HomeMy WebLinkAboutMINUTES - 04081997 - D10-D11 D.10
THE BOARD OF SUPERVISORS
CONTRA COSTA COUNTY, CALIFORNIA
Adopted this Order on April 8, 1997, by the following vote:
AYES: Supervisors Rogers, Uilkema, Gerber, Canciamilla and DeSaulnier
NOES: None
ABSENT: None
ABSTAIN: None
This being the time noticed by the Clerk of the Board of Supervisors for hearing
on the recommendations of the Contra Costa County Planning Commission on
the proposed amendment to the County General Plan for Tassajara Meadows.
(County File GP #0009-95); and on the request by Kaufinan and Broad
(Applicant and Owner) for approval to rezone a 45-acre site designated from A-
3, Heavy Agricultural to P-1, Planned Unit District and a Preliminary
Development Plan for 195 single family residential lots and a 7 acre park/school
site, DanvilleBlackhawk area. (County File #3036-95).
Dennis Barry, Community Development Department, and Mitch Avalon, Public
Works Department, presented the staffs' reports.
The hearing was opened and the following people presented testimony:
John Bayless, applicant, Kaufinan and Broad of Northern California;
Greg Miller, engineer, Carlson, Barbee & Gibson, Inc., 2000 Grown
Canyon Place, Ste 250, San Ramon;
Marilyn Miller, East Bay Municipal Utility District, 375 11th Street,
Oakland;
Laura McDaniel, 1253 Lawrence Road, Danville;
Chris Learned, San Ramon Unified School District, 3280 Crow Canyon
Road, San Ramon;
Linda Lemon, Save Our Danville Creeks, Coalition for Sensible Growth,
522 Zenith Ridge Drive.
The Board discussed the issues.
On the recommendation of Supervisor Gerber, IT IS BY THE BOARD
ORDERED that the hearing on the above matter is CONTINUED to May 6,
1997, at 3:00 p.m. in the Board's Chambers.
I hereby certify that this is a true
and correct copy of an action taken
and entered on the minutes of the Board
of Supervisors on the date shown.
ATCESTED AD it A 1997
Phil Batchelor, Clerk of the Board
of Supervisor-slarld C untyAdmi-n�isstr`ator
BY ^"."�.—""." A'I 1,
Barbara S. Gr nt„ a uty Clerk
C.C. Community Development Dept.
Kaufman& Broad of No. California
Town of Danville
Public Works Dept.
County Counsel
Contra
Costa
TO: BOARD OF SUPERVISORS
County
FROM:. HARVEY E. BRAGDON
DIRECTOR OF COMMUNITY DEVELOPMENT
DATE: April 8, 1997
SUBJECT: April 8, 1997 Hearing on the Recommendations of the County and San
Ramon Valley Regional Planning Commissions on the Proposed Tasajara
Meadows General Plan Amendment, Rezoning and Preliminary Development
Plan in the Danville/Tassajara area (Kaufman is Broad - Applicant; Sid
Corrie 4 Tom Gentry - Owners)
SPECIFIC REQUEST(S) OR RECOMMENDATION(S) h BACKGROUND AND JUSTIFICATION
RRCOMMRNDATIONS
Ontion A - County Planning Commission recommendation.
1. Certify that the Tassajara Meadows Final Environmental Impact
Report is adequate and complete, and has been prepared in
compliance with State and County CEQA Guidelines and that the
Board considered the contents of the report prior to making a
decision on this project as recommended by the Zoning
Administrator.
2. Accept the following recommendations of the County Planning
Commission as pertains to the site of approximately 45 acres:
A. Approve the General Plan Amendment (File #GP95-0009) to
redesignate the site from Agricultural Lands to Single
Family Residential - High Density and Public Semi-Public.
Direct staff to include the approved General Plan
Amendment in the next consolidated General Plan Amendment
adoption.
B. Approve the rezoning of this site from Heavy
Agricultural, A-3 to Planned Unit District, P-1; approve
Preliminary Development Plan (County File #RZ953036) to
allow up to 195 single family residential units and a
seven-acre park/school site with attached conditions;
waive reading; and set a date for adoption.
CONTINUED ON ATTACBU=t .1_ YES SIGNATURE
_ RECOMMENDATION OF COUNTY ADUMSTRATOR _ RECOMMENDATION OF BOARD COMKX --
APPROVE OTHER
SIGNATURE(Sh
ACTION OF BOARD ON APPROVED AS RECOMMMED _ OTHER _
VOTE OF SUP ISORS
I HEREBY GRATIFY THAT THIS IS A
UNANIMOUS (AB TRUE AND CORRECT COPY OF AN
AYES: HOES: ACTION TAKEN AND ENTERED ON
ABSENT: IN: MINUTES OF THE BOARD OF
SUPERVISORS ON THE DATE WN.
Contact: Bob Drake (510) 335- 4
Orig: Community Development Depart t ATTESTED
CC: Kaufman & Broad of No. Calif. PHIL 5LOR, CLERK OF
Sid Corrie & Tom Gentry OF SUPERVISORS
Town of Danville COUNTY ADMINISTRATOR
San Ramon Valley Unified School Dist.
Public Works Department DEPUTY
County Counsel
Camino 7kusi m Genera/Plan Amendment
774 Meadows Remtiny/Pw6minwy Deeaapment Pan
Kaufman&Broad of No. C&U.. W.,Sid Conis& Tom Gentry(0)
3. Adopt the attached Findings and Statement of Overriding
Considerations including the attached January 27, 1997 letter
from Environmental Science Associates, the BIR preparers, to _
the Community Development Department concluding that the BIR
adequately analyzes the potential impacts of the revised
project.
4. Modify the Commission's recommendation to the preliminary
development plan conditions of approval to include the
additional conditions in Exhibit I in order to assure
conformance with General Plan policies.
S. Adopt the Mitigation Monitoring Program.
6. Direct staff to post a Notice of Determination with the County
Clerk.
OR
nntinn B - San Ramon Valley Regional Planning Commission
recommendation.
Approve Option A above (including Items #1 - 6) , but with the
following modifications:
1. If the dedication of parkland is not consummated (e.g. ,
park/school site is used exclusively as a school site) , then
appropriate fees should be required.
2. The project shall comply with the Tri-Valley Regional Fee
requirements, if adopted by the Board of Supervisors at time
of issuance of building permits.
3. The general plan amendment should be structured such that a
larger public/semi-public site would still be compatible with
the adopted General Plan Amendment.
4. The project shall be compatible with preservation of Lawrence
Road in its existing location, subject to the review of the
Town of Danville and review and approval of the zoning
Administrator.
t
(The SRVRPC also reinforced the County Planning Commission's
position that the park/school site should be initially offered for _
use as a school site as opposed to an exclusive park site.)
FISCAL IMPACT
None.
BACKGROUND/REASONS FOR RECOMMENDATIONS
The County and San Ramon Valley Regional Planning Commissions held
joint hearings on this project. The project analyzed in the Draft
Environmental Impact Report and initially heard by the Commissions
consisted exclusively of 230 single family residential units. The
project also includes final development plan and vesting tentative
map applications.
After initial hearings, the applicant modified the plan to reduce
the number of units to 195, and to provide for a 7-acre park/school
site. The applicant also asked the County to defer further action
on proposed final development plan and tentative map applications
-2-
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CimLio Taesyara Gonorai Pian Ammdmonf
. Tho Meadows Razoni ipPmOntkary D*v&IAW f Pian
Kaufman&&rood of No. G&W.FAI;Sid Corrie&Tan Gandy(D)
until a final decision is made on the revised general plan
amendment, rezoning and preliminary development plan.
The revised plan was analyzed by the County's HIR consultants,
Environmental Science Associates, who concluded that the EIR
adequately analyses the potential impacts of the revised project.
Prior to presenting the plan to the Commissions, staff reviewed the
revised plans in meetings with staffs of the Town of Danville and
the San Ramon Valley Unified School District. The District has
provided a letter dated February 7, 1997 commending the applicant
for offering the land to the public.
Lawrence Road
Presently, Lawrence Road is the major public road serving this
area. This project is proposing to tie into a road that is being
created in the Town of Danville to the west, Jasmine Way as the
major collector road and providing access to Camino Tassajara. No
alteration of Lawrence Road is proposed in this plan. The entire
right-of-way of Lawrence Road lies within the jurisdiction of the
Town of Danville. The Town of Danville will have the exclusive
decision on whether or not to modify the design of Lawrence Road,
including the segment north of the Jasmine Way extension.
county Planning Commission-Action
On February 11, 1997, the County Planning Commission voted (5-2,
Clark & Hanicak dissenting) to support the project with some
modifications including provision that the park/school site should
first be offered to the San Ramon Valley Regional School District
for use as a school. The Commission also continued indefinitely
the hearing on the proposed final development plan and tentative
map pending Board decision on the present entitlements and
submittal of modified site plans.
San Ramon Valley Regional Pl my ning Commission Action
On February 19, 1997, the San Ramon Valley Regional Planning
Commission voted (3-1, Ayes - Neely, Mulvihill, & Gibson; Noes -
Couture) to support the recommnendation of the County Planning
Commission with some modifications.
With regards to the Commission's proposed modification to allow the
structure of the general plan public/semi-public designation to
accommodate a larger dedication, it is staff's view that a marginal
increase in the area of a dedication above the 7-acres shown on the
preliminary development plan (e.g., 10 acres) would still conform
to the proposed general plan amendment. On the other hand, if the
dedication were to increase to 21 acres, then there may be a basis
for further review as to general plan conformity.
RECENT RELATED DRCICION
At the end of last year, the Board of Supervisors approved the
Wendt Ranch project located approximately one-quarter mile to the -
east of the subject project. That approval provides for a 323-
unit residential development with a 5.4 acre park site.
REVIEW OF GROWTH MANAGEMENT PERFORMANCE yS"rANDARs
The following discussion reviews the project's conformance with
Growth Management performance standards.
-3-
Camino Tassyars Genera/Plan Amendment
The Meadows Rezoniny/Prefiminary Dewe%opment Pion
Kaufman&Broad of No. CaU.. (A);Sid Corrie& Tom Gentry(0)
Traffin - The proposed development will increase traffic volumes to
the roads and intersections in the community, however, the EIR
concluded that the traffic impacts would not decrease the level of
service at any of the 14 intersections studied in the SIR.
Accordingly, the EIR concluded that the project would not result in
any significant impacts associated with traffic volumes.
Drainage and Flood on of - Condition #43 of the Preliminary
Development Plan conditions of approval requires that the applicant
collect and convey all stormwaters entering or originating within
the project to an adequate natural or manmade watercourse. The
project also lies within the Lawrence Road Benefit District which
was formed by the Town of Danville to provide a mechanism to fund
or reimburse costs for the construction of utility systems
including drainage improvements identified in Lawrence/Leema Road
Specific Plan adopted by Danville. Among other facilities, the
benefit district will be constructing a storm drain system parallel
to Lawrence Road from the southerly project boundary to the
southerly boundary of the Lawrence/Leema Road Specific Plan Area.
The required storm pipe will vary in size from approximately 42
inches to 54 inches in diameter and will discharge into Alamo
Creek.
This project will be required to prepare a complete hydraulic
study. The drainage improvements will need to be approved by the
Danville City Engineer.
The site does not lie within a floodplain and no portion lies
within a special Flood Zone of the Federal Emergency Management
Agency. Therefore, the project has no significant risk of flood
hazard.
Other Performance standards - There are several other Growth `
Management performance standards. These other standards include
water, sanitary sewer, fire protection, public protection and parks
and recreation. To assure that these standards are met, staff is
recommending modifications to the preliminary development plan
conditions of approval as indicated in Condition #64 of Exhibit I.
MODIFICATION TO CONFORM WITH AGRICULTURAL AI. OM ATIBI TY PO •I I •S
To assure compatibility with the agricultural compatibility
policies of the General Plan Element, staff is recommending that a
condition be added to the preliminary development plan conditions
as indicated in Condition #65 of Exhibit I. The condition would
require that deed disclosure statements be recorded on the lots to
advise prospective buyers that the project is in an agricultural
area and to identify some of the agricultural activities that may
be encountered.
OTHER REQUIRED ENTITLEMENTS -
If the Board approves the current set of entitlements, the
applicant will still be required to obtain other discretionary
approvals (Final Development Plan and Tentative Map) before any
development could occur. The remaining discretionary approvals
would be heard jointly by both the County and San Ramon Valley
Regional Planning Commissions, and that hearing would be re-
noticed.
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as gE L D, I I
1. Contra
TO: BOARD OF SUPERVISORS tis Costa
p� .urr;;tlmn
FROM: HARVEY E. BRAGDON ti4o County
DIRECTOR OF COMMUNITY DEVELOPMENT ' Y
cosra -
coax
DATE: April 8, 1997
SUBJECT: Annual Compliance review for Shell Oil Company's Clean Fuels Project
(Land Use Permit #2009-92)
SPECIFIC REQUEST(S) OR RECOMMENDATIONS) & BACKGROUND AND JUSTIFICATION
RECOMMENDATIONS
1. Accept the report from the Community Development Department
Director regarding Shell Oil Company's compliance with their
land use permit conditions.
2 . Accept any public testimony regarding Shell Oil Company's
compliance with their land use permit.
3 . Find that Shell Oil:
A. Has submitted an acceptable schedule for completing
compliance with Condition #35.B. for the Hydrogen Plant;
and
B. Has submitted reports/materials that are currently being
reviewed to determine compliance with Conditions #23 ,
#24 , #35 .B. , #36.A. 1, and #36.B. 1; and
C. Is in compliance with all remaining permit conditions.
FISCAL IMPACT
None.
CONTINUED ON ATTACHMENT: X YES SIGNATURE �µ� _
RECOMMENDATION OF COUNTY ADMINISTRATOR _ RECOMMENDATION OF BOARD COMMITT E
APPROVE OTHER
SIGNATURE(S) :
ACTION OF BOARD ON April 8. 1797 APPROVED AS RECOMMENDED, x OTHER _
See Addendum for Board action and list of speakers.
VOTE OF SUPERVISORS
I HEREBY CERTIFY THAT THIS IS A
x UNANIMOUS (ABSENT TRUE AND CORRECT COPY OF AN
AYES: NOES: ACTION TAKEN AND ENTERED ON THE
ABSENT: ABSTAIN: MINUTES OF THE BOARD OF
SUPERVISORS ON THE DATE SHOWN.
Contact:Debya Sanderson (335-1208)
Orig: Community Development Department ATTESTED April 8, 1997
cc: Community Development Department
Shell Oil (via CDD) PHIL BATCHELOR, CLERK OF
THE BOARD OF SUPERVISORS
CO TY ADMINISTRATOR
BY A. ' , DEPUTY
2 .
BACKGROUND/REASONS FOR RECOMMENDATIONS
On March 18, 1997 , the Board opened this public hearing and
accepted public testimony on Shell's Annual Compliance Review for
its Clean Fuels Project. The Board asked questions concerning the
County's practice of treating Shell's hazards and operability
studies (HAZOPS) as trade secret and continued the hearing to
April 8 , 1997 . This Board Order supplements that prepared for
March 18, 1997 and provides additional information explaining the
Community Development Department and Health Services Departments'
review process for HAZOPS to determine Shell's compliance with its
Land Use Permit Conditions of Approval #22 and #23 . The
recommendations listed above are unchanged from the March 18, 1997
Board Order.
A. Summary of Permit Requirements:
Conditions #22 and #23 of Shell's Clean Fuels Project Land Use
Permit (County File LUP922009) require Shell to prepare and
implement hazard and operability studies and accident
consequence analyses.
Condition #22 requires Shell to complete a hazard and
operability study and accident consequence analysis and to
submit it to County Health Services Department for review and
to the County Zoning Administrator for review and approval.
If the study finds significant impacts, then the study must
identify controls to reduce these impacts. If the controls
are not sufficient to reduce significant impacts, then the
applicant consults with County Health Services to identify
feasible changes to further reduce risks of accidents.
Condition #23 requires the applicant to demonstrate to the
satisfaction of the Health Services Department that the
measures detailed in the approved hazard and operability
study have been implemented.
B. Review Protocol for Shell's Hazards and Operability Studies
(HAZOPS)
Shortly after the County issued Shell's Clean Fuels Project
Permit (October, 1993) , staff from Health Services Department
and Community Development Department established a
cooperative administrative protocol to review and accept
Shell's HAZOPS (Condition #22) and to verify Shell's
successful completion of the adopted control measures
(Condition #23) .
At that time, HAZOPs prepared for the County's Risk Management
Prevention Program were classified as trade secret by state
statute, and Health Services Department had developed a
procedure for reviewing them at the business location, rather
than having them sent to their offices. Health Services
Department staff utilized this procedure in order to ensure
the confidentiality of the trade secrets. Health Services
staff also had extensive technical expertise evaluating
HAZOPS.
To administer Condition 22 and 23 , Community Development
Department Staff sought to develop a review process that was
consistent with existing County, state and federal
procedures for handling HAZOPS and to utilize the technical
expertise within the Health Services Department. The review
process utilized for these conditions is consistent with
Health Services Department's procedures for reviewing HAZOPS
prepared for the Risk Management Prevention Program (RMPP)
(now Risk Management Program (RMP) ) . Under this protocol,
Shell submits a detailed summary to the two Departments,
Health Services Department staff review the full HAZOPS at
3 .
the refinery, and subsequent recommendations by both
departments are based on their findings. The HAZOPS are held
by Shell at the refinery, but the HAZOPS and all supporting
documentation are readily available for review by the Health
Services and Community Development Departments' staff, as well
as the County Zoning Administrator.
See the March 27, 1997 memo by the Health Services
Department, explaining in more detail that Department's trade
secret policy concerning HAZOPS. (Exhibit A)
The HAZOPS review and approval process for Shell's Land Use
Permit is as follows:
1. Initial Public Information: Prior to start up of each
unit, Shell submits a "HAZOPS Summary" for a unit nearing
completion, which both departments review. The Summary
lists all mitigation measures (control measures)
recommended by the HAZOPS for this unit. It also
includes (1) a process description, (2) process flow
diagrams, (3) the study objectives, (4) a list of HAZOPS
team members and their qualifications, (4) general
safeguards, and (5) safeguards specific to the unit
being studied.
2 . Technical Review (Condition #22) : Technical staff from
Health Services Department review the full HAZOPS and
additional supporting information on-site at the
refinery, and, when appropriate, notify Community
Development Department (1) that the HAZOPS is complete,
(2) what additional controls measures are needed (if
any) , and (3) recommend acceptance of the HAZOPS.
3 . Public Comment and Board Ratification (Condition #22) :
Community Development Department staff review and
confirm this recommendation, schedule the item for a
Zoning Administrator Study Session and for the Board of
Supervisor's consent calendar, and notify approximately
60 interested individuals of these two meetings. (See
Exhibit B, "Shell Noticing Labels". ) The notice describes
the public's opportunity to receive information and to
comment at these meetings. The Zoning Administrator
accepts any public comment, and recommends or denies
acceptance of the HAZOPS. Board ratification confirms
the Zoning Administrator's decision.
4 . Technical Review (Condition #23) : Once a HAZOP has been
accepted, the unit built, and control measures
completed, Shell notifies Health Services Department
technical staff. They conduct a second technical review
on-site to confirm satisfactory completion of all HAZAOP
requirements. Again, Health Services Department
notifies Community Development Department upon
satisfactory completion of this Condition.
5. Public Comment and Board Ratification (Condition #23) :
Community Development Department staff follow the same
procedures as for Condition 22 - i.e. , providing written
notice to interested individuals and scheduling two
public meetings (Zoning Administrator Study Session,
Board of Supervisor's Consent Calendar) for public
comment. The process concludes with Board ratification
of the Zoning Administrator's recommendation that the
control measures have been successfully completed.
4 .
C. HAZOPS Experiences
To date, the Department has reviewed and accepted HAZOPS for
twenty-two project units and storage facilities - i.e. , all
of those constructed to date for the Clean Fuels Project.
The last HAZOPS was received January 11, 1996 and compliance
was ratified by the Board on June 11, 1996 . The Board has
ratified compliance with Condition 22 and 23 for all of these
units, with one minor exception (i.e. , one of three pentane
streams into one storage facility, for Condition 23) .
The Community Development Department has distributed more
than a dozen public notices inviting public comment on the
County's review of these HAZOPS. Our noticing list includes
those who have ever expressed interest in the status of the
Clean Fuels Project (see Exhibit B) . The County has
conducted 15 study sessions and 15 Board of Supervisors
meetings on the County's review of these HAZOPS under the Land
Use Permit and of Shell's completion of control measures. In
two years, we have processed only two or three requests for
information concerning HAZOPS in response to our notices.
The HAZOP summaries were provided. The Department has
received no public comment at any of these Study Sessions
concerning ratification of compliance with Conditions #22 or
#23 . None of these items was ever pulled from the Board's
Consent Calendar. Thus, despite very broad noticing over a
two year period to the individuals who have expressed concern
in the Shell Clean Fuels Project, no one until now has ever
chosen to comment either on our review process or on the
substance of our decisions.
ADDENDUM TO ITEM D. 11
APRIL 8, 1997
On March 18 , 1997, the Board of Supervisors continued to
this date the hearing on the Shell Martinez Refining Company
(applicant and Owner) , County File #LP 2009-92 .
Debbie Sanderson, Community Development Department,
presented the staff report .
Lewis Pascalli, Health Services Department, spoke on the
issue of the hazardous ops study.
The following persons presented testimony:
Keith Howard, 1333 N. California Boulevard, Walnut Creek,
representing Shell Martinez Refining Company;
Lizanne Reynolds, Adams and Broadwell, 651 Gateway
Boulevard, Suite 900, South San Francisco, representing Contra
Costa County Building and Construction Trades Council .
The Board discussed the matter.
Supervisor Uilkema moved approval of the staff
recommendation.
Supervisor Canciamilla seconded the motion.
IT IS BY THE BOARD ORDERED that recommendation 1, 2 , and 3 are
APPROVED.
EXHIBIT A
Contra Costa County awmWIIwMOD` Health Services Department MAR 3 11997
ENVIRONMENTAL HEALTH DIVISION �q NNQOAUF�
OCCUPATIONAL HEALTH/HAZARDOUS MATERIALS
Date: 3/27/97
To: Lew Pascalli
cc, Debbie Sanderson Vi Westman, Lillian Fujii, Dr,William Walker
From: Randy Sawyer
RE: The Risk Management Program's Policy for Handling HazOps and Trade Secret Information
The Risk Management and Prevention Program Team has developed a policy for handling trade secret
information(see attachment). We have also handled Hazard and Operability Studies(HazOps),which
are prepared by the different facilities,as trade secret infomration. Our basis for handling HazOps as
trade secret comes from theAisk Management and Prevention Program legislation as stated in the
Health and Safety Code:
. . Information collected pursuant to subdivision(d)of Section 25534 shall not be disclosed
by the administering agency except as provided in§25511."Chapter 6.95 Article 2§25� ✓
"The RMPP shall be based upon an assessment of the processes, operations, and
procedures of the business,and shall consider all of the following: (1) The results of a hazard
and operability study. . ."§25534(d)
"Upon receipt of a request for the release of information to the public which includes
information which the handler has notified the administering agency is a trade secret pursuant
to subdivision(a), the administering agency shall notify the handler in writing of the request by
certified mail, return receipt requested. The administering agency shall release the information
to the public, but not earlier than 30 days after the date of mailing the notice of the request for
information, unless,prior to the expiration of the 30-day period, the handler files an action in an
appropriate court for a declaratoryjudgement that the information is subject to protection under
subdivision(b)or for an injunction prohibifing disclosure of the information to the public and
promptly notifes the administering agency of that action. This section does not permit a
handler to refuse to disclose the information required pursuant to this chapter to the
administering agency."§25511 (c)
From these sections in the Health and Safety Code the legislature stated that the HazOps should be
treated as trade secret information. It has been our policy not to take any trade secret information that
a facility has generated from that facility. The facility is required to allow us access to any technical
information for the review of the RMPP.
"In reviewing an RMPP pursuant to subdivision(a)of§25535, the administering agency may
have access to and review all technical information in the handlers possession which is
reasonably necessary to allow the administering agency to make a determination regarding
the sufficiency of the RMPP. . ."§25534.5
03/27/97 .�. Page 2 of 3
The Risk Management Program's Policy for Handling Trade Secret Information
In reviewing a facility's RMPP we have always have had access to the HazOps at the facility. We have
been able to review these documents without having to remove them from the facility. We do not have
HazOps in our offices.
This is the way that we have handled HazOps under the RMPP. As of January 1, 1997 the RMPP has
been repealed and replaced with the Risk Management Program(RMP). The facility is still required to
grant access to the administering agency to the technical information for compliance with the RMP:
"The administering agency with jurisdiction over a stationary source or facility may have
access to inspect the stationary source and review all technical and other information in the
stationary source's possession which is reasonably necessary to allow the administering
agency to make a determination regarding the source's compliance with this article. . ."
§25534.5
There is a difference on how we are required to handle trade secret information.
"Except as other wise specked in this section, the administering agency shall not disclose any
property substantiated trade secret which is so designated by the owner or operator of a
stationary source." §25538(b) Any information prohibited from disclosure pursuant to anv
federal statute or regulation shall not be disclosed." §25538(e)(emphasis added)
§25538(g)goes on and explains how we are to release information to the public:
°Upon receipt of a request for the release of information to the public which includes
information which the stationary source has notified the administering agency is a trade secret
pursuant to subdivision(a), the administering agency shall notify the stationary source in
writing of the request by certified mail, return receipt requested. The owner or operator of the
stationary source shall have 30 days from receipt of the notification to provide the
administering agency with any materials or information intended to supplement the information
submitted pursuant to subdivision(a)and needed to substantiate the claim of trade secret.
The administering agency shall review the claim of trade secret and shall determine whether
the claim is properly substantiated."§25538(g) (1)
The difference between the handling of trade secret information under the RMP and the RMPP is that if
the administering agency determines that the information is trade secret(after being substantiated by
the stationary source)they are not to release the information. While under the RMPP the facility was
required to go to court to stop the release of the information.
What does the EPA consider Confidential Business Information and trade secrets? This is important to
us since we are prohibited from releasing any information that is prohibited from disclosure under any
federal or state statute or regulation.
"Reasons of business confidentiality include the concept of trade secrecy and other related
legal concepts which give(or may give)a business the right to perceive the confidentiality of
business information and to limit its use or disclosure by others in order that the business may
obtain or retain business advantages it derives from its rights in the information. The definition
is meant to encompass any concept which authorizes a Federal agency to withhold business
information under 5 U.S.C. 552(b)(4), as well as any concept which requires EPA to withhold
information from the public for the benefit of a business under 18 U.S.C. 1905 or any of the
various statutes cited in§2.301-§2.309."40 CFR Part 2 Subpart B§2.201 (e)
t
3/26/97 Page 3 of 3
The Risk Management Program's Policy for Handling HazOps and Trade Secret Information
"Business confidentiality claim(or simply, claim)means a claim or allegation that business
information is entitled to confidential treatment for reasons of business confidentiality, or a
request for a determination that such information is entitled to such treatment"40 CFR Part 2
Subpart B§2.201 (h)
"Substantive criteria for use in confidentiality determination. . . (e)(1) The business has
satisfactorily show that disclosure of the information is likely to cause substantial harm to the
business competitive position."40 CFR Part 2 Subpart B§2.208
Defense of FOIA suits,participation by affected business. . . (a)In making final confidentiality
determination under this subpart, the EPA legal once relies to a large extent upon the
information furnished by the affected business to substantiate its claim of confidentiality. The
EPA legal once may be unable to verify the accuracy of much of the information submitted by
the affected business."40 CFR Part 2 Subpart B§2.214
Our Trade Secret Policy also quotes State legislation as to what is considered trade secret. From the
above information I believe that we have a good argument as to why we handle HazOps as we do. I
have talked with Shell and told them that they will need to show why their HazOps would be considered
trade secret.
If you have any questions, please let me know.
RLS
Attachments
APPENDIX G
POLICY FOR MANAGING TRADE SECRETS
I
1. INTRODUCTION
California law guarantees the administering agency access to all information necessary to
1 determine whether a Risk Management and Prevention Program(RMPP) is sufficient. Often,this
results in the review of trade secret information at the facility. Although trade secret company
documents are not removed from the facility site, RMPP staff may record trade secret information
in field notes. Also,the facility may be required to submit trade secret information to Contra
Costa County Health Services Department(CCCHSD),which must be managed in accordance
with the requirements of the law.
The law also mandates protection for all trade secrets reviewed throughout the RMPP process.
CCCHSD has established the following policy for protecting trade secrets.
II. CONTACT
All questions and correspondence regarding this policy should be addressed to the administering
agency for the RMPP:
Contra Costa Health Services Department
Hazardous Materials Section
4333 Pacheco Boulevard
Martinez, CA 94533
Attention: RMPP Team
RMPP Specialists may be reached for consultation at(510) 646 - 2286.
This policy will be reviewed a minimum of every two years and revised as necessary.
This c has been ap ed by:
w'o (
Deputy Director Date
effective date: 2/2/96
l
10/31/96 page 141
III. TRADE SECRET DEFINITION
In accordance with Health and Safety Code §§25511(a) and 25538(a), the term"trade secret"has
the meanings given to it by Government Code Section 6254.7(d) and Evidence Code Section
1060. According to Government Code Section 6254.7(d):
"'Trade secrets'... may include, but are not limited to any formula,plan,pattern,process,
tool, mechanism, compounds,procedure,production data, or compilation of information
which is not patented, which is known only to certain individuals within a commercial
concern who are using it to fabricate,produce, or compound an article of trade or a
service having commercial value and which gives its user an opportunity to obtain a
business advantage over competitors who do not know or use it. "
Evidence Code §1060 refers to Civil Code §3426.1(d), or Penal Code §499c(a)(9). Subdivision
(d) of Civil Code §3426.1 provides:
"Trade secret" means information, including a formula,pattern, compilation,program,
device, method, technique, or process, that:
(1) Derives independent economic value, actual or potential,from not being
generally known to the public or to other persons who can obtain economic value from its
disclosure or use; and
(2) Is the subject of efforts that are reasonable under the circumstances to
maintain its secrecy.
Subsection (a)(9) of Penal Code §499(e)provides:
"Trade secret" means the whole or any portion or phase of any scientific or technical
information, design,process,procedure,formula, computer program or information
stored in a computer, information in transit, or improvement which is secret and is not
generally available to the public, and which gives one who uses it an advantage over
competitors who do not know of or use the trade secret; and a trade secret shall be
presumed to be secret when the owner thereof takes measures to prevent it from becoming
available to persons other than those selected by the owner to have access thereto for
limited purposes.
1
10/31196 page 142
�i
rr IV. ADMINISTERING AGENCY ACCESS TO TRADE SECRET INFORMATION
1�
Pursuant to Health& Safety Code §25534.5, the administering agency (CCCHSD) is authorized
1 to review technical information related to the RMPP, even if that information is considered trade
secret. Claims of trade secrecy do not constitute grounds for withholding information from the
administering agency(H&SC §§25511(c)and 25538(f)).
Documents which are typically examined in order to assess the process, operations, and
procedures at the facility include hazard and operability studies,piping and instrumentation
diagrams,process flow diagrams, energy and material balances, operating manuals and
1' procedures,plot plans,preventative maintenance records,training programs and records,
emergency response procedures, incident investigation records, sample permits, equipment design
i specifications, safety valve and instrumentation design specifications,process control and
I interlock descriptions,piping classifications, seismic evaluations and other information as needed.
RMPP staff also interview management regarding implementation of the various programs
related to risk management and process safety.
The administering agency is responsible for protecting trade secret information, as described later
in this policy.
V. TRADE SECRET DESIGNATION
Only information properly designated as such will be treated as trade secret. If the information
submitted to the administering agency is considered trade secret,the facility is responsible for
providing the information and notifying the administering agency in writing that the information
is considered trade secret. H&SC § 25538(a) states:
"If a business believes that any information required to be reported by this article,
involves the release of a trade secret, the business shall provide the information to the
administering agency and shall notify the administering agency in writing of that belief.
.... As used in this section, "trade secret" has the same meaning as found in subdivision
(d) of Section 6254.7 of the Government Code and Section 1060 of the Evidence Code"
(H&SC§25538(a)). H&SC §2551 l(a)provides very similar language.
It is necessary when reviewing complex technical reports to maintain notes in order to ensure a
thorough review. These notes may contain trade secret information regarding the process,
operations,procedures,hazard and operability studies,etc. Upon written request by the facility,
j CCCHSD will designate all such field notes as"TRADE SECRET."
1
10/31/96 page 143
VI. MANAGEMENT AND PROTECTION OF TRADE SECRET INFORMATION
A. DOCUMENT HANDLING
The administering agency is responsible for managing trade secret information in a way that
protects it from disclosure:
25511. (b) "Subject to this section, the administering agency shall protect from disclosure
any trade secret designated as such by the handler. "
25538. (a) ... Upon receipt of a claim of trade secret related to an RMPP, the
administering agency shall review the claim and shall segregate properly substantiated
trade secret information from information which shall be made available to the public
upon request in accordance with the California Public Records Act. . . .
(b) Except as otherwise specified in this section, the administering agency shall not
disclose any properly substantiated trade secret which is so designated by the owner or
operator of a business.
CCCHSD has established the following protocols for the protection of trade secret information
from public disclosure.
1. Facilities are encouraged to state information in the Risk Management and Prevention
Program, the Off-Site'Consequence Analysis and the Seismic Evaluation in a manner that
provides the pertinent facts without compromising trade secrets.
2. Trade secret documents such as the hazard and operability studies and piping and
instrumentation diagrams are maintained on-site by the facility. Simplified process flow
diagrams and summaries of the hazard and operability study methodology and results of
the hazard and operability study are required in the public document and should, if
possible, be provided in a way that does not require trade secret designation.
3. CCCHSD will segregate all notes and other writings containing information which has
been designated"TRADE SECRET'by the facility and maintain them in a secure
location. This information will not be released to the public or other agencies except as
described in the following sections.
4. Facilities which have undergone RMPP review prior to the effective date of this policy
should notify CCCHSD in writing of any trade secret information which may have been
collected. If desired by the facility, CCCHSD will make the RMPP records available to
enable the facility to identify any trade secret information maintained in those records.
The most appropriate times for this review would be following the initial Notice of 9�
Findings or after the RMPP has been accepted. (See Attachment 1.)
B. PUBLIC DISCLOSURE
The protocol for responding to public requests for information regarding the Risk Management I
and Prevention Program is as follows:
10/31/96 page 144
I r
1. Specific record requests which do not involve trade secret information(e.g., RMPP public
documents) will be handled in accordance with established procedures.
2. a. Public records requests for trade secret information collected pursuant to H&SC
§25534(d) (i.e., an assessment of the processes,operations, and procedures of the business,
the results of the Hazard and Operability Studies,and the Off-Site Consequence Analyses)
shall be handled in accordance with Health and Safety Code §25511(c). Upon receipt of a
specific request for information which has been designated"TRADE SECRET"by the
facility, CCCHSD shall confirm the request and notify the facility in writing of the
request by certified mail,return receipt requested. CCCHSD will also endeavor to notify
the facility of the request by telephone. CCCHSD will make the records in question
available for facility review upon request.
CCCHSD will also notify the person(s)requesting the information that the trade secret
information has been withheld pending the outcome of the 30 day waiting period
1 described in 2(b).
b. Within 30 days after CCCHSD's mailing of the notice of the request for information,
the facility must file an action in an appropriate court for a declaratory judgment that the
information is subject to trade secret protection or for an injunction prohibiting disclosure
of the information to the public. The facility must notify CCCHSD in writing of the filing
of the action. Notification by facsimile transmission received at(510) 646-2073 is
acceptable. If such notification is not received, CCCHSD will release the information on
1 the 31 st day after the date of mailing the notice of the request for information.
3. a. Upon receipt of a specific'request for general information(such as the Acutely
' Hazardous Material (AHM)registration form)which has been designated"TRADE
SECRET" by the facility, CCCHSD shall review the information to verify that it is
properly substantiated trade secret information. If CCCHSD is satisfied that the
information is trade secret, the information will not be disclosed to the public.
"General" information would be information related to the RMPP program but not
specifically collected pursuant to H&SC §25534(d).
1 In order to "substantiate"information as trade secret,the facility should describe the
information, explain why the information gives the one who uses it an advantage over
competitors who do not know of the trade secret,and tell what measures are taken to
1 prevent it from becoming available to persons other than those selected by the owner to
have access to the information for limited purposes.
b. If CCCHSD is unable to determine whether the information is properly substantiated
trade secret information, it shall notify the facility in writing of the notice/determination
by certified mail,return receipt requested. CCCHSD will make the records in question
available for facility review upon request.
1 c. Within 30 days after CCCHSD's mailing of the determination,the facility must supply
such information as is necessary to substantiate its claim of trade secret. If CCCHSD is
satisfied that the information is trade secret,the information will not be disclosed to the
public.
10/31/96 page 145
d. If CCCHSD is still not able to determine whether the information is properly
substantiated trade secret information, it shall notify the facility in writing by certified
mail, return receipt requested. Within 30 days after CCCHSD's mailing of its
determination,the facility must file an action in an appropriate court for a declaratory
judgment that the information is subject to trade secret protection or for an injunction
prohibiting disclosure of the information. The facility should notify CCCHSD in writing
of that action. Otherwise, CCCHSD shall release the information in question to the
public, but no earlier than 31 days after the date of mailing of its determination.
C. INTER-AGENCY DISCLOSURE
The Health and Safety Code provides for the disclosure of trade secret information to government
officials or employees, including contractors, physicians, fire, emergency and county health
personnel only in connection with the official duties of that person for the protection of health and
safety (H&SC §2551l(d) and 25538(c)).
It is not anticipated that any information held by CCCHSD that could be necessary for the
protection of health and/or safety would be considered trade secret. However, CCCHSD has
established the following policy regarding the release of trade secret information to other
government agencies or physicians.
1. If the information is requested by fire and emergency response personnel, other county
health personnel, an employee or contractor for the county or city, the state, or the United
States, in connection with their official duties, and that information is considered
necessary for the protection of health and safety, CCCHSD will disclose that information.
CCCHSD will also provide a description of the requirements for protecting trade secret
information and the penalties for willfully disclosing that information.
CCCHSD will promptly notify the facility in writing of the disclosure, including the
information disclosed,the person(s) receiving the information, and the purpose of the
information.
2. If the information is not considered necessary for the protection of health and safety,the
request will be processed in accordance with the public disclosure procedure described '
previously.
10/31/96 page 146 '
ATTACHMENT 1
CONTRA COST COUNTY HEALTH SERVICES DEPARTMENT (CCCHSD)
RISK MANAGEMENT AND PREVENTION PROGRAM (RMPP)
TRADE SECRET INFORMATION REVIEW
Public Disclosure
Public records requests for trade secret information shall be handled in accordance with the procedure
described in Health and Safety Code §25511(c):
"Upon receipt of a request for the release of information to the public which includes information
which the handler has notified the administering agency is a trade secret pursuant to subdivision
(a)[and information collected pursuant to§25534(d)], the administering agency shall notify the
handler in writing of the request by certified mail,return receipt requested. The administering
agency shall release the information to the public, but not earlier than 30 days after the date of
mailing the notice of the request for information, unless prior to the expiration of the 30-day
period, the handler files an action in an appropriate court for a declaratory judgment that the
information is subject to protection under subdivision (b) or for an injunction prohibiting
disclosure of the information to the public and promptly notifies the administering agency of that
action. This section does not permit a handler to refuse to disclose the information required
pursuant to this chapter to the administering agency.
Inter-Agency Disclosure
CCCHSD has established the following policy regarding the release of trade secret information to other
government agencies or physicians:
1. If the information is requested by fire and emergency personnel, other county health personnel„
employee or contractor for the county or city,the state, or the United States, in connection with
their official duties,and that information is considered necessary for the protection of health and
safety,CCCHSD will disclose that information, in accordance with Health and Safety Code
§25538 (c). CCCHSD will also provide a description of the requirements for protecting trade
secret information and the penalties for willfully disclosing that information. CCCHSD will
promptly notify the facility in writing of the disclosure, including the information disclosed,the
person(s)receiving the information, and the purpose of the information. (Note: We do not
anticipate that any information held by CCCHSD that is necessary for the protection of health
and/or safety will be considered trade secret.)
2. If the information is not considered necessary for the protection of health and safety,the request
will be processed in accordance with the public disclosure procedure described above.
I,the undersigned, have reviewed the CCCHSD Trade Secret Policy,and the facility-specific information
in the CCCHSD Risk Management and Prevention Program files. I have identified and designated Trade
Secret information contained in these files.
sigwlum offaciiiry mpmsemalire/dale T-i1ily
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sigiwwm ofCCCNSD MDT mpm.,e w meldwl
10/31/96 page 147
EXHIBIT B
SHELL, NOTICING LABELS Floyd Ferris Keith Howard
10 Via Estrella 1333 North Calif. Blvd. 9450
JA4MSHELL.LAB Martinez, CA 94553 Walnut Creek, CA 94596
Maria Goodman Richard Duncan Gilford Wilson
3331 Brookside Drive 1229 Escobar Street 3400 Joshua Woods Place
Martinez, CA 94553 Martinez, CA 94553 Concord, CA 94518
Joel Harmon City of Martinez
Steve Roberti 6363 San Felipe St., Apt 362 525 Henrietta Street
525 Green Street Houston, Tx 77057-2701 Martinez, CA 94553
Martinez, CA 94553
Ed Swieszcz A.B. McNabney Dean Simeroth
Shell Oil Company 1161 Leisure Lane#7 2020 L Street
P.O. Box 711 Walnut Creek, CA 94595 Sacramento, CA 95813
Martinez, CA 94553
A.V. Ted Price Weldon Theobald Greg Karras
3402 Sentinel Drive 2475 Holly Oak Drive 500 Howard St., #506
Martinez, CA 94553 Danville, CA 94506 San Francisco, CA 94105
Bill Drury Bruce Batinich Dave Olund
825 Escobar Street 1550 Gladding Court 2305 Lafayette Drive
Martinez, CA 94553 Milpitas, CA 95035 Antioch, CA 94509
Dorothy Sakazaki John Sparacino Jeff Teather
737 Central Avenue 314 Escobar Street 50 Beale Street
Martinez, CA 94553 Martinez, CA 94553 San Francisco, CA 94119
Mitchell Babcock Russell J. Miller Jeffrey R. Dodge
107 Margie Drive 23 St Julie Court PO Box 308
Pleasant Hill, CA 94523 Pleasant Hill, CA 94523 Martinez, CA 94553
Timothy J. Holz Gary Canepa Rick Jones
P.O. Box 3727 3431 Brookside Drive 1865 Pacheco Blvd.
Danville, CA 94526 Martinez, CA 94553 Martinez, CA 94553-1940
Don Stover Ron Espinoza Tom Seymour
2605 Francis Drive 305 Sunnyslopes Drive 2818 Kay Avenue
Pinole, CA 94564 Martinez, CA 94553 Concord, CA 94520
Keith Monckton Mary Raftery Diana Patrick
825 Vine Avenue 926 J Street#713 Box 1086
Martinez, CA 94553 Sacramento, CA 95812 Martinez, CA 94553
Kerry Gleeson Doyle Williams Julian Frazer
337 Christie Drive 1030 Shary Court 2415 Alhambra Avenue
Martinez, CA 94553 Concord, CA 94520 Martinez, CA 94553
Diane Berg Nathalie Jones Winton Jones
724 Marina Vista 1949 Arnold Industrial Way 1949 Arnold Industrial Way
Martinez, CA 94553 Concord, CA 94520 Concord, CA 94520
Julia May Greg Streblow Joseph Mancino
500 Howard St., #506 P.O. Box 208 147 Village Place
San Francisco, CA 94105 Martinez, CA 94553 Martinez, CA 94553
John Jolley Ray Trujillo Carol Youngman
5712 Drakes Drive 1785 Landana Drive 5534 Likins Avenue
Byron, CA 94514 Concord, CA 94519 Martinez, CA 94553
Carmelo Carone Bob Gotelli Tina Van Arsdale
1160 Harbor View Drive 2471 Olive Street 1303 Roseann Drive
Martinez, CA 94553 Martinez, CA 94553 Martinez, CA 9453
Carl Lemlbke Ralph Sattler& Celinda Cathy Ivers
Sprinler Filters 483 1204 Ulfinian Way 321 ""G" Street
23314 Cabot Blvd. Martinez, CA 94553 Martinez, CA 94553
Hayward, CA 94545
Cynthia McPeak Fred Barry — Greg Feere
3140 Ricks Avenue Go Jacobs Eng 935 Alhambra Ave.
Martinez, CA 9453 2530 Arnold Drive Martinez, CA 94553
Martinez, CA 94553-4359
Gary Miles Michael A. Leedie Maxine Goodmacher
865 Howe Road 919 Chanslor Avenue 1721 Alhambra Avenue
Martinez, CA 94553 Richmond, CA 94801 Martinez, CA 94553
Michael M. Levine Denny Larson Lisa Strickland
1721 Alhambra Avenue 500 Howard St., #506 Adams & Broadwell
Martinez, CA 94553 San Francisco, CA 94105 651 Gateway Blvd., Ste 900
So. San Francisco, CA 94080