarios, I cannot agree with the Negative Declaration proposed for this Option. Sanderson, CDD -2- 6/25/99 Option 7c The CDD analysis of Option 7c concludes that lowering the threshold for hazard scores would have a beneficial effect, if any, by including facilities in the environmental review process that otherwise would avoid the review by modifying their proposals. Since the modifications could be included in conditions for a permit which would be required under the environmental review, the result would be similar, according to CDD. If a facility decided not to ask for a permit because of the need to do an environmental review, the result is also presumed to be beneficial (i.e., no project, no additional risk). However, removing the incentives for risk-reduction from.the hazard assessment process could in fact have a real impact on which projects would be proposed in the county in the future. As someone who has been involved in each of the successive versions of industrial land use permit ordinances leading to 98-48, I am very aware of the need for an ordinance which will accommodate modernizations and upgrades to existing facilities. In many cases these modernizations may result in less risk to the community, but this is not the primary reason for such improvements. Lowering the threshold may result in corporate decisions to postpone or eliminate planned improvements to a facility because the environmental review process makes them less cost-effective or otherwise desirable. While lowering the threshold.to 70 rather than 60 might have less effect on this scenario,-it would raise the possibility that the county might continue to tinker with the threshold level. This could still introduce an element of uncertainty for corporate.planners which might have the same chilling effect on.future facility improvements. While postponing or eliminating such projects will have only a neutral effect on the community initially, since risk is not immediately increased, the result will be a facility which is not up-to-date, and one where management and employees may become less concerned with operating safely. Corporate leadership, especially if based in another state,may"write off' the facility in future corporate plans, and become uninterested in running it in a responsible, risk-free manner. In fact, all the elements cited in the recent Tosco audit could be present, with the potential for significant environmental impact in the case of accidents or releases. Therefore, I am not comfortable with the Negative Declaration proposed for Option 7c. I believe that further environmental review is necessary for both Option 7a and Option 7c. Sincerely, Leslie Stewart COMMUNITIES FOR A 7--July 1999 ETTER 99 JU> 8 Phi 2:4 0 Debbie Sanderson EN' VIRONMEW' Community Development Depaiiment _ . . 651 Pine Street, 4th.Floor ! .! Martinez;CA 94553-0095 Re::.Propos ed:Negative"Declarationfor the-Industrial Safety Ordinance Dear Ms: Sanderson: Communities for a Better Environririent..(."CBE")strongly urges the County of Contra.C.osta.. ("County") to prepare an environmental irripact-report:("EI.R")..for.the Industrial Safety :Ordinance CISO'.').. Tlic Initial Study.Evaluation of the:IndustriaUSafety 0idmance•erroneously concluded that the.1SO.would have no environmental_impact.'ne County will.violate the California EnvironmentalQuality Act;("CEQA");Pub:Resources Code section 21 OQ of seq:,'and CEQA's implementing.Guidelines f'CEQA.Guideline"},Title 14 of the California-Code of. Regulations Section 154:0 et s4,:if the Countydoes pot prepare an EIR.before reconsidering and readopting the ordinance.-..An.EIR is required because the ordinance:may have a significant adverse environmental impact. :An EIR.must-be prepared wheneversubstantial evidence.sup ports:a-fair.arguirient.that.a`propos' may have a significant adverse impact on the environment. Sed Laurel Heightsg Improvement Ass'ri'y. Regents of the Univ:of.Cgl., 6 Cad.4th 1112; 1123,26 Ca1.Rptr.2d'231 (1993): A . significant environmental impact exists when there is a substantial or potentially substantial. adverse change to the environment.. See Pub. Res. Code § 21068; 14.Cal:'Code Regs.§ 15382: A substantial adverse change to the.environment exists if there is.a reasonable probability that the proposal will result'in a'significant impact. See No Oil Inc. v. City of Los'An� eles, 13-C a1. . . 3rd.68,83, fn:,- 16,.11.Cap:Rptr. 34 (1974). .There are four reasons.why the.proposed ordinance may have significant adverse environmental impacts requiring theprepataitionof an EIR. 'Any one of these impacts justifies.prepa-al on of an A. First, the ISO raises the risk-threshold for environmental,review for.requiring land use.permits for:new:projects.or significant modifications from 60 poitits to 80.points, which may have a significant adverse environmental impact. . The ISO:revised.t4e thresholds for determining when new development projects are subject to environmental review from 6.0:pointg to air increased threshold of 80points: While additional conditions were added in an attempt to prevent increased risk, the possibility still exists:for new development projects with increased risk to escape review and cause a.negative environrnental impact. rVor example,the 'additional language addresses;only very specific-cases where a project CBE is a non-profit.environmental organization with-statewide membership and.offices in San Francisco, Los Angeles and Huntington Park, CBE is committed to supporting communities in an effort to,improve the environment and public health.in urban areas.-,CBE,which'has 20,000 members statewide,'hundreds!of whom five : in-Contra Costa County;worked to-pass.the Good Neighbor'Ordinanck in Contra•Costa County. 50O Howard�$treei' Suite •5*0.6:• San:Francisco; CA .9.4105 (415) 243'=8373 In.C'nutftivrn. r:aWnrn.m.-605'W. olvinnin�Rlvd.:Suite 850 � L, s Aneeles:CA 9.0015 4.(213)486'5114 . 7'July 1999 - CBE Comment Letter on,Proposed-Negative Declaration ` Page 2 6f scoring 80 points.will require review,such as projects with.new units containing certain chemicals or increases in chemical usage. A negative environmental impact may occur from projects that:do not meet these narrow criteria but'still increase risk. Z. There is substantial_evidence that suPPorfs afair ar, ument'that raising the,threshold for enviro unental review may have,a Mgnifccant adverse impact on the e�tvironment. With decreased safely requirements;the potential for plant blow-ups:or accidents inereases-greatly. This Creates a.great potential of allowing�rojects withincreased threat ofnegative environrAental impact to7dvoid,public scrutiny and environmental review prior to permitting, directly resulting in&,significant adverse environmental impact. The verypurpose of the ISO_ , aridsimilar ordinances, is to:address the issue of industrial accidents. , . Moreover, Mf. Marc Scott;an independent.expert hired by-.�he County,:identifies:a number of _ negative impacts�of�the ISO scoring system; incl4ding the possibility that more-dangerous h projects can get lower scores aid:less danger6us'proje6ts-can get higher score§. (Report to the', Contra,Costa bounty Board of Supervisors,.Review of Ploposed'Industri'al Safety Ordinance r . Contra Cotta County.p. 19-21, attached as Exhibit A)- .Additionally;Mr..Scott,identifies..that the scoring system does not take the inobility.of chemicals into consideration._ Therefore,low mobility_•cheinicals are!penalized while high-mobilitymaterial s arelooked upon leniently: For certainjases that have veil low limits for toxic exposure, releases may have the potential for serious health impacts beyond the 3 miles shown,in the Hazard Score tables. AgaK.this may result in a significant'adverse environmental impact because of the potential for harm to.the environment when a release occurs. Thus, there.is substantial evidence-supporting a fair. argument that the proposal may,have a significant adverse impact on the environment requiring that an EIR be coinplete'd before passing.the ISO. B. Experts disagree whether-proposed amendments to the ISO will have a-negative impact on.the environment. This disagreement requires the'Countyto prepare an EIR. ' The county must conduct an environmental impact review because experts.disagree as to whether proposed amendments could result in negative environmental impacts. Comments have , been submitted to the County which argue that the impacts of amending the ISO could create. . negative environmental impacts through.the'delayofpermits-and other actions. The County and others believe tl}at the lower threshold would not have an actual or potential significanf:adverse ; environmental impact. Whenever there is a disagreement among experts over the significance of an,.effect,the.zffect must be treated as significant and an EIR must be prepared. See Sierra Club V. County,of Sonoma, 6 Cal.'App. 4th 13071)_1317J322-23 (1992). Therefore,there is substantial evidence that supports a fair argument that the'proposal may haven significant adverse-impact on the environment. As such,an EIR must be conducted. 7 July 1999 CBE Comment Letter on Proposed Negative Declaration Page 3 of 3 . C. The existing ISO does not give power to the'county to.increase-or change safety measures not initiated by the industry resulting in compromised regulatory authority, which may have a significant adverse environmental.impact. Pursuant to the Stipulated Judgement in Communities for a Better Environment v. 'County of Contra Costa—Civil No. C99-00094;the'Courity must consider whether it has the autHority to :require installation of certain safety measures'(`.`Amendment 7(a)"). 'The existing ISO does not give povVer to the county to-increase or change safety measures not.initiated by the % There.is a dispute over the necessity of such authority.. On.:the one hand, it is argued that the County must have,this authority to ensure the protection of the people living in'the county and the protection of the environment: Without thl§ authority, the County does not haveian opportunityto ensure that the needs of the environment are meta. All the power is left in the . hands of the iridustry whom,in order to cut cost, may avoid imple'menting,costly;'.though necessary,safety equipment. On the other hand;'ithas Been�igued that the Amendment 7(a) 'could have'a negative impact if the permit process delayed safety improvements because of additional time necessary for environmental review. The existing ambiguity'alone is substantial evidencethat.supports a fair argument that the proposal may have a significant adverse-impact bn the environment. The only way to ensure that these concerns are addressed is for the County to prepare an EIR - - -D., Section VII of.the Initial Study, dealing with significant hazards to the public or the environment from the transport, use..or disposal of haza'rdous�.materials; cannot be concluded'to.have no environmental impact. In§VII of the Initial Study, which addresses the impact of transporting, using,or disposing of hazardous.materials,the County concluded that the ISO would cause no environmental impact. .However, §VII(c); which addresses the existence of hazardous materials near existing.or . proposed schools,will be violated-because there are plants located '/, mile from schools. If there is a toxic release to the air, soil, or water it,may effect an existing school. Thus, there is substantial evidence that.supports a fair argument of significant environmental impact. The county cannot conclusively claim that the ISO will have.no impact on schools within %a mile of industrialfacilities l ecause.the degree to which the ordinance subjects industrial facilities to . environmental review mayhave a significant.adverse environmental impact. Therefore, th_e only way to continue in a�lawful manner is to conduct an EIR. For all of the above reasons, CBE respectfully requests that the County reject the Initial Study's proposed negative declaration. Further, CBE strongly urges the County to proceed and conduct an EIR'to see what the'true environmental impact will-be. Please contact Beatrice. Wong at'(415) 243-8373 ext.202 with any questions or concerns. Respectfully submitted, Denny Larson, orthern California Program irector Beatrice Wong, Staff;Attorney J. Mijin Cha, Legal Intern PAPPI"I"& Tosco Refining Company A Division of Tosco Corporation San Francesco Area Refinery Apo at Avon Martinez,California 94553-1487Telephone:(510)228.1220 TRACONTA COTOSCO July 7, 1999 Ms. Debbie Sanderson Community Development Department, North Wing-4h Floor County Administration Building 651 Pine St. Martinez, CA 94553 DELIVERED BY HAND Re: Initial Study and preliminary determination of a Negative Declaration for the Industrial Safety Ordinance and four options listed in Contra Costa County/CBE settlement Dear Ms. Sanderson: The Tosco Refining Company hereby submits written comments on the Initial Study for the Industrial Safety Ordinance(Ordinance 98-48)and the possible adoption of any of the four options identified in Item 7 of the stipulated agreement between CBE and Contra Costa County. Tosco supports the conclusion of the preliminary determination in the Initial Study that a Negative Declaration is required under CEQA for Ordinance 98-48. As stated in our previous letter, there are no adverse environmental impacts associated with adoption of Ordinance 98-48 as it is currently written. Several State and Federal regulations address industrial safety in the same manner as Ordinance 9848, by allowing regulatory agencies to require managerial changes in safety programs at facilities (29 CFR§ 1910, CCR Title 8 Chapter 5189,40 CFR§ 68, CCR Title 19 Chapter 4.5). These regulations have been in place for many years with no observable adverse impacts to the environment. However, with respect to the stipulated agreement Item 7(a), Tosco submits that a negative declaration, is not appropriate. Item 7(a) refers to "amending the ISO to allow the County to require facilities to implement technical, managerial and/or other improvements at industrial facilities to promote public health and/or safety." The Initial Study interprets "technical improvements"to refer to improvements to the physical system and"managerial improvements" to refer to improvements to programs and procedures. Evidence exists that requiring technical improvements of this sort may cause significant adverse environmental impacts. For example, in 1994, the EPA adopted an Ethylene oxide emission regulation, 40 CFR Part 63 Subpart O. By July 1997, there was evidence that the emission control equipment required by this regulation may have been responsible for four industrial explosions. One explosion, in Indiana, killed one person and injured 69 others. The Director of EPA's Office of Air Quality Planning and Standards issued two letters to the EPA expressing safety concerns with the implementation of Subpart O. The EPA suspended compliance with Subpart O for one year, while accident investigations determined the role of the regulation in these accidents. Presently, three investigations are complete and the fourth investigation is pending. 1 The preliminary investigation findings suggest that two of the three mandated types of Ethylene oxide control equipment were involved in the explosions and that the cause of the accidents was related to difficulties in operating the required control equipment in conjunction with certain processes. In the near future, the EPA and the National Institute for Occupational Safety and Hazard (NIOSH) will be issuing an alert regarding the difficult nature of operating these types of control equipment in conjunction with sterilization processes (Craig Matthiesson, EPA investigator, conversation on 7/6/99). The Ethylene oxide regulation clearly demonstrates that requiring specific types of technical modifications to ongoing industrial processes may have unintended consequences that can be extremely detrimental to the environment as well as human health and safety. Similarly, we believe that the sort of"technical improvements"required under Item 7(a) could have significant adverse environmental consequences that cannot be adequately addressed in a Negative Declaration. Our previous letter sets forth comments on CBE/Contra Costa County stipulated agreement Item 7(b) ("establishing a technical assistance grant program with funding of$100,000 per year that will be available to community organizations to hire technical experts to assist with analysis of the safety plans submitted by industrial facilities") that need not be repeated here. With respect to CBE/Contm Costa County stipulated agreement Item 7(c) ("revising.the thresholds contained within Section 84-63.1004 of the ISO for determining when new development projects are subject to environmental [sic] review to 60 and 70 hazard points"), we continue to maintain that the County should allow sufficient time to pass in order to determine the effects of the new land use permitting language in Ordinance 98-48 before maldng before any changes to this section. In conclusion, the Tosco Refining Company supports a Negative Declaration for Ordinance 98-48 as currently written and believes the ordinance should be given time to determine its effectiveness. Item 7(a), proposed by the CBE/Contra Costa County stipulated agreement, offers potentially adverse environmental impacts and should be not be subject to a Negative Declaration. Sincerely, "%rM or ,Hatter, Mana r, Health and Safety Attachments: 7/18/97 Letter from John Seitz, Director,OAQPS 7/29/97 Letter from John Seitz, Director,OAQPS '40 CFR Part 63 Subpart O 12/4/97 Action by Carol Browner,Administrator, EPA (Attachments to this letter available upon request from the Community Development Department) 2 Attachment B: Notices of Public Review and Intent to Adopt a Proposed Negative Declaration r CommunityCOntra Dennis M.Barry,AICP Community Development Director Development Department Costa County Administration Building County 651 Pine Street . <; 4th Floor, North Wing Martinez,California 94553-0095 Phone: (925)335-1210c `t gu , srq �a�H� Au st 5 1999 NOTICE OF PUBLIC REVIEW AND INTENT TO ADOPT A PROPOSED NEGATIVE DECLARATION COUNTY ORDINANCE 98-48 (Industrial Safety Ordinance) Pursuant to the State of California Public Resources Code and the "Guidelines for Implementation of the California Environmental Quality Act of 1970" as amended to date, this is to.advise you that the Community Development Department of Contra Costa County has prepared an initial study on the following project: The adoption of County Ordinance 98-48 (the Industrial Safety Ordinance) and on the Stipulated Judgement Items 7(a), (b) and (c). The proposed development will not result in any significant impacts. A copy of the negative declaration and all documents referenced in the negative declaration may be reviewed in the offices of the Community Development Department, and Application and Permit Center at the McBrien Administration Building, North Wing, Second Floor, 651 Pine Street, Martinez, during normal business hours. Public Comment Period -The period for accepting comments on the adequacy of the environmental documents extends to 5:00 P.M., September 15, 1999. Any comments should be in writing and submitted to the following address: Name: Debbie Sanderson Community Development Department Contra Costa County 651 Pine Street, North Wing, 4th Floor Martinez, CA 94553 I I it i ! ' j J AUG F 1999 i S.L.:rJE IR,COUNTY CLERK LONTRA COSTA COUNTY BY —DEPUTY Office Hours Monday- Friday:8:00 a.m.-5:00 p.m. Office is closed the 1 st, 3rd&5th Fridays of each month It is anticipated that the proposed Negative Declaration will be considered for adoption at a meeting of the County Planning Commission on October 12, 1999 at 7:30 P.M. The hearing is anticipated to be held at the McBrien Administration Building, Room 107, Pine and Escobar Streets, Martinez. It is expected that the CountyPlanning Commission will also conduct a hearing on the application at that same meeting. Additional meetings will be held by-the County Community Development Department and the City of. Richmond Planning Department at the following dates and times, in Room 108 of the McBrien Administration Building, concerning this proposed project (beyond the CEQA concerns); Thursday, August 26, 1999 at 10:00 A.M. Wednesday, September 8, 1999 at 1:30 P.M. Debbie Sanderson Special Projects Planner cc: County Clerk's Office (2 copies) noi.ltr Community Contra � '� + �ffen"• .Baty;+=A1C"p omr> ity Depielopm rit Director Develo ment VC r ' Development Costa Department COUnfi, I, `y SEP 2 81999 County Administration Building 651 Pine Street :_•�.r �=�� ''. 4th Floor,North.Wing _ { S.L.WEIR,.000NTY CLERK. Martinez,California 94553-0095 ^° "`' C TRA C STA COUNTY oBy PUTY ; Phone: (925) 335-1208 �"rovx�Jy`4 S p ember 28, 1999 sr . NOTICE OF PUBLIC REVIEW AND INTENT TO ADOPT A PROPOSED NEGATIVE DECLARATION County Ordinance 98-48 (Industrial Safety Ordinance) Pursuant to the State of California Public Resources Code and the "Guidelines for Implementation of the California Environmental Quality Act of 1970" as amended to date, this is to advise you that the Community Development Department of Contra Costa County has prepared an initial study on the following project: The adoption of County Ordinance 98-48 (the Industrial Safety Ordinance) and the four options contained in Items 7(a), (b) and (c) of the Stipulated Judgment entered into by Contra Costa County and Communities for a Better Environment on April 8, 1999. The proposed project will not result in any significant impacts. A copy of the negative declaration and all documents referenced in the negative declaration may be reviewed in the offices of the Community Development Department, and Application and Permit Center at the McBrien Administration Building, North Wing, Second Floor, 651 Pine Street, Martinez, during normal business hours. Public Comment Period -The period for accepting comments on the adequacy of the environmental documents extends to 5:00 P.M., October 25, 1999. Any comments should be in writing and submitted to the following address: Name: Debbie Sanderson Community Development Department Contra Costa County 651 Pine Street, North Wing, 4th Floor Martinez, CA 94553 Offing Hni irc Mnnriov_c,a,.,.n.nn It is anticipated that the proposed Negative Declaration will be considered for adoption at a meeting of the County Planning Commission on October 26, 1999 at 7:30 P.M. The hearing is anticipated to be held at McBrien Administration Building, Room 107, Pine and Escobar Streets, Martinez. Debbie Sanderson Senior Planner cc: County Clerk's Office(2 copies) /amc S.LETMRSVSORD.NO[ -2- l 'L Attachment B: Notices of Public Review and Intent to Adopt a Proposed Negative Declaration S Community Dennis M.Barry,AICP ontra . Community Development Director Development Department Costa County County Administration Building sE.. 651 Pine Street 4th Floor, North Wing Martinez, California 94553-0095 Phone: (925)335-121.0 °sr�"�o�a August 5, 1999 NOTICE OF-PUBLIC REVIEW AND INTENT TO ADOPT A PROPOSED NEGATIVE DECLARATION COUNTY ORDINANCE 98-48 (Industrial Safety Ordinance) Pursuant to the State of California Public Resources Code and the "Guidelines for Implementation of the California Environmental Quality Act of 1970" as amended to date, this is to.advise you that the Community Development Department of Contra Costa County has prepared.an initial study on the following project: The adoption of County Ordinance 9848 (the Industrial Safety Ordinance) and on the Stipulated Judgement Items 7(a), (b) and (c). The proposed development will not result in any significant impacts. A copy of the negative declaration and all documents referenced in the negative declaration may be reviewed in the offices of the Community Development Department, and Application and Permit Center at the McBrien Administration Building, North Wing, Second Floor, 651 Pine Street, Martinez, during normal business hours. Public Comment Period -The period for accepting comments on the adequacy of the environmental documents extends to 5:00 P.A1, September 15, 1999. Any comments should be in writing and submitted to the following address: Name: Debbie Sanderson Community Development Department Contra Costa County 651 Pine Street, North Wing, 4th Floor Martinez' CA 94553 _ Ll I AUG F 1999 I S.L.WEIR.COUNTY CLERK ` CONTRA COSTA COUNTY BY ' �1Sl� DEPUTY Office Hours Monday -Friday:8:00 a.m.-5:00 p.m. Office is closed the 1st,3rd$5th Fridays of each month It is anticipated that the proposed Negative Declaration will be considered for adoption at.a meeting of the County Planning Commission on October 12, 1999 at 7:30 P.M. The hearing is anticipated to be held at the McBrien Administration Building, Room 107, .Pine and Escobar Streets, Martinez. It is expected that.the CountyPlanning Commission will also conduct a hearing on the application at that same meeting. Additional meetings will be held by-the County Community Development Department and the City of Richmond Planning Department at the following dates and times; in Room 108 of the McBrien Administration Building, concerning this proposed project (beyond the CEQA concerns); Thursday, August 26, 1999 at 10:00 A.M. Wednesday, September 8, 1999 at 1:30 P.M. Debbie Sanderson Special Projects Planner cc: County Clerk's Office (2 copies) noi.ltr i Community Contra ���~— - !� Penn' Ba�ry;ylJCP i 1 1..1 Comrrty peWelopmQrit Director Development Costa IL f1 Il!� luu[ f Department County SEP 2 81999 County Administration Building se •f 651 Pine StreetE=f� _ 4th Floor North Wing h- S.L.WEIR,COUNTY CLERK . 9 C TRA CSTA COUNTY Martinez California 94553-0095 '; Sy _ Pl1TY n ' 99 Phone: (925) 335-1208 **,eau J S p ember 28, 19 NOTICE OF PUBLIC REVIEW AND INTENT TO ADOPT A PROPOSED NEGATIVE DECLARATION County Ordinance 98-48 (Industrial Safety Ordinance) Pursuant to the State of California Public Resources Code and the "Guidelines for Implementation of the California Environmental Quality Act of 1970" as amended to date, this is to advise you that the Community Development Department of Contra Costa County has prepared an initial study on the following project: The adoption of County Ordinance 98-48 (the Industrial Safety Ordinance) and the four options contained in Items 7(a), (b) and (c) of the Stipulated Judgment entered into by Contra Costa County and Communities for a Better Environment on April 8, 1999. The proposed project will not result in any significant impacts. A copy of the negative declaration and all documents referenced in the negative declaration may be reviewed in the offices of the Community Development Department, and Application and Permit Center at the McBrien Administration Building, North Wing, Second Floor, 651 Pine Street, Martinez, during normal business hours. Public Comment Period -The period for accepting comments on the adequacy of the environmental documents extends to 5.00 P.M., October 2S, 1999. Any continents should be in writing and submitted to the following address: Name: Debbie Sanderson Community Development Department Contra Costa County 651 Pine Street, North Wing, 4th Floor Martinez, CA 94553 OffirP Hni irq Mnnrin.,- C-4-4 It is anticipated that the proposed Negative Declaration will be considered for adoption at a meeting of the County Planning Commission on October 26, 1999 at 7:30 P.M. The hearing is anticipated to be held at McBrien Administration Building, Room 107, Pine and Escobar Streets, Martinez. Debbie Sanderson Senior Planner cc: County Clerk's Office(2 copies) /amc S.LE•ITERS\[SORD.NO[ -2- Attachment D: Staff Report, County Planning Commission, October 26, 1999 Agenda Item # Community Development Contra Costa County CONTRA COSTA COUNTY PLANNING COMMISSION TUESDAY, OC'T'OBER 26, 1999 - 7:00 P.M. I. INTRODUCTION: On April 8, 1999, Contra Costa County and Communities for a Better Environment entered into a Stipulated Judgment to resolve litigation over the adoption of the Industrial Safety Ordinance (Ordinance 98-48). In compliance with this Stipulated Judgment, the County Planning Commission will consider three items for recommendation to the Board of Supervisors. First, it will consider certification of a Negative Declaration, prepared according to`the California Environmental Quality Act, on the existing Ordinance 98-48. and on four amendments to it. Second, the Commission will consider the re-adoption.of Ordinance 98- 48. Third, the Commission will consider the adoption of four amendments to the.Industrial`Safety Ordinance (Ordinarnce 98-48), as specified in Items 7(a), (b) and (c) of the Stipulated Judgment. These amendments would (1) allow the Health Services Department to require additional safety changes in industrial facilities, (2) would provide $100,000 in grants for community review of industrial Safety Plans, and (3) would lower the hazard score threshold triggering.the requirement of a land use permit for certain industrial facilities. II. RECOMMENDATIONS A. Accept public testimony on the Notice of Intent to Adopt a Negative Declaration for this project and on the recommendations that the Board of Supervisors re-adopt Ordinance 98-48 and decline to adopt the Stipulated Judgment Item 7 options as amendments to Ordinance 98-48. B. Adopt a motion recommending that the Board of Supervisors (1) certify the Negative Declaration for this project, (2) re-adopt Ordinance 98-48, and (3) decline to adopt the Stipulated Judgment Item 7(a), (b) and (c) as amendments to Ordinance 98- 48. C. Request staff to prepare a resolution that documents the Commission's recommendations and findings. III. BACKGROUND: Recommendations presented above represent the conclusion of the Community Development Department's implementation of the provisions of the Stipulated Judgment entered into.by Contra Costa County and Communities for a Better Environment to settle litigation concerning the adoption of Ordinance 98-48, the Industrial Safety Ordinance. Recommendations adopted by the County Planning Commission will be conveyed to the Board of Supervisors for final action, as specified by this Stipulated Judgment.. . This staff report summarizes the following topics, as.listed below: A. Regulatory background, B. Requirements-of the Stipulated.Judgment, C. County actions to comply with the Stipulated Judgment D. Comments from Interested Parties E. Results of the required environmental analysis F. Recommendations to the Board of Supervisors concerning re- adoption of Ordinance. 98=48:and.-the Item. 7 amendments to the Industrial Safety Ordinance (Ordinance 98-48). G. Summary Recommendations . With the exception of the last items (F) & (G),.each of these topics.is discussed in more detail in the Initial Study and proposed.Negative Declaration for this project (Attachment A). Also, attachments to this report include the following documents: Attachment A: Initial Study and Proposed Negative Declaration Attachment B: Notices of Public Review and:Intent.to Adopt a Proposed Negative Declaration. Attachment C: Stipulated Judgment, Civil No. C99-00094 Attachment D: Industrial Safety Ordinance., (Ordinance 98-48) Attachment E: Additional Comment Letters (Received since August 5, 1999) A. Regulatory. History: Chapter 84-63 of the Contra Costa County Ordinance Code was first enacted in 1986 through adoption of Contra Costa County Ordinance 86-100. This Ordinance required certain facilities involving hazardous waste and/.or hazardous materials to obtain a land use permit prior to construction of the facility or modification. Chapter 84-63 was amended, with minor changes, again in 1990 and 1991. In June 1996, the County adopted Ordinance 96-20, which amended Chapter 84-63 by introducing a system based on S-2 hazard-scoring for determining which proposed projects must obtain a land use permit. In December 1996, the County adopted Ordinance 96-50 (commonly referred to as the "Good Neighbor Ordinance"), which further amended Chapter.84-63. On December 15, 1998, the County adopted Ordinance 98-48 (commonly referred to as the `Industrial Safety Ordinance"), which repealed Ordinance 96-50, amended Chapter 84-63, and added Chapter 450-8. In adopting these Ordinances, the County.had determined that its actions were exempt from the California Environmental Quality Act (CEQA), relying on the Class 8 Categorical Exemption. On December, 1.6, 1998, the.State District Court of Appeal Court overturned the lower court, clearly stating that the County cannot use this exemption for adoption of amendments to Chapter 84-63. B. Requirements of the Stipulated Judgment: On April 8, 1999, Contra Costa County and Communities for a Better Environment (CBE)settled a lawsuit over the adoption of the Industrial Safety Ordinance (Ordinance 98-48). The settlement took the form of a"Stipulated Judgment" in which the County agreed to conduct an environmental review of this ordinance, in accordance with the California Environmental Quality Act (CEQA), with the ordinance remaining in effect pending completion.of the environmental review: [Stipulated Judgment, Communities for a Better Environment v. County of Contra Costa, et al., Civil No. C99-00094. A copy of this document is included.as.Attachment C,) Items 4 through.8 of this Stipulated Judgment obligate the County to do the following, as summarized: Item 4: Prepare an initial study within 60 days of this Judgment (by June 7, 1999). Item 5: .Commence theaPP.ro ,nate environmental analysis within .: P , Y an additional sixty,days (by August 6, 1999). Item 6:. Complete the.environmental review process within twelve to fifteen months of the Judgment (by April 8 to July 8, 2000). Item 7: Evaluate the Industrial Safety Ordinance as well as the four options described in the Stipulated Judgment. (a) Allow the County to mandate improvements at a facility; (b) Provide $100,000 in community grants to review Safety Plans; (c) .Lower.the hazard.score threshold by 10 points (from 80 to 70) or by.20 points (from 80 to 60) for requiring land S-3 use permits, and similarly for requiring Determinations of Non-Coverage. Item 8: Conduct the review of these specified options through 'an inclusive review process involving all interested parties." Item 9: -Board of Supervisors "shall vote on whether to adopt each of the . . . alternatives outlined in paragraph 7 .(Item 71 within 12 months from entry judgment" (by April 8, 2000). In addition, the County Board of Supervisors has instructed the Community Development Department [hereafter, the Department] to conduct this review in cooperation with the City of Richmond and the County's Hazardous Materials Division of the Health Services Department [hereafter, Health Services Department]. C. County Actions to Comply with this Stipulated Judgment The.requirements of the Stipulated Judgment fall into the following three.categories. The County has complied with these requirements as summarized below: 1. Environmental.Analysis (CEQA) (Items 4, 5, 6, and7); 2. Interested.Parties review process (Item 8), and 3. Considering amendments to Ordinance 98-48 (Items 7 and 9). 1. Environmental Analysis (CEQA)(Items 4, 5, 6, and7) • Items 4 & 7: Prepare Initial Study by June 7, 1999: Item 4 requires the County to `prepare an initial study regarding the adoption'of the ISO within sixty (60) days from.entry of judgment" Item 7 requires the analysis to evaluate.the.adoption.of the Industrial Safety Ordinance as well as the four options listed in Item 7. The judgment was entered on April 8, 1999, making the deadline for completing the initial study June 7, 1999. Actions to Comply: On June 7, 1999, the Department completed preparation of an.Initial Study covering the required items and submitted it to Communities for a Better Environment. That initial study included a preliminary,finding that the Department would recommend adoption of a Negative Declaration on the adoption of Ordinance 98-48 as well as on the adoption of the four options identified in Item 7 of the Stjpulated Judgment. S-4 • Item S Commence Appropriate Environmental Analysis within another 60 days: This Item of the Stipulated Judgment requires the County to initiate appropriateenvironmental analysis" by August 6, 1999. Actions to Comply To meet this requirement, on August 5, 1999, the Department (1) revised the June 7, 1999 Initial Study, addressing comments by interested parties, and (2) issued a Notice of Intent to adopt a Negative Declaration on this project. Since the Department has recommended adoption of a Negative Declaration, no further analysis is necessary at this time. • Item 6: Complete the Environmental Review Process within 12 months: ` If the Department had.determined that an Environmental Impact Reportswas.required, then the Stipulated Judgment allowed 12 (15 with an extension) months, or to July 8, 2000, to complete the analysis. Actions to Comply: Unless directed by the Board of Supervisors to prepare an environmental impact report, the Department'has completed the environmental analysis of this project and recommended adoption of a Negative Declaration. 2. Involving Interested Parties (Item 8) This Item requires the County to engage in an inclusive review process, involving all of the interested parties in the environmental review and the formation of recommendations. Actions to Comply: To meet this requirement, the County and the City of Richmond did the following: • Created an extensive mailing list of about 250 •Interested Parties." List includes Communities for a Better Environment, others who have shown interest in this ordinance, the Richmond Neighborhood Councils, City of Richmond elected and appointed officials, the Municipal Advisory Councils, and (through an S-5 independent party) the Community Advisory Panels for industrial facilities within both the City and the County. • Sent four notices to interested parties, informing them of the Department's plans, documents released, open discussion meetings, and opportunities for public comment: #1: April 19 —22, 1999 #2: June 10, 1999 #3: August 9, 1999 #4: September 29, 1999 • Invited written comments from the foregoing parties at four points during the development of the Initial Study, and notified them when each document was released: #1: April 19 through May 20, 1999 #2: June 7 through July 7, 1999 #3: August 9 through.September 15, 1999 #4: Extended #3 to October 25, 1999 • Invited their participation in four open discussion meetings held on these dates:. #1: April 28, 1999 #2: June 30, 1999 #3: August 26, 1999 #4: September 8, 1999 • Reviewed and considered comments from "Interested Parties" when preparing each document released: #1: June 7, 1999: Preliminary Initial Study . . . #2: August 6, 1999: Final Initial Study . . . #3: October 26, 1999: Staff Report with recommendations to.the County Planning Commission. • Circulated comments from °Interested Parties" as attachments to both versions of the Initial Studies, malting all comments readily available to all other parties • Made Department staff available throughout the seven- month process for questions and guidance concerning actions to comply with the Stipulated Judgment. S-6 • Made a special effort to involve Communities for a Better Environment. Mailed all documents directly to them; rescheduled the June 30th meeting so they could attend (which they did not attend); and kept them abreast of all schedule changes. • Published two notices for the County Planning Commission Meeting- a standard legal notice in late September in numerous papers; a 1/8 page advertisement.display on October 15th, in the Contra Costa Times. 3. Consider Amendments to Ordinance 98-48 (Item 9) Item 9 of the stipulated judgment specifies that the County Board of Supervisors shall vote whether to adopt the four options described in Item 7(a),(b) and (c). Actions to Comply: This staff report evaluates these four options as possible amendments to Ordinance 98-48, and recommends that the Board of Supervisors decline to adopt these options as amendments. Through this staff report and County Planning Commission meeting, the County Planning Commission is being asked to consider this information and any public comment received at this meeting, and to make a recommendation to the Board of Supervisors. ,The Board of Supervisors will consider these recommendations at a subsequent meeting. D. Comments from Interested Parties: The County received nine comment letters during the three comment periods. The comments are described and discussed below within the applicable subsection of this staff report. Comments on the Initial Study and Proposed Negative Declaration are also discussed in more detail within that document (See Attachment A, .pages:20-21,24-25, and 28-291. Comments on the Item 7(a), (b), or (c) are summarized below in Subsection F of this staff report. 1. Comment Period #1 (April 19 through May 20, 1999): Letters received: The Department and the City of Richmond requested comments in their April 19th and 22nd letters to interested parties, and received four comment letters as listed below. .[These letters are included in the Initial Study, Attachment A, and are discussed.in detail in Initial Study, S-7 1. Mr. Stephen Linsley, member of the Hazardous Materials Commission, 5/17/99. 2. Mr. Chuck Flagg, Refinery Manager, Martinez Refining Company, 5/19/99. ..3. Mr. Brent Babow, Vice President,.California Contractors Alliance, 5/17/99. 4. Ms. Marjorie Hatter, Manager, Health & Safety, Tosco Refining Company, S/19/99. Meeting Participation: At the meeting on April 28, 1999, the County described the basis for the CEQA analysis, the baseline conditions (i.e., Chapter 84-63 as amended by Ordinance 98-48), the type of public comments that would prove useful. Questions concerned the basis for analysis. Staff received no substantive comments at this meeting. Other than County and City of Richmond staff, ten individuals attended the meeting, representing Pace, Contra Costa Labor Council, Equilon (MRC), Tosco, Chevron, CBE, and the news media. 2. Comment Period #2 (June 7 through July 7, 1999) Letters Received: In its June 10th letter to Interested Parties, the Department requested comments on the Preliminary Initial Study and Negative Declaration, and received the following three letters. [These letters are included in the Initial Study, Attachment A] 5. Ms. Leslie Stewart, 6/25/99. 6. Mr. Denny Larson, Communities for a Better Environment (CBE), 7/7/99. 7. Ms. Marjorie Hatter, Tosco Refining Company, 7/7/99. Meeting Participation: At the June 30, 1999, County and City of Richmond staff met with six individuals representing Tosco, Equilon, PACE, Local8-5, and the CAPs. Staff answered.questions concerning the overall process and schedule and discussed substantive issues raised by participants. Staff had rescheduled this meeting to accommodate CBE's schedule but they did not attend. 3. Comment Period 93 (August 9 to September 15, 1999) Letters Received: On August 9, 1999, the Department and the City of Richmond notified interested parties of the County's intent to adopt a Negative Declaration under CEQA for this project. The letter invited them to two open- discussion meetings (August 26th and September 8, 1999), and invited written comments by September 15, 1999. S-8 The Department received two comment letters: 8. Scott Folwarkow, Western States Petroleum Association, 9/14/99. 9. Marjorie Hatter, Tosco Refining Company, 9/14/99. Meeting Participation: • Meeting#3, August 26, 1999: County and City staff met with staff from Tosco and Equilon. • Meeting #4, September 8, 1999: County staff met with staff from Tosco and PACE. 4. Comment Period #3 Extension: (to October 25, 1999) On September 29, 1999, the Department notified Communities for a Better. Environment that the County Planning Commission hearing date had been postponed to October 26, 1999, and that the comment period had been extended to October 25. This letter was sent to all interested parties. As of the writing of this staff report, no additional comments have been received during this extension-period. E. Results of the Required Environmental Analysis 1. Project Definition: The Initial Study evaluated a"project" comprised of two major parts. The first part included those changes that would occur by replacing Ordinance 96-20 with Ordinance 98-48. The second part included those changes that would occur by adopting each of the four options described in Item 7 of the Stipulated Judgment. [See Attachment A, Initial Study, pages 7 - 11, fora more detailed description of the Project.] Part 1: Adopting Ordinance 98-48 would create a new Chapter 450-8 and would make two major changes in Chapter 84-63: i. A new Chapter 450-8, Risk Management: This chapter would require certain major industrial facilities in the County (1) to implement Safety Programs, (2) to prepare Safety Plans and to submit them for public and HSD review. This chapter would also allow.the County Health Services Department to S-9 audit.these Safety Programs and to evaluate major chemical accidents and releases. ii. Changes to Chapter 84-63: These changes would (1) restrict application of the Ordinance to non- agricultural zoning districts, rather than all Zoning districts;.and (2) include three new categories of development projects that would be required to obtain land use permits, independent of their hazard scores. Part 2: Four Options identified in Items 7(a), (b) and (c) of the Stipulated Judgment: i. Items (a)and (b) would amend Chapter 450-8, by expanding authority of the Health Services Department (Item 7a) and by providing$100,000 in community grants to evaluate Safety Plans (Item 7b). ii: Item 7c would amend.Chapter 84-63 by lowering the hazard score thresholds by either 10 points or 20 points (from 80 to 70,.or from 80 to 60 for requiring land use permits). The Stipulated Judgment has kept Ordinance 98-48 in place while this analysis was being completed. ..Nonetheless, the analysis was undertaken as if Ordinance 98-48 had not yet been adopted. . 2. Comments on the Initial Study and Proposed Negative Declaration: Staff received seven comment letters on the Initial Study and Proposed Negative Declaration. Staff received an eight letter on commenting on the.CEQA analysis [These comments are summarized and addressed under the subheading •Interested Parties" Comments and Responses" found on pages 20-21, 24-25, and 28-29 of the Initial Study, (Attachment A).] • Staff received only one comment letter that questioned the.proposed adoption of the Negative Declaration, as it relates to .the re-adoption of the existing Ordinance 98- 48.: The July.7, 1999 letter from Communities for a Better Environment (CBE) commented that an EIR should be prepared prior to re-adopting the Industrial Safety Ordinance. [Pages 20 and 21 in the Initial Study, Attachment A, responds to this argument in more S-10 detail.] CBE first argued-that the Ordinance raised the hazard score threshold from 60 to 80, thereby reducing safety, thereby increasing the probability of explosions, and thus creating significant impacts. CBE provided no evidence to supportthis hypothesis. Second, CBE concluded that the current ISO would create significant impacts because it failed to give the Health Services Department sufficient power to mandate improvements other than those recommended by a facility owner. Again, CBE provided no evidence supporting this theory. Third, CBE argued that Item.VII.0 of the Initial Study Checklist incorrectly concluded no significant impacts since a facility with hazardous materials could be within 1/4 mile of a school, could have a release, and therefore it may effect a school. Staff Response: Staff disagreed with CBE that this scenario constituted substantial evidence. In sum, staff concluded that CBE had not provided substantial evidence..that supported a fair argument that potentially significant impacts would result from the re-adoption,of Ordinance 98-48. Staff received numerous comments opposed to the adoption of the Negative Declaration as it relates to adopting Options 7(a),(b) or (c) as amendments to Ordinance 98-48. Concerning all of the options: CBE commented that the disagreement among experts concerning these four options required the preparation of an environmental impact report. Staff Response: Staff disagreed with this position; this process has revealed disagreements based on opinion and hypothesis, not evidence, and among individuals.without credentials in the field applicable to the possible occurrence of significant environmental impacts. Staff concludes that the disagreements thus far do not qualify as a disagreement among experts that would trigger the requirement to prepare an environmental impact report. Concerning Option 1: (Item7(a)], one commenter asserted that not adopting 7(a).would create significant impacts, citing as evidence the recent incidents at Tosco and Chevron. Four commenters concluded that adopting 7(a) would create significant impacts. Their reasons included increased liability, an undermining of other safety regulations, delaying projects because of land use permitting requirements that result in increased impacts, errors in required improvements resulting from appeals, and that mandated technical S-11 improvements could create adverse impacts. Staff Response: Staff found that all of these arguments were in theory and not.supported by substantial evidence. However, staff has considered these points when evaluating the possible.adoption of Item 7(a); see Section F below. Concerning Option 2: (Item 7(bil, commenters opposed this option, but provided no theory or evidence that it might lead to environmental impacts. Their comments are addressed later in Section.F below. Concerning Option 3 and 4: 7(c), two commenters opined that lowering the hazard score threshold would remove the incentive for developers to reduce the inherent risk in proposed projects, and thus would lead to significant impacts. A third comment noted that frequent changes in the hazard score threshold could create uncertainty among developers and make it difficult for them to plan projects effectively.. A fourth comment noted that the current thresholds should be given more time prior to being adjusted. Staff Response: None of the.comments on.Option 7(c) provided substantial evidence supporting the comment submitted. As with the other comments above, these comments.are addressed later in Section F below. Staff has considered these comments on the potential impacts from adopting any of these four amendments to the Industrial Safety Ordinance. Staff finds that none of these comments provide substantial evidence of a potential significant impact, as required by CEQA [CEQA Guidelines, Section 150631 to direct preparation of an Environmental Impact Report. Nonetheless, staff did consider all of these comments when evaluating the Item 7.options as amendments to Ordinance 98-48; see Section F below. . 3. Potential Impacts: Consistent with the CEQA guidelines and defuzitions, the Initial Study evaluated the possible changes that comprise the "Project Description" and sought to iidentify potential significant impacts, i.e., substantial or potentially substantial adverse changes in the physical environment that may be caused by the adoption of Ordinance 98-48. S-12 As discussed fully in the attached Initial Study and Proposed Negative Declaration" [Attachment A, Initial Study . . , pages 12 -291, the Department staff has evaluated the information available, consulted with the City of Richmond and the.Health.Services Department, and considered the public comments received.throughout this process. Department staff has determined that there is no .substantial evidence that any aspect of the project may cause a signicant effect on the environment. 4. Summary Conclusions: After careful and thorough analysis,.and.consistent with CEQA Guidelines Section 21068 and Section 15063(a), County and City staff find no substantial evidence of potential significant impacts due to: . a. the re-adoption of Chapter 450-8, as presented in Ordinance 98-48, b. the re-adoption of the amendments to Chapter 84-63, as presented in Ordinance.98-48, or c. the adoption of any of the four options presented in the Stipulated Judgment, Items 7(a), (b), or (c). While staff analysis concludes that the environmental impacts from these items appear likely to be beneficial, staff has not identified substantial.evidence that would support this conclusion. S-13 As.presented in detail in the Initial Study, County staff found no substantial evidence that any aspect of the project might cause a potential significant adverse impact to the physical environment. Thus staff determined that a Negative Declaration.should be prepared. CEQA Guidelines, Section 15063(b)(2), require the Department to prepare a negative declaration if there is no substantial evidence that the project, or any aspect of the project, may cause a significant effect on the environment. F. Re-adoption of Ordinance 98-48 and Adoption of Items 7(a), (b), and (c) Item 9 of the Stipulated Judgment requires that 'the Board shall vote on whether to adopt each of the mitigation measures and/or alternatives outlined in paragraph 7 [Item 71, within twelve (12) months from entry of Judgment'° (which was April 7, 1999. These options are as follows: 7. Through the environmental review process, the County shall analyze, at a minimum the.following mitigation measures and/or alternatives'to the ISO [Industrial Safety Ordinance]: (a) Amending the ISO to allow the County to require facilities to implement technical, managerial and/or other improvements at industrial facilities to promote public health and/or safety; (b) Establishing a technical assistance grant program with funding of$100,000 per year that will be available to community organizations to hire technical experts to assist with analysis of the safety plans submitted by industrial facilities; (c) Revising the thresholds contained in Section 84-63.1007 of the ISO for determining when new development projects are subject to environmental review to 60 and 70 hazard points. The Department interprets item 7(c) to include two cases - reducing the hazard score threshold from 80 to 70 and from 80 to 60. Thus the County will evaluate these items as four potential amendments to the Industrial Safety Ordinance. Re-adopt Ordinance 98-48: The Department has completed the analysis required by the California Environmental Quality Act and, as summarized above, finds no potentially significant environmental impacts that might restrict the County's consideration of these options. [See Section S-14 E above and Pages 12 - 29 in The Initial Study . . . , Attachment A to this Staff Report.] The Department and the Health Services Department have been implementing Ordinance 98-48 for almost a year. The Department requests that the County Planning Commission recommend that the Board of Supervisors re-adopt the Industrial Safety Ordinance (Ordinance 98-48). The following analysis of these options reflects broad public policy considerations.that.are more encompassing than the CEQA analysis, focusing on overall strengths and weaknesses of each option as an amendment.to.the current.Industrial Safety Ordinance, Ordinance 98-48. Option 1: Allow the County to Mandate Improvements in Facilities (Item 7(a)) La. . Description: Option 1 seeks to allow the..County (in this case the Hazardous Materials Division of the Health Services Department, hereafter referred to as the Health Services Department) to require.a facility to implement some change - either technical or managerial -in its facility operations in ..order.to promote.public.health and/.or safety. Staff assumes that "technical-improvements" would comprise improvements to the physical system and that managerial improvements" would comprise improvements to programs and procedures.. Suggested Text of the Amendment:: To evaluate this option, staff has rephras.ed:Item 7(a) as a text amendment of Chapter 450-8, inserting the text below as a new paragraph.in Section 450.018: . '' '.•f�::Y1:i4. �»�� ..'x��Y�..:SC.i'^L- .f:IS'�.... ._.L�J.tV�-''/.ti�.-^''rye ' ' ''.F.x�....-.�-�x- .�......x...-... �..Yf,..'(/".w...""...^9 ....S:C.•':.'Sx....f:�:ft ^=.�.^�^�.�..:, x.;:��- -" L•xsfs:!. .- i-'f��..;..,y....s -Y.�......_...,� ... L 3�:c.. --- ':ffff-.<.Mfa : 3^s:'Pf:xx. �xr:r•.;.wf .^�..:fir:^, j^^r fm•fi'cM^='µg i;.s;e�:f:!fsrx:• iiiiiri;'.:iSi':�i� �C �rll)�:•it��T����C�;�tGe,���22' �:`�1G'�,��.�1: ;�=--:=f'�,�fx^=�; :mom�:•:f:^a�=x+''"..:„�;�Mir�'..�4=!„�':.;�.••_.:.���,=„z.s;,Fw;:si��.=�zr>%sa-��fsrsy�.:..sem^;fs:-si�:'f•3.''i,'''-- riE ..... is s t YYx-x�,,,�^��.%-,.M:f:sfJY,W,; r=aisae� afty 'lan=arMSa �Fr >ar „ s�?s;{F::: , .:•. ... .;:fr��;_<_zf•�_��•%-_'�'xM,,',x: .L�fssx€ iUl l.ot 3 IG 1 1ulum- (A� '.iQ1LdV:.^!Q:L .,Y^,.x'T,�, S..Sf„'��,f �"✓' 'fR:"i"CxfL�•,^,•.L^'„ f••, s ^xF'=.a..�'a:�•.f...y;.^^: •f ssfrs.'3mr%i �.�x--'-'�'"'"•�^= ^ x Stift'.. 1�12'��� .µ����� :� � x�'•�^f..., '�'�'' Sa:ifxx.l5,ff'"`Y �:..9--."'4��'�`.Y: '. _�.G: '�''.!_:x."•,f""...v....xx,:'v'..�"fr.:.'.,,..x..ff ..J,x^;,x^x...V...S'X��'Cff::f'.�.^'.'x,�'..'�.''x'^'�'f''n..��d,.�^x,•..,"'.,�Nx'^�.�^.""�.�'.'f5::"A.:L..'....�,L••x�f'.—x..-...^-..Ki'-'..... ... �."..:S:�:C.f^F::''ff S-15 Explanation for this Phrasing: This amendment would expand the basis for the Health Services Department (and on appeal, the Board of Supervisors) to require safety improvements in a facility. Chapter 450-8 currently limits both the Health Services Department and the Board of Supervisors to modifications necessary 'to bring the Safety Plan or Safety Program into compliance with the requirements of this chapter." The amendment under consideration would expand the basis for.such required modifications-by allowing the Health Services Department and the Board of Supervisors to also require improvements necessary 'to promote public health-and/or safety." This amendment as drafted would frame the required improvement in the context of the Safety Plan or Safety Program. All of the procedures outlined in Section 450-8.018 which require written notice to the company involved and to the public would still stand and would apply to any mandated improvements, These requirements would be implemented either through a Preliminary Determination (450-8.018(B)(1)), a Final Determination (450-8.018(C)), or a Notice of Findings (450- 8.018(H)(1)). Thus, they would be subject to the same appeal provisions as currently provided in Chapter 450-8 for these three types of decisions. I.B. Synopsis of Public Comments Comment: . One comment in favor of the amendment referenced.the recent Chevron and Tosco (Avon) incidents and concluded.that they were evidence that the Health Services Department had insufficient authority to protect public health and safety.. Staff Response: While it is true that:iricreasel autlori for the Health Services Department mi ht have 'educed.the likelihood of the two recent refinery incidents, itis not obvious that such an increase in authority would-have:prevented these events entirely. Comments opposingthis,amendment stated a variety of reasons: ..: . :- :. . . ..Comment:. Health.Services Department already has sufficient:authority to,mandate safety improvements. Staff Response: $tafl has no comment on whether the Health Services Department authority is sufficient. • Comment: Increases liability to the County. Staff Response: staff strongly concurs with the comments S-16 that adopting this amendment would increase liability, due in part to the lack of specific standards or guidance to the Health Services Department in mandating improvements. Comment: May undermine other.regulatory agencies with mandates to improve safety. .Staff Response: Staff disagrees with this comment in light of the level of expertise and regulatory knowledge displayed by the Health Services Department staff. • Comment: Leads to possible errors by the Board in resolving appeals or by the Health Services Department :when mandating improvements. Staff Response: The Board.has long depended on the advice of the agency staff when resolving the many technical matters brought before the Board. The substantive matter brought before the Board covers a very broad spectrum. Thus staff disagrees that having the Board resolve appeals on these matters is anymore problematic than other types of issues due.to the Boards dependence on staff expertise. • Comment: Increases opportunities to appeal a failure of the agency to take action; withno.clear standards, appeals become difficult to resolve. Staff Response: Staff concurs that there will be more opportunities to appeal, including an agency decision to take no action in.response to.a community request. Staff also concurs that, in the absence of guidelines, it could be difficult to ..evaluate and resolve. the appeal.. However, it does not follow that an increase in opportunities to appeal is necessarily bad. 1.C. . : Potential Strengths The primary benefit of this amendment would be to provide the Health Services Department an opportunity to require safety improvements in addition to those resulting from the Safety Program procedures described in Chapter 450-8. These safety improvements would be in the context of the Chapter 450-8 Safety Plan audits and incident investigations. A second benefit would be the provision of additional.public review of the decisions being made by the Health Services:Department through the public review of safety plans. .. The Health Services Department is quite knowledgeable about.the operations and safety aspects of many of the- facilities hefacilities in the County that involve hazardous materials. S-17 With this expanded authority, the Health Services Department could take action to require safety improvements, even if the improvement had not been generated by the analytic procedures required by Section 450-8.016. Thus the Health Services Department would be free to combine its knowledge of the work place and its various safety investigations to require improvements that may not have been readily apparent to others developing .these recommendations. These improvements could take the form of technical changes, performance standards, additional reporting, or new management procedures. 1.D. Potential Weakness: A primary weakness of this amendment is that it would create a potentially substantial liability exposure for the County, should it ever require a facility owner to implement an improvement against the owner's advice. The County could be held liable for future problems at a facility, even if the County mandates only managerial changes. This increased exposure results because the responsibility for the safe management of the facility could become shared. Whereas now the facility'owner is entirely responsible; the adoption of this amendment could share that responsibility between the facility owner and the County. A second weakness of this amendment is its lack of effective boundaries to guide the Health Services Department in determining when to take charge and mandate an improvement at a facility. The language of the Stipulated Judgment itself is quite broad and provides very little guidance. The suggested text for this amendment deviates somewhat from the language of the Stipulated Judgment, in an effort to make this authority manageable. The suggested text for the amendment provides the opportunity for required improvements within the context of the Safety Plans and Safety Program procedures. However, the Health Services Department does not have an administrative precedent to follow in making these findings, and the amendment provides no other basis for guiding their actions.:, For example, there is no language suggesting how the Health Services Department might balance opportunities to promote public health and safety against economic or technical feasibility of the potential improvement. Without some basis for its decision-making, the actions by the Health Services Department may be subject to numerous appeals. Resolving these appeals without the benefit of some guidelines may prove difficult. S-18 r' I.E. Recommendation After careful consideration of the public comments presented and the possible strengths and weaknesses of this option, staff recommends that the Board of Supervisors decline to adopt Option 1 as an amendment to Chapter 450-8. Option 2: Technical Assistance Grants This option would establish a technical assistance grant program with funding of$100,000 per year made available to community organizations to hire technical experts to assist with analysis of the Safety Plans submitted by industrial facility operators. 2.A. Description Staff assumes that this grant program would be an amendment.to.Chapter 450-8, applying to the public review of Safety Plans. Staff also assumes that the $100,000 in. grants would be distributed by the Board of Supervisors to established community organizations. The Board might define "technical experts" as those experienced and knowledgeable in.technical areas concerning hazardous materials and,industrial safety, not legal experts". The grants might also be restricted to hiring expertise, not to purchasing equipment (such as sampling equipment or computers), and to tasks that could be demonstrated to provide a basis for a better understanding of a facility's safety plan. 2.13. Synopsis of Public Comments Four comment letters opposed this.amendment. Reasons given included the.following: • Comment: The current support from Health Services Department is sufficient. Staff Response: The issue is not whether the Health Services Department provides sufficient technical support, but rather whether that support is sufficient to facilitate public involvement and understanding of the Safety Plans. The Ombudsman Program was intended to support community involvement. • Comment: The funds would support private groups that the communities do not necessarily support. Staff .Response: In some County programs, the County collects feesand distributes some portion of those fees to private groups, to be used for a variety of purposes. S-19 Thus, the fact that the groups may be private does not seem problematic. However, it may prove difficult to conclude what private organizations actually represent 'the community", since no community is homogeneous. Staff finds that this issue is a serious consideration in adopting this option. • Comment: It is too much money for the tasks at hand. Staff Response: Staff concurs that the annual grant amount seems unreasonably high. 2.C. Strengths The primary benefits of this program would be to be to ensure that community groups had direct access to technical experts in whom they had a high degree of comfort and confidence. For some community organizations, this benefit is highly sought Such a grant program could provide community organizations the.ability to evaluate a facility's safety records with expertise thaE is technically comparable to that of the HSD and the facility owner itself. This expertise could help facilitate.community involvement in the Safety Plan review process, and could help the community organisations focus their efforts in a more productive manner. 2.D. Weaknesses The primary weakness of this option is that the public health benefit is likely to be small, although the public participation benefit may be large. The analysis would be redundant to the efforts of the Health Services Department. The grant amount is available for a specified task, which is reviewing the publicly available Safety Plans. Safety Plans are lay descriptions of a much larger, more complex safety program; these plans will probably not change much from year to year, so the.incremental analysis in subsequent years should be much less involved than in the first year. The $100,000 is equivalent to at least one full-time technical expert to evaluate a few Safety Plans. The amount of resources seems to be large and out of proportion to the specified use of the funds. 2.E. Recommendation After careful consideration of the public comments presented and the possible strengths and weaknesses of this option, staff recommends that the Board of Supervisors decline to adopt Option 2. S-20 Option 3 & 4: Lower Hazard Threshold from 80 to 60 or to 70, for requiring a Land Use Permit. Option 3 and 4, if adopted, would become amendments to Chapter 84-63. 3/4.A. Description Chapter 84-63 includes a formula for calculating a 'hazard score" for proposed development projects that involve hazardous materials. Currently, if the hazard score is 80 or more, then a Land Use Permit is required. If the hazard score is between 70 and 79, then the applicant must . request a "Determination of Non-coverage" to confirm that the hazard score is under 80. Item 7(c) of the Stipulated Judgment proposes two options that would change these hazard threshold scores. The first, 0tion 3 : Option would lower the hazard score thresholds by 10 . points _- requiring a land use permit for projects with a score of 70 or more, and requiring a"Determination of Non Coverage" for projects with a score'coke of 60 to 69. Option 4 would lower these hazard score thresholds by another 10 points to 60 for requiring a land use permit and 50 to 59 for requiring a'Determination of Non-coverage" If either of these options were adopted, then a series of cfiangescould follow. First, more types of projects would be subject to the land use permitting requirements of Chapter 84-63. Applicants that expected to need only building permits would find that they needed anot#er six to twelve months to obtain a land use permit prior to receiving any building permits. Developers may alter their projects, to the extent possible, to lower their hazard scores in an effort to avoid the land use permitting requirements. Some developers are likely to succeed, leading to improved public safety through projects with less inherent risk. Those projects that cannot be changed to fall under the hazard score threshold would be subject to increased public scrutiny through the land use permitting process or -through the evaluation of Determiration Requests. Both of these review procedures often result in project improvements that benefit the public health and safety. S-21 3/4.B. Synopsis of Public Comments: Staff received no comment letters supporting-this amendment and five comment letters opposing it. • Comment: Several comments shared the view that the County has not yet had enough experience with the current,hazard score thresholds to come to a valid conclusion whether the threshold should be lowered. Staff'Response: Staff concurs with this comment, as discussed in more detail below in the subsection 3/4.D. • Comment: Similarly, several comments noted that there is.no analysis supporting this change. Staff Response- Staff esponse:Staff also concurs.with this comment, as discussed in more detail below in the subsection 3/4.D. Staff has identified no information providing guidance on the "correct" location of the hazard score threshold. • Comment: Another: frequent comment is best summarized by the position of the Hazardous Materials Commission. This comment asserts.that, with a hazard score threshold of 80, developers have an incentive to reduce risks to avoid the land use permitting requirements...The.comment also asserts that most projects.could.not reduce their hazard scores below 60 and remain viable. Thus, the commenters argue, reducing the hazard score threshold from 80 to 60 (or 70) would remove the incentive to reduce a project's risks, since the developer cannot lower the score enough to gain exemption from land use permitting requirements. . Staff Response: Staff disagrees with this comment. First, avoiding land use permitting requirements is not the only incentive.for reducing the hazardous aspects of a.proposed project The cost of insurance, employee lost time costs, and neighborhood support for example, are, among others, factors that create incentives to reduce a project's inherent risk. Second, products on.the market are.constantly changing, in response to customer demand. .In the long run, lowering the hazard score threshold may increase market demand for less- hazardous intermediate products and less-hazardous production process. While the commenters'view may be true in the short run, history demonstrates that in the long run this outcome is not likely to occur. The analysis below expands on this topic. S-22 3/4.C. Strengths The primary benefit of either of these two options would be an increase in public scrutiny of projects handling hazardous materials. The decreases in hazard score thresholds -in either option-would require land use permits and/or"Requests for Determination of Non- coverage" for more facilities, including smaller operations (suchas new gasoline storage tanks, small warehouses, and small processing plants). .. It is also possible that lowering the hazard score thresholds for requiring a land use permit.would create an incentive for facility owners to make changes in the type or amount of hazardous materials used, in order to lower the project's hazard score. Over the past twenty years increased regulatory requirements and enforcement concerning hazardous materials has created an effective market demand for intermediate materials.that are less hazardous. Several industrial sectors such as paint and coatings manufacturing and chemical refining - now produce products with much lower hazard.ratings than they had 20 years ago. Service firms using these products- such as printers- now have work places that are significantly less hazardous than 20 years ago, due to the less toxic inks and dyes available to them. These changes occurred because of increased regulations and enforcement affecting the handling of hazardous waste and hazardous materials. In the case of Contra Costa County, lowering the hazard score thresholds may cause.short-run disruptions in the development of industrial facilities; however, after a period of adjustment, the long-term benefits could be large. 3/.4.D. Weaknesses A primary weakness of each of these two options is that the staff has little analytic support for identifying a new threshold for the hazard score. While staff presumes that a lower score would mean increased public scrutiny of development projects, staff has no analysis or evidence indicating what the correct threshold should be. Staff can only hypothesize.what the impacts would be for different types of facilities and how it would.affect the requirement for land use permits and.the County's.ability to condition those permits. . .The current hazard score threshold.(80) has been in effect for less than a year, and the Hazardous Materials S-23 Commission invested an extraordinary amount of time trying to determine the correct" hazard score threshold. No development project has yet been required to apply for a land use permit during the past year. Although the Community Development Department has received numerous Requests for Determination of Non-Coverage, none of these projects have been required to apply for a land use permit. It is difficult at this time to demonstrate sufficient experience with the current thresholds to justify changing them. Every time the County shifts this threshold, it takes the private sector several months to become aware of the change and adjust their business planing efforts accordingly. 3/4.E. Recommendation After careful consideration of the strengths and weakness of this option and the public comments addressing it, staff recommends that the Board of Supervisors decline to adopt either Option 3 or 4. H. Summary Recommendations: 1. Negative Declaration and Re-adoption Ordinance 98-48: Staff has concluded this review of the existing Industrial Safety Ordinance and of the four options being considered as amendments to that Ordinance. For the reasons specified in Section E above and in the attached Initial Study and Proposed Negative Declaration, the Department requests that the County Planning Commission recommend that the Board of Supervisors (1) certify this analysis in compliance with the California Environmental Quality Act, and (2) re-adopt the Industrial Safety Ordinance, Ordinance 98-48. 2. Proposed Amendments to Ordinance 98-48: . Consistency with the.General Plan: As concerns the four amendments under consideration, staff has evaluated these.options for consistency with the County General Plan and finds no apparent conflicts. In particular, the Safety Element (Section 10) of the County General Plan includes the following policy that applies to the consideration of these amendments Policy 10-64. Industrial facilities shall be constructed and operated in accordance with up-to-date safety and environmental protection standards. S-24 The Option 1 [Item 7(a)] 'amendment being considered would be consistent with this General Plan Policy, since it provides the Health Services Department additional opportunities to require safety improvements that reflect the most current knowledge in industrial safety. Option 2, 3, and 4 do not conflict with this Policy, although it is difficult based on our current knowledge of these amendments to assess how strongly they might support this policy. Recommendations Concerning the Industrial Safi.- Ordinance afeOrdinance Amendments: After careful consideration and analysis, the Department requests the County Planning Commission to recommend that the Board of Directors decline to adopt any of the amendments, as described in the Stipulated Judgment in Paragraph 7, Items (a), (b), or S-25 Attachment E: Staff Report, County Planning Commission, December 14, 1999 Agenda Item # Community Development Contra Costa County CONTRA COSTA COUNTY PLANNING COMMISSION TUESDAY, DECEMBER 14, 1999 - 7:00 P.M. I. INTRODUCTION: On April 8, 1999, Contra Costa County and Communities.for a Better Environment entered into a Stipulated Judgment to resolve litigation over the adoption of the Industrial Safety Ordinance (Ordinance 98-48). In compliance with this Stipulated Judgment, the County Planning Commission will consider three items for recommendation to the Board of Supervisors. First, it will consider certification of a Negative Declaration, prepared according to the California Environmental Quality Act, on the existing Ordinance 98-48 and on four amendments to it. Second, the Commission will consider the re-adoption of Ordinance 98- 48. Third, the Commission will consider the adoption of four amendments to the Industrial Safety Ordinance (Ordinance 98-48), as specified in Items 7(a), (b) and..(c) of the Stipulated Judgment. These amendments would (1) allow the Health Services Department to require additional safety changes in industrial facilities, (2) would provide $100,000 in grants for community review of industrial Safety Plans, and (3) would lower the hazard score threshold triggering the requirement of a land use permit for.certain industrial facilities. (Continued from October 26, 1999) II. RECOMMENTATIONS A. Accept public testimony on the Notice of Intent to Adopt a Negative Declaration for this project and on the recommendation that the Board of Supervisors decline to adopt the Stipulated Judgment Item 7 options as amendments to Ordinance 98-48. B. Adopt a motion recommending that the Board of Supervisors 1. certify the Negative Declaration for this project, 2. re-adopt Ordinance 98-48, 3. decline to adopt the Items 7(a), (b) and (c), as presented in the Stipulated Judgment, as amendments to Ordinance 98-48, and 4. adopt minor modifications to Chapter 450-8, as described below, clarifying information requirements and access to outside grants. C. Request staff to prepare a resolution that.documents the Commission's recommendations and findings. III.BACKGROUND: On October 26, 1999, the County Planning Commission opened the public hearing on various items prepared by County staff to comply with the Stipulated Judgement entered into by Contra Costa County and Communities for a Better Environment (CBE), concerning on Ordinance 98-48. The County Planning Commission continued the hearing to December 14, 1999 to allow County staff time to consider comments by CBE, to circulate their comments to the other "Interested Parties," and to try to reach consensus on possible amendments to Ordinance 98-48. On November 4, 1999,. staff circulated a letter to "Interested Parties" informing them of the outcome of the October 26, 199 County Planning Commission meeting and inviting them to a meeting.on Wednesday, November 17th, to consider comments from CBE. Staff attached a copy of CBE's suggested amendments.and staff responses to them. On November 11, 1999, staff received the attached letter from CBE, addressing questions.of.Legal liability. On.November.17, 1999, five individuals (other than County staff) met; reviewed comments from CBE and discussed possible amendments that would respond to the concerns raised by CBE. The recommendations are the same as in the October 26, 1999 staff report, with one change in recommendation II.B..4 to incorporate the modifications listed below. IV. DISCUSSION: A. Option 7(a): Expanded authority In the November 17th meeting of"Interested Parties", most of the discussion centered on.Option 7(a), which would give the County authority to mandate changes at an operating facility. Staff explained the increased liabilities to the should such increased.authority be granted to the County Department [Health Services Department]. Discussion then focused on opportunities to clarify the options available to.a "Stationary Source" [term used in Chapter 450-8.to describe facilities subject to that chapter] to claim that a recommended improvement was not "feasible" and therefore did not need to be implemented. Pursuant to the Interested Parties' request, staff agreed to draft proposed amendments to the Chapter 450-8 portion of Ordinance 98748 that (1) would clarify the definition of"feasible", and (2) would require additional information from Stationary Sources to justify their claim that either an inherently safer system or a PHA recommendation were not "feasible." S-2 The definition of"feasible" [Section 450-8.014(c)] is taken directly from CEQA. Staff turned to legal interpretations of the CEQA definition for guidance on how to improve the definition in Chapter 450-8. The Appellate Court decision on Citizens of Goleta Valley v. Board of Supervisors ("Goleta 1") (1988)provides the following clarification under CEQA: "[t]he fact that an alternative may be more expensive or less profitable is not sufficient to show that the alternative is financially infeasible. What is required is evidence that the additional costs or lost profitability are sufficiently severe as to render it impractical to proceed '"pith the project." (197 Cal.App.3d 1167, 1181) Suggested amendments 1 and 2 below incorporate this language, clarifying that a Stationary Source claiming that either an Inherently Safer System or a PHA recommendation is "infeasible" requires submittal of sufficient documentation to justify this claim. CBE has recently submitted for staff consideration a copy of relevant language used in the Clean Water Program. Staff will continue to explore this suggestion, as well as others that might be received prior to the upcoming meeting. B. Option 7(b) Technical Assistance Grants r Discussion at the November 17, 1999 meeting concerning Option 7(b), Technical Assistance Grants, revealed that the County probably could not assess fees on the affected Stationary Sources to cover the costs of these grants because the nexus study required by Government Code Section 6600 could not be demonstrated. Thus, these grants would have to be funded through general fund revenue or grants from outside organizations. In addition, the Department and the Ombudsman already have the authority to apply and receive outside grants, on behalf of the County, to support public information activities surrounding Safety Plans. However, there was general consensus among the Interested Parties that this authority should be stated clearly. Suggested amendment 3 .below clarifies the authority of the Ombudsperson to include use of outside grants and programs to provision of technical assistance to community groups. C. Options 7(c) Lowered Hazard Score Thresholds There were no issues raised by those attending the November 17, 1999 Interested.Parties meeting concerning Option 7(c) to lower Hazard Score Thresholds for requiring Land Use Permits under Chapter 84-63. S-3 V. Recommendation: Suggested Amendments to Chapter 450-8: Staff presents the following three amendments for consideration by the County Planning Commission to clarify the concept and application of "feasible" in Chapter 450-8. 1. Add the following language to the. end of this paragraph, clarifying what information is required of a Stationary Source when presenting the. feasibility of Inherently Safer Systems. [Section 450-8.016 (D)(3)]: "This documentation shall include (1) sufficient evidence to demonstrate to the County's satisfaction that implementing this inherently safer system is impractical, and (2) the reasons for this conclusion. A claim of"financial infeasibility" shall not be based solely on evidence of reduced profits or increased costs, but rather shall include evidence that the financial impacts would be sufficiently severe to render the inherently safer system as impractical." 2. Insert the following language at the end of the first sentence of this paragraph, clarifying what information is required as concerns implementing process hazard analysis recommendations [Section 450-8..016 '(D)(4)1: "Any documentation justifying a decision not to implement a process hazard analysis recommended action shall include (1) sufficient evidence to demonstrate to the County's satisfaction that implementing this action is impractical, and (2) the reasons for this conclusion. A claim of"financial infeasibility" shall not be based solely on evidence of reduced profits or increased costs, but rather shall include evidence that the financial impacts would be sufficiently severe to render the improvement as impractical." 3. Substitute the following language for the last sentence in Section 450-8.022, clarifying authority to receive outside funding for community technical assistance grants: "The ombudsperson may retain appropriate technical experts in order to fulfill technical assistance.requests from community groups. The cost of experts may be funded through programs established by the U.S. EPA or other appropriate entities." S-4 ATrACHMENr A f C &E . .. Communities for a Better. Environment October 19, 1999 Debbie Sanderson Community Development Dept. Contra Costa County 851 Pine Street Martinez, CA 94553 fax 925-335-1222 Dear Ms. Sanderson: Thank you for making some time available today, along with Dennis.Barry and others to discuss the ISO amendments issue. I am forwarding to you basic language for text additions/changes to the ISO that would clarify CBE's position on improving the ordinance. AUTHORITY (3) (page 14) (add final sentences) "If the Department does not concur with the conclusions for the Stationary Source's rejection of a Inherently Safer System, the Department shall,find the Source out of compliance with the ordinance. If the Department determines that economic factors were the major factor in the Source's rejection of a safer system, while other factors of feasibility were satisfied, then the Department may require the Source to implement the safer system. If the Department does not require the Source to implement the safer system, the decision may be appealed to the Board of Supervisors." (4) (pages 14-15) (add sentences after the next to the last sentence) "If the Department does not concur with the conclusions for. the Stationary Source's rejection of a recommended action or the timing of its implementation, the Department shall find the Source out of compliance.with the ordinance. If the Department determines that economic factors were the major factor in the Source's rejection of a safer system, while other factors of feasibility were satisfied, then the Department may require the Source to implement the recommended actions. If the Department does not agree with the schedule for implementing the actions, then the Department may require the Source to implement the actions on a different timetable. If the Department does not require the Source to implement the safer system, the decision may be appealed to the Board of Supervisors." (H) (page 18) (add sentences after the first sentence) "The Department may as a result of its audit, safety or incident inspection require the Source to CBE , 500 Howard , # 506 , S . F . , CA 94105 a 1 5 - 7 d R - R 1 7 1 . email • rhphiirIfPtninr n r CBE Communities f `or a Better Environment implement Inherently Safer Systems or recommended actions previously rejected by the Source or the Department in order to prevent or minimize future industrial accidents. The decision of the Department to reject or require Inherently Safer Systems or recommended actions may be appealed to the Board of Supervisors." TECHNICAL ASSISTANCE GRANTS 450-8.022 Ombudsperson (page 19) (add final sentences) "The ombudsperson may retain appropriate technical experts in order fulfill technical assistance requests from community groups. The cost of experts shall be funded through appropriate county funding and/or funding through programs established by the US EPA or other appropriate entities." These are our initial thoughts; please feel free to contact me for additions or clarifications necessitated by the addition of this text to the ISO. Sincerely, Denny Larson N. Cal. Director CBE CBE . 500 Howard . # 506 , S . , CA 94105 ATTACHMENT B i r COMMUNITIES FOR A'- November '.November 11, 1999. 99 NOV 16 ETTER Via Facsimile•and U.S. Mail AM 11' 22 Debbie Sanderson ENVIRONMENT. Community Development Department Contra Costa County. 851 Pine Street . Martinez,CA 94553 Fax: (925) 335-1222 Diana Silver, Esq. Office of County.Counsel County Administration Building 651 Pine Street, 9t' Floor Martinez,CA 94553 Fax: (923)646-1078 Dear Ms. Sanderson and Ms. Silver: Weare writing to address.the concerns raised.in the Contra Costa County Planning Commission Staff Report for October.26, 1999, and again in the November 4, 1990 letter from Debra Sanderson to interested parties, regarding the adoption of proposed amendments to Ordinance.98=48, as described in T7 of the Stipulated Judgment for Communities fora Better Environment v, County of Contra Costa County, et al. —Civil No. C99-00094. We hope that this letter will facilitate an open and cooperative dialogueat the November 17, 1999 meeting. It is our understanding that County staff.does not support adoption of the proposed amendment described in 17(a) of the Stipulated Judgment, which provides the Health Services Department with authorityto require facilities to implement safety improvements, because it- would allegedly expose the County to "potentially substantial liability." Since the staff report, and subsequent conversations between our organizations,.have not provided specific citations to the legal basis upon.which it is believed liability arises, we have not, since we cannot, addressed those specific concerns directly. However, based on a review of the law, we have concluded the County (including the Board of Supervisors, and the staff.of the Planning Commission. Community Development Department, and Health Services Department) would be protected from liability for injuries arising from the'required improvements under the Torts Claim Act, CA Govt. Code §810 et seq. Govt. Code §815 specifically provides that "except as otherwise provided by statute, a public entity' is not.liable for any injury, whether such injury arise out of an act or omission of the public entity or a public employee or any other person." Gov. Code §815-(a). When the Torts Claim Act was.enacted, it was intended to "abolish all common law or judicially'deelared forms of liability to public entities, except for such liability as may be required under the state or federal Constitution." Cochran v. Herzog Engraving Co. (198 3) 155 Cal App. 3d 405, 409. It is recognized that"the Torts Claim Act was intended to make i►nmunity the rule; liability is A"public entity" includes the county and any other political subdivision or public corporation of the state. Govt. Code §811.2. 500 Howard Street; Suite 506 • .San Francisco, CA 94105 •- (415) 243-8373 In Southern California:605 W. Olympic Blvd., Suite 850 • Los Angeles, CA!90015 • (213)48675114 imposed,only if provided by statute." Thompson v. City-of Lake Elsinore (1993) 18 Cal. App. 4`h 49,63 (emphasis h original) (citations omitted). The proposed amendment to the Industrial Safety Ordinance("ISO") would,provide the Health Services Department with the authority and discretion to require'safety improvements at facilities as part of the approval process for the Safety Plan or Safety'Program. The.Co.unty is generally immune.for liability for discretionary.acts. Gov. Code §820:2. In addition, the County cannot be held liable for injuries caused by"the issuance; denial,.suspension;or revocation of, or -by the failure or refusal to issue, deny, suspend, or revoke any permit, license, certificate., approval, order.or similar authorization where the public entity or an employee of the public entity is authorized by enactment to determine whether or not such authorization should be issued, denied, suspended or revoked." Gov.. Code §818.4 (emphasis added).. In.other`words, the County'cannot be held liable for any.injuries arising from the approval of a Safety..Plan or Safety Program containing"required improvement." See also Locklin tip. City of Lafayette (1994)7 Cal. 4t'327, 353 fn. 15 (public entities enjoy broad statutory immunity for injuries resulting from approval of development of private property); Landgate, Inc. v. California Coastal Commission (1998) 17 Cal. 4t1i-100.6, 1021 fn. 5 '(government agency not:liable for injuries resulting from an aborted condemnation proceeding that delayed development.project because the principle that a government agency wi11 not be liable in damages for mistakes committed in the-development approvdl process is congruent with Gov. Code §81.8.4.") Moreover, a public entity cannot beheld liable for the acts arid omissions of its employee that were performed within the scope of employment unless the employee herself would have been..liable-and not immune for such acts or omissions. Gov. Code §815.2. Except as otherwise provided by'statute,:.a public employee is-not liable"for any injun' resulting from his or her act or omission.where the act or omission was the result of the exercise of discretion vested,in him or her, whether.or not such discretion is abused..Gov. Code §820.2; Caldwell V. Montoya (1995) 10 Cal. 4`i'972, 98.4 (discretionary immunity applies.to protect:against common-law as well as statutorycauses of action based on prohibitory state statutes of general application.). A.public employee is.immune for the issuance,denial, suspension, revocation of_or the failure or refusal to issue;deny suspend, or:revoke any permit, license, certificate, approval order or similar authorization by the employee as authorized by.enactment. Goy. Code §821.2. Therefore, even ' if Health Service .Department staff mistakenly require the implementation of certain safety improvements as part of a Safety Plan or Safety. Program, neither the employee nor the County can be liable for those acts or omissions because such actions would be disctetionary and made pursuant to discretion vested in him or her by the ISO amendment. We hope this clarifies the liability issue. If.the'County has citations for.its position, we would again request that those be provided in the spirit of good faith. Please feel free to contact either of us if you have questions regarding this letter, otherwise; we look forward to speaking with you further on November 17`11 . Sincerely, --Denny Larson, N. Cal. Director . B rice Wong, Staff Attorney ATTAC'..E IIriENr G 1996 [Ninth] .Edition Guide to the California Enviro' nmental QualityAct (CEQA) Michael H. Remy Tina A. Thomas James G. Moose Whitman F. Manley Solana Press Books Point Arena, California App.3d 467,473 [137 Cal.Rptr. 3041;Native Sun/Lyon analysis, no meaningful conclusions regarding the fea- Communities v City of Escondido(4th Dist. 1993) 15 sibility of the alternative could have been reached." Cal.AppAth 892,910[19 Cal.Rptr.2d 3441;McKinney (197 Cal.App.3d at 1180-1181 [243 Cal.Rptr. 339] v Board of Trustees(1982) 31 Cal.3d 79, 88 (181 Cal. (emphasis added).)The Court of Appeal added that Rptr. 549]; Cormier v County of San Luis Obispo (2d "[t]he fact that an alternative may be more expen- Dist. 1984) 161 Cal.App.3d 850, 855 [207 Cal.Rptr. sive or less profitable is not sufficient to show that 880].) Under CEQA, however, the distinction be- the alternative is financially infeasible. What is [ween these kinds of agency decisions means little as required is evidence that the additional costs or lost regards the requirement for.findings.45 The Discus- profitability are sufficiently severe as to render it sion following Guidelines section 15091 explains that impractical to proceed with the project." "[a]lthough the courts have often drawn the distinc- (197 Cal.App.3d at 1181 [243 Cal.Rptr.339](empha- tion between quasi-adjudicatory findings which sis added);see also Kings County Farm Bureau v. must be supported by substantial evidence and City of Hanford(5th Dist. 1990) 221 Cal.App.3d quasi-legislative findings which need not be sup- 692,736[270 Cal.Rptr. 650].) Torted by substantial evidence, the Legislature has In a subsequent case closely related to Goleta !, blurred this distinction by requiring all agencies to the California Supreme Court, emphasizing CEQA's make[he[] findings [required by CEQA Guidelines, § 15091] in response to specific facts in the EIR focus on potentially `feasible"alternatives,concluded: without regard to whether the decision could be "Surely whether a property is owned or can reason- classified as legislative or adjudicatory. In requiring ably be acquired by the project proponent has a this finding, the Legislature appears to have re- strong bearing on the likelihood of a project's ulti- moved the partition between the two pigeon holes mate cost and the chances for an expeditious and and required agencies to grapple with the facts as successful accomplishment."' presented in the EIR."_ (Citizens of Goleta Valley v. Board of Supervisors (Discussion following CEQA Guidelines, § 15091.) ("Goleta in (1990) 52 Cal.3d 553, 574 [276 Cal. Findings need not be perfect. If they contain some Rptr. 410]; see also CEQA Guidelines, §§ 15126, ambiguity or are unclear on some point, a court may subd. (d)(5)(A) (discusses"feasibility" in the con- text of formulating alternatives for inclusion in an examine the EIR or other administrative documents to EIR), 15363(defines "feasible").) resolve the confusion or to seek clarification on a point. (No Oil, Inc. v. City of Los Angeles ("No Oil Another leading case indicates that fairly general in (2d Dist. 1987) 196 Cal.App.3d 223, 239-242 references to the economic and fiscal shortcomings of [242 Cal.Rptr. 37], citing City of Poway v City of San project alternatives may suffice to satisfy findings re- Diego (4th Dist. 1984) 155 Cal.App.3d 1037, 1046 quirements. In Foundation for San Francisco's Archi- [202 Cal.Rptr. 366].) tectural,Heritage v City and County of San Francisco Although a finding of infeasibility must be sup- (1st Dist. 1980) 106 Cal.App.3d 893, 913-914 [165 ported only by "substantial evidence," such evidence Cal.Rptr. 401], the Court of Appeal upheld findings generally must be specific and concrete. In Citizens of adopted in connection with a proposal to demolish an Goleta Valley a Board of Supervisors("Goleta r') (2d existing architecturally notable building and replace it Dist. 1988) 197 Cal.App.3d 1167, 1180-1183 [243 Cal. with a new structure.The respondent agency's findings Rptr. 339], which involved a proposed coastal hotel, relied on both economic and fiscal information, as the Court refused to accept assertions that a particular well other matters: alternative was economically infeasible simply be- "[T]he record contains ample substantial evidence cause it would be more expensive or less profitable to to support the Board's conclusion as to the problems the applicant. "In the absence of comparative data and presented by the rehabilitation alternatives.The EIR indicated that each of the alternatives considered 45 The distinction is significant,however,as regards agencies' would have increased construction costs from 1.5 duty to issue adequate notice to persons affected by agency million dollars to over 4 million dollars. The fact decisions.(See section vtlt(F),supra.) that the alternatives would generate between ap- 202 GUIDE TO CEQA proximately 15 to 50 percent less sales revenue for mechanically restated at every stage of an approval Neiman-Marcus would, therefore,greatly reduce tax process. In this sense, 'feasibility' under CEQA revenues for the City. The Board's findings were encompasses 'desirability' to the extent that desir- also based on the data pertaining to the new employ- ability is based on a reasonable balancing of the vel- ment opportunities and the economic multiplier evant economic, environmental, social, and effect on the City of the establishment of the spe- technological factors." cialty retail store proposed by Neiman-Marcus. The Board also considered the seismic safety and build- ing code matters mentioned above and the needs of In Sequoyah Hills Homeowners Association v. the City's many constituencies." City of Oakland(Ist Dist. 1993) 23 Cal.AppAth 704, (106 Cal.App.3d at 913 [165 Cal.Rptr.401].) 714-717 [29 Cal.Rptr.2d 182], the Court of Appeal upheld findings approved by a city in connection with When making a finding that an environmentally its approval of a 46-unit residential subdivision. In re- superior alternative is infeasible, an agency may be jecting as infeasible an alternative project configuration entitled to rely on evidence that the alternative would with only 36 housing units, the respondent agency re- not promote the underlying goals and objectives of lied on statements in the EIR indicating that a lower- the project. In City of Del Mar v. City of San Diego density alternative"would defeat the project objective (4th Dist. 1982) 133 Cal.App.3d 410 [183 Cal.Rptr. of providing 'the least expensive single-family housing 8981, the Court of Appeal considered whether it was for the vicinity,"' and concluded that "requiring a de- proper for the City of San Diego to reject certain proj- crease in project density would be legally infeasible in ect alternatives as infeasible in approving planning that it would be prohibited by Government Code sec- decisions governing the first phase of buildout.in a tion 65589.5, subdivision (j)." (23 Cal.AppAth at 715 community plan area to be fully developed in nine 29 Cal.R tr 2d 182 (emphasis in original).) That phases. The underlying community plan, as well as statute, the Court explained, prohibits agencies from the first phase approvals, assumed that growth would reducing the density of a proposed housing project inevitably continue in the northern part of San Diego that"complies with the applicable general plan, zoning, County. In considering the EIR for the phase one ap- and development policies" unless the project "would provals, the City rejected as infeasible several alter- have a specific, adverse effect upon the public health natives that conflicted with the assumptions of the or safety" that cannot be mitigated without lowering City's existing"growth management program" (which the density. Because the only significant unavoidable presumably was part of the City's General Plan). The impact associated with the subject project was its visual petitioner, a neighboring city, asserted that it was im- impact, the respondent agency could not have made permissible for the City to treat the assumptions of the the required finding to justify reducing the project's growth management program as a "given," because density from 46 to 36 units. (23 Cal.AppAth at 715- doing so artificially restricted consideration of feasi- 716[29 Cal.Rptr.2d 1821.) ble alternatives. Stated another way, the petitioner as- One of the leading cases on findings is Citizens serted that San Diego had confused its sense of what for Quality Growth, supra, 198 Cal.App.3d 433 [243 kind of development was "desirable" with what was Cal.Rptr. 7271, which involved a general plan amend- "feasible" for CEQA purposes. (133 Cal.App.3d at ment and rezone allowing the industrial and commer- 416 [183 Cal.Rptr. 3981.) cial use of sensitive wetlands. in that decision, the The Court disagreed. Assuming that the growth Court of Appeal rejected several arguments offered by management program embodied a reasonable accom- the respondent city in support of its failure to issue modation of"various 'economic environmental, social, findings with respect to both mitigation measures and and technological factors"' (see Pub. Resources Code project alternatives. § 21061.1), the Court explained that: At trial, the city tried to justify its failure to make "San Diego is entitled to rely on [tile program] in findings on the feasibility of 21 mitigation measures evaluating various project alternatives. The cost- set forth in the EIR by arguing that such adoption benefit analysis which led to the accommodation is would be premature until the applicant had submitted of course subject to review, but it need not be a "specific development plan." On appeal, the city VIII The EIR Process 203 Attachment T 1 " Department of Toxic Substances C Edwin F. Lowry, Director 1001 "1" Street, 25th Floor P.O. Box 806 Winston H. oSacramento, California 95812-0806 Gray Davis Agency Secretary tary Governor California Environmental Protection Agency August 21, 2001 Ms. Julie Enea, Staff Internal Operations Committee Contra Costa County Board of Supervisors 651 Pine Street, 11th Floor Martinez, California 94553 .Dear Ms. Enea: The Department of Toxic Substances Control (DTSC) appreciates the opportunity to review and comment on the proposed amendment to Contra Costa County's Industrial Safety Ordinance, regarding Inherently Safer Systems and action items identified in process hazard analysis. After reviewing the proposed amended ordinance and the Attorney General's opinion to questions raised by the Contra Costa County, DTSC does not have any comments regarding Contra Costa County's adoption of the proposed amended ordinance. If you have any questions or concerns, please feel free to contact Mr. Charles A. McLaughlin of my staff at (916) 255-3642. Sincerely, Peggy Harris, P.E., Chief State Regulatory Programs Division ---• Hazardous Waste Management Program EIAANTY cc: Charles A. McLaughlin, Chief Northern California Region State Regulatory Programs Division8800 Cal Center Drivem, 3rd Floor Sacramento, California 95826-3200 RATOR The energy challenge facing California is real. Every Californian needs to take immediate action to reduce energy consumption. For a list of simple ways you can reduce demand and cut your energy costs,see our Web-site at www.dtsc.ca.gov. ® Printed on Recycled Paper CONTRA COSTA COUNTY Attachment TT HAZARDOUS MATERIALS COMMISSION O� h October 5, 2001 '• x° coax Contra Costa County Board of Supervisors 651 Pine St. Martinez, CA 94553 Dear Supervisors: On June 12,2001 the Board of Supervisors requested the Hazardous Materials Commission to continent on proposed amendments to the County's Industrial Safety Ordinance introduced by Supervisor Gerber. The Planning and Policy committee of the Commission met on August 15, 2001 and September 19, 2001 to consider the proposed amendments and to develop a recommendation for the full Commissionto review. On September 19,2001 the Planning and Policy committee voted unanimously to recommend to the full Hazardous Materials Commission that the Commission not support the amendments as written.The committee noted that while the various members had different reasons for voting as they did, some of the common issues of concern were: • The probability that the amendments, as written, would trigger a CEQA review of each determination to either approve or reject a facility's determination not to implement an action, and that this could cause unacceptable delays in the process. • The ordinance has only been in place for one year, and indications thus far are that it is. functioning well. It is premature to make changes to this aspect of the ordinance at this time. • The proponents of these amendments did not adequately demonstrate that their implementation would improve safety at a facility. • Implementing these amendments would cause a substantial workload increase. • Implementing these amendments would likely act as a disincentive for facilities to identify all possible concerns and potential solutions during a PHA. The committee also noted that their work plan for the coming year includes a comprehensive review of the Industrial Safety Ordinance, and that they will have the opportunity to further review and address the concerns raised by these proposed amendments at that time. On September 27, 2001 the full Hazardous Materials Commission met to consider this issue and voted to accept the recommendation of the Planning and Policy committee not to endorse the amendments as proposed. We appreciate the opportunity to provide our input to the Board of Supervisors on this very important issue. Sincerely, Leslie Stewart Hazardous Materials Commission Chairperson Alennbers: Le he Stewart,Orcin- P,vnr ihari/.i Man,?Alegri;r Scott Anclecco i Hrnny C/ark Sharon linller 11au/ctte l.apmnrr W-71.7 1.Cc11v S7c1011c•n l..irrslr7'Jinn 1:nnr. tllirlcrcll olk;lhkr Jiourn 164pct. .1hke! S'hinnan kr _-,(l.'lP ll Sllt•c•l. :l/;t1Y111(Y. ( l .r�/.'r.'i,i 02:T) .;: 0-.t(l'�`•� x':1.1 1 ll:rl ,',';-()-.'r().rl�' PUBLIC AND ENVIRONMENTAL HEALTH ADVISORY BOARD ich.r t "�CT Members: Doris Copperman Bonnie Croy Art Hatchett Laura Kurre Mary Lou Laubscher Marjorie Leeds To: Contra Costa County Board of Supervisors Kimberly McClendon Bessanderson McNeil . Jeffrey Ritterman From: Thomas Zimmerman, Chair Mary Rocha Nick Rodriguez Public and Environmental Health Advisory Board Jean Siri Bonita Woodson Date: October 4, 2001 .hair. Thomas Zimmerman Re: Proposed Amendment to the Industrial Safety Ordinance Ex-Officio Members: Joseph Hafey George Kaplan The.Public and Environmental Health Advisory Board (PEHAB) was asked to Carolyn Robinson evaluate and comment on the proposed amendment of June 12, 2001, to the Andrea DuBrow Industrial Safety Ordinance. Subcommittees of the Hazardous Materials Executive Assistant tothe Public&Environmantal Commission and PEHAB met to discuss this proposed amendment and.consider Health Advisory Board comments from a panel discussion featuring: Denny Larson, Communities for a Better.Environment; Jim Payne, PACE union representing refinery workers; Laura Brown, Equilon refinery; and Randy Sawyer, Contra Costa County Hazardous Materials Program. PEHAB engaged in further analysis of the amendment at a subcommittee meeting of its Environmental Health Committee, and later, at the full board meeting on September 20, 200l. . PEHAB members learned that since the adoption of the Industrial Safety Ordinance (ISS), there have been relatively few instances where facilities rejected a proposed ISS resulting from a process hazard analysis. In`each of these cases the County agreed with the facilities after review and analysis. Recommendations from PEHAB PEHAB members engaged in extensive debate over the proposed amendment. .They ultimately rejected a motion to adopt the amendment as written by a vote of two in favor, and twelve against the motion. However, after lengthy.discussion, PEHAB members voted to approve the proposed amendment, with the request that additional language is developed to address the following concerns: (1) Clarify which process hazard analyses will be reviewed. Since the amendment requires a review by staff of each process hazard analysis determination that is rejected, and not simply an audit, the proposed amendment will entail significant increase of staff work, expense, and expertise. This is especially true if the ordinance and proposed amendment are interpreted to require staff to analyze and evaluate every rejected alternative for every facility determination, as opposed to only those identified problems for which every potential solution Contra Costa Health Services was rejected. 597 Center Avenue,Suite 115 Martinez,CA 94553-4669 PHONE:(925)313-6836 FAX:(925)313-6864 Board of Supervisors October 4, 2001 Page 2 (2) Ensure that delays are anticipated and minimized. California Environmental Quality Act(CEQA) review is likely to be triggered in those instances where the County exercises its discretion to approve or disapprove of the use of an Inherently Safer System or adoption of a PHA recommendation. The triggering of such reviews can reasonably be expected to lead to delays, which should be minimized. (3) Ensure full disclosure of hazards and safety problems. In some instances, a County and CEQA review may also act as a disincentive to open and honest disclosure of ISS determinations by some facilities. (4) Improve public access to information. In absence of a CEQA review, there does not appear to be much information accessible to the public regarding a facility's PHAs and determinations. (5) Ensure that sufficient staff with adequate expertise are in place to address the issues likely to be presented. Thank you for consulting with PEHAB on this matter. If we may be of further assistance, please let us know. Attachment "D 1 " Industrial Safety Ordinance Report To the Board of Supervisors April 3, 2001 Introduction Health Services presented the annual report on the Industrial Safety Ordinance to the Board on December 12, 2000. The Board at that time requested more information on how the regulated stationary sources were implementing the inherently safer systems as required by the ordinance. The Board also requested that the Hazardous Materials Ombudsman work with the Hazardous Materials staff in developing an outreach program that would improve the public participation in the Industrial Safety Ordinance. Inherently Safer Systems What is Inherently Safer Systems What does inherently safer systems mean and how does the Industrial Safety Ordinance define it? Section 450-8.014(g) of the County Ordinance Code states that "Inherently Safer Systems means Inherently Safer Design Strategies as discussed in the 1996 Center for Chemical Process Safety (COPS) Publication Inherently Safer Chemical Processes and means. Feasible alternative equipment, processes, materials, lay-outs, and procedures meant to eliminate, minimize, or reduce the risk of a Major Chemical Accident or Release by modifying a process rather than adding external layers of protection. Examples include, but are not limited to, substitution of materials with lower vapor pressure, lower flammability, or lower toxicity; isolation of hazardous processes; and use of processes which operate at lower temperatures and/or pressures." "Inherently safer design is a fundamentally different way of thinking about the design of chemical processes and plants. It focuses on the elimination or reduction of the hazards, rather than on management and control. This approach should result in safer and more robust processes, and it is .likely that these inherently safer processes will also be more economical in the long run (Trevor Kletz)." Implementing inherently safer systems as defined will reduce the risk of an accidental release from a facility that could have an offsite consequence. The CCPS publication Inherently Safer Chemical Processes has classified a strategy for reducing risk into four categories. "These categories, in decreasing order of reliability, are: 0 Inherent — Eliminating the hazard by using materials and process conditions which are nonhazardous; e.g., substituting water for a flammable solvent. • Passive — Minimizing the hazard by process and equipment design features that reduce either the frequency or consequence of the hazard without the active functioning of any device; e.g., the use of equipment rated for higher pressure. • Active — Using controls, safety interlocks, and emergency shutdown systems to detect and correct process deviation; e.g., a pump that is shut off by a high level Page 1 T switch in the downstream tank when the tank is 90% full. These systems are commonly referred to as engineering controls. • Procedural — Using operating procedures, administrative checks, emergency response, and other management approaches to prevent incidents, or to minimize the effects ofan incident, e.g., hot-work procedures and permits. These approaches are commonly referred to as administrative controls." "Approaches to the design of inherently safer processes and plants have been grouped into four major strategies by IChemE and IPSG (1995) and Trevor Kletz: • Minimize — Use of smaller quantities of hazardous substances (also called Intensification) • Substitute—Replace a material with a less hazardous substance • Moderate — Use less hazardous conditions (e.g., process conditions operated at lower temperatures or pressures), a less hazardous form of a material, or facilities that minimize the impact of a release of hazardous material or energy (also called Attenuation and Limitation of Effects). • Simplify — Design facilities which eliminate unnecessary complexity and make operating errors less likely, and which are forgiving of errors that are made (also called Error Tolerance)."' Inherently safer design strategies can be applied to any of these risk management strategies as illustrated below. Process Risk Management Inherent Passive Active Procedural Strategies Minimize ............................................ ................................................. Substitute ...........................................`t..................Ij ................................ Moderate .......................... ................................................. a� � A Simplify ........................................... ................................................_: "Finally, in considering inherently safer design alternatives, it is essential to remember that there are often, perhaps always, conflicting benefits and deficiencies associated with 'Inherently Safer Chemical Processes -A Life Cycle Approach A CCPS Concept Book, 1996 Page 2 .il the different options. Chemical processes usually have many potential hazards, and a change that reduces one hazard may create a new one or increase the magnitude of different existing hazard. It is essential that the process designer retain a broad overview of the process when considering alternatives, that he/she remains aware of all hazards associated with each process option, and that appropriate tools are applied to choose the overall best option."` In the CCPS book Inherently Safer Chemical Processes they "adopt a broad definition of inherently safer. The discussion and examples range from basic process chemistry through details of the design of hardware and procedures. The authors recognize that some of these more detailed examples may arise in processes that would not be described as "inherently safer" overall. However, we believe that it is important to encourage inherently safer thinking at all levels of process and plant design, from the overall concept through the detailed design of equipment and procedures." Inherently Safer Systems Submittal Health Services requested that the Industrial Safety Ordinance regulated stationary sources submit to Health Services' a list of the inherently safer systems implemented. Health Services requested that the list for each of the different inherently safer systems considered to be categorized. Health Services also requested the.regulated stationary sources to list the inherently safer systems that were considered, but were not implemented with the justification for why the inherently safer systems was not implemented and not feasible. The request for this information was for PHA's and new or modified projects that were completed between April 27, 2000 (the effective date of the amendment to the Industrial Safety Ordinance, County Ordinance 2000-20) and March 9, 2001. The total inherently safer systems that were implemented are 565 and are listed in Attachment A according to the category of the system. implemented. The total inherently safer systems that were not implement are 13. The inherently safer systems that were not implemented and the justifications for not implementing them are listed in Attachment B. Public Outreach A public outreach policy was drafted and sent out for comment to an interested party list. The draft policy was developed with input from Denny Larson and A. J. Napolis from Communities for a Better Environment. Health Services received comments from seven individuals or groups. The final public outreach policy proposal is included in Attachment C. The public outreach policy is a three-phase approach with the first phase being a pilot program to work with the communities surrounding the Tosco San Francisco Refinery at Rodeo. Health Services would hire an individual or a group to develop and implement a program for this pilot project. If the pilot project were successful, the second and third phases would be to implement similar programs in the Martinez and the Bay Point areas. 2 Inherently Safer Chemical Processes -A Life Cycle Approach A CCPS Concept Book, 1996 Page 3 , ATTACHMENT A Inherently Safer Systems Implemented Five hundred sixty-five inherently safer systems will be implemented as the result of PHA's and new or modified facilities between April 27, 2000 and March 9, 2001. The list below includes the following: • The regulated stationary source • Category for each of the inherently safer systems implemented o Instrument and Electrical—Instrumentation or electrical modifications o Piping Systems and Equipment—Evaluations/Modifications to equipment, specifications, inspection programs/records, replacements, etc. o Pressure Safety Valves —Installation of new relief valves, modifications to existing relief valves, service, maintenance, etc. o Human Factors — Evaluations/modifications to improve personnel and equipment interface o Facility Siting — Evaluations/modifications to equipment locations with respect to processes and their surroundings o Operational — Evaluations/modifications to improve operability (e.g., procedures, locking open valves,etc.) o Fire Protection/Health and Safety — Evaluations/modifications to emergency/health and safety equipment and procedures o Environmental — Evaluations/modifications to address environmental regulatory requirements o Documentation—Evaluations/modifications to process safety information • Process Hazard Analysis or New or Modified Project • Number of inherently safer systems implement at each of the stationary sources that are regulated under the Industrial Safety Ordinance Regulated Process Hazard or Category Number of Stationary Source New or Modified Inherently Safer Project Systems Implemented Ultramar Inc. Process Hazard Instrument and 28 Analysis Electrical Piping and Systems 41 and Equipment Pressure Safety 6 Valves Human Factors 8 Facility Siting 12 Operational 123 Fire 6 Protection/Health and Safety Environmental 1 Page 4 IN Ultramar Inc. Process Hazard Documentation 69 Analysis New or Modified Instrument and 3 Facility Electrical Piping Systems and 9 Equipment Pressure Safety 1 Valves Human Factors 1 Facility Siting 1 Operational 0 Fire 1 Protection/Health and Safety Environmental 0 Documentation 0 Air Products at Process Hazard Instrument and 2 Equilon Analysis Electrical Piping and 1 Equipment S stems Pressure Safety 0 Valves Human Factors 1 Facility Siting 5 Operational 16 Fire 1 Protection/Health and Safety Environmental 0 Documentation 15 General Chemical at Process Hazard Instrument and 1 Bay Point Analysis Electrical Piping and 1 Equipment S stems Pressure Safety 0 Valves Human Factors 0 Facility Siting 0 Operational 3 Fire 0 Protection/Health and Safety Environmental 0 Documentation 1 Page 5 Equilon Martinez Process Hazard Instrument and 1 Refining Company Analysis Electrical Piping and 3 Equipment S stems Pressure Safety 0 Valves Human Factors 2 Facility Siting 1 Operational 10 Fire 0 Protection/Health and Safety Environmental 0 Documentation 0 Tosco San Process Hazard Instrument and 7 Francisco Refinery Analysis Electrical at Rodeo Piping Systems and 76 Equipment Pressure Safety 11 Valves Human Factors 9 Facility Siting 8 Operational 37 Fire 8 Protection/Health and Safety Environmental 0 Documentation 1 Instrument and 0 Electrical New or Modified Piping Systems and 8 Facility Equipment Pressure Safety 6 Valves Human Factors 0 Facility Siting 0 Operational 0 Fire 0 Protection/Health and Safety Environmental 0 Documentation 0 Page 6 Two regulated stationary sources reported no inherently safer systems considered in the time that was requested. Air Products at Ultramar did not perform or revalidate any process hazard analyses between April 27, 2000 and March 9, 2001. Polypure did not consider inherently safer systems when process hazard analyses were performed. This was discovered when Health Services audited them in November 2000 and is part of the preliminary audit findings. Polypure has committed to redoing all of their process hazard analyses to include inherently safer systems. They will submit the schedule to complete this work when they respond to the preliminary audit findings that is due on May 14, 2001. Page 7 0 _C5 0c) Us PA IPA ?; 4-4 71 6 tp N9 a 00 PA IPA 1,1 O'S 00 I& 0 al tA 41) ed to OD 0 0 Tp 0, o 4) Ld 40 c� 15 G Cd y p O 5G 3 p U �3 �s O N y yp p ? O un `d En Q V H � w d1 N 3 3 tj Cd H cid y. O f N +t4 G "+ in 61) G cn O ,+ O v' 'v, ? O ��S' bA G G O N N p ctS Nom, N ? .Off+ a O ? o ?, C, o t v O � W � W cd ani 10- 14 O O T5A 0 0 00 dg ATTACHMENT C Proposal for Improving and Increasing Public Participation in the Industrial Safety Ordinance Background The Contra Costa County Board of Supervisors adopted the Industrial Safety Ordinance because of concerns about accidents that have occurred at the oil refineries and chemical plants in Contra Costa County. The ordinance went into effect on January 15, 1999, and was amended in March 2000. On December 12, 2000 the Hazardous Materials Programs presented the first annual Performance Review and Evaluation Report for the ordinance to the Board of Supervisors. At that meeting, in written and oral comments, Denny Larson of Communities for a Better Environment complained that the public participation component of the ordinance's implementation was inadequate. The Board requested that the Ombudsman for the Hazardous Materials Programs work with staff from the Hazardous Materials Programs and Communities for a Better Environment to improve the public participation component. This proposal is the result of that effort. Regulatory History In regards to public participation, the Industrial Safety Ordinance states: 450-8.002(D) — Background and Findings — The County recognizes that regulatory requirements alone will not guarantee public health and safety, and that the public is a key stakeholder in chemical accident prevention, preparedness, and response at the local level. Preventing accidental releases of regulated substances is the shared responsibility, of industry, government, and the public. The first steps toward accident prevention are identifying the hazards and assessing the risks. Once information about chemical hazards in the community is openly shared, industry, government, and the community can work together towards reducing the risk to public health and safety. (E) The success of a Safety Program is dependent upon the cooperation of industrial chemical and oil refining facilities within Contra Costa County. The public must be assured that measures necessary to prevent incidents are being implemented, including changes or actions required by the Department or the Stationary Source that are necessary to comply with this chapter. And 450-8.004(A) — Purpose and Goals — The purpose of this ordinance is to impose regulations which improve industrial safety by the following: (5)provide for public input into the Safety Plan and Safety Program and public review of any inspections and audit results; Page 11 The ordinance also provides for two specific opportunities for public participation: 450-8.018(A) — Review, Audit and Inspection — Upon submission of a Safety Plan by the Stationary Source, the Department shall review the Safety Plan to determine if all the elements required by Section 450-8.016 are included and complete. The Department shall provide to the Stationary Source a written Notice of Deficiencies, if any. The Statiomary Source shall have 60 calendar days from receipt of the Notice of Deficiencies to make any corrections. The Stationary Source may request, in writing, a one time 30 day calendar day extension to correct deficiencies. By the end of the 60 calendar days or any extension period, the Stationary Source shall resubmit the revised Safety Plan to the Department. After the Department determines that the Safety Plan is complete, the Department shall schedule a public meeting on the Stationary Source's Safety Plan to explain its contents to the public and take public comments. (emphasis added) The Department shall make portions of the Safety Plan, which are not protected trade secret information, available to the public for the public meeting. And 450-8.018(B)(4) — Review, Audit and Inspection - After receiving the written response from the Stationary Source, the Department shall issue a public notice per the Department's Public Participation Policy and make portions of the Safety Plan, the Preliminary Determination and the Stationary Source's responses, which are not protected trade secret information, available for public review. Public comments on the Safety Plan shall be taken by the Department for a period of 45 days after the Safety Plan, the Preliminary Determination and the Stationary Sources responses are made available to the public. The Department shall schedule a public meeting on the Stationary Source's Safety Plan during the 45 day comment period. (emphasis added) The public meetings shall be held in the affected community on evenings or weekends. In addition, the Board of Supervisors approved the allocation of $50,000 for the purpose of continuing the existing community education and outreach effort, including holding community meetings to seek input on the Safety Plans required under the ordinance (Board agenda item D.9.5, December 8, 1998). Current Public Participation Efforts The Hazardous Materials Programs has developed a written policy for conducting public participation. That policy requires that when a Safety Plan is complete, Health Services places a five-inch by four-inch advertisement in the appropriate Contra Costa Times Newspaper and the San Francisco Chronicle announcing the opening of a forty-five day public comment period and a public meeting. Health Services also sends letters to approximately 150 individuals or organizations on an interested persons mailing list, announcing the public comment period and the public meeting. Thus far, four public Page 12 meeting for five of the regulated stationary sources' Safety Plans have been held. The policy calls for the same process to be repeated for the second round of public meetings. The format of these meeting has been for Health Services to give an overview of the CaIARP Program and the Industrial Safety Ordinance followed by a presentation by the stationary source. The stationary source presentations have consisted of overviews of the facilities' operations, descriptions of their chemical release scenarios, and explanations of how the accident prevention and emergency response elements required by the ordinance are implemented. The meetings have concluded with question and answer periods. One meeting was attended by 6 members of the public, 14 attended one, and two were attended by no members of the public. The current method of public participation has met the specific requirements of the Industrial Safety Ordinance as described in section 450- 8.018. New Public Participation Proposal The intent of this proposal is to develop a public involvement process that provides the public the opportunity to participate in a manner that more fully meets the intent described in the Background and Findings section and Purpose and Goals section of the ordinance. This proposal is based on the concept that the public must have access to substantive information, and must be provided the support necessary to understand that information, for them to provide meaningful input into the review process. The type of information that the public can use to participate in this manner include: • Already available Root Cause Analyses conducted for specific stationary sources, and new Root Cause Analyses as they become available. • The recommendations made from the Process Hazard Analyses conducted by the stationary sources, which can be requested from the stationary sources. • Timelines for implementing Process Hazard Analyses developed by the stationary sources, which can be requested from the stationary sources. • Already available Incident Notification Reports prepared by Health Services, and new Incident Notification Reports as they become available. However, just having this information available to the public is not enough; additional support is necessary to help the public understand this information and to understand how they can use this knowledge to participate in the process. To this end, the $50,000 allocated by the Board of Supervisors should be used to provide support personnel to the community. This support would be responsible for: • Promoting awareness of the opportunity to participate in the process to the public; Page 13 • Meeting with members of the public who are interested in participating to help the review and understand the available information; and • Assisting the interested public in preparing comments and voicing their concerns during the review process. This model for public involvement has recently been successfully demonstrated in several collaborative projects between Health Services and local communities. In the Crockett/Rodeo area Health Services is working with a local community group to help residents understand and participate in the development of a refinery fence-line air monitoring system. Community involvement was accomplished through a series of meetings with community members in their homes and in small groups. In North Richmond, environmental educators from Health Services are working with community members to help them identify the environmental health risks of greatest concern to them and implement a program to address these priorities. The key to the success of both these projects has been significant support personnel and open access to relevant information. To implement this process, we recommend starting with a pilot program in the Crockett/Rodeo area. This facility will be the first to have their Safety Plan ready for the second public comment period and public meeting. Health Services should contract with a consultant or a community group to provide the necessary community support as described above. Health Services would open the 45-day comment period on Tosco's Safety Plan approximately six weeks after the support person was hired. This would give the support personnel enough time to conduct outreach in the community, and to help interested community members understand the relevant information and prepare to participate in the public meeting. This process could then be replicated for the stationary sources in the Martinez and Bay Point areas. Page 14 Attachment MT Health Services Report and Recommendations on the Proposed A111CHUXI CULJ iu the Industrial Safety Ordinance Introduction The Board of Supervisors requested that Health Services, Community Development Department, and the County Administrator's Office submit a comprehensive and integrated report on what resources would be needed if the Board of Supervisors amends the Industrial Safety Ordinance to allow the County to exercise discretion to require inherently safer systems/actions. The draft amendment language of the Industrial Safety Ordinance was submitted to the Hazardous Materials Commission and the Public and Environmental Health Advisory Board for comments. The Board of Supervisors also requested that County Counsel review the impacts of requiring Health Services to approve the stationary sources' safety plans, instead of saying when the plans are complete. County Counsel reviewed the Board of Supervisor's request to determine the impact of requiring Health Services to approve the different stationary sources' Safety Plans in a memo to Dr. Walker to the attention Lew Pascalli. Enclosed is a copy of this memo. This memo effectively summarizes the requirements of the Industrial Safety Ordinance and what the Safety Plan is and the different prevention elements of the Industrial Safety Ordinance. The Safety Plan is a summary of the Safety Programs that the different stationary sources have enacted to comply with the Industrial Safety Ordinance. Not included in the memo from County Counsel and that are included in the Industrial Safety Ordinance are requirements for Human Factors, root cause analysis, and Process Hazard Analysis. These requirements are discussed in more detail in this report. Summary Health Services agrees with the changes for Sections 450-8.016(D)(3) and 450- 8.016(D)(4) from the proposed amended Industrial Safety Ordinance. The Industrial Safety Ordinance already requires that the stationary source justify the infeasibility of inherently safer systems not implemented to the satisfaction of Health Services. Health. Services has been able to be satisfied by the different stationary sources on the infeasibility of the inherently safer systems not implemented for Process Hazard Analysis mitigations where no inherently safer system was implemented and believes that the approval or disapproval of a justification has not been shown to be necessary. The approval or disapproval would be a discretionary decision by Health Services, which would invoke the California Environmental Quality Act (CEQA). Processing CEQA would require more time to implement the Industrial Safety Ordinance that could delay the implementation of safety improvements at the stationary sources and would require the hiring of one or two more personnel for Health Services to work with the CEQA process. The amendment would require Health Services to approve or disapprove each decision made by the stationary sources for not implementing an inherently safer system. To meet this requirement Health Services would have to hire one or two more personnel. r Health Services Report and Recommendation on the Proposed Amendments to the Industrial Safety Ordinance September 25,2001 The total additional resources that would be needed to implement the amendments to the Industrial Safety Ordinance for Health Services would be three to four new personnel. The best way to determine what inherently safer systems to implement is to have an effective process in place to access the inherently safer systems and to determine the feasibility of each inherently safer system. The stationary source has the best resources and experience to make this determination. It is Health Services' responsibility to ensure that the stationary sources have a process in place that adequately assess the inherently safer systems and implement the inherently safer systems when it feasible. Health Services recommends that only minor changes, if any, be made to the Industrial Safety Ordinance. The Industrial Safety Ordinance requirements are new (Human Factors Programs were required to be in place in January of this year) and it will take time for the full effect of the ordinance to occur. Time will also show what areas of the ordinance needs improvements and how these improvements can best be made. Human Factors' The Industrial Safety Ordinance required that Health Services develop a guidance document for the stationary sources to follow in the development of a written human factors program. "The Human Factors Program shall address: i. The inclusion of human factors in the Process Hazard Analysis process ii. The consideration of human systems as causal factors in the - incident investigation process for Major Chemical Accidents or Releases or for an incident that could reasonably have resulted in a Major Chemical Accident or Release iii. The training of employees in the human factors program iv. Operating procedures V. The requirement to conduct a Management of Change prior to staffing changes for changes in permanent staffing levels/reorganization in operations or emergency response. Employees and their Representatives shall be consulted in the Management of Change." §450-8.016(B)(1) Health Services completed the Contra Costa County Safety Program Guidance Document and issued the document in January 2000. The stationary sources updated 1 Human Factors is defined as"A discipline concerned with designing machines,operations,and work environments so that they match human capabilities,limitations,and needs."Chemical Manufacturing Association,A Manager's Guide to Reducing Human Factors Human Factors can be further referred to as". . .environmental,organizational,and job factors,and human and individual characteristics,which influence behavior at work in a way which can affect health and safety." Reducing Error and Influencing Behavior,HSG48,Health and Safety Executive Human Factors is defined as"Departure from acceptable or desirable practice on the part of an individual that can result in unacceptable or undesirable results." Bea,Holdsworth,and Smith,"Human and Organization Factors in the Safety of Offshore Platforms",a paper presented at the 1996 International Workshop on Human Factors in Offshore Operations Page 2 of 6 Health Services Report and Recommendation on tfie Proposed Amendments to the Industrial Safety Ordinance September 25,2001 their Safety Plans to include the Human Factors Programs that was adopted by each stationary source in January 2001. Root Cause Analysis The Industrial Safety Ordinance requires the stationary sources to conduct a root cause analysis' as part of their incident investigation for each Major Chemical Accident or Release 3. The stationary source is required to update Health Services on facts related to the release or incident, and the status of a root cause analysis. The stationary source is required to submit to Health Services a report containing the results of the root cause analysis, including mitigations to be implemented to prevent the release or incident from recurring. Health Services may elect to do its own independent root cause analysis or incident investigation for a Major Chemical Accident or Release. Process Hazard Analysis A process hazard analysis is a detailed review and study of the processes that are covered by the Industrial Safety Ordinance at the stationary source. The process hazard analysis is required to be one of the following methods: What-If, Checklist, What-If/Checklist, Hazard and Operability Study (HazOp), Failure Mode and Effects Analysis (FMEA), Fault Tree Analysis, or an appropriate equivalent methodology approved by Health Services. The process hazard analysis looks at the hazards of the process; the identification of any previous incident that had a likely potential for catastrophic consequences; engineering and administrative controls applicable to the hazards and their interrelationships such as appropriate application of detection methodologies to provide early warning of releases. A team shall perform all process hazard analyses with expertise in engineering and process operations, and the team shall include at least one employee who has experience and knowledge specific to the process being evaluated. 2 "Root Cause means prime reasons, such as failures of some management systems, that allow faulty design, inadequate training, or improper changes, which lead to an unsafe act or condition, and result in an incident. If root causes were removed, the particular incident would not have occurred." §450-8.014(1) 3 "Major Chemical Accident or Release"means an incident that meets the definition of a Level 3 or Level 2 Incident in the Community Warning System incident level classification system defined in the September 27, 1997 Contra Costa County guideline for the Community Warning System as determined by the Department;or results in the release including, but not limited to, air, water, or soil of a Regulated Substance and meets one or more of the following criteria: (1) Results in one or more fatalities (2) Results in greater than 24 hours of hospital treatment of three or more persons (3) Causes on andlor off-site property damage(including clean-up and restoration activities)initially estimated at$500,000 or more. On-site estimates shall be performed by the stationary source. Off-site estimates shall be performed by appropriate agencies and compiled by the Department (4) Results in a flammable vapor cloud of more than 5000 pounds" §450-8.014(h) Page 3 of 6 r Health Services Report and Recommendation on the Proposed Amendments to the Industrial Safety Ordinance September 25,2001 The process hazard analysis shall consider the use of inherently safer systems in the development and analysis of mitigation items resulting from the process hazard analysis. Section 450-8.016(D)(3) The Industrial Safety Ordinance as it exists now requires stationary sources to consider inherently safer systems for the mitigation items resulting from a process hazard analysis and in the design and review of new processes and facilities. The stationary source shall select and implement inherently safer systems to the greatest extent feasible. For inherently safer systems found not to be feasible, the stationary source is required to document the basis in meaningful detail and shall include (1) sufficient evidence to demonstrate to the County's satisfaction that implementing this inherently safer system is impractical, and(2) the reasons for this conclusion. Health Services currently has the authority to review the inherently safer systems not implemented to determine that there is sufficient evidence that implementing the inherently safer systems is impractical. Health Services also, as part of their inspection and auditing process, determines that the stationary source has a program in place that considers inherently safer systems and that the stationary source implement the inherently safer systems to the greatest extent feasible. Health Services agrees with the proposed change in Section 450-8.016(D)(3) that for inherently safer systems not implemented there should be sufficient evidence to demonstrate to the County's satisfaction that implementing this inherently safer systems is not feasible (instead of impractical). Section 450-8.416(D)(4) This Section currently requires stationary sources to document the decision made to implement or not implement all process hazard analyses recommended action items and the results of recommendations for additional study. For all recommended actions not selected for implementation, the stationary source shall include the justification for not implementing the recommended action. For all covered processes, the stationary source shall retain documentation of closure, and any associated justifications of actions identified by the process hazard analysis. Any documentation justifying a decision not to implement a process hazard analysis recommended action shall include (1) sufficient evidence to demonstrate to the County's satisfaction that implementing this action is impractical, and(2)the reasons for this conclusion. Health Services agrees with the proposed change in the Industrial Safety Ordinance that for inherently safer systems not implemented there should be sufficient evidence to demonstrate the County's satisfactionthat implementing this inherently safer systems is not feasible (instead of impractical). 4 See enclosed report to the Board of Supervisors on Inherently Safer Systems dated April 3,2001 Page 4 of 6 Health Services Report and Recommendation on the Proposed Amendments to the Industrial Safety Ordinance September 25,2001 Section 450-8.016(D)(5) The proposed amendment to the Industrial Safety Ordinance has added a new Section that includes the following additional requirements for Health Services. "The Department (Health Services) shall review and approve or disapprove each determination by a Stationary Source not to implement an inherently safer systems or a process hazard analysis recommended action item." "The Department's approval or disapproval of a determination not to implement an inherently safer systems or a process hazard analysis recommended action item shall i.nchide Health Services'findings justifying its decision, and shall be included as part of the Final Determination." Health Services is currently reviewing all of the mitigations from the process hazard analyses where an inherently safer system has not been implemented. Health Services is also auditing the stationary sources to ensure that a process is in place to adequately assess each of the process hazard analyses and the inherently safer systems that are considered to address the mitigations from the process hazard analyses. Health Services is ensuring where an inherently safer system has not been implemented that the stationary source has the documentation to justify to Health Services' satisfaction that implementing the inherently safer system is not feasible. Health Services' auditing of the actions where an inherently safer systems has been implemented includes the process that the stationary source has in place to ensure that when feasible, more that one inherently safer system is considered and that the implementation of the inherently safer systems that provides the greatest risk reduction is implemented where feasible. This change in the language would require Health Services to review each process hazard analysis mitigation and each inherently safer system considered for each process hazard analysis mitigation and to approve or disapprove and document our decision for each inherently safer systems that was not implemented. To accomplish this would require one or two new people added to the existing staff of Health Services. The additional requirements for the stationary source are: "The stationary source shall have the burden of satisfying Health Services that the inherently safer systems or process hazard analysis recommended action item is not feasible." There is no change in what is required in the existing Industrial Safety Ordinance. "Upon the Department's disapproval of a stationary source's determination not to implement an inherently safer systems or process hazard analysis recommended action Page 5 of 6 r Health Services Report and Recommendation on the Proposed Amendments to the Industrial Safety Ordinance September 25,2001 item, the stationary source shall implement such measure unless it appeals the Final Determination to the Board of Supervisors." This is the same requirements as the existing Industrial. Safety Ordinance, since the stationary source must satisfy Health Services. The difference is the approval/ disapproval requirement. See comments above for the Final Determination and comments below on discretionary decisions. The requirement for Health Services to approve or disapprove an inherently_safer systems or a process hazard analysis recommended action item that has not been implemented is a discretionary decision by Health Services, based on' the justification supplied by the stationary source and the education and experience of the person from Health Services making the decision. This discretionary decision will require CEQA to be initiated. Processing CEQA could delay the implementation of safety improvements at the stationary source. The stationary source may wait to ensure that their decision not to implement an inherently safer system is approved by Health Services. If Health Services disapproves an inherently safer system, this decision could require a completely different design by the stationary source. The CEQA process will take more time for Health Services to implement the Industrial Safety Ordinance and may require the hiring of one or two more individuals. Conclusion The proposed amendments to Sections 450-8.016(D)(3) and (4) are minor changes to the language of the Industrial Safety Ordinance to make it more consistent. The proposed new section requirements would require an additional three to four people to be hired by Health Services to approve or disapprove the inherently safer systems and the recommended action items not implemented and to process CEQA that would be required by the discretionary decisions by Health Services. The approval or disapproval requirement could delay the implementation of safety improvements. The implementation of Process Safety Management by OSHA and Cal/OSHA and the Federal and California's Accidental Release Prevention Programs have reduced the number of incidents that have occurred at the facilities that are subject to these regulations. This is a reversal of the trend in the industries that was occurring over the last twenty years. The Industrial Safety Ordinance expands on these regulations and will reduce the probability of accidental releases from the Industrial Safety Ordinance regulated stationary sources, when the full effect of the Industrial Safety Ordinance is realized. Page 6 of 6 A r Attachment "DT b.-----= CONTRA COSTA COUNTY = pp COMMUNITY DEVELOPMENT DEPARTMENT 4 651 Pine Street, N. Wing - 4th Floor �srq-._oUt; Martinez, CA 94553 Telephone: 335-1276 Fax: 335-1299 TO: Internal Operations Committee Supervisor John Gioia, Chair Superviso Mar eSaulnier FROM: ennis M. Barry, AIP, Com unity Development Director DATE: October 1, 2001 SUBJECT: CEQA ANALYSIS OF PROCESS HAZARD ANALYSIS ACTION ITEM AND INHERENTLY SAFER SYSTEMS REQUIREMENTS On September 17, 2001, the Internal Operations Committee received a report from the Community Development Director on the application of the California Environmental Quality Act (CEQA) to the Board's consideration of an amendment to the Industrial Safety Ordinance. The Committee requested a further report on whether the requirements of CEQA would apply to the determinations of the Health Services Department (HSD) contemplated in the proposed amendments to the Industrial Safety Ordinance. Specifically, the Committee members requested a discussion of (1) whether requiring Inherently Safer Systems would be a "project"' subject to CEQA, (2) whether CEQA would still apply if the determination was made not to require Action Items and Inherently Safer Systems as outlined in the proposed amendments, and (3) what sort of CEQA document would likely be required. The proposed amendments would give the HSD authority to require implementation of Process Hazard Analysis Action Items or Inherently Safer Systems (which had been considered and rejected by the stationary source) in its Final Determination under the Industrial Safety Ordinance. Staff is of the opinion that this Final Determination would be a "'project" subject to CEQA. By way of background, it should be noted that determination of whether the decision by a local agency is subject to CEQA is governed by State CEQA Memo to Internal Operations Committee CEQA Analysis of Inherently Safer Systems Requirements October 1, 2001 Page 2 of 8 Guidelines. The CEQA Guidelines defines "private project" and "project"' as follows: 15377. Private Project A "private project" means a project which will be carried out by a person other than a governmental agency, but the project will need a discretionary approval from one or more governmental agencies for: (a) A contract or financial assistance, or (b) A lease, permit, license, certificate, or other entitlement for use. Note: Authority cited: Sections 21083 and 21087, Public Resources Code; Reference: Section 21065, Public Resources Code. Discussion: This section defines a term to be used in the place of a much longer phrase several places in the statute. In a number of different contexts, the statute sets up special requirements that apply by way of a cross-reference to activities which involve the issuance of a lease, license, certificate, permit, or other entitlement for use. It is clearer in these situations to refer to private projects. 15378. Project (a) "Project" means the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, and that is any of the following: (1) An. activity directly undertaken by any public agency including but not limited to public works construction and related activities clearing or grading of land, improvements to existing public structures, enactment and amendment of zoning ordinances, and the adoption and amendment of local General Plans or elements thereof pursuant to Government Code Sections 65100-65700. (2) An activity undertaken by a person which is supported in whole or in part through public agency contacts, grants, Memo to Internal Operations Committee CEQA Analysis of Inherently Safer Systems Requirements October 1, 2001 Page 3 of 8 subsidies, loans, or other forms of assistance from one or more public agencies. (3) An activity involving the issuance to a person of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies. (b) Project does not include: (1) Proposals for legislation to be enacted by the State Legislature; (2) Continuing administrative or maintenance activities, such as purchases for supplies, personnel-related actions, general policy and procedure making (except as they are applied to specific instances covered above); (3) The submittal of proposals to a vote of the people of the state or of a particular community. (Stein v, City of Santa Monica(1980) 110 Cal.App.3d 458); (4) The creation of government funding mechanisms or other government fiscal activities, which do not involve any commitment to any specific project which may result in a potentially significant physical impact on the environment. (5) Organizational or administrative activities of governments which are political or which are not physical changes in the environment (such as the reorganization of a school district or detachment of parkland). (c) The term "project" refers to the activity which is being approved and which may be subject to several discretionary approvals by governmental agencies. The term "project" does not mean each separate governmental approval. (d) Where the Lead Agency could describe the project as either the adoption of a particular regulation under subsection (a)(1) or as a development proposal which will be subject to several governmental approvals under subsections (a)(2) or (a)(3), the Lead Agency shall describe the project as the development Memo to Internal Operations Committee CEQA Analysis of Inherently Safer Systems Requirements October 1, 2001 Page 4 of 8 proposal for the purpose of environmental analysis. This approach will implement the Lead Agency principle as described in Article 4. Note: Authority: Sections 21083 and 21087, Public Resources Code; Reference: Section 21065, Public Resources Code; Kaufman and Broad- South Bay, Inc. v. Morgan Hill Unified School District(1992) 9 Cal.App.4th 464; and Fullerton Joint Union High School District v. State Board of Education(1982) 32 Cal.3d 779; Simi Valley Recreation and Park District v. Local Agency Formation Commission of Ventura County (1975) 51 Cal.App.3d 648 Discussion: This section provides a more complete explanation of the term "project." This term describes activities which are subject to CEQA. This definition brings together a number of separate provisions in the Act. These are the definition of the term contained in Section 21065 of the statute, the Lead Agency concept in Section 21165 of the statute, and the result of a number of court decisions interpreting this term. Chapter 1230 of the Statutes of 1994 codifies the emphasis on "physical change" in the environment. Following the State Supreme Court's decision in FriendsofMammoth,the Legislature added a definition of the term "project" to the statute. The definition provided that "project" meant activities directly undertaken by government, activities financed by government, or activities requiring a permit or other approval from government. The Legislature then added the words "or approve" to the section requiring that agencies shall prepare an EIR "on any project they proposed to carry out or approve which may have a significant effect on the environment." Reading the language of Sections 21065 and 21100 together, the project which is to be analyzed in the EIR is not the approval itself but is that which is being approved. In Livermore v. Local Agency Formation Commission ofAlameda County (1986) 184 Cal. App. 3d 531/(1986) 183 Cal. App. 3d. 681, the court ruled that LAFCO's guideline revisions fit within CEQA's broad definition of a project because they are a discretionary activity of a public agency that will unquestionably have an ultimate impact on the environment, i.e., major policy decisions that determine whether growth will occur in unincorporated areas and whether agricultural land will be preserved or developed. Memo to Internal Operations Committee ; CEQA Analysis of Inherently Safer Systems Requirements October 1, 2001 Page 5of8 However, in marked contrast, Northwood Homes, Inc. v. Moraga(1989) 216 Cal. App. 3d 1197 concluded that general guidelines enacted as administrative activities for procedural implementation as to definitions of terms and application procedures of land use decisions are not a project. Items (4) and (5) under subsection (b) codify the decisions in Kaufman and Broad-South Bay, Inc. v. Morgan Hill Unified School District (1992) 9 Cal.App.4th 464 and Simi Valley Recreation and Park District v. Local Agency Formation Commission of Ventura County (1975) 51 Cal.App.3d 648 which clarify that CEQA does not apply to activities which do not result, either directly or in a reasonably foreseeable indirect way, in a physical change to the environment. It is the exercise of discretion by the Health Services Department in making its final determination as to whether or not to require Action Items and/or Inherently Safer Systems that makes the final determination a "project" subject to CEQA. No public agency may approve or carry out a "project" subject to CEQA without first complying with the requirements of the Act, consistent with the adopted Guidelines. The Guidelines are very explicit on this point: 15004. Time of Preparation (a) Before granting any approval of a project subject to CEQA, every Lead Agency or Responsible Agency shall consider a final EIR or Negative Declaration or another document authorized by these Guidelines to be used in the. place of an EIR or Negative Declaration. (See: The definition of "approval" in Section 15352.) (b) Choosing the precise time for CEQA compliance involves a balancing of competing factors. EIRs and negative declarations should be prepared as early as feasible in the planning process to enable environmental considerations to influence project program and design and yet late enough to provide meaningful information for environmental assessment. (1) With public projects, at the earliest feasible time, project sponsors shall incorporate environmental considerations into project conceptualization, design, and planning. CEQA Memo to Internal Operations Committee CEQA Analysis of Inherently Safer Systems Requirements October 1, 2001 Page 6 of 8 compliance should be completed prior to acquisition of a site for a public project. (2) To implement the above principles, public agencies shall not undertake actions concerning the proposed public project that would have a significant adverse effect or limit the choice of alternatives or mitigation measures, before completion of CEQA compliance. For example, agencies shall not: (A) Formally make a decision to proceed with the use of a site for facilities which would require CEQA review, regardless of whether the agency has made any final purchase of the site for these facilities, except that agencies may designate a preferred site for CEQA review and may enter into land acquisition agreements when the agency has conditioned the agency's future use of the site on CEQA compliance. (B) Otherwise take any action which gives impetus to a planned or foreseeable project in a manner that forecloses alternatives or mitigation measures that would ordinarily be part of CEQA review of that public project. (3) With private projects, the lead agency shall encourage the project proponent to incorporate environmental considerations into project conceptualization, design, and planning at the earliest feasible time. (c) The environmental document preparation and review should be coordinated in a timely fashion with the existing planning, review, and project approval processes being used by each public agency. These procedures, to the maximum extent feasible, are to run concurrently, not consecutively. When the lead agency is a state agency, the environmental document shall be included as part of the regular project report if such a report is used in its existing review and budgetary process. Note: Authority cited: Sections 21083 and 21087, Public Resources Code; Reference: Sections 21003, 21061 and 21105, Public Resources Code; Memo to Internal Operations Committee CEQA Analysis of Inherently Safer Systems Requirements October 1, 2001 Page 7of8 Friends ofMammoth v, Board ofSupervisors, (1972) 8 Ca1.3d 247; Mount Sutro Defense Committee v. Regents of the University of California, (1978) 77 Cal.App.3d 20. Discussion: This section codifies the requirement that EIRs and Negative Declarations be prepared before an agency makes a decision on the project and early enough to help-influence the project's plans or design. For EIRs and Negative Declarations to be effective in serving the purposes of CEQA, the preparation of these documents must be coordinated with the planning, review, and approval processes as described in subsection (c). Early preparation is necessary for the legal validity of the process and for the usefulness of the documents. Early preparation enables agencies to make revisions in projects to reduce or avoid adverse environmental effects before the agency has become so committed to a particular approach that it can make changes only with difficulty. The 1998 amendment clarifies that public agencies must consider the significant effects of a project before taking actions which may limit their choice of potential project alternatives and mitigation measures. This section also provides examples of how far the agency may proceed in its decision-making prior to initiating the CEQA process. With respect to inquiry #2, it is not the outcome of the evaluation that requires CEQA compliance; the decision-making is the focus of CEQA compliance. While the Guidelines indicate that the denial of a "project"is not subject to CEQA, any exercise of discretion other than a denial is subject to the provisions of the Act unless it is specifically exempt (as a statutory exemption or a categorical exemption). Therefore, it is the exercise of discretion as to whether or not to require the Action Items and/or Inherently Safer System's which would make the Health Services Final Determination a "project" subject to CEQA not simply the conclusion that such things shall be included. The decision not to require Inherently Safer Systems or Action Items is as much an exercise of discretion as the decision to do so. CEQA's definition of approval may be illustrative in this regard. 15352. Approval (a) "Approval" means the decision by a public agency which commits the agency to a definite course of action in regard to a project 1 Memo to Internal Operations Committee CEQA Analysis of Inherently Safer Systems Requirements October 1, 2001 Page 8 of 8 intended to be carried out by any person. The exact date of approval of any project is a matter determined by each public agency according to its rules, regulations, and ordinances. Legislative action in regard to a project often constitutes approval. (b) With private projects, approval occurs upon the earliest commitment to issue or the issuance by the public agency of a discretionary contract, grant, subsidy, loan, or other form of financial assistance, lease, permit, license, certificate, or other entitlement for use of the project. Note:Authority cited: Sections 21083 and 21087, Public Resources Code; Reference: Sections 21061 and 21065, Public Resources Code. Discussion: The term "approval" needs definition because the term is critical to the CEQA process. A public agency must comply with CEQA when the agency proposes to approve some kind of project. The statute does not define the term, and it is often difficult to identify the time when the project is approved. This section spells out criteria for determining when the approval occurs. With regard to inquiry #3, what form the required environmental document would take (Negative Declaration, Mitigated Negative Declaration Or Environmental Impact Report) would depend upon the results of an Initial Study based upon the particulars of each individual determination. DMB:gms dmb5\ISO-CEQA 2 IOC 10.1.01 c: County Administrator County Counsel Catherine Kutsuns, Community Development Department Attachment T 1 " CONTRA COSTA .................-_................... .............................................................................- H EALTH SERVICES HAZARDOUS MATERIALS PROGRAMS TO: CONTRA COSTA BOARD/(0D)). 'L)]1P1E,,R.V1SORS T'1'ERN.,IJ.OPERITIONS(:OMN,11'FI'EE, SUPI?R�'ISORJ(_)HN C IO :AltSUPER' ;'Olt llFiSAULNIT R FROM: LFAX�IS G.PASCALLI,JR. SUBJECT: H1?t1LTI-I SERVICES RRS()U :E -ri-I. V,'OUI.D BI?NI-CESSARY TO 1N1PLF_.�41=.NT"fHE INDUSTTtLAL SAFE'I I'ORDINA T .13ROPOSEL)AIv41sNDIa4EN'fS DATE: 10/11/01 CC: W LLLkN4 B.WALKER,M.D.,RANDALL L.SAWYER The Internal Operations Committee of the Board of Supervisors requested more information on the personnel resources that would be needed for Health Services to implement the proposed changes to the Industrial Safety Ordinance. The additional personnel that would be necessary to implement the Industrial Safety Ordinance are an additional three to four people. This estimate on the additional personnel that would be needed was determined by the following: • The amendment requires that Health Services review all inherently safer systems not implemented for each of the Process Hazard Analyses recommendations. Each Process Hazard Analysis recommendation may have three or more inherently safer systems that were considered. The facility may implement all, a portion, or none of the inherently safer systems considered. Health Services could potentially have many inherently safer systems that were not implemented to approve or disapprove for each Process Hazard Analysis recommendation. It is estimated that it would take two hours to review each inherently safer systems not implemented, approve or disapprove the inherently safer system not implemented, and to document and justify that decision. Health Services estimates that there will be six hundred Process Hazard Analysis recommendations in a year from the Industrial Safety Ordinance facilities with 2.5 inherently safer systems not implemented per recommendation to review. This would total 1500 inherently safer systems to consider at two hours per person or 3,000 hours of personnel time per year. • The proposed amendments to the Industrial Safety Ordinance also requires Health Services to review and approve or disapprove all of the Process Hazard Analyses mitigations. This would be at least 600 mitigations per year. The time to review, approve or disapprove, and document and justify each of these 1 mitigations would be two hour per mitigation. This would require extra 1200 personnel hours per year. • Health Services has little experience in determining the time it would take to process CEQA projects. The estimate of 11/2 to 2 additional personnel was based on the need for reports,justifications, meetings, responses to comments and any additional work that would be required because of the CEQA projects. The total additional personnel that would be required to implement the proposed amendments to the Industrial Safety Ordinance would be 4200 hours for the approval and disapproval. process and 11/2 to 2 people for CEQA for a total 31/2 - 4 people. This does not include the time it would take to defend any appeals of a decision made by Health Services. 2 Attachment "E2" :s.. CONTRA COSTA COUNTY COMMUNITY DEVELOPMENT DEPARTMENT 4 651 Pine Street, N. Wing - 4th Floor ------ U Martinez, CA 94553 Telephone: 335-1276 Fax: 335-1299 TO: Internal Operations Committee Supervisor John Gioia, Chair Supervisor Mark DeSaulnier FROM: Dennis M. Barry, CP, Community Development Director DATE: November 13, 2001 SUBJECT: STAFFING NEEDS FOR IMPLEMENTATION OF PROPOSED CHANGES TO THE INDUSTRIAL SAFETY ORDINANCE The Committee has requested staff to estimate the need for additional staffing should the proposed amendments to the Industrial Safety Ordinance (ISO) be adopted by the Board of Supervisors. Staff of the Community Development Department (CDD), the Hazardous Materials Division (HazMat) of the Health Services Department (HSD), the County Administrator, and County Counsel met on November 8, 2001 and carefully reviewed the requirements of the Ordinance and the HSD's anticipated number of Process Hazards Analysis (PHA) expected to be submitted in a typical year. HazMat staff anticipated that approximately 50 PHA's per year would be submitted (including perhaps two to three Inherently Safer Systems each) and would need to be analyzed and a decision reached on whether to require their incorporation by the stationary source. Each of these PHA's would be considered a project subject to the California Environmental Quality Act (CEQA) for which an Initial Study would need to be prepared by the HazMat staff and reviewed and the resulting determination processed by the CDD staff. Given that it is unlikely that these 50 would be spread out evenly throughout the year at approximately one per week, HazMat staff indicated that we could expect at most, approximately four PHA's at one time. Internal Operations Committee Staffing Needs for Implementation of Proposed Changes to ISO November 13, 2001 Page Two I would estimate that each of these Initial Studies, assuming they resulted in either a Negative Declaration or Mitigation Negative,Declaration, would require approximately 15 to 20 hours of professional staff time and associated clerical support. In the event that an Initial Study concluded that a PHA could have a potential to cause a significant effect on the environment, an Environmental Impact Report (EIR) would be required. An EIR would take on the order of eight to 12 months to complete and certify for adoption. Generally, such EIR's would be prepared by consultants under the direction of staff and thus would not greatly affect staffing needs. On the basis of the foregoing, it is anticipated that the CDD would need to allocate one additional Senior Planner in order to meet the additional requirements anticipated by the adoption of the proposed amendments to the ISO. Staff will be available at your meeting of December 3, 2001 to respond to any questions you may have to address this requirement. If you have any further questions, please feel free to contact me at 5-1276. DMB:gms dmb5\ISO memo re staffing c: Catherine Kutsuris, CDD-Deputy Director-Current Planning E Attachment T" CONTRA COSTA ..........._........._....................... .............................:......_........_............... HEALTH SERVICES HAZARDOUS MA 7LS PROGRAMS TO: CONTRA COSTA BOARD ) 'SUPERVISORSAN F:GRN AL OPERATIC)NS C:OMMI'11nsl:?, SUPERVISOR JOHN GIC IA IR,SUl'1?ItNI.01I6IIeLARK DESAULNIF.R FROM: 1FAXfIS G.PASCALLI,JR. SUBJECT: SC11?NTIFIC REVIEW PANE'L., DATE: 101/11/01 CC: WILLLAM B.WALKER,D1.D.,RANDALL L.SAW}-ER The Internal Operations Committee of the Board of Supervisors requested that Health Services review the process that the California Air Resources Board establishes scientific review panels. Health Services reviewed the "Unified California Environmental Protection Agency Policy and Guiding Principles for External Scientific Peer Review" March 13, 1998 (Policy). The Policy includes the following: • Defining concepts associated with scientific peer review • Planning for external scientific peer review • Conducting external scientific peer review • Accountability and responsibility in the office The Policy covers both the legislative mandate (Chapter 295, Statutes of 1997, Sher, thereafter referred to as Sher 1320) for external peer review of the scientific portion of rules establishing a regulatory level, standard or other requirement for the protection of public health in the environment, as well as CaVEPA directive calling for external peer review of the scientific basis of program initiatives. The peer review should provide balanced, independent views. When used well, peer review can serve as a system of check and balances for the technical aspects of the regulatory process. Defining Concepts Associated With Scientific Peer Review Peer review is an objective, critical review of a draft Agency scientific work product, typically by independent scientific experts. Although peer review can occur at several discrete points during the peer involvement process, it is typically characterized by a one- time interaction or a limited number of interactions by the peer reviewer(s). In these instances, peer review is part of the culmination of the work product development, ensuring that the final product is scientifically sound. Peer review can occur during the early stages of a project or methods selection. 1 r The Cal/EPA Secretary's Office will authorize the Cal/EPA PRWG1 as the panel for reviewing and approving any proposed peer review panel that performs multi-media or cross-media reviews, as well as consolidating information on all reviews. External scientific peer review and public comment are not synonymous. Public comment is open to all issues, whereas the peer review process considers only the scientific issues. The critical distinction is that public comment does not necessarily draw the kind of independent, expert information and analyses expected from the peer review process. To be independent, an expert should be free from bias of any kind as to the issues under review. Such independence is necessary for objective, fair, and responsible evaluation of the work product under review. In the context of peer review, an expert is someone who has demonstrated expertise in the subject matter required for the input or review function. For many agency decisions, a multi-disciplinary group of experts is often necessary for a full complete peer review. The group will include an expert who corresponds to all the disciplines in the work project or initiative. For example, a risk assessment that relies on both animal and human data may often require experts in both areas for a complete review. Planning for External Scientific Peer Review This section discusses the elements that the departments will need to consider when .planning a work project or initiative for external scientific peer review. This section discusses the work projects that require and that do not require an external scientific peer review and the level of peer review. The level of peer review should be commensurate with the level of scientific importance and regulatory impact of the decision. to be made. Cal/EPA has three types of review: • Extensive review • Moderate review • Limited review Extensive Review For an extensive review, the peer review group would ordinarily be a national body of experts selected in cooperation with the University of California (UC) President's Office. Examples of an extensive review include: • A work product supporting scientific initiatives of major impact The Cal/EPA Peer Review Working Group(PRWG)will consist of one member from each department of Cal/EPA,as appointed by the department management. Each member will serve one year. The PRWG will be chaired by the Deputy Secretary for Science and Technology. 2 • A work product that has significant cross-agency, cross-media implication • A work product that addresses controversial or significant emerging issues or establishes a significant precedent Moderate Review This level of review typically would be used for a rule, establishing a regulatory limit, standard, or other requirement for the protection of public health or the environment that is based on substantive scientific information, where an extensive review is not warranted. In this case, an appropriate peer review group may include experts form the University of California, California State University, similar institutions, or be a collection of experts selected in cooperation with the UC President's Office. The primary examples include: • Work products that provide the scientific basis for a proposed rule as defined by Sher 1320 • A work product that satisfies a statutory or other legal mandate for peer review Limited Review This level of peer review is for changes in analytical measurement methods or modification in computer models. The appropriate reviewer(s) in this instance should be experts selected through appropriate mechanics by the Cal/EPA manager in charge of this activity. Examples of work products that should be considered for this level or review include: • A work product that considers an innovative approach for a previously defined problem/process/methodology • A work product that addresses a change in model development or analytical instrumentation • A work product that establishes scientific decision criteria to be used in the regulation of a pesticide Conducting External Scientific Peer Review Selecting Peer Reviewers An external scientific peer review panel or group, with an appropriate disciplinary mix, will often be required to provide a complete peer review of a complex work product. The make-up of such a group will depend on the time and resources available and the expertise required to treat the full range of issues/question. Naturally, experts whose understanding of the specific scientific area(s) being evaluated are critical; nevertheless, it is also important to include other experts to completely evaluate all relevant scientific 3 r r. aspects of the work product. It may also be appropriate in some instances to have only a single external peer reviewer. Ideally, peer reviewers should be free of real or perceived conflicts-of-interest or there should be a balancing of interests among peer reviewers. When reviewers are selected who may be perceived to have specific technical perspectives, such perspectives or potential conflicts of interest, real or perceived, must be identified and balanced to ensure credible peer review. Sources for Peer Reviewers Potential peer reviewers can be identified and recommended from a number of organizations. Cal/EPA is developing a Memorandum Of Understanding and developed a Memorandum Of Agreement with the UC President's Office for the purpose of implementing the provision of Sher 1320 and these Guidelines. The intent of the agreement with the UC President's Office is to create a mechanism for obtaining peer review expertise utilizing a rapid response task order process with the University of California system. Similar memoranda may be developed with other institutions of higher learning, including the California State University System. Sher 1320 also authorizes that Cal/EPA enter into an agreement with the National Academy of Science. Constraints in Selecting Peer Reviewers • Care must be taken to minimize the possibility for real or apparent conflicts of interest between the reviewers and the work product under review • To evaluate Cal/EPA generated studies properly; some peer reviewers may need access to confidential business information (CBI). Whenever contemplating the use of outside peer reviewers, the department staff should determine whether the reviewers will need access to CBI. If so, the Chief Counsel of the affected department should be consulted on whether it is practical to obtain the consent of CBI submitters to disclose the information to peer reviewers, as well as what steps must be taken to protect CBI in such situations. Agency Review The Secretary of Cal/EPA is ultimately responsible for all peer review activities. The PRWG will have monthly meetings to review all peer review activities. Evaluating Comments and Recommendations The board, department, or office may accept the findings of the external peer review entity, in whole, or in part, and may revise the scientific portions of the proposed rule accordingly. If the board, department, or office disagrees with any aspect of the findings of the external scientific peer review entity, it shall explain, and include as a part of the 4 T rulemaking record, its basis for arriving at such a determination in the adoption of the final rule, including reasons why it has determined that the scientific portions of the proposed rule are based on sound scientific knowledge, methods, and practices. Accountability and Responsibility in the Cal/EPA Peer Review Coordinator The Director/Executive Officer will designate a Peer Review Coordinator. The Peer Review Coordinator shall organize and oversee the peer review for a specific work product. The Peer Review Coordinator is authorized to prepare and bring to completion the peer review. Specific responsibilities of the Peer Review Coordinator include the following: • Coordinate the peer review of the assigned work product • Organize and facilitate the completion of the peer review • Select one or more peer reviewers as appropriate. This responsibility may require identifying a pool of candidates for the external scientific peer review effort in consultation with others involved with the peer review. The pool of candidates should then be submitted to the Office of the President of the UC as necessary. The coordinator shall take steps to identify and avoid any real or perceived conflicts-of-interest on the part of peer reviewers • Advise peer reviewers of their responsibilities • Act as a liaison to the external scientific peer reviewer, or review team, group or panel. In this capacity, the coordinator shall facilitate the selection of a chairperson and provide staff support as required for the reviewer, chairperson and team, group, or panel • Report peer review activities to the Director/Executive Officer of the affected department and the Cal/EPA Secretary • Collect and maintain the materials for the external scientific peer review record. California Environmental protection Agency Peer Review Working Group • The PRWG will review and approve proposed peer review panels which perform multi-media or cross-agency reviews • The PRWG will organize an annual review to assess the function of this policy in practice and to recommend changes 5 L _ Attachment "G" Office of the County counsel 651 Pine Street; 9th Floor Martinez, CA 94553 rax(Wb)646-1078 Date: August 30, 2001 To: William B. Walker, M.D., Director of Health Services Attn: Lewis G. Pascalli, Jr., Director, Hazardou Materials Programs . From:. Silvano B. Marchesi, County Counsel By: Lillian T. Fujii, Deputy County Coun el Re: IMPACT OF AMENDING ISO TO REQUIRE AN APPROVED SAFETY PLAN TO OPERATE DISCUSSED I. SUMMARY The Industrial Safety Ordinance (ISO) requires a stationary source such as a refinery, to prepare a safety plan and implement a safety program. The safety plan lists the elements of the stationary source's safety program (discussed below), and describes the methodology for implementing the program. Within one year of submission of a complete safety plan, Contra Costa Health Services, Hazardous Materials Division ("Department")staff audits the safety plan and program. Following . an audit, the Department issues preliminary and final determinations as to whether modifications are required to the safety plan or safety program. It is difficult to foresee all of the impacts of amending the ISO to require a stationary source to obtain "approval" of its safety plan, in lieu of Department issuance of"determinations." However, it will be necessary to develop procedures and standards for review and approval of safety plans. Also, the Board should decide whether a grace period will be allowed (and if so, how long) pending staffs review of the plan. If only a short grace period will be allowed, it may be necessary to increase staffing levels. Requiring safety plan approval should not increase the County's exposure to liability. However, such approval may be subject to review under CEQA. The impacts of requiring an approved safety plan as a condition of operation are discussed in greater detail at pages 6 through 8 of this memorandum. Il. BACKGROUND. The ISO was adopted by County Ordinance No. 98-48, for the purpose of improving industrial safety. (County Ordinance Code, §450-8.004.) It was amended by County Ordinance No. 2000-20, and is codified, in pertinent part, at County Ordinance Code Chapter 450-8(§450-8.002 et seq.). (Hereafter, all section references are to the County Ordinance Code unless otherwise indicated.) On June 12, 2001. the Board of Supervisors considered possible amendments.to the ISO. Among other things, the Board requested this office's consideration and discussion of.the legal impacts of amending the ISO to require COPY William B. Walker, M.G., Director of Health Services Attn: Lewis G. Pascalli, Jr., Director, Hazardous Materials Programs August 30, 2001 Page 2 regulated stationary sources to have an approved safety plan as a condition of operation. This memorandum responds to that request, and is addressed to your office for inclusion in your report to the Board of Supervisors. We thank Randall Sawyer of your staff for his assisting us in interpreting and understanding staffs administration of the ISO, and providing us with much of the information that forms the basis of the views expressed in this memorandum. III. DISCUSSION. A. The ISO's Safety Plan and Safety Program Requirements. We begin with a summary of the ISO's requirements for"safety plans"and "safety programs"(pages 2-6 of this memorandum). Safety plans and programs are important parts of the ISO's scheme for regulating stationary sources' to promote industrial safety,2 and the Board may find a summary of these requirements helpful in evaluating the issues before it. A safety plana describes the manner in which the safety program elements listed in paragraph (A) of section 450-8.0164 will be applied to"covered processes"s at a 'A'stationary source'is a facility which includes at least one process that is subject to Federal Risk Management Program Level 3 requirements,and which is generally involved in petroleum, coal or chemical manufacturing.(§450-8.014(o).) 20ther important ISO requirements are: 1)the development and implementation of a human factors program,which addresses matters such as human systems(e.g.,staffing,shittwork overtime),and the consideration of such human systems as causal factors as part of the investigation of an incident(§450-8.016(6));2)the conduct of root cause analyses for all major chemical accidents or releases(§450-8.016(C));and 3)the conduct of process hazard analyses for all covered processes(§ 450-8.016(D)). 3sedan450-8.014(m). 4Section 460-8.-16(A)is entitled-Risk Management Program Elements' Section 450-8.014(j)defines'Risk Management Program'as the documentation.development,implementation, and integration of management systems by the facility to comply with the regulations set forth in 40 CFR, Part 68(Clean Air Act Regulations),and Callomia Health and Safety Code Chapter 6.95.Article 2,§ 25531 se seq. This may be somewhat confusing,as 450-8.016(A)actually sets forth the ISO safety program elements. 5A'process!means any activity,such as use.storage,manufacturing,handling,or onsite movement,involving a regulated substance.(Health and Safety Code.§26632(e).) Under the ISO,the term'covered process'means any process at a stationary source.(§450-8.014(a).) 1 I William B. Walker, M.D., Director of Health Services Attn: Lewis G. Pascalli, Jr., Director, Hazardous Materials Programs August 30, 2001 Page 3 stationary source. (§ 450-8.016, paragraph 1.) .All stationary sources existing at the time of the adoption of the ISO are currently required to have submitted a safety plan to the Department. (§450=8.016.) Safety plans are initially reviewed for completeness. Following a determination that a safety plan is complete, a public hearing is held on the plan,for the stationary source to explain its contents and to receive pubfic comments on the plan. (See § 450-8.018(A).) A safety program is the program for the documentation, implementation, and integration of management systems to comply with the safety requirements of section 450-8.016 of the ISO. (§ 450-8.014(n).) The Department considers the faithful and proper implementation of the safety program very important for promoting industrial safety. The requirements (elements)of the safety program are listed in paragraph (A) of section 450-8.016. They are: (1) Process Safety Information. The stationary source must compile written process safety information for each process, to enable the stationary source and involved employees to identify and understand the hazards involved with the process. The written compilation must include information on the hazards of regulated substances used or produced by the process, and information pertaining to the technology of and equipment used in the process. (§450-8.016(A)(1)(a).) The stationary source must document that its equipment complies with recognized and generally accepted "good engineering practices." For equipment designed and constructed pursuant to outdated practices, the stationary source must determine and document that the equipment is designed, maintained, inspected, tested and being operated in a safe manner. (§ 450-8.016(Ax1)(b)(c).) (2) Operating Procedure. For each process, the stationary source must develop and implement written operating procedures that are consistent with the process safety information, and provide dear instructions for safely conducting activities involved in each process..(§450-,8.016(Ax2Xa).) The written operating procedures must address steps for all operating phases(such as initial start-up, normal operations, temporary operations, emergency shut-down, etc.), and"operating limits," including consequences of deviation from such limits, and steps required to correct or avoid deviation. (§450-8.016(A)(2xa).) The written operating procedures must address safety and health considerations, such as hazards presented by chemicals used, precautions necessary to prevent exposure, including engineering controls, administrative controls, personal protective equipment, measures to be taken if physical contact or airborne exposure occurs, quality control for raw materials, control of inventory levels, any special or unique hazards(§450-8.016(Ax2xb)), and safety systems and their functions (§ 450- 8.016(Ax2Xc)). 6Section 450-8.014(1).) ' C William B. Walker, M.D., Director of Health Services Attn: Lewis G. Pascalli, Jr., Director, Hazardous Materials Programs August 30, 2001 Pa2e 4 The written operating procedures must be accessible to employees who work on a process. (§450-8.016(A)(2)(d).) They must be reviewed as often as necessary to assure that they reflect current operating practice, and annually certified as being current and accurate. (§ 450-8.016(A)(2)(e).) Also as part of its operating procedures obligation, the stationary source must develop and implement safe work practices for operations such as lockout/tagout, confined space entry, opening process equipment or piping, and control over entrance by contractors and other support personnel. (§ 450-8.016(A)(2)(0.) (3) Employee Participation. The stationary source must develop a written pian for the implementation of the employee participation requirements of the ISO. (§ 450-8.016(A)(3)(a).) Employee participation requirements include consultation with employees and their unions on development and conduct of process hazard analyses (PHA), development of other elements of the safety program, and access to PHAs and all other information developed pursuant to the ISO. (§450-8.016(A)(3)(b),(c).) (4) Training. The stationary source must train each employee involved in operating a process, or certify that the employee has the knowledge, skills and abilities to safely carry out such employee's duties as specified in the operating procedures. Refresher training must be provided at least every three years to assure that each. employee understands and adheres to current operating procedures. The stationary source must document compliance with the training requirements, including identifying each employee, the date of training, and means of verifying that each employee understood the training. (§450-8.016(A)(4).) (5) Mechanical Integrity. The stationary.source must establish and implement written procedures to maintain the on-going integrity of process equipment (which includes pressure vessels and storage tanks, piping systems, relief and vent systems, emergency shutdown systems, control systems such as monitoring devices, sensors and alarms, and pumps. Specified training must be provided to all employees involved in maintaining the process. Regular inspections and tests must be performed on the process equipment, and each inspection and test must be thoroughly documented. Equipment may not be used if it is.not operating within acceptable limits, and for new equipment, the stationary source is responsible for assuring that equipment is suitable for the process, conforms to manufacturer's specifications, is properly installed, and that spare parts and other maintenance materials are suitable for the process for which the equipment will be used. (§450-8.016(A)(5).) (6) Management of Change. The stationary source must establish and implement written procedures to manage change to process chemicals, technology, equipment and procedures, and changes to the stationary source that affect a process. The procedures must require prior consideration of the technical basis for the change, impact on health and safety, modifications to operating procedures, necessary time William B. Walker, M.D., Director of Health Services Attn: Lewis G. Pascalli, Jr., Director, Hazardous Materials Programs August 30, 2001 Page 5 period and authorizations required for the change. All involved employees, such as maintenance workers and contractors, must be trained prior to the change. If the change affects process safety information or operating procedures, those documents must be updated. (§ 450-8.016(A)(6).) (7) Pre-Start-up Reviews. The stationary source must perform a pre-start- up safety review for new and modified stationary sources. A pre-start-up review considers all aspects of construction, operation and maintenance before introducing a regulated substance into the process. (§ 450-8.016(A)(7).) (8) Compliance Audits. The stationary source must evaluate compliance with the applicable requirements of the ISO at least once in three years. The evaluation (compliance audit) must be preformed by at least one person knowledgeable in the process. The stationary source must determine and document its response to the findings,,including correction of deficiencies. (§450-8.016(A)(8).) (9) Incident Investigation. The stationary source must investigate each incident which resulted in, or could have resulted in a catastrophic release. Among other things, the investigation must consider, and the investigation report must address, the factors that contributed to the incident, recommendations for change, and whether the recommendations apply to other processes at the stationary source. The stationary source must document corrective actions and resolutions of issues raised by the incident investigation report. (§ 450-8.016(A)(9).) (10) Hot Work. The stationary source must issue a hot work permit for all hot work conducted near a process. Among other things, the permit must indicate that fire prevention and safety requirements have been implemented. (§450-8.016(Ax10).) (11)Contractors. Before hiring a contractor to perform maintenance, repair, turnaround, or other major or specialty work on or near a process, the stationary source must review the contractor's safety performance and programs. Among other things, the stationary source must explain to the contractor potential hazards related to the contract work or the process, and develop safe work practices to control the contractor's entrance, presence and exit from the process area. (§450-8.016(A)(11).) (12) Emergency Response. The stationary source must develop and implement an emergency response program, including an emergency response plan, to include, among other things, procedures for informing the public and emergency response agencies about accidental releases, emergency response planning, and emergency response. (§450-8.016(Ax12).) (13) Safety Program Management. The stationary source must develop a system to oversee implementation of the above safety program elements. (§450- 8.016(A)(13).) •. a William B. Walker, M.D., Director of Health Services Attn: Lewis G. Pascalli, Jr., Director, Hazardous Materials Programs August 30, 2001 Page-6 B. Existing Procedure for Reviewing Safety Plans and Programs. Within one year of a stationary source's submission of its safety plan to the Department, the Department must review the plan as well as audit and inspect the stationary source's safety program. (§ 450-8.018(B)(1).) This entails a detailed review of the safety plan and the stationary source's compliance with the ISO's safety program requirements. Based upon the Department's inspection of the stationary source, review of the safety plan and audit of the safety program, the Department issues a "preliminary determination" as to whether modifications and additions to the safety plan or program are required. (§ 450-8.018(6)(1).) Prior to issuance of a "final determination"of required modifications and additions to a safety plan, a stationary source is allowed an opportunity to respond to the Department's preliminary determination and appeal such determination to the Board of Supervisors. (§450-8.018(B)-(D).) There is no express provision for the"approval" of a safety plan or a safety program. However, Department staff indicates that obtaining compliance with the Department's determinations have not been a problem so far. C. Existing Means of Enforcing ISO Requirements. A violation of any provision of the ISO is enforced in the same manner as violations of other provisions of the County Ordinance Code. (§450-8.028.) The County Ordinance Code currently provides that every condition existing in violation of the Code is a public nuisance and may be abated by filing a civil action or otherwise. (§ 14-6.204.) If the Department considers the operation of a stationary source to be in violation of the requirements of the ISO, and to pose a danger to public or employee safety, the Department may declare the operation to be a public nuisance and undertake abatement proceedings under the County Ordinance Code(§ 14-6.410), or seek a civil injunction against the operation. The Department indicates that it generally has not had difficulty enforcing the requirements of the ISO. D. Impacts of Requiring Approved Safety Plan as a Condition of Operation. We now discuss possible impacts of amending the ISO to require an approved safety plan as a.condition of operation. 1. Procedures and Standards Should be Developed. Inasmuch as the ISO does not currently require"approval"of a safety plan, if the Board is inclined to amend it to require such "approval,"procedures and standards of approval must be developed in order to satisfy due process requirements. The procedure could be'similar to the existing procedure for appealing determinations. To the extent practicable, standards on plan content should be developed by Department staff, so that a stationary source.will have notice as to what will be required of it to have William B. Walker, M.D., Director of Health Services Attn: Lewis G. Pascalli, Jr., Director, Hazardous Materials Programs August 30, 2001 Page 7 its plan "approved." 2. Implementation Decisions Required. Changing the existing scheme to require an approved safety plan will necessitate some decisions on implementing this requirement. In particular, the Board must decide whether stationary sources will be given a grace period pending approval of the plan. There are valid reasons to allow for a grace period. The process of reviewing and auditing a safety program and plan is time-consuming. Currently, staff has one year after a safety plan is submitted to do so. A requirement that a refinery stop operating pending review of a plan will be subject to challenge as being beyond the County's authority under the police power. As broad as the County's authority is under the police power(see, e.g., Amusing Sandwich, Inc. v. City of Palm Springs (1985) 165 Cal.App.3d 1116, 1126), it is likely that a court would find that it is not reasonable to require a refinery to stop operating because it does not have an approved safety plan because staff has not had an opportunity to review the plan. Another consideration is the length of any grace period. If the Board is inclined to allow only a short grace period, it may be necessary to first ask the Department to determine whether it has adequate staff and resources to complete review of all of the safety plans and programs within the allotted grace period. 3. Immunities. Amending the ISO to provide for Department approval of a safety plan should not increase the County's exposure to liability in connection with its administration and enforcement of the ISO. The Government Code provides broad immunities to government agencies and employees in connection with failure to enforce laws(Gov. Code, §§818.2, 821), the issuance, denial, revocation or suspension of permits, licenses, etc. (Gov. Code, §§ 818.4, 821.2), and for failure to inspect, or for negligent inspection of property(Gov. Code, §§818.6, 821 A). Public employees also have express immunity against liability for injury resulting from the exercise of discretion vested in the public employee(Gov. Code, § 820.2), in the execution or enforcement of any law(excluding false arrest or imprisonment)(Gov. Code, § 820.4), or while acting in good faith pursuant to enactments which are invalid, unconstitutional or inapplicable (Gov. Code, § 820.6). Given these grants of immunity from liability in connection with permits, their issuance, denial and enforcement, County exposure to liability should not increase if the ISO is amended to require an approved safety plan to operate. 4. CEQA. Requiring.Department approval of a stationary source's safety plan raises the question whether such approval is a"discretionary project"subject to the California Environmental Quality Act("CEQA"). A"project" under CEQA is an activity carried out, Attachment "H" INHERENTLY SAFER SYSTEMS HEALTH SERVICES PROPOSAL ISSUE PAPER (November 27, 2001) Summary Health Services is proposing that the Industrial Safety Ordinance be amended in the way inherently safer systems are considered. The way the existing ordinance is written the reduction of existing hazards at the stationary sources is minor if any at all and only a portion of each of the processes is considered using the existing ordinance. Health Services is proposing a separate study of existing processes to consider inherently safer systems be performed. Health Services is also recommending changing the definition of inherently safer systems as defined by the ordinance to only include the inherent layer of protection. The inherent layer considers ways of reducing hazards, while the passive, active, and procedural layers look at ways of reducing the risks. The amendment proposed by Health Services will look at reducing the hazards at existing process not just reducing the risk and will look at the complete processes, instead of only portions of the processes. The IO Committee has asked that Health Services process the proposed amendments through the existing process of being reviewed by the Hazardous Materials Commission and the Public and Environmental Health Advisory Board. Background On December 14, 1977, Trevor Kletz presented the annual Jubilee Lecture to the Society of Chemical Industry in Widnes, England. His topic was "What you don't have, can't leak," and this lecture was the first clear and concise discussion of the concept of inherently safer chemical processes and plants. Inherently Safer Systems was developed as a way on reducing or eliminating a hazard within a chemical process. "Hazard is defined as a physical or chemical characteristic that has the potential for causing harm to people, the environment, or property."' Minimizing, substituting, moderating, and simplifying can accomplish hazard reduction or elimination. (See attached report to the Board Supervisor's sated April 2, 2001.) The Industrial Safety Ordinance requires facilities to consider inherently safer systems in the development and analysis of mitigation items resulting from a process hazard analysis and in the design and review of new processes and facilities. The Industrial Safety Ordinance defines inherently safer systems as follows: "Inherently Safer Systems" means Inherently Safer Design Strategies as discussed in the 1996 Center for Chemical Process Safety Publication (COPS) "Inherently Safer Chemical Processes" and means Feasible alternative equipment, processes, materials, lay-outs, and procedures meant to eliminate, minimize, or reduce the risk of a Major Chemical Accident or Release by ' Inherently Safer Chemical Process—Bollinger et.al. Page 1 of 3 � r modifying a process rather than adding external layers of protection. Examples include, but are not limited to, substitution of materials with lower vapor pressure, lower flammability, or lower toxicity; isolation of hazardous processes; and use of processes which operate at lower temperatures and/or pressures. " County Ordinance Chapter 450-8, §45-8014(g) The CCPS book Inherently Safer Chemical Process considers the implementation of inherently safer systems over the lifetime of the chemical process. To accomplish this the authors of the book took a broader meaning where the inherent level (the most strict definition of inherent safety) is a subset of their definition, which also include passive, active, and procedural levels. The passive, active, and procedural levels do not reduce or eliminate the hazard, but does reduce the likelihood of a release by reducing the risks. This process works well for existing plants, but in many situations the hazard is not eliminated or reduced. The Industrial Safety Ordinance requires the stationary sources to consider inherently safer systems on the development and analysis of mitigation' items resulting from a process hazard analysis. Process Hazard Analysis Process Hazard Analysis (PHA) is a systematic way to look at reducing the risks at a stationary source. The PHA team considers numerous scenarios, while looking at equipment, piping, and instruments to determine what could go wrong, what are the consequences of this deviation, and what safeguards are in place to prevent the deviation. The Process Hazard Analysis team includes operators, engineers, supervisors, and other specialists as- needed to perform the PHA. Recommendations are only considered on scenarios that are deemed, by the PHA team, of not having enough safeguards in place. The Industrial Safety Ordinance requires Health Services to consider inherently safer systems for this subset of the whole process. Most of the recommendations take the form of evaluations or considerations. The stationary source could do what the recommendations states by performing evaluations and studies, but no physical changes take place within the processes. PHA's are an excellent tool of reducing the risks at a stationary source. Stationary sources should, when looking at the recommendations that come from PHA's, look at implementing actions that are taken to make sure that they move up the different levels as defined in Inherently Safer Chemical Process from procedural to inherent. This is an excellent way at reducing the risks of the process. This has been one of the benefits of the existing Industrial Safety Ordinance. 2 The Industrial Safety Ordinance does not define mitigation. The old Risk Management and Prevention Program RMPP looked at the mitigations from Process Hazard Analyses as being the same as the recommendations from the Process Hazard Analyses. Health Services is looking at mitigations and recommendations from Process Hazard Analyses as being one in the same. Page 2 of 3 Inherently Safer Systems Study The best place to consider inherently safer systems under the strictest definition (the inherent level) is for new processes, facilities, or major modifications to an existing process. If inherently safer systems are to be considered for existing processes, a separate study of the whole process should be performed. The existing ordinance looks at only pieces of the processes (where recommendations were made from the PHA) to consider inherently safer systems. The results have been ways of reducing the risks that exist in the processes, but little, if any, reduction in the hazards of the processes. The proposed Industrial Safety Ordinance amendment from Health Services modifies the Industrial Safety Ordinance to look at inherently safer systems for existing processes by performing a separate study. This study will look at the whole process and determine where hazard reduction can be taken. The amendment also changes the definition of inherently safer systems as being the inherent layer and not including passive, active, or procedural layers. Passive, active, and procedural layers are ways of reducing the risks within a process, but do not reduce the overall hazard of the process. Page 3 of 3 f 450.8014(g) "Inherently Safer Systems" means Inherently Safer Design Strategies as discussed in the 1996 Center for Chemical Process Safety Publication Inherently Safer Chemical Processes using the strictest meaning as defined by the inherent level in Inherently Safer Chemical Process (this definition does not include the passive, active, or procedural levels) and means feasible alternative equipment, processes, materials, and lay- outs meant to eliminate, minimize, or reduce the risk of a Major Chemical Accident or Release by modifying a process rather than adding external layers of protection. Examples include, but are not limited to, substitution of materials with lower vapor pressure, lower flammability, or lower toxicity; isolation of hazardous processes; and use of processes that operate at lower temperatures and/or pressures. 450.8016(D) Process Hazard Analysis/Action Items. (1) Process hazard analyses will be conducted for each of the Covered Processes not included in the Federal program level 3 Risk Management Program according to one of the following methods: What-If, Checklist, What-If/Checklist, Hazard and Operability Study (HAZOP), Failure Mode and Effects Analysis (FMEA), Fault Tree Analysis or an appropriate equivalent methodology approved by the Department prior to conducting the process hazard analysis. The process hazard analysis shall be appropriate to the complexity of the Covered Process and shall identify, evaluate, and control the hazards involved in the Covered Process. The process hazard analysis shall address: the hazards of the process; the identification of any previous incident which had a likely potential for catastrophic consequences; engineering and administrative controls applicable to the hazards and their interrelationships such as appropriate application of detection methodologies to provide early warning of releases. (Acceptable detection methods might include process monitoring and control instrumentation with alarms, and detection hardware such as hydrocarbon sensors.); consequences of failure of engineering and administrative controls; Covered Process and Stationary Source siting; Human Factors; and a qualitative evaluation of a range of the possible safety and health effects of failure of controls. All process hazard analyses shall be performed by a team with expertise in engineering and process operations, and the team shall include at least one employee who has experience and knowledge specific to the process being evaluated. Also, one member of the team must be knowledgeable in the specific process hazard analysis methodology being used. (2) The process hazard analyses shall be conducted within I year of the effective date of this Chapter and no later than the submittal date of the Safety Plan. Previously completed process hazard analyses that comply with the California Code of Regulations, Title 8, Section 5189, and/or the California Code of Regulations, Title 19, Section 2760.2 are acceptable for the purposes of this Chapter. Process hazard analyses shall be updated and revalidated at least once every 5 years after completion of the initial process hazard analysis. Updated and revalidated process hazard analyses completed to comply with the California Code of Regulations, Title 8, Section 5189, and/or the California Code. of Regulations, Title 19, Section 2760 are acceptable for meeting the update and revalidation requirement. External events, including seismic events, shall be considered for processes containing a substance defined in the California Code of Regulations, Title 19, Chapter 4.5 1, Section 2770.5, if the distance to the nearest public receptor for a worst case release scenario specified by the California Code of Regulations, Title 19, Chapter 4.51, Section 2750.3 is i beyond the distance to a toxic or flammable endpoint as defined in California Code of Regulations, Title 19, Chapter 4.5 1, Section 2750.2(a). (3) For all Covered Processes, the Stationary Source shall document the decision made to implement or not implement all process hazard analysis recommended action items and the results of recommendations for additional study. The Stationary Source shall complete recommended actions identified by the process hazard analysis and selected for implementation by the Stationary Source as follows: all actions not requiring a process shutdown shall be completed within one year after submittal of the Safety Plan; all actions requiring a process shutdown shall be completed during the first regularly scheduled turnaround of the applicable process subsequent to one year after submittal of the Safety Plan unless the Stationary Source demonstrates to the satisfaction of the Department that such a schedule is infeasible. For recommended actions not selected for implementation,the Stationary Source shall include the justification for not implementing the recommended action. For all Covered Processes, the Stationary Source shall retain documentation of closure, and any associated justifications, of actions identified by the process hazard analysis. The Stationary Source shall communicate the actions to operating, maintenance, and other employees whose work assignments are in the process and who may be affected by the recommendations or actions. Any documentation justifying a decision not to implement a process hazard analysis recommendation action shall include (1) sufficient evidence to demonstrate to the County's satisfaction that implementing this action is impractical, and (2) the reason for this conclusion. A claim of"financial infeasibility" shall not be based solely on evidence of reduced profits or increased cost, but rather shall include evidence that the financial impacts would be sufficiently severe to render the improvement as impractical. 450L 8016(E)Inherently Safer Systems. For all Covered Processes, the Stationary Source shall perform a study to consider the use of Inherently Safer Systems. The study for each covered process shall be conducted, whenever the process hazard analyses are being revalidated for that covered process, which is at least once every five years. The Stationary Source shall also consider the use of Inherently Safer Systems in the design and review of new processes and facilities. The Stationary Source shall select and implement Inherently Safer Systems to the greatest extent feasible. If a Stationary Source concludes that an Inherently Safer System is not feasible,the basis for this conclusion shall be documented in meaningful detail. This documentation shall include(1) sufficient evidence to demonstrate to the County's satisfaction that implementing this inherently safer system is impractical, and (2)the reason for this conclusion. A claim of"financial infeasibility" shall not be based solely on evidence of reduced profits or increased cost, but rather shall include evidence that the financial impacts would be sufficiently severe to render the inherently safer system as impractical. 2.1. AWayofThinking RCCEWED DEC 0 4 M1 COMMUNITY EMERGENCY RESPONSE CLERK BOARD OF SUPERVISORS CONTRA COSTA CO. PLANT EMERGENCY RESPONSE i.:•#?S'i, :::?>r{'?�4fif<�+'f.{{iiaY::4:•i:•i:v'r: .v. i}iYi:v . :;ti:'•.i% v}:%:•':'•;:;% '''`.; kn PHYSICAL PROTECTION(DIKES) M1. .{r:'•. .: ...:... ...........:::.:;.y;w.:;n}:o:,?.,•:;{s,::r„H};::};cy:,Ci a}:::v^:.w:r ti{:::;:•. PHYSIC}}}AL ROT +ON L ROTE R D IC ELIEF EV E ly :.a. AUTOMATIC ACTION S6 OR ESD CRfTICALALARMS,OPERATOR s.' ;rr:;:•} SUPERVISION,AND MANUAL INTERVENTION :`•;,}'r,.:. r.I t :i; �.�}:::;rig'•:: },/f•'•:�:..•n`'::�i:• BASIC CONTROLS,• :islr�:i::::tititi:s::.'.:>.::,::3:c:>s::t ••`::C::itiv:4 i,/ r i+':i'±::'i::i: ?}{i:•: i{ ''v;;}rL?S.({i PROCESS ADAMS.AND �/• igi?:::E'•;;:..,�.}{.;• OPERATOR SUPERVISION •PROCESS ;'xfi''.• DESIGN t......... 'O. `iliS{l;i }: :}X,:•}}`iii• .'!: ii:;'i,'%?}<'i'i.},f'r,."jA`i`. 5...v . //•tr..v..�:•}i is i}::':'::ii:::.:. +;,;;5: •.\.;:J}..1}: ;:}vii::::::::::>::><>::<::::`£rt;>;".,:;;? ...l.f..r..,..!�s;:<::>:��:::::::>::?:><::>;•:;:�•::}..;,• ;? . `:•:•ti:43{{:;}v::v::::r:n'.�::{}:•r'r:i,:.ji:::�C{jti�:$i,..^:.�k!Y{•};M1..}. ::�.�}• iti>�>{r{:,'i:#:'>:y:�:}:r}:.<}:.}Y:wki:•:{.}}:r:{{•}}:??{{^:i}:??{?•}$}}:?.;}:ih"i} :.nW .\,::,i;r`?;f;:2{5:f�}{;•::.� $::rv:.v,S}r:?i:ii?:{i iii}: '�iii>'i::::`' ::::A:ti:%':'r' •'#:�j..�;.}<{�i�#C.:,kiffn{i}"!::':'•:�}i::C3.$':v$::.�;:}�}iiiv.::#:'ri'i•::r.:�:.?v}:i��i I ' I NOTE: Protection layers for a typical process are shown in the order of activation expected as a hazardous I n��% r condition is approached. I ��.7J I ESD–Emergency Shutdown i C SIS–Safety Interlock System Figure 2.1. Typical layers of protection in a modern chemical plant(CCPS 1993 Copyright C 1996 American Institute of Chemical Engineers 345 East 47th Street New York,New York 10017 All rights reserved.No part of this publication may be reproduced, stored in a retrieval system,or transmitted in any form or by any means,electronic,mechanical,photocopying,recording,or other- wise without the prior percussion of the copyright owner. Library of Congress Cataloging-in Publication Data Inherently safer processes:a life cycle approach/Robert E.Bollinger... [et al.] :edited by Daniel A Crowl. P. cm.—(A CCPS concept book) Includes bibliographical references and index. ISBN 0-8169-0703–X 1. Chemical engineering—safety measures. I. Bollinger, Robert E. II. Crowl,Daniel A. III.Series. TP149.147 1996 660'.280"c20 96-41370 Process Risk Inherent Passive Active Procedural Management Strata lea m MlnlmLe ...............*...............j m � � N i C ' m N Moderate I - rt----•---•---•--i e ' r . � I Figure.2.2. The relationship between process risk management and inherently safer design strategies. • Inherent—Eliminating the hazard by using materials and process conditions which are nonhazardous;e.g., substituting water for a flammable solvent. • Passive—Minimizing the hazard by process and equipment design features which reduce either the frequency or conse- quence of the hazard without the active functioning of any device; e.g., the use of equipment rated for higher pressure. • Active—Using controls, safety interlocks, and emergency shut- down systems to detect and correct process deviations; e.g., a pump that is shut off by a high level switch in the downstream tank when the tank is 90% full. These systems are commonly referred to as engineering controls. • Procedural—Using operating procedures, administrative checks, emergency response, and other management approaches to prevent incidents,or to minimize the effects of an incident;e.g., hot-work procedures and permits. These approaches are com- monly referred to as administrative controls. �HE �Z1,EO TOSCOJ EF t Y ` )3 8 S A*N :PA8Lo AvEtau. l�oaE©� &I-Ir-ORNIA 94572. Vete. Utanj- io Co7't�r"a_Ie z, oz.s &7,L o= S make Ih, TOSC.};� � ir�erz a. sa ar �at� A.1!4l a"tl►'t �.�lviranr'1e-r1�. p w� e, ate.youw ROXcoo or , -�� �,s�.n� vet, .• al' -1e rea; 2s -R6 rqp r6 vel me +IleKeen ruck ioors e; gAct b ener �,s vast qe.ar, and i ec`Irs ahem, RECEIVED DEC 4 4 2001 7vulAYo��,qB55JPEN`f"CoUnICILCLERK BOARD OF SUPERVISORS - CONTRA COSTA CO. 2' C I / fl Fa,,y N [)f! .)t..! r r, U 1l�� FG.t o �xr�xt r1 r�AY Ss.'11TN • p��t +1��.��ti • ���1N _QUiSTON-oVrS � LIL(�1t � piRoS� . cky 0tL�,. CAfh,e vla�sav,1 tiE L 2425 Bisso Lanc, Suite 110 - ' Contra Costa County Concord,California 94520-4817 Board of Supervisors (925)646-5763 (925)646-5767(FAX) dist4@bos.co.contra-costa.ca.us Mark DeSaulnier Supervisor, District IV Clayton,Clyde,Concord,Pacheco, Pleasant �ECEIV LZ._, TO: John Gioia, Supervisor DEC ® 4 x(91111 Contra Costa County District I CLERK BokRD G�SUPERVISOR FROM: Mark DeSaulnier CONTRACOSfACol.- DATE: November 27, 2001 RE: Ethel Dotson John, one of your constituents, Ethel Dotson,contacted me in my capacity as a member of the Bay Area Air Quality Management District (BAAQMD and California Air Resources Board) in regard to the air quality in her neighborhood. She subsequently filed a petition against BAAQMD. I then, requested Mike Kenny CARB staff to review the BAAQMD document for another professional opinion. Mrs. Dotson's mother is in need of in home health care services and needs assistance with IHSS to determine her eligibility. Mrs. Dotson is very concerned about her mother's health as well as public health issues for the people in Richmond. Since she is your constituent, could you follow up with Dr. Walker and John Cullen to assist Ethel and her mother? You and I have discussed doing public outreach regarding the health impacts Richmond residents suffer living downwind of the Chevron Refinery. This may be a good time to go forward. I have enclosed copies of the BAAQMD petition and the review by ARB. Please call me if you need further information. _ c: Ethel Dotson l � 2.1. A Way of Thinking COhtAWNlT Y EMERGENCY RESPONSE :• ;; +'•.'%::L},, PLANT EMERGENCY RESPONSE ................ PHYSICAL PROTECTION(01KES) t:?•r:•:{:::•::•.::.r}.;:•. PHYSICAL PROTECTION :rte `•4':<'%}x.,:::. ::;t,.:••'':'{:: RELIEFOEYICE '�✓:: i E7 Y.- :=•'fir,:$}}:?:;•'r• F.r, .vY.•. ACTION Sts OR E50 t '}::: >? :::::r:y ;,•.'': s :f< .r?�#3?+`.;'i:iif�`'i'• CRITICALALARMS,OPERATOR �.,��:;% ''.`:,�i`:<?•>:s:;.=,; SUPERVISION,AND MANUAL INiTERVENTIONw ! ?' :tr.;. :;:•?5,:?•;tiY,.::':if{:i:4v.q:::{r,{::•twwr••y1:,>.:•:'.�{{`tiny:1?r;�•:y:i:%$:f:{:•,�,7,;}•Y.;,:'ti.{ /�/ n'\:};:{•:.f:::4::%:}::}x�}::.?:{: :;}k+t;};:n�,. // ::vti?tr}Y.}}n•. :::::Lir�iC::! ''y:}i::'v:J._:•:::{•T:::{•i}:}:•ii' .;.J:;v)F •}ii,�t::Y=:%t v+::.r..{}:.v, /.f/ :'v;v .... ..... {}.}'?•:::{:. {::+-yr{i:'r'yi n2v+.'rv:•.:: ::31nnCANTRGLSVj /w i{ 'i:L':•i::is iii "::BA 4 :�I %: ?.:%:}v'%•:4+•'rv: }/ +.},Jy: :?�;ti., /••rx�:irr ?.fyi:ry t•.':xf.=':,i:>2 PROCESS ALARMS.�4}!a ,•''?/' ,',.`•''r��� OPERA70A ::.f'::3';t`''":', PROCESS •'+'r:•/„>.>i�;�s::'••}r?•:`:i�s:•: ?/'-'g''`as'::' OESIGH fS�fifi:•: /• i'rt.'?�.Jl:x •r"ry•:'::v?tip::?:v.'i'fi.{/+,tur.•.>:::J. .t+ r:{'r i�1+%:%:::"•: .J.':�;�:} viii {if:ri•::;:;}i:{+ i}YSi 0. .'2{:iii?ti:r.}�f�;:"';-X%:. :i} �r;:--,;:_.•. • ::{v'r'fr;.:s:;t f k'}';:'"S'`:'.:i i::'}X:�'% '•�?=Flfi v>�:; .'•:},;:iC}}+,r,:M1::•:./j�iT,}?:.}:{.n:'•>i :J:t,4:F?•?v: ':J„:J?=F};:{>'i:;/JAI },..:v;:.}:. i}•t�':�ti i'_�'''v :?:/ Sv':}-r%.;ri,t.n..ir. :::�•{4, .• ivv''.v,�;:i:n{: tiY tit;}:i} .+J /'.':. ?.4,••n• :Avr •.v,`4,,- y,:ti+ii' t?S?CJ'iiG-:J1 ,•.\{?}.::n;:?:=4 . :•}:A}:'{:tir{{::tii:;$:r}jt:"% +.,f .h'.{??:' }}}f.•1??:L>•}}$.rn:�• ' is%:t}�'T�?iti%'�.yi' y:•,;:{::?;:}}}}.:�,{ /• �:::i:}::}:;is i}}:•:•::::::,.}.,.}::.!:•^ ': •'::., 4•''�;.?^w{;i•x.y.:: y+:`;rY'�;:�;rr ?vg:P. ...ti{{.ti•:snit h:}•}ti Y:v.Fl,,;f,.r:::'n{::$' ky;.,..,:Sot w.};:t};.?,:... +ir.k.. NOTE: Protection layers for a typical process are shown in the order of activation expected as a hazardous condition is approached. ESO–Emergency Shutdown SIS–Safety Intedock System .Figure 2.4. Typical layers o f protection in a modern chemical plant(COPS 4993b), Copyright©1996 American Institute of Chemical Engineers 345 East 47th Street New York,New York 10017 All rights reserved.No part of this publication may be reproduced, stored in a retrieval system,or transmitted in any form or by any means,electronic,mechanical,photocopying,recording,or other- wise without the prior permission of the copyright owner. Library of Congress Cataloging-in Publication Data Inherently safer processes:a life cycle approach/Robert E.Bollinger...(et al.] :edited by Daniel A.Crowl. P. cra.—(A CCPS concept book) Includes bibliographical references and index. ISBN 04169-0703–X 1. Chemical engineering—safety measures. I. Bollinger, Robert E. 11. Crawl,Daniel A. 111.Series, TP149.I47 1996 660'.2804—dc20 96-41370 Process Risk Inherent Passive Active Procedural Management Strategies c� Mlr.:mLe ..............*...............� m . . Cn e Subelllule ...............rt------------ i UO)N e ; � I m A Simplify I --------------+--------------.. Figure 2.2. The relationship between process risk tuatragement and inherently safer design strategies. • Inherent—Eliminating the hazard by using materials and process conditions which are nonhazardous;e.g.,substituting water For a flammable solvent. • Passive—Minimizing. the hazard by process and equipment design features which reduce either the frequency or conse- quence of the hazard without the active functioning of any device; e.g., the use of equipment rated for higher pressure. • Active—Using controls, safety interlocks, and emergency shut- down systems to detect and correct process deviations; e.g., a pump that is shut off by a high level switch in the downstream tank when the tank is 90% full. These systems are commonly referred to as engineering controls. • Procedural—Using operating procedures, administrative checks, emergency response, and other management approaches to prevent incidents,or to minimize the effects of an incident;e.g., hot-work procedures and permits. These approaches are com- monly referred to as administrative controls. '. i M 'r' 4 2131 Pear Street Tel :(510)724-9000 Pinole,CA 94564 Fax: (510) 7248825 CONSIDER WITH December 3,2001 Contra Costa County Board of Supervisors 651 Pine Street Martinez,CA 94553 Attention: Clerk of the Board - SENT VIA TACISIM[LE: (925) 335-1913 Dear Members of the]Board: On November 6,2001,the City Council of Pinole passed a resolution calling for the County to adopt a stronger regulatory oversight and a great ability to protect and promote the health and safety of its residents with an amendment to the Industrial Safety Ordinance that requires industry to use inherently safer systems and practices. We support the amendment language proposed by Supervisor Donna Gerber that calls for a review when the Stationary Source decides not to implement an identified Inherently Safer System or a process h-s— analysis recommended action item and that can require the Stationary System to implement an inherently safer system if deemed necessary. If you have any questions,please do not hesitate to call me. We must work together to ensure that our neighborhoods and communities are safe places to live and to work. Thank you for your careful consideration of the proposed amendment to the Industrial Safety Ordinance. Sincerely, r Betty -Boyle Mayor of the City of Pinole BGB:dga Attachment f cc: Pinole City Council Supervisors Donna Gerber&Gayle B.Uilkema RESOLUTION NO 153-2001 OF THE CITY COUNCIL OF THE CITY OF PINOLE RESOLUTION IN SUPPORT OF THE ENHERENTLY SAFER SYSTEMS AMENDMENT TO THE INDUSTRIAL SAFETY ORDINANCE OF CONTRA COSTA COUNTY WHEREAS,given the transition of Contra Costa refineries from locally-owned and operated companies to being merged with or acquired by multi-national companies and the attendant changes in managerial personnel; and WHEREAS,serious refinery/industry accidents play havoc with supply and contribute to a widely-held public perception that gasoline prices are manipulated and that the public is without protection;and WHEREAS,given the history of accidents and releases m this County,the huge inventory of hazardous materials which are clustered in the industrial belt,and the staggering impacts of a possible worst Lase scenario,plume oftoxic accidents,affect all areas ofthe county; and WHEREAS,given the increased incidents of chemical releases in the last year which have been categorized as"Level'three"resulting in the activation ofthe Community Warning System,causing the public to"Shelter in Place;"and WHEREAS,given the heightened anxiety of the nation and residents of Contra Costa County to chemical and bio-terrorism incidents as a result of the September 11,2001 act of terrorism on our nation, and the most recent outbreak of anthrax cases. NOW,TBEREFORE,BE IT RESOLVED,that the City Council ofthe City of Pinole urges the Board of Supervisors of Contra Costa County within its role to protect and promote greater health and public safety from any potential threat of chemical or biological threat,urge the adoption of stronger regulatory oversight of refineries and chemical industries and urge its support of the amendment to the Industrial Safety Ordinance that requires industry to use inherently safer systems and practices. PASSED AND ADOPTED this a day of November,2001 by the following vote to wit: AYES: COUNCIL MEMBERS: Alegria, Boyle, Cole,Murray,&Horton NOES: COUNCIL MEMBERS: None ABSENT: COUNCIL MEMBERS: None ABSTAIN: COUNCIL MEMBERS: None G. O ,CMC Deputy City Clerk r.%clerk%rmJudo=%w=a11200DCCC SebAy Ordhmcadoc aqA „ •o a oPo � 00 *• :� '�+'-'' d ,�,•+d a N F .✓47 a"T F'' -•'"'' ^+o d�p,�O N.�,`p cd CIA p „,. 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O CD N :::r J N o.N CD o N W S 7 o N 0 y Q O Z y� 0 J CD o N. p N 3 CL — a G <D o N An N 3 N` � 7 ro r Y N:..._... N ...Pm A.- I.,.: ela m LU .mow r:.r•�».'�...... .. �-'. Iry ����;.:., _..:..�;::, W i t tet.. �..�:��.:.�,«::. •t ..... ��:3:-iY.:W �W- - - — C L ' ,. ,--.:-:T;3'....�::;; ...ate.•,,. s..-:x &.8-' >...:.. ,' �:.a.' LLI n: .:w �W .. sem. -r,:... .a _.. . .r:•r':�„ .� :'.ry; Y.•: .�'.n>' _ ..''!?wwv,wa•s_:i.^i..!'O,�e:.4.A�{S'-.... .. �:�i;',' � O •:r^.-r�`+aY-.rad` .....;_r: �,.y,a.y,�. .. <� .d N a:. N d Nzip C_ p0 �� C ■� sQ._. a OU •� f;: i Cf) Z m Jw Y NOV-30-.LFRI 1 P. 02/02 ( 525 Castro Street Richmond,CA 94801 Tel:510.232.7193 Fax,510.232.7629 For Immediate Release Richmond, Calif:, November 29,2001 —Beginning at approximately' 7:40 p.m. Pacific Daylight Time(PDT) on November 29, 2001, a process upset occurred at General Chemical's sulfuric acid plant,in Richmond,Califorzxia. This caused a sulfur trioxide release from the main stack. To address the release, the plant was immediately shut down.However,the release continues in order to safely shutdown the plant. General Chemical anticipates the release to stop at approximately 10:00 p.m- There have been no onsite injuries. Appropriate regulatory authorities including Cc tra Costa County Health Services Deparment,Richmond Fire Department,Bay Area Air Quality Management District, and Contra Costa Coimty Office of Emergency Services were immediately notified of the incident and several have responded to the scene. At certain levels, exposure to sulfur trioxide Gan cause respiratory discomfort such as coughing and eye irritation. Any discomfort should be short-term. General Chemical extends its thanks to the.Richmond Frye Department, Contra Costa County Health Services Depa=ent, and all other officials and agencies who assistedin responding to the incident. Any additional questions should be directed to Tom Brafford,Plant Manager,at 510232- 7193. REQUEST TO SPEAR. FORM (THREE (3.) MINUTE LIMIT) Complete this form and place. -; it in the . box near the speakers' ' rostrum before addressing .the Board. /. Name: 1 c l:� �o v`-5 Phone: ( � U"� S?:�Zcr5— c)L q,K Address: _1. City: . ..... Co cc I am speaking for myself or organization: • rw.1n �n (name of organization) CHECK ONE: �J I .wish to. -speak on Agenda Item-4. Date;: -2 �d l My comments will be: general _Z. for against I- wish to .speak.`on the .subject of . �1^�^ti I do not wish . to..speak but leave these comments for. the Board to consider: .De :osit the. Re est to S pea { P �N:.:.; . P . - form:;;:,�on,:t, a:..revers :U, the , the :box next to'. the "speaker's microphone before your agenda em .is to. be c nsrdered`:' :' ...:...... 2... will.:. be.::_ca�l.ed'>:on::;:to :maker.your..:presen.tanon:. ..:: . Tease speak'. intoie. microphone .:at the podium ".:Be in-..b . .:stating: your. :name: and address: and whether g y you;are speaking €oar :y..oursel€ or as the representative" of''ari: organizato;r: 4 "-:0 ve:..the' Clerk:;:a;:copy of: :your: presentation or. ;. . support documentation if 'available ..before speaking. • 5. Limit your: :presenta.t bn to three:minut:es,: Avoid _ repeating comment`s.,-:made by previous speakers.,, :.. w^' 4 .'(.The eha ir'ma y l unit y: . ofstoolen th reAll persons may be< heard)' REQUEST TO SPEAR FORM (THREE (3) MINUTE LIMIT) Complete this form and place it in the box near the speakers' rostrum before addressing the Board. Name: W)(a, .4 F)CAJ Phone: Address: 1yR CA City: I am speaking for myself �' or organization: (name of organization) CHECK ONE: I wish to speak on Agenda Item # ` Date: My comments will be: general for against I wish to speak on the subject of I do not wish to speak but leave these comments for the Board to consider: SPEAKERS 1. Deposit the "Request to Speak" form (on the reverse side) in the box next to the speaker's microphone before your agenda item is to be considered. 2 . You will be called on to make your presentation. Please speak into the microphone at the podium. 3. Begin by stating your name and address and whether you are speaking for yourself or as the representative of an organization. 4 . Give the Clerk a copy of your presentation or support documentation if available before speaking. 5. Limit your presentation to three minutes. Avoid repeating comments made by previous speakers. (The Chair may limit length of presentations so all persons may be heard) . -04 REQUEST TO SPEAR FORM cp (THREE (3) MINUTE LIMIT) ����' Complete this form and place it in the box near the speakers' rostrum before addressing the Board. Name: '�V/1l a 6D=5efl±)Q() Phone: Address: 1.0 �' City: (�t —ti I am speaking for myself or organization: (name of organization) CHECK ONE: I wish to speak on Agenda Item # �/LI Date: D2zL a ob� My comments will be: general for against I wish to speak on the subject of I do not wish to speak but leave these comments for the Board to consider: SPEAKERS 1. Deposit the "Request to Speak" form (on the reverse side) in the box next to the speaker's microphone before your agenda item is to be considered. 2 . You will be called on to make your presentation. Please speak into the microphone at the podium. 3 . Begin by stating your name and address and whether you are speaking for yourself or as the representative of an organization. 4 . Give the Clerk a copy of your presentation. or support documentation if available before speaking. 5. Limit your presentation to three minutes. Avoid repeating comments made by previous speakers. (The Chair may limit length of presentations so all persons may be heard) . REQUEST TO SPEAR FORM (THREE (3) MINUTE LIMIT) Complete this form and place it in the box near the speakers' rostrum before addressing the Board. ) Name: 1 �I7� J� C Gl l S Phone: <�CZS / 3 Address: 23 L/ 1 5 �I� CevZ-e CityF '��� I am speaking for myself ,�%h or organization: (name of organization) CHECK ONE: I wish to speak on Agenda Item # Date: 122 .My comments will be: general for against I _ I wish to speak on the subject of JJpnL . I do not wish to speak but leave these comments for the Board to consider: SPEAKERS 1. Deposit the "Request to Speak" form (on' the reverse side) in the box next to the speaker's microphone before your agenda item is to be considered. 2 . You will be called on to make your presentation. Please speak into the microphone at the podium. 3. Begin by stating your name and address and whether you are speaking for yourself or as the representative of an organization. 4 . Give the Clerk a copy of your presentation or support documentation if available before speaking. 5. Limit your presentation to three minutes. Avoid repeating comments made by previous speakers. (The Chair may limit length of presentations so all persons may be heard) . REQUEST TO SPEAR FORM (THREE .. (1) MINUTE LIMIT} 3- Com 'lete this form. and place,. it -in. the box near :the speakers' rostrum. before addressing the Board: c: Name: 4Esi 14 "EWArR-7 . .ST ,. Phone:_ . 9 — _2&'3 705'� Address. 33 98 Lt/ ' N' UE City: . LealVCea/e I am speaking for :myself or organization: IM7- M !9T �OMI'f (name of organization) HECK ONE: 4' , I wish` tci speak on Agenda_ Item•. Date 1.2 [� My :comments will be: general >� for .,against I. wish :,to. ;speak,-ph,.the•-subject: df­. " I do: not..wish to -speak but leave..these comments for the Board to 'consider-: ; . : r : . .8P .... .:..: :. - .. . .:.:: :. ..: . . . „:. �on tt�.e :reverse. side}: ?n .. • Deposit the "Request to Speak form ;:{ ends eaker .s microphone before your ag the box next to;the::sP : item. is:to be c0nsidered. on. e : our,: resentati . : w�li be..:ca Ied :.on to mak_ .y ::.•::r: ium 2: .Ou• � :ease s eakmicrophone :at fhe P Ln b stating your. name- and;'address and who 3 : ; Beg :. y:.' :.. ourself or as' the ou:are sP:eakng ;for y...: ::. .. : :;: y an�zatior� representative of an org of.: our presentation 'or 4 . Give the Clerk a copy. o y suppartdocumentation if available before speaking. 5 Limit :your presentation -to three`minutes ` Avoi d s s s.. comments made. by previou Baker repeating it 1 so all p The Chair may. :lim ength; of presentations be. heard. ).:. persons may - - REQUEST TO SPEAR FORM. (THREE (3).''MINUTE LIMIT) Complete this . form and place it in the box . near . the sPeakers' rostrum before addressing -the. Board. Name 'Phone. • s Address:' ..city A4T` _ I am speaking for- myself or organization:- .. (name of organization) CHECK ONE: I wish to' speak'•on Acgenda Item # .Date: My comments will be:' general ' for against I wish to speak on the subject ofta� f � '� I do. not wish to speak but leave •these comments for" the Board to consider: :. . : :FAKERS .:.- Deposit :the .�Re'quest ;tq:.S ;eakn: rform: : .on.. :. :6 :. .. , P; :.:.. .•.. :�:.,.:,::�.:.: . th..::. reverse.. side:): in • the .box next ,to.„the .;s eaker's..'mcro hone before our a enda ..:. P tem::is to be .cons' cleed. P. 2 You will be called: on..:to. make our::: resentatio Please:.speak: nto...- micro' ;; :,,. ...•_ . .. ;.:.. . ptioi:e a :the podium. _ Begin by stating your: name .and address:-an d whether you are speaking for yourself or: as the re prsen `ative of. an': organization= 4 Gv.e: the. Clerk at: copy.:of:: : :our::. resent:ation o Y . P. :.: ..:.... ::::.:..:: support documentation if: avail`akile;;b:e:fore:::s eakin 5' •.:;; yo: ur Pre:s.erit;ati.on to: three;'=mfnu; tes. re eatin Avoid P g comments ma de . by: pr (The. Chair;:maY' mt; Ten' th` of:: rsetaons 9. P,. s ,,persons:' ma .' :be: heard o' a1I: Y ). ._ XZWUJSb'1 1'V. b.YZAA YURM (THREE (3) MINUTE LIMIT) I Complete this : form and place , it in the box near the . speake 4 rostrum bbeefore 'addressing the Board. \ Name: Q Phone: 1 � .(J71l Address: City. ' 1 � I am speaking 'for myself or organizations ' (name of organization) CHECK ONE: �- I I wish to "speak on Agenda Item `#. ` Date: I2,10�//� My comments' will be: general for _ against I wish to speak. on the subject of I do not .wish to speak but leave these comments for the Board to tcoiisider: = n n in .. De osit the, Re qu est farm 6n:..,the revery:e:: 1• : P P the box :next tb the speaker's microphone .before..your agen a item is.,.to ,be Lbias2dered -2.."..... -.Abu:. Will :be,:.caTed:::on..:to:makeprese..nt:anon:• Piease speak into the` microphone ,at the podium: 3< :::.:::B;e in. by:....stat:Ing::.your. .name::. and`:::address :and whether. g . . you :are ->s eak�n €or.` ourself or as the Y P . -... 3. . Y. . .. ........ . . .. .. representatve'`:o:f an :organzatioir . 41-. Give..the Cl'er :.a;:.copy. .of`:your presentation. or .support documentation If available before. speaking. 5. ;imit your prese:nta.t on to threemnut'es. void. repeating commenade. by previous speakers.,. (The Chair. may. 1' mit. length of presentations so all persons may. be:..heard) REQUEST TO SPEAK FORM (THREE (3) MINUTE LIMIT) (� Complete this form and place it in the box near the speakers' rostrum before addressing the Board. cif Phone: Name: n Address: �n g „�4'�Y City: I am speaking for myself_ or organization: (name of orpaivadon) CHECK ONE: wish to speak on Agenda Item # Date : My comments will be: general for against v I wish to speak on the subject of 1 do not wish to speak but leave these comments for the Board to Consider: SPEAKERS 1. Deposit the"Request to Speak" form (on the reverse side) in the box next to the speaker's microphone before your agenda item is to be considered 2. You will be called on to make your presentation. Please speak into the microphone at the podium. 3. Begin by stating your name, address and whether you are speaking for yourself or as the representative of an organization. 4. Give the Clerk a copy of your presentation or support documentation if available before speaking. 5. Limit your presentation to three minutes. Avoid repeating comments made by previous speakers. 6. The Chair may limit the length of presentations so all persons may be hear. REQUEST TO SPEAR FORM (THREE (3) MINUTE LIMIT) Complete this form and place it in the box near the speakers' rostrum before addressing the Board. Name: hone: Address: Cit l-11,) I am speaking for myself eor organization: S4 �- v/!-Bl��lil 2� (name of organization) CHECK O I wish to speak on Agenda Item #--s� Date M comments will be: general for a ainst Y 9 g I wish to speak on the subject of _ P. r/ I do not wish to speak but leave these comments for the Board to consider: SPEAKERS 1. Deposit the "Request to Speak" form (on the reverse side) in the box next to the speaker's microphone before your agenda item is to be considered. 2 . You will be called on to make your presentation. Please speak into the microphone at the podium. 3. Begin by stating your name and address and whether you are speaking for yourself or as the representative of an organization. 4 . Give the Clerk a copy of your presentation or support documentation if available before speaking. 5. Limit your presentation to three minutes. Avoid repeating comments made by previous speakers. (The Chair may limit length of presentations so all persons may be heard) . REQUEST' TO SPEAR FORM. (THREE (3) MINUTE LIMIT) Complete..' omplete. this. form and place it in the box near ..the speakers rostrum. efore- addressing. the: Board. Name: '1 r - Phone: C7 ^ Z Address: City:. I am speaking for myself or organ 1zation:z N (name of organ' ation) CHECK ONE: I. wish -to speak 'on Agenda Item` .# ` Date My comments -will be: general for against I wish to :speak on:the subject- of I do not wish to speak- but leave these comments for the. Board to .consider: . DeP os-t . ..th . .n e quest to. .. :n,, - S ea the :box P; .:k ;.: :ori next to.: : :,: , . ,.. :: .;_. the.>x:eve item the speaker's .micro hone :be'fore rse side in :? s:. to;be .c€insidered ::: ::::::_.::;P;;:. your a, erida: . . ... . ... :. .. will:be: a < : Yled on to make,> our, Pl�ase:,:speak: into themicro ' .. . resentatian. m. y stating your name and. address and whether reu are :speaking, fo `;Y.ou.rsel f or. as presentative:.'of::ari:,9i'" . . ° ..`i-v.e .the. Clerk: 'a. o pY, of.: youi` resentation o :support :documentati'bn: .P. ::• r . ; Zf available' before s' :_ ,pea king, :L It your presentation to th re repeating continents ma leby utes: AV kin min.. previous.:`s (The' chair may: limit peckers. of d .- length. .of persons may be: heard) Pr esentations.::`so all REQUEST TO SPEAR FORM (THREE (3) MINUTE LIMIT) Complete this form and place it in the box near the speake rostrum before addressing the Board. Name: /G/� ��l L �� Phone: Address: ` 5 City: /C c I am speaking for myself or organization: (name of organization) CHECK ONE: -J cam. I wish to speak on Agenda Item # Date: My comments will be: general for against I wish to speak on the subject of I do not wish to speak but leave these comments for the Board to consider: I SPEAKERS 1. Deposit the "Request to Speak" form (on the reverse side) in the box next to the speaker's microphone before your agenda item is to be considered. 2 . You will be called on to make your presentation. Please speak into the microphone at the podium. 3 . Begin by stating your name and address and whether you are speaking for yourself or as the representative of an organization. 4 . Give the Clerk a copy of your presentation or support documentation if available before speaking. 5. Limit your presentation to three minutes. Avoid repeating comments made by previous speakers. (The Chair may limit length of presentations so all persons may be heard) . REQUEST TO SPEAR .FORM . (THREE ..(3') MINIITE LIMIT) . . Complete this form' and place it .'in the box .near. t�e speakers' rostrum "before addressing the"Board...: �M'lii�:��•, Name: f-�����~ T 1 ' ,1.��r Phone:. Address: V �� ' city;w I 17 am speaking for myself or organization: (name of organization) CHECK ONE: I wish -to speak ,,on Agenda Item # Dater . .My. comments will be: general . for / against I wish to. speak on'the. 'subject of I do not wish to speak but leave these 'comments for the Board to consider: SFIAKERB equest Depos�.t the "Rto ,Speak",, reverse side:} in <.=a..�the' bcix`tinext. to . the speaker's microphone; before yOur agenda , i:teza is to'be ;cons-i7d ed,. 2 You;will be cal.lod:,on;to. makp,,your :wesentatian: Please. speak rito tie micriipt dne`at the padlux. 3:;;: Begin by statzng your ,name and address:: and ,whether you are speaks rig for yoursei f or_ as the representative .of an organization,qv 44`. ;4 ...:Give.; the Clerk ;a;, copy:of;:your: g entaton;o support docum6ntatian if ,available before .speaking. Lmit.ycur,:pres.ont;ation ,to::three mi'nut`es,: avoid repeating comments "made: by ..previous. speakers. {the "Chair-may limit length .of: presei�tatiions::so .a11 :: ersons in a be heard . REQUEST TO SPEAK FORM (.THREE (3) MINUTE LIMIT) / 3' Complete, this form. ..and place it in the . box ,'ne r the speakers' ` rostrum before addressing the Board. :�GiGr. �y.,avt Name: Phone: 717 Address: 1 �'�� C�•�tQGQ,c�'�� . . City: �ll�r•�►Vle;7) I - am speaking for.myself or organization: w Sl. r Pe��e✓ In lor, -Eu Spec- �,r. y► (name of. organization) CHECK ONE: I wish to speak on Agenda Iter # Date: My comments will be: general for against I wish to speak on the subject of , I do not wish -'to speak but 'leave these comments `.for the Board to consider: posit'-the;.'►Regitest: to:,Spea}e" forbi ( it:; the reverse side ,' .in }._ speaker's 'microphgne be orer your a9erida ... m,-,Isl o be consde'Fed; ,2 You:;will be:;;;ca .ied on to: make aur::,presenta't 'on. y Please spea�C :a.nto: the ,microptdne fit t :e .poiiiu�i•. _ 3:;::•,; :Be.g n by...stating: your.: nainie: .and-::address:and. .whether 'you are speaking frse m.or as :'the' representative of an. orgarizatrn Give;: the Cierk.:-a '�opy.:;of; your peesentatzon or support .documentation ' if, available: before -speak ng, resentation to t :. h�rea :mautes:;;.::;�Avo�d repeating. .comments made by prev' ous: peckers. {The Chair may x•imt Iength of° ptesentaticsns .s.a all persons:.ma . be:;heard REQUEST TO SPEAR FORM „ -(THREE (3) MINIITE LIMIT) Complete this form " and place it . in the . box ne the :.speakers' rostrum -before addressing the Board: ar+�G,�y�,,i; JI Name: '. hol ri_Q by f h Phone: Address: f��L Ulm ` 1' i4v �• .. City: 1h G7i I am speaking for myself or organization: - • :� �/f GQili, �G....�� "�-�der /��j�„c�.S�j.v�/C: on;. , (name of.organization) CHECK ONE: . ' I wish ;to�_:speak on... Agenda. Item # Date.:I My comments will be: general. for against I wish .to: speak on. the subject `of-' { .I do. not wish to', speak. but • 1'eave these .comments ,for the Board to consider':. : " `.i. Sp Deposit the`-"Request; to .Spcak;":, orzn :(ot:;ahe reverse 'side : .an: -the +boxes next to tfie •speaker ,s rizcrO hi .kiefor te .your agenda - o be consi-tiered; . 2; .You vi 11 be.,ca=red on; to make' aur.;:: `resentat bn.'. P 'ease spea�C -fil 6 the m2crvphione` i.'Al -P,,, d%um. Begin. by stating ;yourr. name; and ac3ctress and whether, yot� ale speaking fc�r yourseif or as the ' representative of an 'orgaxii zatxon 4. :-.-Give: the Clerk .a ,copy :of:;:' ©ur esentat :on:or4. . . , .. . . . .. ... . Y . ? . _ support .documentation-:if. availakile;::be:fore speaking, your.::presentation to:-.,three ; n3riu't'e -Avo'id repeating comments made by previous`speakers. Char ;mey= amt 2°ength :iaf`.`presentato»s; so: a'll persons inay be heard] •:` REQUEST TO SPEAK FORM (THREE (3) MINUTE LIMIT) Complete this form and place it in the box near the speakers' rostrum before addressing the Board. �S Name: ��l C,��ct/ci ,�ldC;�?/moi 7 Phone: Address: 9�Z �w f�tor•�Q /✓/'- City: d' I am speaking for myself _ or organization: (name of organization) CHECK ONE: �� 4/ I wish to speak on Agenda Item # TSO Date .21 y/� My comments will be: general for against I wish to speak on the subject of I do not wish to speak but leave these comments for the Board to Consider: SPEAKERS 1. Deposit the "Request to Speak" form (on the reverse side) in the box next to the speaker's microphone,before your agenda item is to be considered 2. You will be called on to make your presentation. -Please speak into the microphone at the podium. 3. Begin by stating your name, address and whether you are speaking for yourself or as the representative of an organization. 4. Give the Clerk a copy of your presentation or support documentation if available before speaking. 5. Limit your presentation to three minutes. Avoid repeating comments made by previous speakers. 6. The Chair may limit the length of presentations so all persons may be hear. REQUEST-TO SPEAK FORM (THREE .(3) - MINUTE LIMIT) � Complete , this -`-form' and place it .in the 'box near' the speak rostrum before addressing the Board': Name: �J Phone :..� ". t . Address.: ! u V , :�... _City: U. I am, speaking 'fbr- myself or organization:. (name of organization) CHECK :ONE: 1 L•wish to speak on Agenda Item # : _Dater My comments will "be: general for against I;wish to speak+ on the subject, o f.-- do not ..wish to speak but leave. these .comments for the d: Boar -to consider,:. 1 : Deposit the Request to Speak"= form (;on the reverse :side'}: :in the bo1.x next to the speaker's. microphone before your agenda tem::Is::to: b :considered': 2. ..I012;. Will:,b6. called:.on::.to:mak:6� y.our: preSentatiori. . Please ;speak Ante : e:'microphone'at the podium. by:.stating::your. :name::and::address:.and .whether Y.ou are <;sgeaTcing for. yourself or as the representative ' of an organization: . 1 4 .'-. Give :the Clerk;:;a copy of your presentation .,or support documentation if: available'.be,fore speaking. 5. Limit:'your presentati'or� ;'to three minutes: Avoid repeating coa►ments made by previous speakers. (Th e Chair may l ri t `lef gth of presentations so all :persons may be. heard) : REQUEST TO SPEAR FORM (THREE (3) MINUTE LIMIT) Complete this form, and , place... it...in. the box near . the-:speakers' rostruia before- (addressing the Board.. Name '; �'� Phone: Address: �✓ "' � J� �, 'U �', Cit, , I am speaking for myself , or organization: (name of organization) CHECK ONE: _ I wish to speak. on Agenda Item #... Date:. My comments will be: general far. against I wish '.to. speak on the subject of I do-.not wish :to;.speak but leave these comments . for the Board to consider: J 0PEA"RB 1::: : ;Degos:it the. 'Recque.st .to.,:Spea.k.'!:.;f:orm`:'::; h:e.:.rever"se.`s ide :. the _bgx next ,to.:;thd speaker s. microphone; before your agenda Mein., to be considered: be::, called --6h. to make : "our.:' '.r.`"s:. .: : Pl P ,e enta:tio n ease speak into the ;micro hone at`:'t2 `e ``odium. . . P P : .3.:. Beg1n .by. stating your. name anti :address':`...and.: .whether ... . you are. s Baking for yourself or; as the . P representative of an organization:. 4.: Giv.e. ..the:Clerk a: co PY: :af your; presentation or support documentation if available before s .akin 5 .:, Limit :.your presentation; to:: three:;minutes: ' :.-Avoid - repeatin Comments innevous s Bakers. g .. Y P. , P, ,.: T . ..:. ....... . �: h'e Ch =may 1:imt length :of. presentations:so:..:all persons ma. be ;hea:rci Y ) REQUEST TO. SPEAR FORM- (THREE (3) MINUTE LIMIT) Complete this form and place -it in the box, near. the speakers' . rostrum before addressing the Board: Name: Q/2�9-�/LA ,I G(/L �� Phone ` b Address 13 L. A[J2 City: +. G I am. speaking for myself or organization: (name of organization) CHECK ONE: I .wish .to speak;-on Agenda Item I# `� Dater L .My comments. will be- general for � against I wish to.-,speak on. the subject of I do not- wish ''to speak but .leave, these. comments for the Board to consider: {? 8 PEARERs. 1.:.:'...:....Deposit the., .IRO est::to:,S ea.k"`.::;fob;.::.:/o:::;.. e V .:: .:..:.::.... . .::. .P,,...-. ;.: .- thre. e:), .,in ,.. reverse :s tNe .box next .to.,;.'the-speaker'. s. in hare,;. before. your agenda item is to ,be consi{lered.. 2 You.iii 11 on.,:to: make: our:::.. :res.enta:ton. Please speak into the mic"rophonc a tHeJ:podium: ' Begin by stating :your. name 'an address:::and .whether you are speaking for yoursels f or a repre'sen 'ative. of an.: organization; 4; . .:;.Give.: the.:Gle.rk: a: co of::: our:: es:..::: PY Y pr. entatlon or . support documentation if. available..be€ore speaking. 5' ....:Limit .:.your...pre sentat°ioi to tDree: m `nutes;:. .: v r.. P:. 4 e eatin .comments 'made:. by previous .speakers:ol d (.The .Chair may. ,1 m .t ;length :of: presentat ons-, s.o> all erso may :he: he.ard) REQUEST .TO 'SPEAK FORM (THREE '.(3). MINUTE LIMIT) Complete` ' this . form and 'place . it i,n the box near the :speake rostrum be fore ..addressin the Board. Name: Phone: Address. 2r� .ilz FIV lAt> f} city: I am _speaking for myself .- - -or aid ation.: o g i o,) {name of� r anizac' CHECK 'bNE: �( 1 .wish' to speak' bn.-Agenda. Item # Date.:. ( Z My comments will be.:' general for - against ; I wish to ,"Speaks on the sub j eat-. of. I do nvt wish to speak but leave these comments for. the Board ,to consider: :' :Deposit .the:.. "Requsst.. t:;o: Speaka,...:form".y,{;on::the..;"reverse"..s.�de} :? the box next to' the :speaker'::s microphone before your agein. . Itemcnsxdered'. 2. : _:�€Qu:. yt 1 be cat°T`ed" on>:to-.mike:* :purr. resentation. Y. ... p.. p3:ease".spoak xnta.the` microphone at the''podium. 3. .Begin by.;statxng' your ,name:..and::;,aadress and whether t y6u are speaking €oi yourself or. as the representative of 'ah organization: A'. .-.G3ve the:.Clerk::.a copy .of:,:your <presentation:or support documentation.`:r available before speaking,' 5. Ii in t<:your,:your, to. "three 'miinutes Avoid repeating comments: made'. by previous speakers.. (The Chair'may < im t.`:length of�presentations_ .s -al persons may be heard). REQUEST -TO SPEAR FORM (THREE- (3) • MINUTE LIMIT) Complete this . form: .and place it .in the box near ...the speakers' rostrum. before addressing ;the: Board. . ]I Name: Phone: Address: �l� ..� /y bN Cit I am speaking for myself. or, (name of organization)' ' CHECK ONE: I wish to speak 'on -Agenda Item — 'Date G Z � My 'comments. will be: general for against.' I wish to".speak ani :.-the" subject of I. do.'. riot: wish -to speak but leave .these comments for"the Board .to..consider . SPEAKERS ` 1 :` veposit the.".' Request to.,Speak" farm ,;(tin h"e:, reverse side} the box' next totfie spe.a..erfs i.icrczphone before your: agenda ... ♦ l .: ;nein': is: td -be;`oris%d;+e'�ed`_ �. Will"-be,>cai-le'd ori. tb .makepresentation. : .p ,s t _ lease peak into. the..mic�opticirie at :pcsdiui _ . 3 $eg n by" stat ing-your name and,:address and whether you are speaking :for yourself .or as representative. of an organization ' 4,.,. .;.G v,e,;the Clerk. a copy.:af. your: p went I i# :or support documentation :if available be`fcire speaking. 5'r ; Limit your. pre.s.entat:ioh-..to three minute =: vo:id repeating-' comments "made by: previous speakers. : (The Chair inay l,imt, length of. presentation$ so :all : ersoris may be eard} Y, : REQUEST TO SPEAR FORM -W (THREE (3) MINUTE LIMIT) Complete this form and place it in the box near the speakers' rostrum before addressing the Board. Name: � � � Phone: Address: City: I am speaking for myself or organization: (name of organization) CHECK ONE: I wish to speak on Agenda Item # Date: My comments will be: general for against I wish to speak on the subject of I do not wish to speak but leave these comments for the Board to consider: SPEAKERS 1. Deposit the "Request to Speak" form (on the reverse side) in the box next to the speaker's microphone before your agenda item is to be considered. 2 . You will be called on to make your presentation. Please speak into the microphone at the podium. 3. Begin by stating your name and address and whether you are speaking for yourself or as the representative of an organization. 4 . Give the Clerk a copy of your presentation or support documentation if available before speaking. 5. Limit your presentation to three minutes. Avoid repeating comments made by previous speakers. (The Chair may limit length of presentations so all persons may be heard) . 1i REQUEST TO SPEAK FORM (THREE (3) MINUTE LIMT1) Z� rA ethis form and place it in the box near the speakers' rostrum before addressing the BoarName: V= L2 cs Phone:?G Address: V 166' �� (��-�� w� :� 1 NS�y� `�- City: �� ,, � VA- 166f am speaking for m)'self or organization: (name of organization) CHECK ONE: I wish to speak on Agenda Item!# Date : '� J My comments will be: general for against L � I wish to speak on the subject of �i(, J Aco-C YJ. rl,QN I do not wish to speak but leave these comments for the Board to Consider: SPEAKERS 1. Deposit the "Request to Speak" form (on the reverse side) in the box next to the speaker's microphone before your agenda item is to be considered 2. You -will be called on to make your presentation. Please speak into the microphone at the podium. 3. Begin by stating your name, address and whether you are speaking for yourself or as the representative of an organization. 4. Give the Clerk a copy of your presentation or support documentation if available before speaking. S. Limit your presentation to three minutes. Avoid repeating comments made by previous speakers. 6. The Chair may limit the length of presentations so all persons may be hear. REQUEST TO SPEAK FORM Y3 Q - (THREE (3) MINUTE LIMIT) +*17 �� Complete this form and place it in the box near the speakers' rostrum before addressing the Board. Name 4y �� t`9e.J e�.5 ?hone: Address: City: I am speaking for myself organization: (name of organization) CHECK O��wish NE: to speak on Agenda Item# r Date : d My comments will be: general for l against I wish to speak on the subject of I do not wish to speak but leave these comments for the Board to Consider: SPEAKERS 1. Deposit the "Request to Speak" form (on the reverse side) in the box next to the speaker's microphone before your agenda item is to be considered 2. You will be called on to make your presentation. Please speak into the microphone at the podium. 3. Begin by stating your name, address and whether you are speaking for yourself or as the representative of an organization. 4. Give the Clerk a copy of your presentation or support documentation if available before speaking. 5. Limit your presentation to three minutes. Avoid repeating comments made by previous speakers. 6. The Chair may limit the length of presentations so all persons may be hear. REQUEST TO SPEAK FORM (THREE (3) MINUTE LIMIT) �Y Complete this form and place it in the box near the speakers' rostrum elfore addressing the Board. - li 3-4;he -�-� ZZ5 - �F8 3 Name: Phone: Address: 3 Y )* 5e City: I am speaking for myself K, or organization: (name of organization) CHECK ONE: I wish to speak on Agenda Item # Date: My comments will be: general for against I wish to speak on the subject of I do not wish to speak but leave these comments for the Board to consider: SPEAKERS 1. Deposit the "Request to Speak" form (on the reverse side) in the box next to the speaker's microphone before your agenda item is to be considered. 2. You will be called on to make your presentation. Please speak into the microphone at the podium. 3 . Begin by stating your name and address and whether you are speaking for yourself or as the representative of an organization. 4 . Give the Clerk a copy of your presentation or support documentation if available before speaking. 5. - Limit your presentation to three minutes. Avoid repeating comments made by previous speakers. (The Chair may limit length of presentations so all persons may be heard) . REQUEST TO .SPEAR FORM (THREE (3) MINUTE LIMIT) Complete this form and place it in the box . near the speaker. ' -� rostrum before .addressing the Board. s Name: ,ICN L /VL/�lE� Phone1: 9252.287808. Address: 31f ol.. (R I G AVE city I am speaking for myself or organization: (name of organization) CHECK ONE: I.. wish to 'speak on Agenda .Item.;.# Date:. My comments .wil1. be: general - for . against I wish to speak on:.the .subject -of . I do not wish to speak -but leave these comments for the Board -to consider: ... .:..... LE► 1: -. OSit the "Re est to S eal !'-_ form;:; on;; th,e revers;e;;.sde in �N P - the:.box next., to.,.the speaker' microphone before your agenda . item is 'fo- be d 2. 3€oru::.:Vi11 be da Ied on:;to maks;:; our=: resentation.: : please: speak nto the udroplIon ,-. at:the odium. .......:.:. - o. 3: B:egi_n., by ,statin : ' .;our :name: a��d ;address::and whether g Y you are speaking for yoursel or- as. the. representative of 'an organzitor Give the- Clerk; a.: copy. of';:,your .presentat oh or ::support documentation i( .available:, efor.e speaking. _ 5:. Lim=i. ,your= presentation: to tZtiree inut:es: : Avoid: repeating- comm"ents ][lade. by pI•evious `speakers., . . Th`e chair ma lzm�t y length of presentations.;•so all persons ma • Y be heard) . REQUEST TO SPEAR FORM ` Q (THREE (3) MINUTE LIMIT) Complete this form and place it in the box near the speakers' rostrum before addressing the Board. Name: u �X /- l�G G� Phone: Address: 1 y. eox City: �a/T1h�Z I am speaking for myself or organization: (name of organization) CHECK ONE: I wish to speak on Agenda Item # �- `- Date: /0/ My comments will be: general V for against I wish to speak on the subject of I do not wish to speak but leave these comments for the Board to consider: SPEAKERS 1. Deposit the "Request to Speak" form (on the reverse side) in the box next to the speaker's microphone before your agenda item is to be considered. 2 . You will be called on to make your presentation. Please speak into the microphone at the podium. 3. Begin by -stating your name and address and whether you are speaking for yourself or as the representative of an organization. 4 . Give the Clerk a copy of your presentation or support documentation if available before speaking. 5. Limit your presentation to three minutes. Avoid repeating comments made by previous speakers. (The Chair may limit length of presentations so all persons may be heard) . REQUEST TO SPEAR FORM (THREE (3) MINUTE LIMIT) �9 Complete this form and place it in the box near the speakers' rostrum before addressing the/Board. /J Name: / LL- 11L. Cf/ ��% Phone: Address: �� � /'y�L 0 ✓ :Cit /Ozo Y I am speaking for myself or organization: (name of organization) CHECK ONE: ,1 I wish to speak on Agenda Item # Date: My comments will be: general for against I wish to speak on the subject of I do not wish to speak but leave these comments for the Board to consider: SPEAKERS 1. Deposit the "Request to Speak" form (on the reverse side) in the box next to the speaker's microphone before your agenda item is to be considered. 2. You will be called on to make your presentation. Please speak. into the microphone at the podium. 3. Begin by stating your name and address and whether you are speaking for yourself or as the representative of an organization. 4 . Give the Clerk a copy of your presentation or support documentation if available before speaking. 5. Limit your presentation to three minutes. Avoid repeating comments made by previous speakers. (The Chair may limit length of presentations so all persons may be heard) . REQUEST TO SPEAK. FORM (THREE (3') MINUTE LIMIT) Complete this. form and place it in the box. -near the.' speakers.' rostrum efore addressing he ...Board. Name: Ph oil J Address: 6`�-� � `" U� City. I am speaking for myself . or organization- (name of--organization) CHECK ONE: I wish to speak on kgenda Item # Date:• My comments will be: general for against I wish to. speak on, the, 'Subject of y I do not wish .to `speak but •leave these, co Brits. for.• the oard to consi er: 06 ,�. ew ��, Deposit the. r�Re'. es:t ::to S eak" -form':` b :. P (on:.the-;--ieverse.; side. in the.;box� next.:to.;. the speak'er's. microphone -before your a `end %t'emr consi 'de' red: :`ca�l-led o n: to .make 'our; 1. : > , _.. . .:,� :<- :.. . , . X_:...:-•.:Presentaton.', "' Please aspeak into: the: P. at . the:.padum. _ sta; rg our name and a - : . .._. . Y: _ ddress. and. whether Y 'a `.ar.e:'gpe.dk ng for,you'rself: or. as; The:. representative of an organization. clerk aPY.: co of our :presentat': .: :. . support.documentation. :. available.:;b:e:fore .:speakin g. 5': `;:.. Limit :your;.pre'sent:ati:oi ::to. three:. minu. e t s. .. re eatin commenis• made by` prev :ousts eakersvo' P 9 P . (The Chair may limit length of presentat 'ons: so all ,,} �•• F .'"tin: `' REQUEST TO SPEAR FORM (THREE (3) MINUTE LIMIT) �y Complete this form and place it in the box near the speakers' rostrum before addressing �� the Board. Name: l (�/CJtif�� Phone: Address: 600 445 JZ1A-)FA---5 JV-, City: "i'gc.lWyE.2 I am speaking for myself or organization: ao& -in,4 G�vT (name of organization) CHECK ONE: X I wish to speak on Agenda Item # �`� Date: _ � 7 ���� My comments will be: general for against I wish to speak on the subject'-,,of I do not wish to speak but leave these comments for the Board to consider: SPEAKERS 1. Deposit the "Request to Speak" form (on the reverse side) in the box next to the speaker's microphone before your agenda item is to be considered. 2 . You will be called on to make your presentation. Please speak into the microphone at the podium. 3 . Begin by stating your name and address and whether you are speaking for yourself or as the representative of an organization. 4 . Give the Clerk a copy of your presentation or support documentation if available before speaking. 5. Limit your presentation to three minutes. Avoid repeating comments made by previous speakers. (The Chair may limit length of presentations so all persons may be heard) . 1 REQUEST TO SPEAR FORM (THREE (3) MINUTE LIMIT) 3 Complete this form and place it in the box near the speakers' rostrum before addressing the Board. Name: \ N7Pee,` ah� Phone: 9o� 57 Address: D-(OoS Cz�C. g L; rc �, City: Sqh P% 4VVV r) I am speaking for myself _ or organization: (name of organization) CHECK ONE: v I wish to speak on Agenda Item # �. _ Date: QL' -� My comments will be: general for against I wish to speak on the subject of I do not wish to speak but leave these comments for the Board to consider: SPEAKERS 1. Deposit the "Request to Speak" form (on the reverse side) in the box next to the speaker's microphone before your agenda item is to be considered. 2 . You will be called on to make your presentation. Please speak into the microphone at the podium. 3 . Begin by stating your name and address and whether you are speaking for yourself or as the representative of an organization. 4 . Give the Clerk a copy of your presentation or support documentation if available before speaking. 5. Limit your presentation to three minutes. Avoid repeating comments made by previous speakers. (The Chair may limit length of presentations so all persons may be heard) . REQUEST TO SPEAK FORINI (THREE (3) MINUTE LL IT) Complete this form and place it in the box near the speakers' rostrum before addressing the Board. Name: l cC �- to s Phone: Address: ��� �d `4N p City: I am speaking for myself or organization: (name of don) CHECK ONE: I wish to speak on Agenda Item # Date : 01410 My comments will be: general for against Ll--- I I wish to speak on the subject of I do not wish to speak but leave these comments for the Board to Consider: SPEAKERS 1. Deposit the "Request to Speak" form (on the reverse side)_ih.the box next to the.speaker';s microphone'before your'agenda item is to be considefed" ' = 2;:• :You will`be called-on'to'make your presentation. Please speak into the microphone afthe podium. '. Y" 3. Begin by stating your;name, address aM-whether you are speaking for yourself or as the repr'e'sentative-of an organiatioir. 4. Give the Clerk a copy of your presentation or support documentation if available before speaking. 5. Limit your presentation to three minutes. Avoid repeating comments made by previous speakers. 6. The Chair may limit the length of presentations so all persons may be hear. REQUEST TO SPEAK FORM (THREE (3) MINUTE LIMIT) 3s . Complete this form and place it in the box near the speakers' rostrum before addressing the Board. Name: t\v.►.t91 S 71:�)f e tA,"F Phone: Address: p �' - - 3�" \ �� `�— City: Co-"3 co1��7 I am speaking for myself or organization: .r-, "Z (name of organization) CHECK ONE: %,, l wish to speak on Agenda Item# Date : A7la/6 / My comments will be: general for against I wish to speak on the subject of I do not wish to speak but leave these comments for the Board to Consider: SPEAKERS 1. Deposit the "Request to Speak" form (on the reverse side) in the box next to the speaker's microphone before your agenda item is to be considered 2. You will be called on to make your presentation. Please speak into the microphone at the podium. 3. Begin by stating your name, address and whether you are speaking for yourself or as the representative of an organization. 4. Give the Clerk a copy of your presentation or support documentation if available before speaking. 5. Limit your presentation to three minutes. Avoid repeating comments made by previous speakers. 6. The Chair may limit the length of presentations so all persons may be hear. REQUEST TO SPEAR FORM (THREE (3) MINUTE LUVIM Com 1 e this form and place it in the box near the speakers' rostrum before addressing the Boar . Name: Phone: �l 5 13 cI Z2(,, Address: 4S 1i fKQ- STAT -S. City: I am speaking for myself or organization: C.c.s Tf-G (name of or don) CHECK ONE: I wish to speak on Agenda Item Date : My comments will be: general for against I wish to speak on the subject of I do not wish to speak but leave these comments for the Board to Consider: SPEAKERS 1. Deposit the "Request to Speak" form (on the reverse side) in the box next to the speaker's microphone before your agenda item is to be considered 2. You will be called on to make your presentation. Please speak into the microphone at'the podium. 3. Begin by stating your name, address and whether you are speaking for yourself or as the representative of an organization. 4. Give the Clerk a copy of your presentation or support documentation if available before speaking. 5. Limit your presentation to three minutes. Avoid repeating comments made by previous speakers. 6. The Chair may limit the length of presentations so all persons may be hear. REQUEST TO SPEAR FORM (THREE (3) MINUTE LIMIT) 3'7 complete this form and place it in the box near the speakers' rostrum before addressing the Board. Name: —Jim "I A `/pj�, Phone: 313 - 0 -70 Address: IDZI CgA'N �V 16V') `AV City• 04 -)17, I am speaking for myself or organization: ?,ACS (name of organization) CHECK ONE: I wish to speak on Agenda Item # Date: J My comments will be: general for against I wish to speak on the subject of I do not wish to speak but leave these comments for the Board to consider: SPEAKERS 1. Deposit the "Request to Speak" form (on the reverse side) in the box next to the speaker's microphone before your agenda item is to be considered. 2 . You will be called on to make your presentation. Please speak into the microphone at the. podium. s 3. Begin by stating your name and address and whether you are speaking for yourself or as the representative of an organization. 4 . Give the Clerk a copy of your presentation or support documentation if available before speaking. 5. Limit your presentation to three minutes. Avoid repeating comments made by previous speakers. (The Chair may limit length of presentations so all persons may be heard) . REQUEST TO SPEAR FORM �I (THREE (3) ' MINUTE LIMIT,) Q' Complete this -form •a.nd. place . it. in the box near ithe :speakers rostrum before -.addre sing the Board. / Phone: / Name: 2� L",1a Address: �k2 Cit Y I am speaking for myself or organization: (name of organization) .CHECK ONE: +, _ I wish to. speak on Agenda Item # � Date My comments will be: general for against I, .wish -to.:speak. on :the, subj ect' of I do. .not. 'wish •to..speak but. leave these- comments -for the Board to.,consider: .SPEARERB Deposit the 'Request. to :S eak"; form.:' on,_ .ttie:reverse `s' P. . (. .. ide): .in the box next to the .speaker's microphone before your `agenda em:.is to be consit}e:red .. wiII be; eal:led: on to:: make : ourrese Please. speak `into:'the micro' h :< P _ o _ ne at. the ,podium '.. :Beg.:in..by..stating: your .name:.. and: address;.and. .whether you are speaking for yourself or as 'the represent atve .of an organization: 4 Giv.e.; the .Clerk co ,. o f: ; PY...:o . .. Your`:pre:s:entat`bib. Or. support .documentation: if .available be.fore:.:sPea : _ . king. . .. .. ... ..: :. 5 ..:::Limit::.your;:...P .. ::. - to :thr .. avoidresnttioi 'repeating comments made byrevious s 'ea_kers: Y P. . P .. (t'h'e Chair may limit length of: presentations so ;a11 persons :may: be: hea:rc ); REQUEST TO SPEAR FORM:.. D (THREE (3) MINUTE LIMIT) Complete this form and place . it in the box near the speakers' rostrum •before•.•addressirig the Board. Name: Q-��.� .�e Q . Phone•: `-:Z S- O S� Address: ._g35 1��4.A�:.�`c�.; '\��e . City:" I at speaking for myself or organization; (name of organization) CHECK ONE: I wish .to :speak on Agenda Item Date: Aia� 1 My comments will be: general for against I wish..to "speak 'on .the . subject ,'of I do not• wish to speak but leave :these comments" for the Board to consider: De .os.it the. n.Rer.. P. quest ;to::Speak..-• form::(:ori_ .the-.;reverse:; side 1`n ) the box next to the s Baker's mcro .hone:`before p P M....s to be cons i`ered. 2 You; will .be 1 cal-Ie,d on:' to makg..,.-your resentatio = :Please.:speak ;%nto.:<fh: micro...t 77.on at' :t)ie ::- b ..0 . P. .. P :di n► Be 'in 9; s;..tatl g::your .name: .and`: addresse and whether . you are. 'spe,aking for yourself o as rEpresentat'ive ofan: Organ ization A. :,:.Give ;the Clerk :A. po of:' our<, res:e�'tat su ... pport documentation if available>;be.€ore speaking. 5 `::Limit .::yonr; pri .esentation to :three: mau'tes: '.repeatin - void - g.`.comments.:made by previPus speakers (Tti'e Chair 'may, 11mit length .:of presentations :so .all ersons..::ma. . REQUEST .TO SPEAK- FORM ' r (THREE _ (.3) 1KINIITE I.IMZT)... c~t complete this form and place it in the box 'near - the speakers rostrum before addressing the Board. Name: U �� -fi4t V. 1 _ � Phane:: . Address: C ! (1`' y: � � I am speaking' :for myself or organization: (name of or CHECK ONE: . I wish to speakon Agenda Item.,# ` . Date My comments will .be:: general for against I -wish to` speak .ori the subject of =: I -da not wish. to sp_,ak but leav .these cowmen f r the : . Board to•considers % C, S �� ,a.6g : rte ; 7%, -�" r�I 5I x, d� �I�vG �/5-:T1'I� �3 y 2'f•�� /t'��lr✓£a�r�. , i.. c:. Y; Deposit the "Request to Spea] n:== farm ont.. reverse. sidey:' in i.. the .box next to the speaker's microphone before your agenda . • item:.is .td be dins%de--.e : 2. SEou::wl li:healed ,on- :to:make> our presentation.. . x Pease speak into tfie microphone at the podium : 3.. . ..Began by: stating. Xour name:. and address and' whether s eak rig ;Y fob : ,ourself or.. as . are the P representative of an organization: 4'. �G1ve the .C2erk.:a:. copy: of;`,your_presentation or support .documentation if.:available before speaking. 5. : ._Limzt. your presentation to :thre.e `miautes. Avoid .repeating comments. made by previous" speakers.. (The Chair may limit length of:' esentations so all persons may be heard REQUEST TO SPEAK FORM (THREE (3) MINUTE LIMIT) Complete this form and place it in the box near the speakers' rostrum before addressing the Board'.� Name: �i4 `'�C /'1, ��keg Phone: 2 15" ' 12 Address: I�`�f !9 R 4 Pb S 7` City: I am speaking for myself _ or — F )tW/jL lS�� name of organization) CHECK ONE: Vk, I wish to speak on Agenda Item # -_� Date : NC My comments will be: general for against I wish to speak on the subject of.N I do not wish to speak but leave these comments for the Board to Consider: &r G� SPEAKERS 1. Deposit the "Request to Speak" form (on the reverse side) in the box next to the speaker's microphone before your agenda item is to be considered 2. You will be called on to make your presentation. Please speak into the microphone at the podium. 3. Begin by stating your name, address and whether you are speaking for yourself or as the representative of an organization. 4. Give the Clerk a copy of your presentation or support documentation if available before speaking. 5. Limit your presentation to three minutes. Avoid repeating comments made by previous speakers. 6. The Chair may limit the length of presentations so all persons may be hear.