HomeMy WebLinkAboutMINUTES - 06271995 - D11 TO: BOARD OF SUPERVISORS � COrltra
Costa
FROM: HARVEY E. BRAGDON
DIRECTOR OF COMMUNITY DEVELOPMENT COJMY
DATE : June 27, 1995
SUBJECT: UNOCAL BOARD REFERRAL OF JUNE 19, 1995
SPECIFIC REQUEST(S) OR RECOMMENDATIONS) & BACKGROUND .AND JUSTIFICATION
RECOMMENDATIONS
Accept the report from the Director of Community Development on
potential non-compliance issues related to the recent Unocal tank
fire.
FISCAL IMPACT
None .
BACKGROUND/REASONS FOR RECOMMENDATIONS
Unocal received a land use permit for the construction of their
Reformulated Gasoline Project. This was the first land use permit
required for the facility. The existing facility was constructed
during a time when land use permits were not required. The
Reformulated Gasoline Project has been in construction since
December of 1994, and no project units have been brought on line.
The tank fire was not one of the tanks which was constructed as
part of the Reformulated Gasoline Project, and there is no
construction activity in the vicinity of this tank. Based on these
facts and the conditions of the land use permit, there is o cause
to initiate revocation proceedings for Unocal ' s o ulated
Gasoline Project land use permit.
CONTINUED ON ATTACHMENT: YES SIGNAT
RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION O OARD COMMITTEE
APPROVE OTHER
S I GNATURE (S)
ACTION OF BOARD ON /y APPROVED AS RECOMMENDED �� OTHER X
SEE ADDENDUM FOR BOARD ACTION
VOTE OF SUPERVISORS
I HEREBY CERTIFY THAT THIS IS A
UNANIMOUS (ABSENT TRUE AND CORRECT COPY OF AN
AYES: � TT / NOES: ACTION TAKEN AND ENTERED ON THE
ABSENT: ABSTAIN: MINUTES OF THE BOARD OF
SUPERVISORS ON THE DATE SHOWN.
Contact: Catherine Kutsuris 510/646-2036) ATTESTED ,,
cc: Community Development Department (CDD) '§ML BATCHELOR, CLERK OF
Health Services THE BOARD OF SUPERVISORS
County Counsel AND COUNTY ADMINISTRATOR
BY Q �, DEPUTY
CEK: drb �
CEK1995/drb\bo\Unoca1
Unocal Board Referral
June 27, 1995
Page Two
Unocal' s land use permit includes a number of conditions related to
risk of upset. These include requiring the submittal of Hazard
and Operability/Accident Consequence studies, and the submittal of
the management process for internal and external notification and
handling of any potential upset conditions . The recent tank fire
incident will be considered when evaluating the safety of the new
Reformulated Gasoline tanks .
ADDENDUM
June 27,1995; Agenda Item D.11
As requested by the Board of Supervisors on Jame 20, 1995,the Board considered the reports submitted
by the Director of Community Development,District Attorney,County Counsel,and the Director of the Health
Services Department on the recent Unocal tank fire. Following staff presentations,the Chair invited those desiring
to speak on this matter to come forward,and the following persons spoke:
Jeff Wilkes, 1380 San Pablo Avenue,Rodeo;
Denny Larson,Citizens for a Better Environment(CBE),500 Howard Street,#506,San Francisco 94105;
Donald R.Brown,Oil,Chemical and Atomic Workers Union, 1801 Sonoma Boulevard,#117,Vallejo;
Greg Feere,Contra Costa Building Trades Council,935 Alhambra Avenue,Martinez;
Ruth Blakdney,Shoreline Environmental Alliance,405 Loring Avenue,Crockett;
Andy Mechling,428 Winslow,Crockett;
John Wolfe,Contra Costa Taxpayers' Association,820 Main Street,Martinez;
Loren Freeman, 11072 San Pablo Avenue,El Cerrito;
Dennis Rolley,2158 Vista Del Rio,Crockett;and
Linda Triglin, 1350 Fifth Street,Rodeo.
All persons desiring to speak were heard. The Board discussed the reports and issues of concern voiced
by the speakers. Noting that the Unocal facility and its impact on the community was in Supervisorial District II,
Supervisor Smith advised that he would like additional time to review the reports and develop recommendations
for the Board to consider.
THEREFORE,IT IS BY THE BOARD ORDERED that the reports of the Director of Community
Development,District Attorney,County Counsel,and Health Services Director are hereby ACCEPTED.
IT IS FURTHER ORDERED that the public testimony presented this day is also ACCEPTED.
Thereupon,Supervisor Smith advised that he would be presenting his recommendations on this matter to
the Board at the July 11, 1995,Board Meeting.
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Gary T.Yancey
Office of District Attorney Contra District Attorney
Court House, Fourth Floor Costa
P.O. Box 670
Martinez,California 94553-0150 County
(510)646-4500
SF. L
TO: Board of Supervisors
FROM: Gary T. Yancey, District Attorney
by Lauren R. Wixson, Deputy Di Atto ey
DATE: June 22, 1995
RE: Board's request to explore possible criminal proceedings
against Unocal to stop repeated violations
Various Penal Code and Civil Code provisions deal with public nuisances in general.
However, the Health and Safety Code has specific provisions dealing with air
emissions which cause a public nuisance. In most cases, if a specific statutory
provision is available to prosecutors, that section, rather than a more general section,
must be used. This memo will focus on those Health and Safety Code provisions
pertaining only to air emissions.
Health and Safety Code section 41700 provides in pertinent part that "no person
shall discharge from any source whatsoever such quantities of air contaminants or
other material which cause injury, detriment, nuisance, or annoyance to any
considerable number of persons or to the public, or which endanger the comfort,
repose, health, or safety of any such persons or the public, or which cause, or have a
natural tendency to cause, injury or damage to business or property."
Health and Safety Code section 42400 provides that any violation of"this part"
(which includes section 41700) is a misdemeanor punishable (as is Penal Code
section 372) by a fine of up to $1,000 and/or a jail sentence of up to six months.
Health and Safety Code section 42400.1 provides that anyone who "negligently emits
an air contaminant in violation of any provision of this part..." (again, section 41700)
is guilty of a misdemeanor which is punishable by a fine of up to $15,000 and/or a
jail sentence of up to nine months. In a criminal case filed under any of the sections
1
mentioned above(including the Penal Code section), there is an automatic penalty
assessment of 170% which is added to any fine assessed.
Pursuant to sections 42402 through 42402.3 of the Health and Safety Code, either
the air district, the district attorney, or both jointly, may file an action in superior
court seeking civil penalties for air emissions which create a public nuisance. The
prosecution's burden of proof in a civil action is less than that required in a criminal
proceeding. Further, the statute provides that a criminal action may not go forward if
civil penalties are recovered and that a civil proceeding must be dismissed in the
event of the filing of a criminal complaint. For these reasons, our office works closely
with the air district with respect to coordinating penalty actions in cases in which
there is a public nuisance.
The question is whether "criminal negligence proceedings" can be used to "stop
repeated violations". The short answer is no. However, proceedings brought
pursuant to Health and Safety Code section 42400.1 for negligent emission of air
contaminants in violation of section 41700 can provide an incentive to the company
to operate safely without impacting the community.
The other issue, which wasn't asked directly, is whether Unocal can be shut down by
any other means. It is clear that the mere operation of Unocal is not a public
nuisance as defined in the Penal Code or the Health and Safety Code. The day to
day operation of the refinery is neither "injurious to health" or "offensive to the
senses" under Penal Code section 370, nor does the refinery, on a daily basis, emit air
contaminants which cause "injury", "annoyance", or "nuisance" to a "considerable
number of persons or the public" pursuant to Health and Safety Code section 41700.
There have been approximately three incidents since September 6 of last year which
are arguably public nuisance violations pursuant to section 41700 and air district
regulations. This number appears to be well in excess of Unocal's historical record
over the last ten years. Of course, three is still three too many. However, this record,
even over the period from September 6, does not support the proposition that the
operation of the facility on a daily basis is a public nuisance.
In any event, section 3482 of the Civil Code explicitly provides that "[n]othing which
is done or maintained under the express authority of a statute can be deemed a
nuisance." The facility has permits from the air district to operate all its sources of
air contaminants, and therefore has "express authority" to operate. The only thing it
may not do in such operation is create a public nuisance.
2
In conclusion, this office will continue to work in cooperation with the air district
and county health to investigate any public nuisance air violations attributable to
Unocal. We will, where appropriate, file criminal charges or civil actions against
Unocal or a combination of the two.
3
ti
D11
COUNTY COUNSEL'S OFF/CE
CONTRA COSTA COUNTY
MARTINEZ, CALIFORNIA
Dace: June 26, 1995
To: Board of Supervisors
From: Victor J. Westman County Counsel
Re: Unocal Refinery, Rodeo Area
On June 20, 1995, at the request of Supervisor Smith, the Board of Supervisors
received information and heard testimony regarding recent events at the Unocal Refinery in
Rodeo, following which the Board requested reports from the Health Services Department,
County Counsel and Community Development Department. This report is to supplement the
Health Services Department's report to be made in this matter and generally addresses
jurisdictional public agencies and officials as follows:
I. Bay Area Air Quality Management District.
A. General. Health and Safety Code Section 41700 prohibits the
discharge of air contaminants as defined in Health and Safety Code Section 39013.
Sections 39013 and 41700 provide, in pertinent part, as follows:
"39103. 'Air contaminant' or 'air pollutant' means any
discharge, release or other propagation into the atmosphere and
includes, but is not limited to, smoke ..., fumes, gases, odors, ... or
any combination thereof'.
"41700. ... [N]o person shall discharge from any source
whatsoever such quantities of air contaminants ... which cause injury,
detriment, nuisance, or annoyance to any considerable number of
persons or to the public, or which endanger the comfort, repose,
health or safety of any such persons or the public ..."
B. Where a discharge of air contaminants or air pollution has occurred as
covered by Health and Safety Code §§ 39013 and 41700 (see above), the District may
initiate the following enforcement actions:
G ,y
Board of Supervisors 2 June 23 , 1995
1. Criminal Prosecution. Any person who violates the provisions of
section 41700 or any applicable state or District regulation or order is guilty of a
misdemeanor and subject to prosecution (H.&S.C. § 42400).
2. Civil Penalties. Any person who negligently emits an air
contaminant in violation of section 41700 or any applicable rule, regulation or order of the
state or the District can be liable for a civil penalty not to exceed $15,000 for each day in
which the violation occurs. (H.&S.C. § 42402.1)
Any person who knowingly emits an air contaminant in violation of section 41700 or
any applicable rule, regulation or order of the state or the District can be liable for a civil
penalty not to exceed $25,000 for each day in which the violation occurs. (H.&S.C., §
42402.2.)
If any state or local governmental agency assists in the investigation, data
collection monitoring, or preparation of an action to recover civil penalties, and that
assistance is provided in coordination with the state board or a district prosecuting the action,
that agency shall be reimbursed out of the proceeds of the penalty collected for its costs and
expenses incurred in providing the assistance. If the penalty is insufficient to reimburse all
agencies, the penalty is prorated on the basis of costs and expenses incurred.
3. Nuisance Abatement. The District Board (or the District's Hearing Board)
may, after notice and hearing, issue an order for abatement whenever it finds any person is
operating machinery or equipment in violation of Health and Safety Code Section 41700 or
any order, rule or regulation prohibiting or limiting the discharge of air contaminants into the
air (H.&S.C. §§ 42450, 42451.) If, after the issuance of any such District abatement order,
compliance is not made with it, the District may initiate an action in superior court to enjoin
such person who has violated its order (H.&S.C. § 42453).
II. Other Procedures.
A. Criminal Prosecution. Unless punishment is otherwise prescribed, the
remedy of criminal action is available against persons who maintain or commit any public
nuisance since they are guilty of a misdemeanor. (Penal Code § 372 & CCP § 3491.)
B. Public Nuisance Abatement.
1. General. California statutes provide that suits can be instituted
on behalf of the People of the State of California to enjoin as a nuisance the objectionable
activities causing obnoxious fumes and odors. However, before such a proceeding can be
commenced, it is necessary to determine whether a nuisance, in fact, exists. In California,
nuisances are statutory. Civil Code §§ 3479, 3480, and 3481 generally define what activities
Board of Supervisors 3 June 23 , 1995
constitute nuisances. Civil Code § 3479, in part, states:
"[A]nything which is injurious to health, or is indecent or
offensive to the senses, or an obstruction to the.free use of
property, so as to interfere with the comfortable enjoyment of
life or property, ... is a nuisance."
Section 3480 defines as a public nuisance, a nuisance which affects an entire
community or neighborhood.
The standard which a court applies to determine whether activities are, in fact, a
nuisance is one of reasonableness, i.e., do they unreasonably interfere with the comfortable
use and enjoyment of the surrounding property. When an activity is a nuisance, its
abatement can be attempted through injunctive relief. The fact that the nuisance complained
of may be intermittent rather than constant does not prevent the consideration of an
injunction to abate it. (36 Cal.Jur. 532.)
Government Code Section 26528 provides that county district attorneys may, and
as directed by the board of supervisors, bring a civil action in the name.of the People to
abate a public nuisance in the County. Code of Civil Procedure § 731 contains similar
wording.
2. Limitations on Right to Abate Public Nuisances. Industrial activities are not a
nuisance per se, especially in an area zoned for industrial use. However, if obnoxious odors
resulting from such activity fall within the statutory definition (Civil Code §§ 3479 & 3480) are
unreasonably offensive to the senses so as to interfere with the comfortable enjoyment of life
or property, and there is evidence of unreasonable and injurious methods of operation, such
odors would then be a public nuisance subject to abatement (CCP §§ 731 & 731 a).
It should be noted that for the institution of an abatement injunction action, it will be
necessary to obtain ample testimony as to the facts of community harm, damage, and
discomfort which resulted from the activities questioned, and even expert testimony on such
aspects as plant utilization, design and layout and machinery operation. It should be
anticipated that the assembling of such testimony could be expensive. .
3. Private Remedies. It should be pointed out that subject to the limitations of CCP
section 731 a, any private person who is specially injured by industrial refinery activity has
i
Board of Supervisors 4 June 23 , 1995
have the right to maintain an action for injunction in that person's own name (CCP § 731).
Furthermore, apart from their right to injunctive relief, persons harmed by improper industrial
activities have a right to sue for damages to compensate them for any harm done.
LTF:df
cc: District Attorney's Office
Health Services Dept.
Community Dev. Dept.
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JON-23-1995 17:19 HEALTH SERUICES ADMIN. 518 378 5098 P.01iO4
_. Contra Costa County , f
r Health Services Department
o't r;l;r,it
William B. Walker, M.D.
Medical Director and
- County Health Officer
TO: BOARD OF SUPERVISORS
FROM: William B. Walker, M.D.
Health Officer
DATE: June 22, 1995
SUBJECT: RECENT UNOCAL TANK FIRE
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
The following is the report requested by the Board of Supervisors on June 20, 1995 concerning
the June 16, 1995 tank fire and any outstanding non-compliance issues under the purview of the
Health Services Department Hazardous Materials Programs.
Unocal Tank Fire June 16, 1995
At approximately 3:20 p.m. on June 16, 1995, the Hazardous Materials Programs Incident
Response Team received a call from Mr. Dale Iverson of Unocal stating that they were
experiencing a fire and smoke in a naphtha storage tank. The tank has a volume of 100
thousand barrels or 4.2 million gallons. The tank was approximately 1/4 full (22,500 barrels)
with a reported approximately 2' (3,000 barrels) of cracked naphtha and 9' (19,500 barrels) of
sour water.
Naphtha is a petroleum-based product with a National Fire Protection Association classification
of slight health hazard, high flammability and little or no reactivity. No acutely hazardous
materials were involved.
By 3:25 p.m. Incident Response Team staff members were dispatched to both Unocal and
surrounding communities to report any off-site impacts. The winds were reported from the
scene to be stable at 280 degrees (i.e., blowing from slightly north of due west) at 5-8 mph
throughout the course of the event.
The Department Operation Center (DOC) was fully operational by 3:40 p.m. Drs. Walker and
Brunner reported shortly thereafter.
We obtained wind direction and speed :From Unocal and our field staff to assess potential smoke
impacts on the community. By all indications, it was apparent that the smoke was going up well
over the land areas, but drifting upwards toward Unocal notification zones 1 and 2. Using the
information available, the DOC decided to activate the Community Alert Network (CAN) in
20 Allen Street• Martinez,CA 94553• (510)370-5010 Office•(510)370-5098 FAX
A.428 (9/91)
JUN-23-1995 17 20 HEALTH SERUICES ADMIN. 510 370 5095 P.02/04
Tormey and Crockett. A notification and alert message was transmitted starting at 4:03 p.m.
Staff reported from the site that the Petrochemical Mutual Aid Organization (PMAO) had been
activated with some units on scene at 4:25 p.m. Water and foam were being applied to the fire.
Other staff reported from Crockett and surrounding areas that no smoke or odors from the fire
where observed in the community. By 4:50 p.m., our staff at the Unocal Emergency Operating
Center reported that the fire was 95% contained and the smoke virtually stopped.
At 5:50 p.m., the fire was declared out. We requested a 72-hour report from Unocal. No
smoke, residue, or odors were observable in the surrounding community. The Health
Department DOC declared an "all clear" at 6:00 p.m. and a CAN message was dispatched.
On Saturday, June 17, 1995 and Sunday, June 18, 1995, Health Department Incident Response
Team staff were in the community responding to calls concerning odors from the citizens of
Crockett. Staff detected strong odors at I-80 and Cummings Skyway and occasional odors in
Crockett. Wind conditions were variable.
Unocal reported that they were still applying foam to the tank in an attempt to mitigate the
odors. Staff reported that Unocal would be emptying the tank after they developed a safety
work plan.
We contacted the BAAQMD during the weekend and exchanged information. On Saturday,
June 17, 1995 at 4:15 p.m., the BAAQMD said they had received 17 odor complaint calls and
were investigating them.
On Monday, June 19, 1995, Health Department and other agencies' staff attended a Unocal
Unocal briefing on the tank fire. Unocal presented the 72 hour report we had requested on
Friday. The 34 page report is preliminary and gives the Health Department basic information
concerning the background to the incident; timeframes of notification and incidents; a post-event
action plan; the tank 288 seal repair safety work plan; wind data; the industrial hygiene
monitoring plan and Industrial monitoring results; and a copy of Unocal's informational letter
to the community.
The root cause of the fire is unknown at this time. Unocal initiated its own investigation
immediately, and is ongoing. Unocal is being investigated by the District Attorney's Office, the
Health Services Department and the Bay Area Air Quality Management District.
Initial review of Unocal's timely notification to the Health Services Department; their response
to the fire; the communications Unocal maintained during the process; the notification to the
medical community; and the contents of their 72 hour report, finds no non-compliance issues
or violations of the laws we administer that resulted from the June 16, 1995 Unocal tank fire.
We continue our investigation and review of the procedures Unocal reported using in replacing
the tank 288 seal.
JUN-23-1995 17:21 HEALTH SERVICES ADMIN. 510 370 5098 P.03iO4
Medical Follow Up
Dr. Brunner spoke with Dr. Adam Duhan, the Medical Director of the Good Neighbor Clinic
in Crockett to find out what health problems patients came there with as a result of the fire and
consequent odors. Dr. Duhan said that people had a variety of respiratory and gastrointestinal
complaints that both he and Dr. Brunner agreed were consistent with complaints associated with
foul odors, Dr. Duhan also reported that many patients had anxiety reactions. This would be
expected given that the Crockett community had been subject to another Unocal release, with
all the associated uncertainties and concerns about potential toxic impacts.
Status of Unocal's Hazardous Materials Program
While reviewing the Unocal information available for this report, staff had an opportunity to
review the status of Unocal's Hazardous Materials Program inspections and its Risk Management
and Prevention Program. A summary of each program follows.
Risk Management and Preventiou_Program (RMPP)
In 1990, Unocal submitted to us an RMPP which included an Off-Site Consequence Analysis
(OSCA). The chemical engineers who administer the RMPP Program completed a detailed on-
site inspection of the Unocal RMPP and all supporting technical documents in June, 1992. As
a result of our review, we requested a number of changes to the,document and a few program
changes. Unocal revised its RMPP and OSCA documents and submitted those revisions to our
office in August, 1992. The revised program was accepted as complete by the Hazardous
Materials Division in January, 1993.
All mitigations that resulted from the technical studies associated with the Risk Management and
Prevention Program were completed by the Refinery by February, 1992. All additional
mitigations requested by our office that resulted from our on-site review were completed by
August, 1992. As of this date, there are no outstanding issues with the RMPP.
This fall we will conduct the three (3) year review of the Unocal RMPP as required by law.
AB 2185/89 Sara Title J T Business Plan
On August, 1994 staff spent three days inspecting the Unocal Refinery under the AB 2185
regulations. The inspection was coordinated with the California Department of Toxic Substances
Control (DTSC). Violations were found by Health Department staff which were corrected
during the inspection. The DTSC staff found six violations, the most significant of which was
that Unocal's lab had been treating its hazardous waste without a permit or authorization.
None of the violations found during this inspection involved tank 288 where the fire occurred.
J)JN-23-1995 17:21 HEALTH SERVICES ADMIN. 510 370 5098 P.04r04
Y
Underground Storage Tank and Hazardous Waste Generator
Violations noted during inspection of Unocal's facility for these above programs in 1993 were
noted and were corrected within 30 days and did not involve tank 288.
SB 14 Po11_ution Prevention Plan
In October, 1994 staff reviewed Unocal's Pollution Prevention Program. Three waste streams
were reviewed with no violations noted. Unocal has reduced its waste stream by 50% since
1987. No issues relate to tank 288.
The staff from the Hazardous Materials Program are available to answer any questions.
LP:cbc
cc: Community Development
District Attorney
County Counsel
County Administrator's Office
TOTAL P.04