HomeMy WebLinkAboutMINUTES - 01272004 - SD3 TO: BOARD OF SUPERVISORS -- Contra
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FROM: 2003 INTERNAL OPERATION'S COMMITTEE - Costa
DATE: JANUARY 12, 2004 � d G County
SUBJECT: PUBLIC ACCESS TO PT. EDITH WILDLIFE AREA THROUGH TESO O REFINERY
VIA WATERFRONT ROAD w
SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION
RECOMMENDATIONS:
1. ACKNOWLEDGE that the only weapons permitted to be fired in the Pt. Edith Wildlife Area
are those suitable for the taking of waterfowl, and those, only during the approved waterfowl
hunting season.
2. RECOGNIZE that there is evidence that high-powered rifles or handguns have been fired in
the Pt. Edith Wildlife Area bordering the Tesoro Refinery and the Concord Naval Weapons
Station.
3. RECOGNIZE that the discharge of high-powered weapons in the close proximity, and in the
direction of, facilities that produce and store highly flammable and volatile materials is
dangerous and presents an unacceptable risk to health and human safety.
CONTINUED ON ATTACHMENT: YES SIGNATURE:
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RECOMMENDATION OF COUNTY ADMINISTRATOR C- R7 60' MME�M ION OF BOARD COMMITTEE
b--AF�ROVE OTHER
SIGNATURES
LE B. M , CHAIR FEDE L D. CLOVER
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ACTION OF BOARD ON JANUARY 27, 2004 APPROVE AS RECOMMENDED X OTHER
VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A TRUE
AND CORRECT COPY OF AN ACTION TAKEN
X
UNANIMOUS(ABSENT NOM ) AND ENTERED ON THE MINUTES OF THE
BOARD OF SUPERVISORS ON THE DATE
AYES: NOES: SHOWN.
ABSENT: ABSTAIN:
ATTESTED: JANUARY 27,2004
CONTACT: JULIE ENEA(925)335-1077
JOHN SWEETEN,CLERK OF THE BOARD OF
SUPERVISORS AND COUNTY ADMINISTRATOR
CC: INTERNAL OPERATIONS COMMITTEE STAFF
COUNTY COUNSEL
HAZARDOUS MATERIALS PROGRAM MANAGER
NANCY ROSS,TESORO REFINING COMPANY
150 SOLANO WAY
MARTINEZ,CA 94553
BY ° t ` DEPUTY
...................................................................................................................I...........................I........................
..........................................................
I
Public Access to Pt. Edith Wildlife Area Through Tesoro Refinery Internal Operations Committee
Internal Operations Committee Page 2
4. ACKNOWLEDGE that prior agreements between the County and the Tosco Refining and
Marketing Company(predecessor of Tesoro) do not prohibit Tesoro from screening vehicles
or verifying the identification of persons entering Tesoro's facility, pursuant to the Marine
Transportation Security Act of 2002.
5. RECOGNIZE that the County, Tesoro, the U. S. Coast Guard, and the California
Department of Fish and Game all have responsibilities concerning public safety and security
in the vicinity of the Pt. Edith Wildlife Area, the Tesoro Refinery, and the roads and
waterways leading to these areas.
6. DETERMINE that it is in the interest of the County to help deter and prevent, to the extent
possible, security problems that may compromise health and human safety at or in areas
surrounding petrol-chemical plants and other facilities that produce and store hazardous
materials.
7. ENDORSE and PARTICIPATE in a joint effort with the Tesoro Refining Company, the U. S.
Coast Guard, and the California Department of Fish and Game to publish and distribute the
attached informational pamphlet to recreational users of the Pt. Edith Wildlife Area, via the
Tesoro Refinery-owned portion of Waterfront Road, of special rules that apply in the Pt.
Edith area.
8. THANK and COMMEND the participating agencies for the cooperation demonstrated in
studying and determining the proper response to be taken to these safety and security
concerns.
BACKGROUND:
Due to heightened security since the September 11 terrorist attack, public access to the portion
of Waterfront Road running through the Tesoro Refinery presents security concerns.
Supervisor Uilkema, in the context of appointments to the Fish & Wildlife Committee, requested
that officials from County Hazardous Materials Program, County Counsel, Office of Emergency
Services, Community Development, State Department of Fish & Game, and Tesoro Refinery
be invited to discuss the issue with the Internal Operations Committee.
The Internal Operations Committee met with the above representatives in April and was
provided photographs showing large bullet holes in the signage along the portion of Waterfront
Road that bisects the Refinery and leads to the Pt. Edith Wildlife area. The holes appear to
have been made by high-powered rifles and handguns fired in the direction of the Refinery,
presenting a danger to and around sensitive refinery equipment and chemicals.
On June 20, the Tesoro Golden Eagle Refinery hosted a staff level meeting of representatives
of the Tesoro Golden Eagle Refinery, the U. S. Coast Guard, the Concord Naval Weapons
Station, the State Department of Fish and Game, County Hazardous Materials Program,
Sheriff's Emergency Services Division, the Community Development Department, the County
Administrator's Office, and the County Counsel. The discussion helped to clarify what each
....... ......
Public Access to Pt. Edith Wildlife Area Through Tesoro Refinery Internal Operations Committee
Internal Operations Committee Page 2
agency perceived its role to be in high alert situations. A tour of the Tesoro facility, Solano and
Waterfront Roads, and the fencing and signage between the Concord Naval Weapons Station
and the refinery was also conducted. It became clear from the discussion that a thorough
analysis of the County's agreements with Tesoro's predecessor, the Tosco Refining and
Marketing Company, regarding Solano and Waterfront Roads, and the applicable federal and
state requirements, would be necessary for any further discussion to be productive. County
Counsel subsequently prepared an analysis indicating that no conflicts exist between state and
federal regulations and the County's agreement with Tesoro, and that Tesoro has responsibility
for conducting the necessary screening to deter the unauthorized introduction of dangerous
weapons or materials to the facility.
Over the last ten months, the IOC studied several additional issues pertinent to the public
safety and security concerns of the Tesoro Refinery and the Pt. Edith Wildlife Area:
♦ Woulditbe possible and advantageous for the Refinery to move its pates, and what
would be the implications of doing so? Tesoro persuaded our Committee that while
relocating its current gate would provide improved access for legitimate users of the Pt.
Edith area, it would ultimately result in uncontrolled access for others who want to enter
the area unless significant security enhancements were made along the entire perimeter
of the Refinery. The decision to relocate gates and effect other security enhancements
will ultimately be made by Tesoro, working with the U. S. Coast Guard.
Who has security clearance to access Waterfront Road during periods of heightened
security? Certain rules apply to the refinery's ability either to restrict access or to screen
individuals entering the facility, depending upon the alert level under the Marine
Transportation Security Act of 2002. Depending upon the MARSEC or marine security
level in place, Tesoro limits access and screens persons and property entering the
facility.
♦ Who absolutely needs to access to Waterfront Road during a Yellow alert? Tesoro
identified rail line employees and specified State Fish and Game personnel as the
individuals who absolutely need to access the road during a Yellow alert. In addition,
recreational users are entitled to access Pt. Edith via Waterfront Road.
♦ does the Homeland Security Act of 2002 prevail over local land use regulation during
threat levels Orange and Red? County Counsel opined that the Homeland Security Act
of 2002 does not place any limitations on local land use regulation, but emphasizes the
coordination and sharing of information among those federal agencies under its
jurisdiction, and between them and state and local law enforcement agencies.
As a result of its deliberations, the IOC decided that it would be in the best interest of the
County to participate in a public education program to help deter individuals attempting to
enter the Tesoro Refinery or the Pt. Edith Wildlife Area via the Refinery with weapons not
suitable for waterfowl hunting, or other restricted materials.
__ I _ __
Public Access to Pt. Edith Wildlife Area Through Tesoro Refinery Internal Operations Committee
Internal Operations Committee Page 2
In december and January, the IOC reviewed draft language prepared by the County Counsel,
in consultation with Tesoro, the U. S. Coast Guard, and the State Department of Fish and
Game, to be incorporated into an informational pamphlet that can be provided to persons
entering Point Edith through the Tesoro facility. The pamphlet advises persons approaching
the Main Gate at Tesoro Refinery of the following:
♦ that proper identification is required
♦ that they may be subject to screening for prohibited items including unauthorized firearms,
illegal drugs, and alcohol, as required by federal law
♦ that access to Waterfront Road may be limited during times of heightened security or a
refinery emergency
♦ of other recreational use guidelines and regulations
♦ that users are encouraged to report suspicious activities to Tesoro Security
Tesoro, the U.S. Coast Guard, and the State Department of Fish and Game have already
endorsed the pamphlet, produced by Tesoro, and logos of those agencies are included on the
pamphlet(copy attached). The Internal Operations Committee recommends that the Board of
Supervisors endorse, and approve the County's participation in, the pamphlet.
A age frb[tt
U.S.Coast Guard&Con`s Costa County
An Access Agreement between Tesoro and
Contra Costa County facilitates public access
to the Point Edith Wildlife Area. Please be
aware that nothing in the agreement prohibits
Tesoro from verifying identification or screening
vehicles for unauthorized weapons as required
by federal law. Currently our country is in
a period of heightened security awareness
resulting from terrorist attacks, and the
United States Coast Guard has implemented
regulations that Tesoro must comply with
regarding access to its refinery property.
Tesoro is required by federal law to obtain
identification for all entrants and to screen
vehicles on a prescribed frequency,Including
vehicles passing through the refinery to Point
Edith for recreational uses.
Recreational users are encouraged to assist the
facility and local law enforcement with homeland
security by reporting any suspicious activities or
individuals you observe while visiting the Point
Edith Wildlife Area. You,may report such activities
to the Tesoro gate guard,or call our Security Control
office at(925)372-3120.
!f you Have queoWns on any of the information
included in this pamphlet,please contact:
Tesoro Refining
and Markelling Co.
Nancy Ross,Security Manager
(925)3711:-33626
TESORO
#267891
RECREATION USE INFORMATION
The information contained in this card is for your safety,
as wall as the safety of others. Please respect these rules
when entering via the refinery and using the wildlife area.
• Point Edith Wildlife Area is north of Waterfront Road,east of
the levae. Do not enter other areas.
• Enter and exit via the Tesoro North Gate on Waterfront Road,
except at times when Waterfront Road is flooded. Access to
the wildlife area also may be made by boat off Suisun Say.
• The speed limit is 25 mph. Display the recreational pass on
your dashboard.
• Proper identification is required-a valid photo ID for all
entrants,and a valid driver's license for drivers.
• As required by federal lava vehicles,persons and personal
property entering via the reftnary,are subject to screening
for prohibited items,including unauthorized farms,illegal
drugs,and alcohol.
• As required by federal taw,entry via Waterfront Road to Point
Edith may be limited at times of heightened security. Entry
will also be limited during any refinery emergency.
• During hunting season,shotguns for hunting waterfowl are
allowed into the arm by recreational users. Orgy shotguns
will be allowed as described in California Department of Fish
and Game regulations.
• Do not shoot in the direction of the refinery,and be aware of
others that may be walking or driving in the Point Edith area
• California Propositrorf65 Warring for Tesoro entry. This area
contsim c hatmea s k riown to dwStab to cause carzet brrttr
defeco,or otherreptoducMe hams,
The California vapartment of Fish Gema true the fallowing
specific regrdations for the Pbkd Edith VAld lfe Area:
A) Method of take restrictions: No rifles
or pistols may be used or possessed
B) Hunt Days:Daily during open seasons
for authorized species
C} Authorized species:Waterfowl,coots
and moorhens.
D) Camping and trailers are not allowed
General regulations include the following:
• Shooting hours are one-half hour before sunrise to sunset
• No person shall damage,remove or destroy any barrier,sign,
signpost or signboard on any wildlife area.
• No person shall possess or use alcohol while in the field
hunting or engaged in other authorized recreational activities
on any State wildife area
• No person shall tamper with,damage or remove any
property.
.....................................................................................................................................................................................
Office of the County Counsel Contra Costa County
651 Pine Street, 9th Floor Phone: (925)335-1800
Martinez, CA 94553 Fax: (925)6461-1078
Date: August 22, 2003
To: Supervisors Uilkema and Glover, Internal Operations Committee
From: Silvano B. Marchesi, County Counsel
By: Lillian T. Fujii, Deputy County Cousel
Re: Point Edith Wildlife Area Access Issues
SUMMARY.
The Tesoro Refining and Marketing Company("Tesoro") is concerned that
under an agreement originally executed between the County and Tesoro's
predecessor, the Tosco Refining and Marketing Company ("Tosco"), Tesoro's ability to
comply with federal and state requirements relating to marine facility security, particular
the rules established pursuant to the Marine Transportation Security Act of 2002
("MTSA"), may be hampered.
Tesoro asserts that under applicable MTSA rules, Tesoro is required to
obtain identification of all persons presenting themselves at the Tesoro facility, for entry
into the Point Edith Wildlife Area ("Point Edith"), as well as search vehicles for illegal
weapons, and that its agreements with the County prevent Tesoro from doing so.
This office has reviewed the applicable MTSA rules as well as the
agreements between the County and Tesoro. As discussed in further detail below, we
do not believe that there is a conflict between these rules and the County/Tesoro
agreements. In particular, the County/Tesoro agreements do not prohibit Tesoro from
inspecting vehicles or verifying the identification of persons entering Tesoro's facility.
BACKGROUND AND DISCUSSION .
1. County Vacation of Solaano Way and Waterfront Road Made Possible
by County/Tesoro Memorandum of Understanding and Long Term
Access Agreement.
Prior to December 12, 1985, the Tesoro property was crossed by two public
streets, Solano Way and Waterfront Road. On December 12, 1985, the Board of
Supervisors, by Resolution No. 95/606, vacated the portions of these streets that
crossed Tesoro (at that time,Tosco)property. In order to vacate a public street, a
finding must be made that the street is unnecessary for present or prospective public
use. (Streets& Highways Code, § 8324.) The resolution vacating the street may
provide that the vacation occurs only after required conditions have been satisfied.
(ibid.)
Supervisors Uilkema and Glover, internal Operations Committee
August 22, 2003
Pa2e,2
In adopting Resolution No. 95/606 vacating portions of Solano, Way and
Waterfront Read, the Board found that the portions of Solano Way and Waterfront
Road crossing the refinery were unnecessary for present or prospective public use
once the requirements of a Memorandum of Agreement (Exhibit C to the Resolution)
between the County and Tosco were satisfied. (Exhibit C to Resolution No. 95/606 is
entitled "Memoorandum of Understanding," and not "Memorandum of Agreement.")
One of the requirements of this Memorandum of Understanding ("MOU")is
that:
Solano Way and Waterfront Road will physically remain and will
be available for use by the public during emergencies, ..., and for
access to the Point Edith Marsh in accordance with a written
Access Agreement to be approved by the Emergency Services
Director." (MOU, § 1,f.)
In other words, the requirements of the MOU, including Tosco's agreeing to
maintain the roads and providing access to the Point Edith area, allowed the Board of
Supervisors to make the findings to justify the road closures.
As required by the MOU, the County and Tosco entered a long terra access
agreement, setting forth the terms pursuant to which the refinery permits*access
through the refinery via Solaro,Way and Waterfront Road. Among the subjects
covered by the long term access agreement is access to the Point Edith area by
recreational users. As to such users, the Agreement provides:
IV. Recreational users may gain access to the Point Edith
Wildlife Area by presenting themselves at the North Gate on
Waterfront road. In the event access to the forth Gate is
impassable due to flooding conditions along Waterfront Road,
access will be allowed from the South Gate at Arnold Industrial
Highway. Conditions of access are as follows:
A. Access will be by permit only. Permittees will not be required
to sign in on a Refinery log. Access will be restricted to the
recreational areas only.
B. Access will be denied and permits will be terminated during
Refinery emergency incidents.
The MOU also calls for the County to transfer the road title documents to
Tosca (MOU, § 2.a), pursuant to which the County quitcialmed certain interests to
Tosco. (February 6, 1996 Board Carder and Resolution No. 96/51.) However, if the
Supervisors Uilkema and Glover, Internal Operations Committee
August 22, 2003
Page 3
refinery operations cease, the County has the option of reopening the,roads. (MOU §
1,c; see also, February 6, 1998 Board Order approving Resolution W. 96151.)
2. Marine Transportation Security Act Rules.
a. General.
Among the laws passed in response to the September 11, 2001 terrorist
attacks is the Maritime Transportation Security Act of 2002. ("MTSA,"'Public Law 107-
295.) The MTSA requires the issuance of interim rules, as soon as practicable, to
implement the port security section of the MTSA. To implement the MTSA, the Coast
Guard has published a series of six interim rules. (68 Fed. Reg. 39240, Background
and Purpose.)
Tesoro is most affected by interim Facility Security rules published at 33
CFR Part 105. (68 Fed. Reg. 39315.)' These rules require covered facilities to develop
security plans based on a security assessment and surveys, implement security
measures specific to the facility, and comply with Maritime Security Levels. (68 Fed.
Reg. 39315, Summary, Dates.) The purpose of these rules is to require security
measures for facilities in order to reduce the risk of, and to mitigate the results of, an
act that threatens the security of personnel, the facility, and the public. (68 Fed. Reg.
39315, discussion of Interim Rule.)2 Select requirements of Part 105 are summarized
in the following paragraphs.
Each facility owner or operator must designate a Facility Security Officer
("FSO")to have those security responsibilities outlined in the rules, such as ensuring
that a Facility Security Assessment is conducted, ensuring that a Facility Security Plan
is developed and implemented, etc. (33 CFR§ 105.205.) Facility security personnel
must be qualified, through training or experience, in general and facility-specific
security measures. (33 CFR § 105.210.) Security training is required for all (including
non-security) personnel (33 CFR§ 215), regular drills and exercises must be
conducted (105 CFR§ 220), and records must be kept for all activitiesrequired by the
rules ( 105 CFR§ 225).
b. MARSEC Levels.
A facility must comply with the Marine Security("MARSEC") level in effect
'As of the date of this memorandum, these rules are effective from July 1,
2003 through November 25, 2003.
alt is acknowledged that it is not possible to eliminate all risks. (68
" Fed.Reg. 39240, Principles of Risk. Management.)
Supervisors Uilkema and Glover, internal Operations Committee
August 22, 2003
Page 4
for the port. (33 CRF § 105.230.) MARSEC levels advise the marine community and
the public of the level of risk to the maritime elements of the national transportation
system. (33 CFR § 105.200.) Facilities required to have facility security plans (such as
Tesoro)are required to implement the measures specified In their plans for the
applicable MARSEC level. (Ibid.)
MARSEC levels are aligned with the Department of Homeland Security's
Homeland Security Advisory System, as follows:
Homeland Security Advisory MARSEC Level
System Threat Condition
Low: Green MARSEC Level 1'
Elevated: Blue
Guarded: Yellow
High. Orange MARSEC Level 2
Severe: Red MARSEC Level 3
(33 CFR § 101.205.)
c. Security Measures for Access
A key provision on security requirements for facilities such as Tesoro is 33'
CFR§ 105.255, on security measures for access. Mr. Cliff Warrick, Security Manager
for the Tesoro Golden Eagle Refinery, has provided this office with a chart outlining
specified requirements applicable to the refinery that may conflict with the requirements
of the County/Tesoro agreements. These requirements are:
105.255(a)The facility owner or operator must ensure,the
implementation of security measures to:
(1) Deter the unauthorized introduction of dangerous substances
and devices, including any device intended to damage or destroy
persons,vessels, facilities, or ports;
(3)Control access to the facility.
(e)MARSEC Level 1. The facility owner or operator must ensure
the following security measures are implemented at the facility:
(1) Screen persons, baggage (including carry-on items), personal
effects, and vehicles, including delivery vehicles for dangerous
substances and devices at the rate specified in the approved
Supervisors Uilkema and Glover, internal Operations Committee
August 22, 2003
Page 5
[Facility Security Plan];
(2)Conspicuously post signs that describe security measures
currently in effect and clearly state that:
(k) Entering the facility is deemed valid consent to screening or
inspection; and
(ik) Failure to consent or submit to screening or inspection will
result in denialor revocation of authorization to enter;
(3) Check the identification of any person seeking to enter the
facility ... .
(4) Deny or revoke a person's authorization to be on the, facility if
the person is unable or unwilling, upon the request of facility
personnel, to establish his or her identity or to account for his or
her presence. Any such incident must be reported in compliance
With this part; ... .
In addition, more restrictive measures are required under"higher" MARSEC'
levels. For example, at MARSEC Level 2, the facility must implement additional
security measures, which could include measures such as:
(3)Assigning additional personnel to guard access points and
patrol the perimeter of the facility to deter unauthorized access;
(5) Denying access to visitors who do not have a verified
destination,
(6) Deterring waterside access to the facility, which may include,
using waterborne patrols to enhance security around the facility;
3. Countf/Tesoro Contracts Do Not Prevent Tesoro from Implementing
MTSA Act Measures.
We are Informed by Mr. Warrick that Tesoro is planning nn installing an
additional gate on Waterfront Road, and will be escorting Paint Edith area users
through the Tesoro property(either manually or by electronic surveillance), to the new
gate. However,Tesoro is doncemed that the above-discussed County/Tesoro
agreements prohibit(or has been: construed to prohibit)Tesoro from obtaining the
identification of persons, or searching vehicles, entering the Point Edith area by way of
Waterfront Road.
Tesoro Interprets the above-discussed MTSA rules, as well as other marine
security requirements, as requiring Tesoro to obtain the identification, and at times,
search the vehicles, of all persons passing through the Tesoro "facility." The term
"facility"Is defined in the MTSA rules as "any'structure or facility of any kind located in,
on, under, or adjacent to any waters subject to the jurisdiction of the U.S. and used,
Supervisors Uilkema and Glover, Internal Operations Committee
August 22, 2003
Page 6
operated, or maintained by a,public or private entity, including any contiguous or
adjoining property under common ownership or operation. (33 CFR 101.105.) Strictly
construing the definition of the term "facility," it appears that the Tesoro facility includes
the territory covered by the vacated and quitclaimed portions of Solano Way and
Waterfront Road's. If the Coast Guard, as the agency responsible for enforcing these
rules, interprets the term "facility" in this fashion, the area covered by the vacated and
quitclaimed portion of Waterfront Road will be considered Tesoro facile#y, and Tesoro
would be required to obtain the identification, and at times search the vehicles, of
persons passing through Tesoro's North gate to access the Point Edith area.
However, nothing in either the County/Tesoro MOU or the current long
Term Access Agreement prohibits Tesoro from obtaining such persons' identification,
or searching such persons' vehicles.
Tesoro has expressed concern that the Long Term Access agreement has
been construed to preclude Tesoro from obtaining the identification of persons seeking
access to the Point Edith area, or searching their vehicles. Whether or not that has
been the case, such interpretation is not supported by the plain language of the
agreement. If Tesoro its obligated under MTSA rules to obtain the Identification of such
persons, or searching vehicles for illegal weapons, it is Tesoro's responsibility under
the MTSA rules to do so.
Of course, the County may consider assisting Tesoro In its relations with the
public. For example, the County could join Tesoro, to the extent reasonable, in
educating users ofthe Paint Edith Area that Tesoro is under a Coast ward 'mandate to
obtain their identification, and at times searching their vehicles.
ccs Cliff Warrick, Security Manager, Tesoro Golden Eagle Refinery
Julie Enea, Sen. Dep. County Administrator
Lewis G. Pascailli, Jr., Director, Hazardous Materials Programs
Randall Sawyer, Accidental Release Prevention Program
John Kopchlk, Community Development Department
Commander Greg Phillips, USCG
Warden Mike Buehna, Department of Fish & Came
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