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HomeMy WebLinkAboutMINUTES - 03212000 - D4 TO: BOARD OF SUPERVISORS � �" Contra FROM: DENNIS M. BARRY, AICD Costa COMMUNITY DEVELOPMENT DIRECTOR _ County DATE: MARCH 21, 1999 SUBJECT: ADOPTION OF A NEGATIVE DECLARATION AND RE ADOPTION OF THE CONTRA COSTA COUNTY INDUSTRIAL SAFETY ORDINANCE (ORDINANCE 9848) WITH AMENDMENTS. COUNTY FILE ##Z1008614 SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION RECOMMENDATIONS 1. ACCEPT public testimony On the proposed Negative Declaration for this project and on the recommendations concerning amendments to Ordinance 98-48; 2. ADOPT a motion, consistent with the County Planning Commission Resolution No. 34-1999, to: • adopt the Negative Declaration for this project, • decline to adopt the Items 7(a), (b) and (c), as presented for consideration in the Stipulated Judgment, as amendments to Ordinance 98-48, and CONTINUED ON ATTACHMENT: X YES SIGNATURE " RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTE APPROVE OTHER SIGNATURES : ACTION OF BOARD ON_ March 21 , 2000 APPROVED AS RECOMMENDED XX OTHER XX SEE THE ATTACHED ADDENDUM FOR BOARD ACTION AND VOTE VOTE SUPERVISORS I HEREBY CERTIFY THAT THIS IS A TRUE AND UN (MOUS(ABSENT } CORRECT COPY OF AN ACTION TAKEN AND AYES: NOES: ENTERED ON THE MINUTES OF THE BOARD OF ABSENT: ABSTAI - SUPERVISORS ON THE DATE SHOWN Contact: Debbie S d on(925)335-1208 ATTESTED March 21 , 2000 cc: CAO PHIL BATCHELOR, CLERK OF THE BOARD OF County C nsel SUPERVISORS AND COUNTY ADMININISTRATOR Health rvices/Hazardous aterials Ric d Drury, CBE (CDD) C BY ,DEPUTY Date 3/21/00 Board of Supervisors File#Z1008614/0rd.98-48 Page 2 3. INTRODUCE the attached Industrial Safety Ordinance incorporating proposed modifications to Chapter 450-8, clarifying information requirements and access to outside grants; 4. WAIVE reading and set a date for adoption; and 5. ADOPT the findings contained in Resolution No. 34-1999 as the basis for the action by the Board of Supervisors. FISCAL IMPACT Adoption of the Ordinance as recommended by the County Planning Commission will not have any substantial fiscal impact on the General Fund. Staff costs associated with the implementation would be paid through application fees. BACKGROUND/REASONS FOR RECOMMENDATIONS: A. Background On April 8, 1999, Contra Costa County and Communities for a Better Environment entered into a Stipulated Judgment to resolve litigation over the adoption of the Industrial Safety Ordinance (Ordinance 98-48). To comply with the requirements of this order, the Board of Supervisors needs to take at least three actions prior to April 8, 2000: 1. Adopt CEQA documentation of this project, 2. Re-adopt Ordinance 98-48, and 3. Vote on the suggested amendments to Ordinance 98-48 (as described in Section 7 of the Stipulated Judgment.) On October 26, 199, the County Planning Commission (CPC) opened a public hearing on recommendations to the Board of Supervisors for its consideration concerning these three items. The CPC accepted public testimony and continued the open public hearing to December 14, 1999, The Staff Report for the October 26, 1999 County Planning Commission meeting presents a brief summary of the regulatory background for this item. On December 14, 1999, the County Planning Commission accepted additional testimony and considered an additional staff recommendation for minor modifications clarifying Ordinance 98-48. In a vote of four to one, the CPC adopted staff recommendations (with one minor modification) to the Board of Supervisors. These recommendations are now being brought before the Board of Supervisors for consideration and action. Date 3/21/00 Board of Supervisors File#ZI008614/Ord. 98-48 Page 3 Items 4 through 8 of the Stipulated Judgment obligate the County to complete various tasks. The October 26, 1999 Staff Report summarizes these requirements; a copy of the judgment has been included in the Board's pre-meeting packet. County Planning Commission Staff Reports of October 26, 1999 and December 14, 1999 include detailed discussions of actions taken to comply with the Stipulated Judgment. The Board of Supervisor's pre-meeting package includes the following documents as background materials. These materials were also sent to the Board of Supervisors on February 11, 2000 to provide additional review time, with two changes: enclosure D includes Ordinance 98-48, with underline/strikethrough for the proposed minor modification; enclosure G includes a new letter from Communities for a Better Environment, dated February 9, 2000). A. Initial Study and Proposed Negative Declaration B. Notices of Public Review and Intent to Adopt a Proposed Negative Declaration. C. Stipulated Judgment, Civil No. C99-00094 D. Draft Industrial Safety Ordinance (Ordinance 98-48) with proposed minor modifications. E. Staff Report, County Planning Commission, October 26, 1999 F. Staff Report, County Planning Commission, December 14, 1999 G. Comment Letters (Received throughout the review process. Includes letter received from Communities for a Better Environment on February 9, 2000). B. Negative Declaration: Staff conducted CEQA analysis of (1) the adoption of Ordinance 98-48 and (2) four amendments to that Ordinance, as described in the Stipulated Judgment, Items 7(a), (b), and (c). As presented in detail in the Initial Study, County staff found no substantial evidence that any aspect of the project might cause a potential significant adverse impact to the physical environment. Consistent with CEQA Guidelines, Section 15063(b)(2), staff has prepared a Negative Declaration for adoption. C. Consideration of Options in the Stipulated Judgment: 1. Option 7(a): Expand County Authority to Require Changes at a Stationary Source: Description: This option would amend Chapter 450-8 to allow the Health Services Department to require a facility to implement some change —either technical or managerial — in its facility operations in order to promote public health and/or safety. These changes would be in addition to those necessary for the Safety Program to comply with the requirements of Chapter 450-8. r Date 3/21100 Board of Supervisors File#ZI008614lord. 98-48 Page 4 Issues: Proponents of this change perceive that additional authority would allow the County to mandate important changes to improve health and safety that otherwise would not be allowed through Safety Program or Safety Plan reviews (See letters from Communities for a Better Environment). Opponents of this change express concern that such authority would create unacceptable levels of risk for the County, and that the immunity from liability would not apply in this case. Response: The staff's primary objection to this option centers on anticipated increased exposure to liability for the County should it order changes in facility operations that are (1) not derived from the County's review of a Safety Program and (2) not supported by the Stationary Source. Staff concludes, that the County would not enjoy immunity from liability for these actions, since these actions would not derive from a state mandated program. Staff further concludes that the liability exposure created would be excessive, placing at risk other County programs designed to protect public health and safety. Thus staff recommends that the Board of Supervisors decline to adopt this option. Proposed clarifying language (See Item D below) would help ensure that the information provided by a Stationary Source when rejecting a recommended action would be sufficient for the County to determine whether the rejection is valid. 2. Consideration of Caption 7(b): Establish a Technical Assistance Grants Programs Description: This option would fund Technical Assistance Grants at $100,000 per year for community organizations to hire technical experts to assist community groups with analysis of the Safety Plans submitted by industrial facility operators. Issues: The primary issues include whether the $100,000 amount is excessive, and whether the funds would come from General Revenue or could be assessed against the Stationary Source. Response: The County probably could not assess fees on the affected Stationary Sources to cover the costs of these grants because the nexus required by Government Code Section 66000, et. seq. could not be demonstrated. Thus, these grants would have to be funded through general fund revenue or grants from outside organizations. Staff concludes that the amount of money is excessive in relation to the task to be performed and to other competing health and safety needs dependent on County general revenue. Staff recommends that the Board of Supervisors decline to adopt Option 2. 27 Late 3/21/00 Board of Supervisors Pile#z1008614/Ord. 98-48 Page 5 Proposed Clarifying Language_ (see Item D below) would help facilitate the County's ability to acquire grants from outside sources to support the technical assistance grant program. This language would also assure that individuals and/or groups of indivuduals would have access to technical assistance, even if they are not "community groups." 3.&4: Consideration of Option 7(c): Lower Hazard Thresholds Description: These options would amend Chapter 84-63 by lowering the hazard score thresholds from 80 to either 60 or to 70, for requiring a Land Use Permit. Issues: One issue is whether the County has had sufficient experience with the current thresholds to provide guidance on what changes would be helpful. Over the course of discussions with the Interested Parties, the focus on these options diminished considerably. Response: Staff has little analytic support to identify a new threshold for the hazard score. The current hazard score threshold (80) has been in effect for about a year. Staff cannot at this time demonstrate sufficient experience with the current thresholds to justify changing them, and each change imposes a cost and disruption on the private sector's business planning efforts. Staff recommends that the Board of Supervisors decline to adopt either Option 3 or 4. There is no recommended clarifying language for this option. D. Minor modifications clarifying the application of Chapter 460-8: Through discussions with the interested parties, staff developed the following three minor modifications to Chapter 450-8 that clarify certain items in the section of the Code. The first two changes, Paragraphs A and B below, have been added to clarify the concept "feasible" and to ensure that the County could require sufficient information of a Stationary Source to draw its own independent conclusion whether a rejected recommendation is "financially infeasible." These two changes involve no revisions in the existing text of Chapter 450-8, but provide additional clarifying language. A. Section 450-8.016 (D)(3): Add the following language to the end of paragraph, clarifying what information is required of a Stationary Source when presenting the feasibility of Inherently Safer Systems. Date 3/21/00 Board of Supervisors File#ZI008614/Ord. 98-48 Page 6 "This documentation shall include (1) sufficient evidence to demonstrate to the County's satisfaction that implementing this inherently safer system is impractical, and(2) the reasons for this conclusion. A claim of"financial infeasibility"shall not be based solely on evidence of reduced profits or increased costs, but rather shall include evidence that the financial impacts would be sufficiently severe to render the inherently safer system as impractical.." B. Section 450-8.016 (D)(4): Insert the following language at the end of the first sentence of this paragraph, clarifying what information is required as concerns implementing process hazard analysis recommendations: "Any documentation justifying a decision not to implement a process hazard analysis recommended action shall include (1) sufficient evidence to demonstrate to the County's satisfaction that implementing this action is impractical, and (2) the reasons for this conclusion. A claim of "financial infeasibility" shall not be based solely on evidence of reduced profits or increased costs, but rather shall include evidence that the Financial impacts would be sufficiently severe to render the improvement as impractical." The proposed clarifying language in paragraph C below is designed to remove any doubt whether the County can receive grants or outside funds to support the technical assistance program. It also seeks to clarify that individuals, not just formal community organizations, may be the recipients of this assistance. C. Substitute the following language for the last sentence in Section 450-8.022, clarifying authority to receive outside funding for community technical assistance grants: "The ombudsperson may retain appropriate technical experts in order to fulfill technical assistance requests from members of the public. The cost of experts may be funded through programs established by the U.S. EPA or other appropriate entities." Staff has prepared a draft ordinance incorporating the three minor modifications presented immediately above. This -draft or-ainance has been included in the Board of Supervisor's pre-meeting package. dam: ADDENDUM TO ITEM DA March 21, 2000 Agenda This is the time noticed by the Clerk of the Board of Supervisors for a hearing on the recommendation and findings of the Contra Costa County Planning Commission pertaining to the proposed modification and re-adoption of the Industrial Safety Ordinance, (Ordinance 98-48), Chapters 450-8 and Chapters 84-63 of the County Ordinance Code. Dennis Barry, Community Development Department Director,presented the staff report and recommendations. He noted that the County staff worked cooperatively with the City of Richmond which considered adopting a similar Ordinance with respect to Chapter 450-8 and their permitting processes under their planning statutes. In reviewing the staffs recommendations, Mr. Barry advised the Board that in Recommendation No. 4, the date set for re-adoption(dependent on Board approval of the amended Ordinance) is March 28, 2000. Mr. Barry recommended that the Board direct staff to file a Notice of Determination with the County Clerk, if they approve the staffs recommendations. Present at the hearing were: William Walker, M.D.,Director of Health Services; Victor Westman, County Counsel; Silvano Marchesi, Assistant County Counsel; Diana Silver, Deputy County Counsel; Elinor Blake, Executive Assistant, Hazardous Materials Commission; and Debbie Sanderson, Special Projects Planner, Community Development Department. Public comment was opened, and the following people appeared to speak: Simone Brown, Kids Against Environmental Pollution/Communities for a Better Environment, Bayo Vista; Beatrice Wong, Communities for a Better Environment, 500 Howard St., Ste 506, San Francisco; Denny Larson, Communities for a Better Environment, 500 Howard St., Ste 506, San Francisco; and Jim Payne, P.O. Box 349,PACE Local 8-5, Martinez. The Board discussed the issues. Supervisor Canciamilla moved to allow discussion of County Counsel's proposed amendments to Chapter 450-8 on the Board's agenda this day, since the memorandum was received after the agenda was posted. (See the attached memorandum). Supervisor DeSaulnier seconded the motion. The vote on the motion was as follows: AYES: SUPERVISORS GIOIA,UILKEMA,DeSAULNIER,CANCIAMILLA and GERBER NOES: NONE ABSENT: NONE ABSTAIN: NONE Supervisor Canciamilla moved to adopt staffs recommendations as modified by County Counsel's memorandum dated March 20, 2000. Supervisor DeSaulnier seconded the motion. The Board continued to discuss the matter. Mr. Bang, in response to an inquiry from Supervisor Gioia, noted that the Health Services Department is required under the existing Ordinance to present a status and implementation report to the Board of Supervisors each October. 1 I -.-7 Following further discussion, Supervisor Gerber proposed to Supervisors Canciamilla and DeSaulnier that they accept the changes as suggested by County Counsel in the Ordinance, and they accept a modification to staff s recommendations. Item 7(a) deals with the County having the authority to require, on the recommendation of the Health Services Department, inherently safer mechanisms and systems. Supervisor Gerber noted that since this has been raised largely as a legal issue, and the Board was advised not to make those requirements, she suggested the Board request an opinion from the California Attorney General's office to answer that question. The Chair suggested that County Counsel frame a question to the State Attorney General's Office, the responsive opinion would be issued for free. This could provide the Board of Supervisors with a prudent mechanism for due diligence regarding the legal question. If the Board were willing to refer this item to the Attorney General's office, she stated she would support the motion and the Board would have a unanimous vote. The Ordinance would be in effect, and the Board could consider the information when it returns from the State Attorney General's Office. As the maker of the motion, Supervisor Canciamilla advised he had no objection to including a request for a response from the Attorney General. Supervisor DeSaulnier indicated that he did not have any problem with that change in the motion. He stated his concerns were not just with liability issues,but practical enforcement. He noted it would be his preference to introduce the Ordinance today, and rather than a second reading next week, allow time between now and the second reading to get the opinion from the Attorney General. Supervisor Canciamilla indicated he was not prepared to delay the second reading in accepting Supervisor Gerber's suggested amendment. He said the Board had waited long enough for this matter to go forward. He said that he would accept the request for the Attomey General's opinion, and he shared Supervisor DeSaulnier's concerns as to whether or not the Board needed to move forward with modifying the Ordinance, even if it weren't for the legal liability. Supervisor Canciamilla stated he had a number of questions about this issue,not just those about inherently safer systems. Therefore, the Attorney General's answer would not change his feelings about what the Board does with that section. He did not want to hold this matter up any longer. The Board needs to move forward with this, and adopt the Ordinance. The Attorney General's Office is being asked an opinion and to define public sector liability when the Board is imposing regulations on an industrial facility, that is not going to be an easy question. Supervisor DeSaulnier stated he was fine with going ahead today, and as much as the Board looks forward to getting the Attorney General's opinion, that doesn't indemnify the County from a court disagreeing with him. Supervisor Gioia noted that was an important statement. Attorney General's opinions are not legally binding on the court. Supervisor Gerber advised the Board that for that them to go forward without some kind of significant due diligence and legal opinion on this issue would be less than desirable. Supervisor Canciamilla called the question. Supervisor Uilkema requested the final motion be repeated. Supervisor Canciamilla restated the motion which was to adopt the staffs recommendations as modified by County Counsel's memo of March 20, 2000, and further to include a request of staff to prepare an opinion request from the Attorney General's Office on the question of clarifying County liability under Section 7 (a). Supervisor Uilkema inquired if the motion included that the Ordinance was set for hearing on March 28, 2000. Supervisor Canciamilla stated that it was. Supervisor Gioia inquired if a legislator had to present the question to the Attorney General. Silvano Marchesi, Assistant County Counsel, advised the Board that the Attorney General can respond to questions from the County. 2 7 7 The Board continued to discuss the matter. Following the discussion, Supervisor Uilkema again called the question. The vote on the motion was as follows: AYES: SUPERVISORS GIOIA,UILKEMA,OeSAULNIER,CANCIAMILLA and GERBER NOES: NONE ABSENT: NONE ABSTAIN: NONE 3 Office of the County Counsel Contra Costa County 651 Pine Street, 9th Floor Phone: (925)335-1800 Martinez, CA 94553Fax (925)646-1078 Crate: March 20, 2000 f To: Board of Supervisors From: Victor J. Westman, County Counsel` Re: AMENDMENTS TO INDUSTRIAL. SAFETY ORDINANCE, MARCH 21, 2000 AGENDA ITEM DA Following this office's March 10, 2000 receipt of staffs report regarding the above subject, and reviewing staffs recommendations and proposed ordinance, it appears that the changes recommended by staff can be accomplished by a three-page ordinance rather than the lengthy document originally proposed. For this reason, we have drafted the attached ordinance, amending existing County Ordinance'Code Chapter 450-8 (added by Ordinance No. 98-48), as recommended by staff in its report. As noted above, the attached ordinance differs from the ordinance attached to staff's report in form only. Instead of re-adopting Ordinance No. 98-48 with the indicated changes to Chapter 450-8, the attached ordinance only amends the pertinent sections of Chapter 450-8 recommended by staff. For details of the amendments shown in Section I of the attached ordinance, see pages 14 and 15 of the ordinance attached to staff's report. For details of the amendment shown in Section 11 of the attached ordinance, see page 19 of the ordinance attached to staff's report. If the Board is inclined to adopt the attached ordinance instead of the ordinance attached to staffs report, the Board should: 1) Waive by 3/4 vote, the time limit set forth in Ordinance Code section 25-2.206 (Better Government Ordinance) to receive this shorter draft ordinance, and find that this memorandum from County Counsel provides an adequate explanation as to why the ordinance,was not submitted to the Board on or before March 16, 2000; and 2) Introduce and waive reading of the attached ordinance, and fix March 28, 2000 for its adoption. Attach: Draft Ordinance re: Amendments to Ordinance Code Chapter 450-8, on Industrial Safety cc wl attach: Dennis M. Barry, AICP, Director, Community Development Dept. H:ICDDM15Cthazordmem.wpd ORDINANCE NO. 2000-m (AMENDMENTS TO ORDINANCE CODE CHAPTER 450-8, ON INDUSTRIAL SAFETY) The Contra Costa County Board of Supervisors ordains as follows (omitting the parenthetical footnotes from the official text of the enacted or amended provisions of the County Ordinance Code): SECTION I. Subdivision(D) of section 450-8.016 of the County Ordinance Code, added by Section II of Ordinance No. 98-48, is amended by adding specific documentation requirements to subsections(3)and(4) of subdivision(D),to read: (D) Process Hazard Analysis/Action Items. (1) Process hazard analyses will be conducted for each of the Covered Processes not included in the Federal program level 3 Risk Management Program according to one of the following methods: What-If, Checklist, What- If/Checklist,Hazard and Operability Study(HAZOP),Failure Mode and Effects Analysis (FMEA),Fault Tree Analysis or an appropriate equivalent methodology approved by the Department prior to conducting the process hazard analysis. The process hazard analysis shall be appropriate to the complexity of the Covered Process and shall identify,evaluate, and control the hazards involved in the Covered Process. The process hazard analysis shall address: the hazards of the process;the identification of any previous incident which had a likely potential for catastrophic consequences, engineering and administrative controls applicable to the hazards and their interrelationships such as appropriate application of detection methodologies to provide early warning of releases. (Acceptable detection methods might include process monitoring and control instrumentation with alarms,and detection hardware such as hydrocarbon sensors.), consequences of failure of engineering and administrative controls; Covered Process and Stationary Source siting; Human Factors; and a qualitative evaluation of a range of the possible safety and health effects of failure of controls. All process hazard analyses shall be performed by a team with expertise in engineering and process operations,and the team shall include at least one employee who has experience and knowledge specific to the process being evaluated. Also, one member of the team must be knowledgeable in the specific process hazard analysis methodology being used. (2) The process hazard analyses shall be conducted within 1 year of the effective date of this Chapter and no later than the submittal date of the Safety Plan. Previously completed process hazard analyses that comply with the California Code of Regulations,Title 8, Section 5189, and/or the California Code of Regulations, Title 19, Section 2760.2 are acceptable for the purposes of this Chapter. Process hazard analyses shall be updated and revalidated at least once every 5 years after completion of the initial process hazard analysis. Updated and revalidated process hazard analyses completed to comply with the California Code of Regulations,Title 8, Section 5189, and/or the California Code of Regulations, Title 19, Section 2760 are acceptable for meeting the update and revalidation requirement. External events, including seismic events, ORD. 2000-®. - 1 - shall be considered for processes containing a substance defined in the California Code of Regulations, Title 19, Chapter 4.5 1, Section 2770.5, if the distance to the nearest public receptor for a worst case release scenario specified by the California Code of Regulations, Title 19, Chapter 4.5 1, Section 2750.3 is beyond the distance to a toxic or flammable endpoint as defined in California Code of Regulations,Title 19, Chapter 4.5 1, Section 2750.2(a). (3) For all Covered Processes,the Stationary Source shall consider the use of Inherently Safer Systems in the development and analysis of mitigation items resulting from a process hazard analysis and in the design and review of new processes and facilities. The Stationary Source shall select and implement Inherently Safer Systems to the greatest extent Feasible. If a Stationary Source concludes that an Inherently Safer System is not Feasible,the basis for this conclusion shall be documented in meaningful detail. This documentation shall include(1) sufficient evidence to demonstrate to the County's satisfaction that implementing this inherently safer system is impractical, and (2)the reasons for this conclusion. A claim of"financial infeasibility" shall not be based solely on evidence of reduced profits or increased costs,but rather shall include evidence that the financial impacts would be sufficiently severe to render the inherently safer system as impractical. (4) For all Covered Processes,the Stationary Source shall document the decision made to implement or not implement all process hazard analysis recommended action items and the results of recommendations for additional study. The Stationary Source shall complete recommended actions identified by the process hazard analysis and selected for implementation by the Stationary Source as follows; all actions not requiring a process shutdown shall be completed within one year after submittal of the Safety Plan; all actions requiring a process shutdown shall be completed during the first regularly scheduled turnaround of the applicable process subsequent to one year after submittal of the Safety Plan unless the Stationary Source demonstrates to the satisfaction of the Department that such a schedule is infeasible. For recommended actions not selected for implementation,the Stationary Source shall include the justification for not implementing the recommended action. For all Covered Processes,the Stationary Source shall retain documentation of closure,and any associated justifications, of actions identified by the process hazard analysis. The Stationary Source shall communicate the actions to operating, maintenance,and other employees whose work assignments are in the process and who may be affected by the recommendations or actions. Any documentation justifying a decision not to implement a process hazard analysis recommended action shall include(1)sufficient evidence to demonstrate to the County's satisfaction that implementing this action is impractical,and(2)the reasons for this conclusion. A claim of"financial infeasibility" shall not be based solely on evidence of reduced profits or increased costs,but rather shall include evidence that the financial impacts would be sufficiently severe to render the improvement as impractical. (4rds. 2000-_, § 1; 98-48, § 2.) SECTION 11. Section 450-8.022 of the County Ordinance Code, added by Section 11 of Ordinance No. 98-48, is amended,to allow the ombudsperson to retain technical experts and to ORD. 2000 allow the cost of experts to be funded through programs established by the U.S. EPA or other appropriate entities,to read: 450-8.022 HAZARDOUS MATERIALS OMBUDSPERSON. The Department shall continue to employ an ombudsperson for Hazardous Materials Programs. The ombudsperson. will serve as a single point of contact for people who live or work in Contra Costa County regarding environmental health concerns, questions, and complaints about Hazardous Materials Programs. The ombudsperson will be empowered to identify and solve problems and make recommendations to the Department. The ombudsperson's role will be one of investigating concerns and complaints, facilitating their resolution and assisting people in gathering information about programs,procedures,or issues. The ombudsperson may retain appropriate technical experts in order to fulfill technical assistance requests from members of the public. The cost of experts may be funded through programs established by the U.S. EPA or other appropriate entities. (Orris. 2000-_, § 2; 98-48 § 2.) SECTION III. EFFECTIVE DATE. This ordinance becomes effective 30 days after passage, and within 15 days after passage shall be published once with the names of the Supervisors voting for and against it in the Contra Costa Times, a newspaper published in this County. PASSED on ,by the following vote: AYES: NOES: ABSENT: ABSTAIN: ATTEST: Phil Batchelor, Clerk of the Board of Supervisors and County Administrator By: Deputy Board Chair [SEAL] LTF March 20,2000 HACDDMI30hazard300.wpd ORIS. 2000- - 3 - COUNTY PLANNING COMMISSION CONTRA COSTA COUNTY STATE OF CALIFORNIA RESOLUTION NO. 34-1999 RESOLUTION OF THE COUNTY PLANNING COMMISSION OF THE CONTRA COSTA COUNTY, STATE OF CALIFORNIA, INCORPORATING RECOMMENDATIONS AND FINDINGS PERTAINING TO THE PROPOSED MODIFICATION AND READOPTION OF THE INDUSTRIAL SAFETY ORDINANCE, CHAPTERS 450-8 AND CHAPTER 84-63 OF THE COUNTY ORDINANCE CODE. WHEREAS on April 8, 1999, Contra Costa County and Communities for a Better Environment entered into a Stipulated Judgment to resolve litigation over the adoption of the Industrial Safety Ordinance(Ordinance 98-48); WHEREAS this Stipulated Judgment, as fully described in the October 26, 1999 Staff Report for the County Planning Commission, obligates the County to prepare an initial study; to commence and complete environmental analysis by specified deadlines;to evaluate four possible amendments to Ordinance 98-48, as outlined in paragraph 7 of this Stipulated Judgment within twelve months from entry of judgment [by April 8, 20001; and to conduct these reviews using an inclusive process involving all interested parties; WHEREAS,for purposes of compliance with the provisions of this Stipulated Judgment,with the provisions of the California Environmental Quality Act (CEQA), and with State& County CEQA Guidelines, 1. Staff prepared a preliminary Initial Study by June 7, 1999 and a revised Initial Study by August 5, 1999 which identified no substantial evidence of potential significant impacts due to the project under consideration; 2. Based on these findings, staff determined that a negative declaration is required by CEQA for this project; 3. Staff posted a Notice of Intent to Adopt a Negative Declaration with the County Clerk's office on August 5, 1999 and again on September 28, 1999, and noticed as otherwise required by law; WHEREAS, after notice was lawfully;given, a public hearing was scheduled before the County Planning Commission originally on Tuesday, October 26, 1999 at which time the County Planning Commission opened the public hearing, accepted public testimony, and continued the open public hearing to December 14, 1999, at which time the County Planning Commission accepted additional public testimony and closed the public hearing; and having fully reviewed, considered, and evaluated all of the evidence and testimony presented on this matter; Page 2 1t,E60LUTION NO.34-1999 NOW, THEREFORE, BE IT RESOLVED that the County Planning Commission recommends that the Board of Supervisors 1. Adopt the Negative Declaration for this project, 2. Decline to adopt the Items 7(a), (b) and (c) as presented for consideration in the Stipulated Judgment, as amendments to Ordinance 98-48, and 3. Adopt Chapter 450-8 with minor modifications, as described in the December 14, 1999 Staff Report (with one minor revision) to clarify the information requirements and access to outside grants, and 4. Adopt Chapter 84-63 with no modifications. BE IT FURTHER RESOLVED that: 1. The County Planning Commission concurs with staff findings that expanding County Authority to mandate changes in operation of a Stationary Source, beyond the authority already provided the County through Ordinance 98-48, exposes the County to unacceptably high levels of liability. 2. The County Planning Commission also concurs with staff findings that $100,000 per year grant program for the purpose of reviewing Safety Plans is excessive in relation to the task to be performed and in relation to other demands on the County's general revenue. The Stationary Sources producing these Safety Plans probably could not be assessed fees to cover the costs of these grants because the nexus required by Government Code Section 6600 could not be demonstrated. 3. The County Planning Commission also concurs with staff findings that the County has too little experience with the current hazard score thresholds and too little analytic support for identifying alternative thresholds to justify revising them at this time. 4. The County Planning Commission finds that the proposed Industrial Safety Ordinance is consistent with the County General Plan, particularly the Safety Element (Section 10)thereof. EVIDENCE: See Page S-24 of the October 26, 1999 Staff Report to the County Planning Commission. BE IT FURTHER RESOLVED that the Secretary of the County Planning Commission shall respectively sign and attest the certified copy of this Resolution and deliver the same to the Board of Supervisors all in accordance with the planning laws of the State of California; and Page 3 R��7LUTION NO. 34-1898 /f The instructions by the County Planning Commission to prepare this Resolution were given by motion of the Planning Commission on Tuesday, December 14, 1999 by the following vote: APES: Commissioners — Terrell, Wong, Battaglia, Hanecak, Clark NOES: Commissioners— Kimber ABSENT: Commissioners — Gaddis ABSTAIN: Commissioners — Richard Clark Chairman County Planning Commission County of Contra Costa State of California I, Dennis M. Barry, Secretary of the County Planning Commission, certify that the foregoing was duly called and approved on December 14, 1999. ATTEST V� - 9&'V� Dennis M. Barry, Secretary f the County Planning Commiss' n Contra Costa County State of California D.4 3-21-00 ,r ORDINANCE NO. INDUSTRIAL SAFETY ORDINANCE Proposed changes in Sections 8 016(17)(3) 8.016(D)(4) and 8.022. Presented at the March 21, 2000 Board of Supervisors Hearing_ Changes in strikethroug;h/underlin The Contra Costa County Board of Supervisors ordains as follows (omitting the parenthetical footnotes from the official text of the enacted or amended provisions of the County Ordinance Code): SECTION I. SUMMARY. This Ordinance adds Chapter 450-8 to the County Ordinance Code. Chapter 450-8 imposes regulations which supplement the requirements of California Health and Safety Code Article 2 (commencing with section 25531) of Chapter 6.95 concerning hazardous materials management by enacting measures to prevent and reduce the probability of accidental releases of regulated substances that have the potential to cause significant harm to the public health and increase participation by industry and the public to improve accident prevention. These measures include submission of a Safety Plan to the County, stringent requirements for the contents of a Safety Plan and Safety Program, public review of the Safety Plan, authorization for the County to require changes in the Safety Plan or Safety Program, an expansion of the list of regulated substances beyond those covered by the Federal and State Risk Management Program regulations, and authorization for the County to expand audits and inspections to all units within the Stationary Source. Root Cause Analysis is required for all Major Chemical Accidents or Releases. A public outreach and information program is established. This ordinance substantially readopts Chapter 84-63, originally added by Ordinance No. 96-20 and repealed by Ordinance No. 96-50, and repeals Chapter 84-63, added by Ordinance No. 96-50. Articles 84-63.2, 84-63.4, 84-63.6, 84-63.8, 84-63.10 and 84-63.12 of Chapter 84-63, as added by this ordinance, set forth criteria for land use permits for development projects involving hazardous waste or hazardous material which encourage business and other entities, in planning such projects, to give greater emphasis to factors which involve potential health and safety risks to the surrounding community. Article 84-62.14 is readopted in its entirety. SECTION H. Chapter 450-8 is added to the County Ordinance Code, to read: CHAPTER 450-8 RISK MANAGEMENT 450-8.002 BACKGROUND and FINDINGS. The Board of Supervisors of Contra Costa County finds as follows: 3/x,1/0 Page 1 DA 3-21-00 l8 (A) Recent incidents in Contra Costa County at industrial chemical, petrochemical, and oil industry facilities have prompted the consideration of reviews, inspections, and audits that supplement existing federal and state safety programs and the imposition of additional safety measures to protect public health and safety from accidental releases. (B) Section 112(r)(7) of the Clean Air Act (42 U.S.C.A. § 7412(4)) required the Federal Environmental Protection Agency ("EPA") to promulgate the rule known as the "Risk Management Program", which is intended to prevent accidental releases of regulated substances, as defined in the Federal program, and reduce the severity of those releases that do occur. All facilities subject to this federal regulation must prepare a Risk Management Plan (RMP) based on a Risk Management Program established at the facility, that includes a hazard assessment of the facility, an accidental release prevention program, and an emergency response program (40 CFR § 68). The facility must submit the Federal RMP to the EPA by June 21, 1999 (40 CFR § 68.150-68.185). The Federal RMP will be available to state and local government and the public. (C) The California Health and Safety Code article 2 (§ 25531 et seq.) of Chapter 6.95 was amended effective January 1, 1997 to implement the Federal EPA's Risk Management Program rule with certain State-specific amendments, The State's Risk Management Program is known as the California Accidental Release Prevention(CaLkRP)Program. (D) The County recognizes that regulatory requirements alone will not guarantee public health and safety, and that the public is a key stakeholder in chemical accident prevention, preparedness, and response at the local level. Preventing accidental releases of regulated substances is the shared responsibility of industry, government, and the public. The first steps toward accident prevention are identifying the hazards and assessing the risks. Once information about chemical hazards in the community is openly shared, industry, government, and the community can work together towards reducing the risk to public health and safety. (E) The success of a Safety Program is dependent upon the cooperation of industrial chemical and oil refining facilities within Contra Costa County. The public must be assured that measures necessary to prevent incidents are being implemented, including changes or actions required by the Department or the Stationary Source that are necessary to comply with this chapter. (Ord. 98-, § 2.) 450-8.004 PURPOSE and GOALS. (A) The purpose of this ordinance is to impose regulations which improve industrial safety by the following: (1) requiring the conduct of process hazard analyses for Covered Processes handling hazardous materials not covered by the Federal or State Risk Management Programs; (2) requiring the review of action items resulting from process hazard analyses and requiring completion of those action items selected by the Stationary Source for implementation within a reasonable time frame; (3) requiring the review of accidental release prevention efforts of Stationary Sources and providing for the conduct of investigations and analyses for the determination of the Root Cause for certain incidents; 3/21/O044A & Page 2 DA 3-21-00 1� (4) providing review, inspection, auditing and safety requirements that are more stringent than those required in existing law and regulations; (5) providing for public input into the Safety Plan and Safety Program and public review of any inspection and audit results; (6) facilitating cooperation between industry, the County, and the public in the prevention and reduction of incidents at Stationary Sources; (7) expanding the application of certain provisions of the Federal and State Risk Management Programs to processes not covered by the Federal or State Risk Management Programs; (8) requiring the development and implementation of a written human factors program; and (9) preventing and reducing the number, frequency, and severity of accidental releases in the County. (Ord. 98-_, § 2.) 450-8.006 AUTHORITY. This ordinance is adopted by the County pursuant to its police power for the purposes of protecting public health and safety by prevention of accidental releases of hazardous materials and to assure protection of the environment. (Ord. 98- § 2.) 450-8.008 ADMINISTRATION. The Department is charged with the responsibility of administering and enforcing this chapter. (Ord. 98- § 2.) 450-8.010 APPLICABILITY. (A) This ordinance shall apply to Stationary Sources; and (B) The following are exempt from the provisions of this chapter except Sections 450- 8.016 (C) and (E), and 8.018 (F) and (G): (1) storage tanks containing a non-regulated substance, except for storage tanks that contain a material that meets the combustible liquid definition of 49 CFR 173.120(b); (2) drum storage of a non-regulated substance; less than 10,000 pounds of a Hazard Category B material located such that the drums could reasonably be expected to be involved in a single release; and for a Hazard Category A material, located such that the drums could reasonably be expected to be involved in a single release, at less than the quantity specified as the Threshold Planning Quantity on the Extremely Hazardous Substances list (Appendix A to 40 CFR Chapter I, Subchapter J, Part 355, as amended from time to time) or 500 pounds, whichever is less; (3) activities in process plant laboratories or laboratories that are under the supervision of a technically qualified individual as defined in Section 720.3 (ee) of 40 CFR. This exemption does not apply to specialty chemical production; 3/21/0 Page 3 DA 3-21-00 A47 manufacture, processing or use of substances in pilot plant scale operations; and activities conducted outside the laboratory; (4) utilities, except for fuel gas and natural gas systems to the battery limits of a process unit; and (5) any waste tanks, containers or other devices subject to the Federal and State hazardous waste laws, including the Resource Conservation and Recovery Act (RCRA), 40 CFR Chapter I, Subchapter I, commencing with Part 260, the California Hazardous Waste Control Law, California Health and Safety Code, commencing with Section 25100 and the California Code of Regulations, Title 22 Division 4.5 Environmental Health Standards for the Management of Hazardous Waste. (Ord. 98-___, § 2.) 450-8.012 INSPECTION. The Department shall be allowed reasonable access to any part of the Stationary Source subject to the requirements of this Chapter, Sections 450-8.016 and 450-8.018 and to supporting documentation retained by the Source for the purpose of determining compliance with this Chapter. (Ord. 98-� § 2.) 450-8.014 DEFINITIONS. For purposes of this chapter the definitions set forth in this section shall apply. Words used in this chapter not defined in this section shall have the meanings ascribed to them in the Clean Air Act Regulations (40 CFR. § 68.3) and in California Health and Safety Code article 2 (§ 25531 et seq.) of Chapter 6.95, unless the context indicates otherwise. (a) "Covered Process" means any process at a Stationary Source. (b) "Department" means the Contra Costa County Health Services Director and any Director authorized deputies. (c) "Feasible" means capable of being accomplished in a successful manner within a reasonable period of time,taking into account economic, environmental, legal, social, and technological factors. (d) "Hazard Category A Materials" are substances which meet the Hazard Category A Material definition as set forth in Section 84-63.1016. (e) "Hazard Category B Materials" are substances which meet the Hazard Category B Material definition as set forth in Section 84-63.1016. (f) "Industry Codes, Standards, and Guidelines" means the edition of the codes, standards, and guidelines in effect at the time of original design or construction for the design, construction, alteration, maintenance or repair of process units, industrial equipment, or other industrial facilities, structures or buildings published by the American Petroleum Institute (API), the Chemical i 3/21/00444" Page 4 DA 3-2'1-00 Manufacturers Association (CMA), the American Society of Mechanical Engineers (ASME) or the American National Standards Institute(ANSI). (g) "Inherently Safer Systems" means Inherently Safer Design Strategies as discussed in the 1996 Center for Chemical Process Safety Publication "Inherently Safer Chemical Processes" and means Feasible alternative equipment, processes, materials, lay-outs, and procedures meant to eliminate, minimize, or reduce the risk of a Major Chemical Accident or Release by modifying a process rather than adding external layers of protection. Examples include, but are not limited to, substitution of materials with lower vapor pressure, lower flammability, or lower toxicity; isolation of hazardous processes; and use of processes which operate at louver temperatures and/or pressures. (h) "Major Chemical Accident or Release" means an incident that meets the definition of a Level 3 or Level 2 Incident in the Community Warning System incident level classification system defined in the September 27, 1997 Contra Costa County guideline for the Community Warning System as determined by the Department; or results in the release including, but not limited to, air, water, or soil of a Regulated Substance and meets one or more of the following criteria: (1) results in one or more fatalities; (2) results in greater than 24 hours of hospital treatment of three or more persons; (3) causes on and/or off-site property damage (including clean-up and restoration activities) initially estimated at $500,000 or more. On-site estimates shall be performed by the Stationary Source. Off-site estimates shall be performed by appropriate agencies and compiled by the Department.; (4) results in a flammable vapor cloud of more than 5000 pounds. (i) "Regulated Substance" means (1) any chemical substance which satisfies the provisions of California Health and Safety Code section 25532 (g), as amended from time to time, or (2) a substance which satisfies the provisions of Hazard Categories A or B in section 84- 63.1016. Mixtures containing less than 1% of a Regulated Substance shall not be considered in the determination of the presence of a regulated material. 0) "Risk Management Program" means the documentation, development, implementation, and integration of management systems by the facility to comply with the regulations set forth in 40 CFR, Part 68 and the California Health and Safety Code, Article 2, commencing with Section 25531. (k) "RMP" means the Risk Management Flan required to be submitted pursuant to the requirements of the 40 CFR § 68.150-68.185 and the California Health and Safety Code article 2 (Section 25531 et seq.) of Chapter 6.95. (1) "Root Cause" means prime reasons, such as failures of some management systems, that allow faulty design, inadequate training, or improper changes, which lead to an unsafe act or condition, and result in an incident. If root causes were removed, the particular incident would not have occurred. (m) "Safety Plan" means the Safety Plan required to be submitted to the Department pursuant to the requirements of Section 450-8.016 of the chapter. 3/21/00449.4" Page 5 D.4 3-21-00 (n) "Safety Program"means the documentation, development, implementation, and integration of management systems by the Stationary Source to comply with the safety requirements set forth in Section 450-8.016 of this chapter. (o) "Stationary Source" or "Source" means a facility which includes at least one process as defined in 40 CFR 68.10 that is subject to Federal Risk Management Program Level 3 requirements and whose primary North American Industry Classification System code (NAICS) is 324 (Petroleum and Coal Products Manufacturing)or 325 (Chemical Manufacturing). (Ord. 98-_, § 2.) 450-8.016 STATIONARY SOURCE SAFETY REQUIREMENTS. The Stationary Source shall submit a Safety Plan to the Department within one year of the effective date of this ordinance or within three years of the date a facility becomes a Stationary Source, that complies with the provisions of this section and that includes the safety elements listed in subsection (A) below. In addition, the Stationary Source shall comply with the safety requirements set forth in subsections (A) through (E) of this section and shall include a description of the manner of compliance with these subsections in the Safety Plan. A new Covered Process at an existing Stationary Source shall comply with subsections(A)through(E)prior to initial startup. (A) Risk Management Program Elements. Those Covered Processes not included in the Federal program level 3 Risk Management Program shall be subject to the Risk Management Program elements listed below. The Safety Plan shall include a description of the manner in which these Risk Management Program elements listed below shall be applied to the Covered Process. These .Risk Management Program elements shall be implemented in conformance with the Federal and State Risk Management Programs and the Safety Plan shall follow Chapters 6 and 7 dated July 1, 1998, and Chapter 9 dated November 2, 1998 of the Contra Costa County Health Services Department RMI' guidance document, June, 1998: (1) Process Safety Information: (a) The Stationary Source shall complete a compilation of written process safety information before conducting any process hazard analysis as required by this chapter. The compilation of written process safety information is to enable the Stationary Source and the employees involved in operating the Covered Process to identify and understand the hazards posed by the Covered Process. This process safety information shall include information pertaining to the hazards of the regulated substances used or produced by the process, information pertaining to the technology of the process, and information pertaining to the equipment in the process. Information pertaining to the hazards of the Regulated Substances in the process. (i) This information shall consist of at least the following: toxicity information; permissible exposure limits; physical data; reactivity data: corrosivity data; thermal and chemical stability data; and hazardous effects of inadvertent mixing of different materials that could foreseeably occur. (ii) Material Safety Data Sheets meeting the requirements of Section 5189, Title 8 of California Code of Regulations may be used to comply with this requirement to the extent they contain the information required by this subsection. 3/21/0 Page 6 DA 3-21-00 (iii) Information pertaining to the technology of the process shall include at least the following: a block flow diagram or simplified process flow diagram; process chemistry; maximum intended inventory; safe upper and lower limits for such items as temperatures, pressures, flows or compositions; and, an evaluation of the consequences of deviations. Where the original technical information no longer exists, such information may be developed in conjunction with the process hazard analysis in sufficient detail to support the analysis. (iv) Information pertaining to the equipment in the process shall include: materials of construction; piping and instrument diagrams (P&ID's); electrical classification; relief system design and design basis; ventilation system design; design codes and standards employed; material and energy balances for processes built after the compliance date of this Chapter; and safety systems (e.g. interlocks, detection or suppression systems). (b) The Stationary Source shall document that equipment complies with recognized and generally accepted good engineering practices. (c) For existing equipment designed and constructed in accordance with codes, standards, or practices that are no longer in general use, the Stationary Source shall determine and document that the equipment is designed, maintained, inspected, tested, and operating in a safe manner. (2) Operating Procedures: (a) The Stationary Source shall develop and implement written operating procedures that provide clear instructions for safely conducting activities involved in each Covered Process consistent with the process safety information and shall address at least the following elements: (i) Steps for each operating phase, initial startup; normal operations; temporary operations; emergency shutdown, including the conditions under which emergency shutdown is required, and the assignment of shutdown responsibility to qualified operators to ensure that emergency shutdown is executed in a safe and timely manner; emergency operations; normal shutdown; and, startup following a turnaround, or after an emergency shutdown. (ii) Operating limits: consequences of deviation; and steps required to correct or avoid deviation. (b) Safety and health considerations: properties of, and hazards presented by, the chemicals used in the process; precautions necessary to prevent exposure, including engineering controls, administrative controls, and personal protective equipment; control measures to be taken if physical contact or airborne exposure occurs; quality control for raw materials and control of I hazardous chemical inventory levels; and, any special or unique hazards. (c) Safety systems and their functions. (d) Operating procedures shall be readily accessible to employees who work in or maintain a process. (e) The operating procedures shall be reviewed as often as necessary to assure that they reflect current operating practice, including changes that result from changes in process chemicals, technology, and equipment, and changes to stationary sources. The Stationary Source shall certify annually that these operating procedures are current and accurate. (f) The Stationary Source shall develop and implement safe work practices to provide for the control of hazards during operations such as lockout/ tagout; confined space entry; opening process equipment or piping; and control over entrance into a stationary source by 3/21/00424" Page 7 D.4 3-21-00 maintenance, contractor, laboratory, or other support personnel. These safe work practices shall apply to employees and contractor employees. (3) Employee Participation: (a) The Stationary Source shall develop a written plan of action regarding the implementation of the employee participation required by this chapter. (b) The Stationary Source shall consult with employees and their representatives on the conduct and development of process hazards analyses and on the development of the other elements of the Safety Program in this chapter. (c) The Stationary Source shall provide to employees and their representatives access to process hazard analyses and to all other information required to be developed under this chapter. (4) Training: for each employee in such Covered Process: (a) Initial training. (i) Each employee presently involved in operating a Covered Process, and each employee before being involved in operating a newly assigned Covered Process, shall be trained in an overview of the process and in the operating procedures as specified in Section 450-8.016 (A)(2). The training shall include emphasis on the specific safety and health hazards, emergency operations including shutdown, and safe work practices applicable to the employee's job tasks. In lieu of initial training for those employees already involved in operating a process on an owner or operator may certify in writing that the employee has the required knowledge, skills, and abilities to safely carry out the duties and responsibilities as specified in the operating procedures. (b) Refresher training. Refresher training shall be provided at least every three years, and more often if necessary, to each employee involved in operating a Covered Process to assure that the employee understands and adheres to the current operating procedures of the Covered Process. The Stationary Source, in consultation with the employees involved in operating the process, shall determine the appropriate frequency of refresher training. (c) Training documentation. The Stationary Source shall ascertain that each employee involved in operating a process has received and understood the training required by this section. The Stationary Source shall prepare a record which contains the identity of the employee, the date of training, and the means used to verify that the employee understood the training. (5) Mechanical Integrity: including the use of Industry Codes, Standards, and Guidelines: (a) Application. Paragraphs (b) through (f) of this section apply to the following process equipment: pressure vessels and storage tanks; piping systems (including piping components such as valves), relief and vent systems and devices; emergency shutdown systems, controls (including monitoring devices and sensors, alarms, and interlocks) and, pumps. (b) Written procedures. The Stationary Source shall establish and implement written procedures to maintain the on-going integrity of process equipment. (c) Training for process maintenance activities. The Stationary Source shall train each employee involved in maintaining the on-going integrity of process equipment in an overview of that process and its hazards and in the procedures applicable to the employee's job tasks to assure that the employee can perform the job tasks in a safe manner. 3/21/008 page g DA 3-21-00 (d) Inspection and testing. (1) Inspections and tests shall be performed on process equipment. Inspection and testing procedures shall follow recognized and generally accepted good engineering practices. The frequency of inspections and tests of process equipment shall be consistent with applicable manufacturers' recommendations and good engineering practices, and more frequently if determined to be necessary by prior operating experience. The Stationary Source shall document each inspection and test that has been performed on process equipment. The documentation shall identify the date of the inspection or test, the name of the person who performed the inspection or test, the serial number or other identifier of the equipment on which the inspection or test was performed, a description of the inspection or test performed, and the results of the inspection or test. (e) Equipment deficiencies. The Stationary Source shall correct deficiencies in equipment that are outside acceptable limits (defined by the process safety information in Section 450-8.106(A)(1)) before further use or in a safe and timely manner when necessary means are taken to assure safe operation. (f) Quality assurance. In the construction of new plants and equipment, the Stationary Source shall assure that equipment as it is fabricated is suitable for the process application for which they will be used. Appropriate checks and inspections shall be performed to assure that equipment is installed properly and consistent with design specifications and the manufacturer's instructions. The Stationary Source shall assure that maintenance materials, spare parts and equipment are suitable for the process application for which they will be used. (6) Management of Change: (a) The Stationary Source shall establish and implement written procedures to manage changes (except for "replacements in kind") to process chemicals, technology, equipment, and procedures; and, changes to stationary sources that affect a covered process. (b) The procedures shall assure that the following considerations are addressed prior to any change: the technical basis for the proposed change; impact of change on safety and health; modifications to operating procedures; necessary time period for the change; and, authorization requirements for the proposed change. (c) Employees involved in operating a process and maintenance and contract employees whose job tasks will be affected by a change in the process shall be informed of, and trained in, the change prior to start-up of the process or affected part of the process. (d) If a change covered by this section results in a change in the process safety information required by Section 450-8.016(A)(1), such information shall be updated accordingly. (e) If a change covered by this section results in a change in the operating procedures or practices required by Section 450-8.016(A)(2), such procedures or practices shall be updated accordingly. (7) Pre Start-Up Reviews: (a) The Stationary Source shall perform a pre-startup safety review for new stationary sources and for modified stationary sources when the modification is significant enough to require a change in the process safety information. (b) The pre-startup safety review shall confirm that prior to the introduction of regulated substances to a Covered Process: construction and equipment is in accordance with design specifications; safety, operating, maintenance, and emergency procedures are in place 3/21/004, 8 Page 9 DA 3-21-00 A and are adequate; for new Covered Processes, a process hazard analysis has been performed and recommendations have been resolved or implemented before startup; and modified Covered Processes meet the requirements contained in management of change, Section 450- 8.106(A)(6); and training of each employee involved in operating a process has been completed. (8) Compliance Audits: (a) The Stationary Source shall certify that they have evaluated compliance with the provisions of this section at least every three years to verify that the procedures and practices developed under this Chapter are adequate and are being followed. (b) The compliance audit shall be conducted by at least one person knowledgeable in the process. (c) A report of the findings of the audit shall be developed. (d) The Stationary Source shall promptly determine and document an appropriate response to each of the findings of the compliance audit, and document that deficiencies have been corrected. (e) The Stationary Source shall retain the two most recent compliance audit reports. (9) Incident Investigation: (a) The Stationary Source shall investigate each incident which resulted in, or could reasonably have resulted in a catastrophic release of a regulated substance. (b) An incident investigation shall be initiated as promptly as possible, but not later than 48 hours following the incident. (c) An incident investigation team shall be established and consist of at least one person knowledgeable in the Covered Process involved, including a contract employee if the incident involved work of the contractor, and other persons with appropriate knowledge and experience to thoroughly investigate and analyze the incident. (d) A report shall be prepared at the conclusion of the investigation which includes at a minimum. date of incident; date investigation began; a description of the incident; the factors that contributed to the incident; and, recommendations resulting from the investigation. The written summary shall indicate whether the cause of the incident and/or recommendations resulting; from the investigation are specific only to the process or equipment involved in the incident, or are applicable to other processes or equipment at the Stationary Source. The incident investigation report shall be made available to the Department upon request. (e) The Stationary Source shall establish a system to promptly address and resolve the incident report findings and recommendations. Resolutions and corrective actions shall be documented. (f) The report shall be reviewed with all affected personnel whose job tasks are relevant to the incident findings including contract employees where applicable. (g) Incident investigation reports shall be retained for five years. (10) Hot Work: (a) The Stationary Source shall issue a hot work permit for hot work operations conducted on or near a covered process. (b) The permit shall document that the fire prevention and protection requirements in § 5189 of Title 8 of California Code Regulations have been implemented prior to beginning the hot work operations; it shall indicate the date(s) authorized for hot work; and identify the 3/21/00444" Page 10 DA 3-21-00 object on which hot work is to be performed. The permit shall be kept on file until completion of the hot work operations. (11) Contractors: (a) Application. This section applies to contractors performing maintenance or repair, turnaround, major renovation, or specialty work on or adjacent to a covered process. It does not apply to contractors providing incidental services which do not influence process safety, such as janitorial work, food and drink services, laundry, delivery or other supply services. (b) Stationary Source responsibilities. (i) The Stationary Source, when selecting a contractor, shall obtain and evaluate information regarding the contract owner or operator's safety performance and programs. (ii) The Stationary Source shall inform contract owner or operator of the known potential fire, explosion, or toxic release hazards related to the contractor's work and the process. (iii) The Stationary Source shall explain to the contract owner or operator the applicable provisions of the emergency response program Section 450- 8.016(A)(12). (iv) The Stationary Source shall develop and implement safe work practices consistent with Section 450-8.016(A)(2), to control the entrance, presence, and exit of the contract owner or operator and contract employees in Covered Process areas. (v) The Stationary Source shall periodically evaluate the performance of the contract owner or operator in fulfilling their obligations as specified in Section 450-8.016(A)(1 1)(c). (c) Contract owner or operator responsibilities: (i) The contract owner or operator shall assure that each contract employee is trained in the work practices necessary to safely perform his/her job. (ii) The contract owner or operator shall assure that each contract employee is instructed in the known potential fire, explosion, or toxic release hazards related to his/her job and the process, and the applicable provisions of the emergency action plan. (iii) The contract owner or operator shall document that each contract employee has received and understood the training required by this section. The contract owner or operator shall prepare a record which contains the identity of the contract employee, the date of training, and the means used to verify that the employee understood the training. (iv) The contract owner or operator shall assure that each contract employee follows the safety rules of the Stationary Source including the safe work practices required by Section 450-8.016(A)(2). (v) The contract owner or operator shall advise the Stationary Source of any unique hazards presented by the contract owner or operator's work, or of any hazards found by the contract owner or operator's work. (12) Emergency Response Program: (a) The Stationary Source shall develop and implement an emergency response program for the purpose of protecting public health and the environment. Such program shall include the following elements: (i) An emergency response plan, which shall be maintained at the stationary source and contain at least the following elements: procedures for informing the public and local emergency response agencies about accidental releases, emergency planning, and emergency response; documentation of proper first-aid and emergency medical treatment necessary to treat accidental human exposures; and procedures and measures for emergency response after an accidental release of a regulated substance; (ii) Procedures for the use of emergency response equipment and for its inspection, testing, and maintenance; (iii) Training for all employees in relevant procedures and the Incident Command System; and (iv) Procedures to review and update, as appropriate, 3/21/00444" Page 11 D.4 3-21-00 the emergency response plan to reflect changes at the stationary source and ensure that employees are informed of changes. (b) A written plan that complies with other Federal contingency plan regulations or is consistent with the approach in the rational Response Team's Integrated Contingency Plan Guidance ("One Plan") and that, among other matters, includes the elements provided in Section 450-8.016(A)(12)(a), shall satisfy the requirements of this section if the Stationary Source also complies with Section 450-8.016(A)(12)(c). (c) The emergency response plan developed under this section shall be coordinated with the community emergency response plan developed under 42 U.S.C. 11003. Upon request of the local emergency planning committee or emergency response officials, the Stationary Source shall promptly provide to the local emergency response officials information necessary for developing and implementing the community emergency response plan. (d) The Stationary Source whose employees will not respond to accidental releases of Regulated Substances need not comply with A(12)(a) through A(12)(c) above provided that they meet the following (i) For Stationary Sources with any regulated toxic substance held in a process above the threshold quantity, the Stationary Source is included in the community emergency response plan developed under Section 11003 of Title 42 of the United States Code (USC) (ii) For Stationary Sources with only regulated flammable substances held in a process above the threshold quantity the Stationary Source has coordinated response actions with the local fire department (iii) Appropriate mechanisms are in place to notify emergency responders when there is a need for a response. (13) Safety Program Management. (a) The owner or operator of a Stationary Source subject to this Chapter shall develop a management system to oversee the implementation of the Safety Program elements. (b)The owner or operator shall assign a qualified person or position that has the overall responsibility for the development, implementation, and integration of the Safety Program elements. (c)When responsibility for implementing individual requirements of this chapter is assigned to persons other than the person identified under section A(13)(b), the names or positions of these people shall be documented and the lines of authority defined through an organization chart or similar document. (B) Human Factors Program. (1) Stationary Sources shall develop a written human factors program that follows the human factors guidance document developed or adopted by the Department. The program shall be developed within one year following the issuance of the Contra Costa County guidance documents or the effective date of the ordinance, whichever is later. The Human Factors Program shall address: (i) the inclusion of human factors in the Process Hazards Analysis process, (ii) the consideration of human systems as causal factors in the incident investigation process for Major Chemical Accidents or Releases or for an incident that could reasonably have resulted in a Major Chemical Accident or Release; (iii) the training of employees in the human factors program, (iv) operating procedures, and (v) the requirement to conduct a Management of Change prior to staffing changes for changes in permanent staffing levels/reorganization in operations or emergency response. Employees and their Representatives shall be consulted in the Management of Change. 3/21/009S Page 12 D.4 3-21-00 ar (2) Employees and their Representatives shall participate in the development of the written human factors program. (3) The program shall include, but not be limited to, issues such as staffing, shiftwork and overtime. (4) A description of the human factors program (b)(1) through (b)(3) above shall be included in the Safety Plan prepared by the Stationary Source. (C) Root Cause Analysis and Incident Investigation. (1) Stationary Sources shall conduct a Root Cause analysis for each Major Chemical Accident or Release which occurs after the effective date of this chapter. Stationary Sources shall periodically update the Department on facts related to the release or incident, and the status of a Root Cause Analysis conducted pursuant to this section, at meetings scheduled by the Department in cooperation with the Stationary Source. To the maximum extent feasible, the Department and the Stationary Source shall coordinate these meetings with other agencies with jurisdiction over the Stationary Source. Within 30 days of completing a Root Cause Analysis performed pursuant to this section, the Stationary Source shall submit to the Department a final report containing that analysis, including recommendations to be implemented to mitigate against the release or incident re-occurring, if any, and a schedule for completion of resulting recommendations. The methodology of the Root Cause analysis shall be one of the recommended methodologies from the Center for Chemical Process Safety or shall be reviewed by the Department to determine substantial equivalency. (2) The Department may elect to do its own independent Root Cause analysis or incident investigation for a Major Chemical Accident or Release. If the Department elects to conduct a Root Cause analysis or incident investigation the Stationary Source shall cooperate with the Department by providing the following access and information in a manner consistent with the safety of Department and Stationary Source personnel and without placing undue burdens on the operation of the Stationary Source: (i) allow the Department to investigate the accident site and directly related facilities such as control rooms, physical evidence and where practicable the external and internal inspection of equipment, (ii)provide the Department with pertinent documentation, (iii)and allow the Department to conduct independent interviews of Stationary Source employees, subject to all rights of the Stationary Source and employees to be represented by legal counsel and/or management and union representatives during such interviews. If in the course of the Department's Root Cause analysis or incident investigation access is required to areas of the Stationary Source which in the judgment of the Stationary Source require personnel entering the area to use protective equipment and/or have specialized training the Department shall provide its personnel with such equipment and training. To the maximum extent feasible the Department shall coordinate any Root Cause analysis or incident investigation it conducts with investigations conducted by other agencies with jurisdiction over the Stationary Source to minimize the adverse impacts on the Stationary Source and/or its employees. (3) No part of the conclusions, findings or recommendations of the Root Cause analysis conducted by the Department or Stationary Source, or incident investigation conducted by the Department, relating to any Major Chemical Accident or Release or the investigation thereof shall be admitted as evidence or used in any action or suit for damages arising out of any matter mentioned in such report. 3/2110 Page 13 ' DA 3-21-00 3D (D) Process Hazard Analysis/Action Items, (1) Process hazard analyses will be conducted for each of the Covered Processes not included in the Federal program level 3 Risk Management Program according to one of the following methods: What-If, Checklist, What- If/Checklist, Hazard and Operability Study (HAZOP), Failure Mode and Effects Analysis (FMEA), Fault Tree Analysis or an appropriate equivalent methodology approved by the Department prior to conducting the process hazard analysis. The process hazard analysis shall be appropriate to the complexity of the Covered Process and shall identify, evaluate, and control the hazards involved in the Covered Process. The process hazard analysis shall address. the hazards of the process; the identification of any previous incident which had a likely potential for catastrophic consequences; engineering and administrative controls applicable to the hazards and their interrelationships such as appropriate application of detection methodologies to provide early warning of releases. (Acceptable detection methods might include process monitoring and control instrumentation with alarms, and detection hardware such as hydrocarbon sensors.); consequences of failure of engineering and administrative controls; Covered Process and Stationary Source siting; Human Factors; and a qualitative evaluation of a range of the possible safety and health effects of failure of controls. All process hazard analyses shall be performed by a team with expertise in engineering and process operations, and the team shall include at least one employee who has experience and knowledge specific to the process being evaluated. Also, one member of the team must be knowledgeable in the specific process hazard analysis methodology being used. (2) The process hazard analyses shall be conducted within 1 year of the effective date of this Chapter and no later than the submittal date of the Safety Plan. Previously completed process hazard analyses that comply with the California Code of Regulations, Title 8, Section 5189, and/or the California Code of Regulations, Title 19, Section 2760.2 are acceptable for the purposes of this Chapter. Process hazard analyses shall be updated and revalidated at least once every 5 years after completion of the initial process hazard analysis. Updated and revalidated process hazard analyses completed to comply with the California Code of Regulations, Title 8, Section 5189, and/or the California Code of Regulations, Title 19, Section 2760 are acceptable for meeting the update and revalidation requirement. External events, including seismic events, shall be considered for processes containing a substance defined in the California Code of Regulations, Title 19, Chapter 4.5 1, Section 2770.5, if the distance to the nearest public receptor for a worst case release scenario specified by the California Code of Regulations, Title 19, Chapter 4.51, Section 2750.3 is beyond the distance to a toxic or flammable endpoint as defined in California Code of Regulations, Title 19, Chapter 4.51, Section 2750.2(a). (3) For all Covered Processes, the Stationary Source shall consider the use of Inherently Safer Systems in the development and analysis of mitigation items resulting from a process hazard analysis and in the design and review of new processes and facilities. The Stationary Source shall select and implement Inherently Safer Systems to the greatest extent Feasible. If a Stationary Source concludes that an Inherently Safer System is not Feasible, the basis for this conclusion shall be documented in meaningful detail. This documentation shall include (1) sufficient evidence to demonstrate to the County's satisfaction that implementing this inherently safer system is impractical and(2) the reasons for this conclusion. A claim of "financial infeasibility" shall not be based solely on evidence of reduced profits or increased costs, but rather shall include evidence that the financial impacts would be sufficiently severe to render the inherently safer system as impractical. 3/21/0044449 page 14 D.4 3-21-00 �r (4) For all Covered Processes, the Stationary Source shall document the decision made to implement or not implement all process hazard analysis recommended action items and the results of recommendations for additional study. The Stationary Source shall complete recommended actions identified by the process hazard analysis and selected for implementation by the Stationary Source as follows: all actions not requiring a process shutdown shall be completed within one year after submittal of the Safety Plan; all actions requiring a process shutdown shall be completed during the first regularly scheduled turnaround of the applicable process subsequent to one year after submittal of the Safety Plan unless the Stationary Source demonstrates to the satisfaction of the Department that such a schedule is infeasible. For recommended actions not selected for implementation, the Stationary Source shall include the justification for not implementing the recommended action. For all Covered Processes, the Stationary Source shall retain documentation of closure, and any associated justifications, of actions identified by the process hazard analysis. The Stationary Source shall communicate the actions to operating, maintenance, and other employees whose work assignments are in the process and who may be affected by the recommendations or actions.® Any documentation justifying a decision not to imp lement a process Hazard analysis recommended action shall include f i) sufficient evidence to demonstrate to the County's satisfaction that implementing this action is impractical and (2) the reasons for this conclusion. A claim of"financial infeasibility" shall not be based solely on evidence of reduced profits or increased casts, but rather shall include evidence that the fmancial impacts would be sufficiently severe to render the improvement as impractical. (E) Accident History. (1) The Stationary Source shall include an accident history in the Safety Plan of all Major Chemical Accidents or Releases from June 1, 1992, through the date of Safety Plan submittal to the Department. For each Major Chemical Accident or Release the Stationary Source shall report the following information,to the extent known: date, time and approximate duration of the release; chemicals released; estimated quantity released in pounds; type of release event and its source; weather conditions at the time of the release; on-site impacts; known off-site impacts; initiating event and contributing factors; Root Cause(s); whether off-site responders were notified; and operational or process changes that resulted from the investigation of the release. (2) The Stationary Source shall annually submit a report of the accident history to the Department. The first report shall be due two years after the effective date of this ordinance, and subsequent reports shall be due on the anniversaries of the effective date of the ordinance. (F) Certification. The owner or operator shall submit in the Safety Plan a single certification that, to the best of the signer's knowledge, information, and belief formed after reasonable inquiry, the information submitted is true, accurate, and complete. 3/21/0 Page 15 D.4 3-2'1-00 3� 450-8.018 REVIEW, AUDIT, AND INSPECTION. (A) Upon submission of a Safety Plan by the Stationary Source, the Department shall review the Safety Plan to determine if all the elements required by Section 454-8.016 are included and complete. The Department shall provide to the Stationary Source a written Notice of Deficiencies, if any. The Stationary Source shall have 60 calendar days from receipt of the Notice of Deficiencies to make any corrections. The Stationary Source may request, in writing, a one time 30 day calendar day extension to correct deficiencies. By the end of the 60 calendar days or any extension period, the Stationary Source shall resubmit the revised Safety Plan to the Department. After the Department determines that the Safety Plan is complete, the Department shall schedule a public meeting on the Stationary Source's Safety Plan to explain its contents to the public and take public comments. The Department shall make portions of the Safety Plan, which are not protected trade secret information, available to the public for the public meeting. (B) (1) The Department shall, within one year of the submission of the Stationary Source's Safety Plan, conduct an initial audit and inspection of the Stationary Source's Safety Program to determine compliance with this Chapter. Based upon the Department's review of the Safety Plan and the audit and inspection of the Stationary Source, the Department may require modifications or additions to the Safety Plan submitted by the Stationary Source, or Safety Program to bring the Safety Plan or Safety Program into compliance with the requirements of this Chapter. Any determination that modifications or additions to the Safety Plan or Safety Program are required shall be in writing, collectively referred to as the "Preliminary Determination". The Preliminary Determination shall explain the basis for the modifications or additions required to bring the Safety Plan or Safety Program into compliance with the requirements of this Chapter. The Preliminary Determination shall be mailed to the Stationary Source. (2) The Stationary Source shall respond in writing to the Preliminary Determination issued by the Department. The response shall state that the Stationary Source will incorporate into the Safety Plan or Safety Program the revisions contained in the preliminary determination or shall state that the Stationary Source rejects the revisions; in whole or in part. For each rejected revision, the Stationary Source shall explain the basis for rejecting such revision. Such explanation may include substitute revisions. (3) The Stationary Source's written response to the Department's Preliminary Determination shall be received by the Department within 90 days of the issuance of the Preliminary Determination or such shorter time as the Department specifies in the Preliminary Determination as being necessary to protect public health and safety. Prior to the written response being due and upon written request from the Stationary Source, the Department may provide, in writing, additional time for the response to be received. (4) After receiving the written response from the Stationary Source, the Department shall issue a public notice per the Department's Public Participation Policy and make portions of the Safety Plan, the Preliminary Determination and the Stationary Source's responses, which are not protected trade secret information, available for public review. Public comments on the Safety Plan shall be taken by the Department for a period of 45 days after the Safety Plan, the Preliminary Determination and the Stationary Sources responses are made available to the public. The Department shall schedule a public 3/21/0044AW4 Page 16 D.4 3-21-00 33 meeting on the Stationary Source's Safety Plan during the 45 day comment period The public meetings shall be held in the affected community on evenings or weekends. (C) Based upon the Department's Preliminary Determination, review of the Stationary Sources responses and review of public comments on the Safety Plan, the Preliminary Determination and the Stationary Source's responses, the Department may require modifications or additions to the Safety Plan submitted by the Stationary Source or Safety Program to bring the Safety Plan or Safety Program into compliance with the requirements of this Chapter. Any determination that modifications or additions to the Safety Plan or Safety Program are required, and any determination that no modifications or additions to the Safety Plan or Safety Program are required shall be in writing, (collectively referred to as"Final Determination") shall be mailed to the Stationary Source and shall be made available to the public. The Department may not include in a Final Determination any requirements to a Safety Plan or Safety Program which would cause a violation o� or conflict with, any state or federal law or regulation or a violation of any permit or order issued by any state or federal agency. (D) Within 30 days of the Department's Final Determination, the Stationary Source and/or any person may appeal the Final Determination to the Board of Supervisors pursuant to Chapter 14-4 by a verified written notice of appeal filed with the Clerk of the Board of Supervisors and payment of the applicable appeal fee. The appeal must be limited to issues raised during the public comment period The notice shall state the grounds for any such appeal, including (i) the reasoning that the appeal is necessary because the Stationary Source is in compliance with this Chapter, or (ii) the reasoning that the appeal is necessary to bring the Stationary Source into compliance with this Chapter. In acting on the appeal, the Board shall have the same authority over the Final Determination as the Department. The Board may require modifications or additions to the Safety Plan or Safety Program to bring the Safety Plan or Safety Program into compliance with the requirements of this Chapter. The Board may not include in its decision on the Final Determination any requirements to a Safety Plan or Safety Program which would cause a violation of, or conflict with, any State or Federal law or regulation or a violation of any permit or order issued by any State or Federal agency. The decision of the Board of Supervisors shall be final with respect to the Final Determination. (E) The Safety Plan shall be valid for a period of three years from the date of final action and shall be reviewed and updated by the Stationary Source every three years pursuant to the requirements of this ordinance. Any revisions to the Safety Plan as a result of the review and update shall be submitted to the Department and shall be subject to the provisions of this Section. (F) The Department may, within 30 days of Major Chemical Accident or.Release, conduct a safety inspection to review and audit the Stationary Source's compliance with the provisions of Section 450-8.016. The Department shall review and audit the Stationary Source's compliance with the provisions of Section 450a-8.016 at least once every three years. The Department may audit the Stationary Source based upon any of the following criteria: accident history of the Stationary Source, accident history of other Stationary Sources in the same industry, quantity of Regulated Substances present at the Stationary Source, location of the Stationary Source and its proximity to the public and environmental receptors, the presence of specific regulated substances, the hazards identified in the Safety Plan, a plan for providing neutral and random oversight, or a complaint from the Stationary 3!2110 Page 17 DA 3-21-00 1 Source's employee(s) or their representative. The Stationary Source shall allow the Department to conduct these inspections and audits. The Department, at its option, may select an outside consultant to assist in conducting said inspection. (G) Within 30 days of a Major Chemical Accident or Release the Department may commence an incident safety inspection with respect to the process involved in the incident pursuant to the provisions of Section 450-8.016(C). " (1) Based upon the Department's audit, safety inspection or an incident inspection, the Department may require modifications or additions to the Safety Plan submitted by the Stationary Source or Safety Program to bring the Safety Plan or Safety Program into compliance with the requirements of this chapter. Any determination by the Department shall be in writing and shall be mailed to the Stationary Source (referred to as the Notice of Findings). The Stationary Source shall have 60 calendar days from receipt of the Notice of Findings to make any corrections. The Stationary Source may request, in writing, a one time 30 day calendar day extension to make corrections. The Department may not include in its Notice of Findings requirements to a Safety Plan or Safety Program which would cause a violation of, or conflict with, any state or federal law or regulation or a violation of any permit or order issued by any state or federal agency. The Notice of Findings made by the Department will be available to the public. (2) Within 30 days of the Department's Notice of Findings, the Stationary Source and/or any person may appeal the Notice of Findings to the Board of Supervisors pursuant to Chapter 14-4 by a verified written notice of appeal filed with the Clerk of the Board of Supervisors and payment of the applicable appeal fee. The appeal must state the grounds for any such appeal, including (i) the reasoning that the appeal is necessary because the Stationary Source is in compliance with this Chapter, or (ii) the reasoning that the appeal is necessary to bring the Stationary Source into compliance with this Chapter. In acting on the appeal, the Board shall have the same authority over the Notice of Findings as the Department. The Board may require modifications or additions to the Safety Plan or Safety Program to bring the Safety Plan or Safety Program into compliance with the requirements of this Chapter. The Board may not include in its decision on the Notice of Findings any requirements to a Safety Plan or Safety Program which would cause a violation of, or conflict with, any State or Federal law or regulation or a violation of any permit or order issued by any State or Federal agency. The decision of the Board of Supervisors shall be final with respect to the Notice of Findings. (I) Nothing in this section shall preclude, limit, or interfere in any way with the authority of the County to exercise its enforcement, investigatory, and information gathering authorities under any other provision of law nor shall anything in the Chapter effect or diminish the rights of the Stationary Source to claim legal privileges such as attorney client privilege and/or work product with respect to information and/or documents required to be submitted to or reviewed by the Department. (Ord. 98-_, § 2.) 450-8.020 TRADE SECRET. The disclosure of any trade secret information required by this chapter shall be governed by California Health and Safety Code Section 25538, as amended from time to time, or as otherwise protected or required by law. 3/21/00 Page 18 DA 3-21-00 (Ord. 98-_, § 2.) 450-8.022 HAZARDOUS MATERIALS OMBUDSPERSON. The Department shall continue to employ an ombudsperson for Hazardous Materials Programs. The ombudsperson will serve as a single point of contact for people who live or work in Contra Costa County regarding environmental health concerns, questions, and complaints about Hazardous Materials Programs. The ombudsperson will be empowered to identify and solve problems and make recommendations to the Department. The ombudsperson's role will be one of investigating concerns and complaints, facilitating their resolution and assisting people in gathering information about programs, procedures, or issues. The Ombudsper-sen way provide teelh-m-e-1 ass..A.-Onee to the pug lie if:t is_requested. The ombudsperson may retain appropriate technical experts in order to fulfill technical assistance requests from members of the public. The cost of experts may be funded through programs established by the U.S. EPA or other appropriate entities (Ord. 98- , § 2.) 450-8.024 PUBLIC INFORMATION BANK. The Department shall collect and provide ready access, including the use of electronic accessibility as reasonably available, to public documents which are relevant to the goals of this chapter, including at a minimum, business plan inventories and emergency response plans, Risk Management Plans, Safety Plans, and Department incident reports. This section shall not apply to trade secret information or other information protected from disclosure under federal or state law. The public information bank shall be completed by December 31, 2000. (Ord. 98-_, § 2.) 450-8.026 FEES. The Department may, upon a majority vote of the Board of Supervisors, adopt a schedule of fees to be collected from each Stationary Source subject to the requirements of this chapter. Any review, inspection, audit fee schedule shall be set in an amount sufficient to pay only those costs reasonably necessary to carry out the requirements of this chapter, including costs of staff and/or consultant time or public hearings and administrative overhead. The fee schedule shall include the cost of the ombudsperson position. (Ord. 98- § 2.) 450-8.028 PENALTIES. .Regardless of the availability of other civil or administrative remedies and procedures for enforcing this chapter, every act or condition prohibited or declared unlawful by this chapter, and every knowing or willful failure or omission to act as required herein, is a violation of this code and shall be punishable and or subject to enforcement pursuant to the provisions of Chapter 14-6 of the County Ordinance Code specifically including but not limited to Article 14-6.4 (public nuisance), and Article 14-8 (criminal enforcement), as misdemeanors or infractions. (Ord. 98-_, § 2.) 3/2I/0043A4" Page 19 V- 450-8.030 450-8.030 ANNUAL PERFORMANCE REVIEW AND EVALUA'T'ION. (A) The Department shall annually: (1) Review its activities to implement this Chapter, and (2) Evaluate the effectiveness of this Chapter in achieving its purpose and goals pursuant to Section 450-8.004. (B) An annual performance review and evaluation report shall be prepared by the Department based upon the previous fiscal year's activities and shall be submitted to the Board of Supervisors on or before October 31, 2000 and each year thereafter. The report shall contain: (1) A brief description of how the Department is meeting the requirements of this Chapter as follows: (i) Effectiveness of the Department's program to ensure Stationary Source compliance with this Chapter. (ii) Effectiveness of the procedures for records management. (iii) Number and type of audits and inspections conducted by the Department pursuant to this Chapter (iv) Number of Root Cause Analyses and/or Incident Investigations conducted by the Department. (v)The Department's process for public participation. (vi) Effectiveness of the Public Information Bank, including status of electronic accessibility. (vii) Effectiveness of the Hazardous Materials Ombudsperson. (viii) Other required program elements necessary to implement and manage this Chapter. (2) A listing of all Stationary Sources covered by the Chapter, including for each: (i) The status of the Stationary Sources' Safety Plan and Program. (ii) A summary of all Stationary Source Safety Plan updates and a listing of where the Safety Plans are publicly available. (iii)The annual accident history report submitted by the Stationary Source pursuant to Section 450- 8.016(E)(2). (iv) A summary, including the status, of any Root Cause Analyses and Incident Investigations conducted or being conducted by the Stationary Source and required by this Chapter, including the status of implementation of recommendations. (v) A summary, including the status, of any audits, inspections, Root Cause Analyses and/or Incident Investigations conducted or being conducted by the Department pursuant to this Chapter, including the status of implementation of recommendations. (vi) Description of inherently safer systems implemented by the Stationary Source. (vii) Legal enforcement actions initiated by the Department, including administrative, civil, and criminal actions pursuant to this Chapter. (3) Total penalties assessed as a result of enforcement of this Chapter. (4) Total fees, service charges, and other assessments collected specifically for the support of this Chapter. (5) Total personnel and personnel years utilized by the jurisdiction to directly implement or administer this Chapter. (6) Comments from interested parties regarding the effectiveness of the local program that raise public safety issues. (7) The impact of the Chapter in improving industrial safety. (C) The Department shall provide a copy of the annual Performance Audit Submission required by Title 19 Chapter 4.5 Section 2780.5 of the California Code of Regulations to the Board of Supervisors on or before October 31 of each year. 3/21/0Page 20 D.4 3-21-00 7 450-8.032 CONSTRUCTION. Notwithstanding any other provision of this code and for the purposes of this chapter wherever it provides that the Department shall act, such direction in all instances shall be deemed and is directory, discretionary and permissive and not mandatory. (Ord. 98-__,, §2.) SECTION M. ORDINANCE NO. 96-50. County Ordinance Code Chapter 84-63, added by Ordinance No. 96-50 is hereby repealed. SECTION IV. ORDINANCE NO. 96-20. County Ordinance Code Chapter 84-63, added by Ordinance No. 96-20 and repealed by Ordinance 96-50, is modified and added to the County Ordinance Code. CHAPTER 84-63 LAND USE PERMITS FOR DEVELOPMENT PROJECTS INVOLVING HAZARDOUS WASTE OR HAZARDOUS MATERIAL Article 84-63.2 General Ordinance No. 98- (Land Use Permits for Development Projects Involving Hazardous Waste or Hazardous Material) The Contra Costa County Board of Supervisors ordains as follows (omitting the parenthetical footnotes from the enacted or amended provisions of the County Ordinance Code): SECTION I. SUMMARY. The County Ordinance Code requires land use permits for the specified development projects involving hazardous waste or hazardous material in the L-I light industrial, W-3 controlled heavy industrial, and H-I heavy industrial land use districts. County Ordinance Code Chapter 84-63, added by Ordinance No. 86-100, regulates land use permits for development projects involving hazardous waste or hazardous material. This ordinance repeals Chapter 84-63, and adds a new Chapter 84-63 in its place. Articles 84-63.2, 84-63.4, 84-63.6, 84-63.8, 84-63.10 and 84-63.12 of Chapter 84-63, as added by this ordinance, sets forth criteria for land use permits for development projects involving hazardous waste or hazardous material, which encourages business and other entities, in planning the project, to give greater emphasis to factors which involve potential health and safety risks to the surrounding community. Articles 84- 63.2, 84-63.4, 84-63.6, 84-63.8, 84-63.10 and 84-63.12 of the new Chapter 84-63 continue to require land use permits for development projects which could significantly and adversely affect public health, safety and the environment. Article 84-63.12 of Chapter 84-63, added by Ordinance No. 90-73, is renumbered and readopted in its entirety as Article 84-63.14. 3/21/00444A94 Page 21 D.4 3-21-00 SECTION H. Chapter 84-63 of the County Ordinance Code, added by Ordinance No. 86-100 and amended by Ordinances Nos, 91-49, 90-92 and 90-73, is repealed in its entirety, and is replaced by new Chapter 84-63, added by Section III of this ordinance. SECTION M. Chapter 84-63 is added to the County Ordinance Code, to read: 84-63.202 Purpose. The purpose of this chapter is to promote the health, safety and general welfare of residents and persons in the County by encouraging businesses and other entities, in planning and developing projects involving hazardous material or hazardous waste, to consider factors which involve potential health and safety risks to the surrounding community, and by requiring land use permits for development projects which could significantly and adversely affect public health, safety and the environment. (Ords. 98-_ § 5, 96-50, 96-20, 90-92, 86- 100.) 84-63.204 Conflict. This chapter is not intended, and should not be deemed, to prevent or preempt compliance with federal or state laws, regulations, rules or orders, or to excuse compliance with any other County ordinance, including other requirements of this code. (Orris. 98-_ §5, 96-50, 96-20, 86-100.) Article 84-63.4 Definitions 84-63.402 General. As used in this chapter, the words and phrases defined in this article shall have the meanings given unless the context otherwise requires. (Ords. 98-_ § 5, 96-50, 96-20) 84-63.404 "Baseline Period." "Baseline period" means the consecutive twelve month period of time during which activity is measured for purposes of this chapter. The baseline period shall be any twelve consecutive month period within five years of the date of the submittal of the application that is reflective of a normal year of operation. (Orris. 98-_ § 5, 96-50, 96-20.) 84-63.406 "Change-in-risk project." A "change-in-risk project" means a new use of an existing building, structure, or facility, not involving construction other than minor alterations, which use will involve a hazardous material or hazardous waste in a higher hazard category and which use will result in a hazard score higher than the hazard score of the previous use. (Orris. 98-_ § 5, 96-50, 96-20.) 84-63.408 "Commercial property." "Commercial property" means all properties with a commercial designation in the general plan including but not limited to the following: commercial, regional commercial, airport commercial, office, and business park. (Ords. 98-_ § 5, 96-50, 96-20.) 3/21/0042AWA Page 22 DA 3-21-00 .3 84-63.410 "Development project." (a) A "development project" means a new permanent building, structure or facility to be constructed that will manage hazardous materials or hazardous waste, or a permanent change-in-risk project. As used in this section, "permanent" when used to describe a building, structure, or facility, or the new use of an existing building, structure, or facility (change-in-risk project) means that the building, structure, facility or use is intended to be in operation for more than six months. (b) A "development project" does not include: (1) Pipelines and related equipment more than 300 feet from commercial or residential property. Related equipment includes, but is not limited to, items such as valves, fittings, pipe supports, insulation, instrumentation, corrosion protection systems, heat tracing systems, leak containment systems, and fire protection systems. Related equipment does not include storage tanks, storage vessels, process units or plants, mechanical rotating equipment (e.g., pumps, compressors, motors, turbines, internal combustion engines, etc.). However, the Zoning Administrator may determine, at the Zoning Administrator's sole discretion, that minor equipment defined above as not related is exempt from the ordinance. (2) Any project consisting only of maintenance, repair, and replacement or minor modification of existing equipment provided the storage design capacity is not increased and the hazard category of hazardous material or hazardous waste handled is not increased. (3) Any transportable treatment unit that has obtained all required permits and is used solely for site remediation or waste treatment purposes, provided the transportable treatment unit will be located on site for a maximum time limit of one year. The Director of Community Development will have the authority to grant a one year time extension if the applicant can demonstrate to the satisfaction of the Director that the unit is temporary. Otherwise, a land use permit will be required if the unit will remain on the site beyond the time limit specified above. (4) Any project for which permit applications have been deemed complete on or before the effective date of this chapter by the Bay Area Air Quality Management District or other government agency with jurisdiction over the project provided the project application has been deemed complete within one calendar year and has completed CEQA documentation. The proponent of a project described by subsection (4) of subdivision (b) of this section may elect to be subject to the requirements of this chapter in lieu of any requirements in effect prior to the effective date of this chapter. (Ords. 98-_ § 5, 96-50, 96-20, 90-92, 86-100.) 3/21/00424" Page 23 DA 3-21-00 YD 84-63.412 "Dispose." "Dispose" means to discharge, deposit, inject, dump, or place any hazardous waste into or on any land or water so that such hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters. (Ords. 98-_ § 5, 96-50, 96-20, 86-100.) 84-63.414 "Equipment." "Equipment" means pipes, pumps, vessels and other similar types of apparatus. (Ords. 98 § 5, 96-50, 96-20.) 84-63.416 "Facility." "Facility" means a group of buildings, structures, or units with the same purpose on contiguous parcels (including parcels separated by a right-of-way, as defined in section 1002-2.002 of this Code) under common ownership or control. (Ords. 98-_ § 5, 96-50, 96-20.) 84-63.418 "Finished Product" means a material which can be sold to market as a commodity. 84-63.420 "Hazardous material." "Hazardous material" means any material that, because of its quantity, concentration, or physical or chemical characteristics, poses a significant present or potential hazard to human health and safety or to the environment if released into the workplace or the environment, and includes any material that is listed in the Code of Federal Regulations, Title 49, Section 172. 101 (Hazardous Materials Table), as amended from time to time. (Ords. 98-_ § 5, 96-50, 96-20, 86-100.) 84-63.422 "Hazardous waste." "Hazardous waste" means any substance which is regulated as a hazardous waste by the California Department of Health Services under 22 California Administrative Code, Division 4, Chapter 30, or defined as a hazardous waste under Health& Safety Code section 25117, generally as follows: (a) 'Hazardous waste" means either of the following: (1) A waste, or combination of wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristic may either: (A) Cause or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible illness. (B) Pose a substantial present or potential hazard to human health or environment when improperly treated, stored, transported, or disposed of, or otherwise managed. (2) A waste which meets any of the criteria for the identification of a hazardous waste adopted by the State Department of Toxic Substance Control pursuant to the Health & Safety Code section 2514 1. (b) "Hazardous waste" includes, but is not limited to, federal Resource Conservation and 3/21/O044449 Wage 24 D.4 3-21-00 Recover Act ("RCRA") hazardous waste, extremely hazardous waste and acutely hazardous waste. (Ords. 98-_ § 5, 96-50, 96-20, 86- 100.) 84-63.424 "Intermediate Product" means a material which requires further process treatment on-site or off-site to produce a finished product which can be sold as a commodity. 84-63.426 "Manage." "Manage" means to generate, treat, store, transport, use or dispose of hazardous material or hazardous waste. (Ords. 98-_ § 5, 96-50, 96-20, 86-100.) 84-63.428 "Process Unit" means a collection of interconnected vessels and equipment designed to separate, purify, react, combine or otherwise chemically or physically alter one or more feed materials, to produce one or more finished or intermediate products and associated wastes, defined by plot or boundary limits. For example, a catalytic cracking unit, a hydrocracking complex, etc. Pieces of a process unit such as pumps, compressors, towers, reactors, vessels, and other such equipment and appurtenances, do not constitute a process unit. 84-63.430 "Project Description." "Project description" means a written description and explanation of the construction and operation of a development project. A project description shall address all phases of and for the life of the project. The project description shall include the following information as well as any other information deemed necessary by the Community Development Director for the purpose of determining the hazard score: (a) A description of the facility location with respect to major freeways and immediate neighbors, and the size (in square footage or acreage) of the property on which the facility is located. (b) An area map showing the facility in relationship to the surrounding community; and (c) A description of all significant operations involving hazardous material and/or hazardous waste currently being managed, and/or proposed to be managed, including a brief general history of the facility. (d) A summary of the baseline data for all five years and a justification for the selection of the representative baseline year of data used in the calculation of the hazard score. The Community Development Director may waive the requirement of submitting any or all of the information required by paragraphs (a)through (d), above. (Ords. 98-_ § 5, 96-50, 96-20.) 84-63.432 "Residential property". "Residential property" means all properties with a residential designation in the general plan, including but not limited to the following: single family residential, multiple family residential, and mobile homes. 3/21/00444" Page 25 DA 3-21-00 (Orris. 98-_ § 5, 96-50, 96-20.) 84-63.434 "Sensitive receptor." The term "sensitive receptor" includes schools, general acute care hospitals, long-term health care facilities, licensed child day care facilities, and similarly less-mobile populations, and detention facilities including jails, youth camps and other locked facilities. These facilities have more than twelve people. For the purposes of this section, ""general acute care hospital" has the meaning set forth in Health and Safety Code section 1250(a), "long term health care facility" has the meaning set forth in Health and Safety Code section 1418(a), and "child day care facility" has the meaning set forth in Health and Safety Code section 1596.750. "School" means any school used for the purpose of the education of more than 12 children in kindergarten or any grades 1 to 12, inclusive. (Orris. 98-_ § 5, 96-50, 96-20.) 84-63.436 "Store." "Store" means an act to contain hazardous waste or hazardous material for any period of time in such a manner as not to constitute disposal of such hazardous waste or hazardous material. (Ords. 98-_ § 5, 96-50, 96-20, 91-49, 86-100.) 84-63.438 "Transport." "Transport" or "transportation" means an act to move hazardous waste or hazardous material by truck, rail, marine vessel or pipeline. (Ords. 98-_ § 5, 96-50, 96-20, 86-100.) Article 84-63.6 Applicability 84-63.602 Applicability. The provisions of this chapter shall be applicable in any non- agricultural zoning district. (Ords. 98-_ § 5, 96-50, 96-20, 86-100.) 84-63.604 Exemptions. The following projects and structures are exempt from the provisions of this chapter: (a) Any project built solely to comply with federal, state, regional or local agency enforcement orders under a compliance time schedule that precludes timely review under this chapter. This section is primarily intended to allow exemptions for compliance with laws, regulations, rules, or administrative or judicial orders such as nuisance abatement orders or other short-term or immediately necessary actions. This section is not intended to allow automatic exemptions for projects being undertaken to comply with changed federal, state, regional or local laws. A facility claiming an exemption under this section, must file a copy of the enforcement order and proposed project description within thirty (30) days of receipt of the order. (b) If any building, structure, or facility is destroyed or damaged by disasters such as earthquakes, floods, offsite fires, or an act of god or the public enemy, the facility may be rebuilt under the following conditions: (1) The rebuilt project is used for the same purpose as the destroyed damaged project; 3/21/00-1-' Page 26 D.4 3-21-00 (2) The rebuilt project complies with all environmental regulations in effect at the time of rebuilding, including Best Available Control Technology (BACT) or at least the same level of control that previously existed, whichever provides the greater level of protection to the public; (3) The rebuilt project does not have a higher hazard score than the destroyed or damaged project (both rebuilt and destroyed or damaged project to be scored as if they are new); (4) The hazard category of chemicals used in the rebuilt project is not greater than used by the destroyed or damaged project; (5) Construction is commenced within one year unless an extension is granted by the Community Development Director; (6) The rebuilt project is at least 300 feet away from the nearest residential property or sensitive receptor and no closer to the nearest residential property or sensitive receptor than the destroyed or damaged project; and (7) The rebuilt project will not manage Hazard Category A materials in quantities greater than the destroyed or damaged project, will not manage hazardous wastes in quantities greater than the destroyed or damaged project, will not manage Hazard Category B materials in quantities greater than 10% more than the amount managed by the destroyed or damaged project, and will not manage Hazard Category C materials in quantities greater than 10% more than the amount managed by the destroyed or damaged project. (c) A development project in which both the size, as defined in section 84-63.1012 and the monthly transportation quantity are less than: (1) for Hazard Category C materials -4000 tons (2)for Hazard Category B materials - 5 tons (3) for Hazard Category A materials - the quantity specified as the Threshold Planning Quantity on the Extremely Hazardous Materials List (Appendix A to 40 CY R Chapter 1, Subchapter J, Part 355, as amended from time to time), or 500 pounds, whichever is less. (®rds. 98-_ § 5, 96-50, 96-20, 90-92, 86-100.) Article 84-63.8 Standards and Procedures 84-63.842 Application for Applicability Determination; Exemption. Any person proposing a development project which may be used to manage hazardous waste or hazardous material shall apply to the Community Development Director for review and a determination whether a land use permit may be required under Article 84-63.10 or whether the project is exempt under section 84-63.604(a) or (b) or 84-63.606. Projects exempt under section 8463.604(c) are not required to submit an application pursuant to this section. If the hazard score of a project is 69 or less and the project does not increase the amount of hazardous waste or hazardous material managed as compared to the baseline of the last three years, a determination of non-coverage and an application therefor are not required. 3/21/0 Page 27 D.4 3-2'1-00 The application shall include all information necessary to complete and verify the hazard score of the project, such as chemical identification, distances to nearest receptors, transportation routes, and a summary of the five year baseline data. The application shall be accompanied by all fees established by the Board of Supervisors. (Orris. 98-_ § 5, 96-50, 96-20, 91-49, 90-92, 86-100.) 84-63.804 Application, Review, Determination. No later than ten calendar days after receipt of an application, or the submittal of additional information, the Community Development Director shall inform the applicant in writing that the application is complete or shall inform the applicant what additional information is required. Within twenty calendar days of the application being deemed complete, the Community Development Director shall issue a written determination of non-coverage pursuant to section 84-63.806, an exemption pursuant to section 84-63.604 (a) or(b), or a determination that a land use permit is required pursuant to section 84-63.1002. (Ords. 98 § 5, 96-50, 96-20, 90-92.) 84-63.806 Determination of non-coverage. Upon determining that a proposed project has a hazard score up to and including 79 or that the project is exempt pursuant to section 84- 63.604, the Community Development Director shall issue a determination of non-coverage or exemption. A determination of non-coverage for projects with a hazard score between 70 and 79, inclusive, means that the project is not subject to the requirements of article 84-63.10, but is subject to sections 84-63.808 and 84-63.810. Projects with a hazard score below 69 and projects which are exempt pursuant to sections 84-63.604 are not subject to the requirements of sections 84-63.808 and 84-63.810. (Ords. 98-_ § 5, 96-50, 96-20) 84-63.808 Determinations - Public Notice. All determinations of non-coverage made pursuant to section 84-63.806 shall be summarized on an agenda of the County Zoning Administrator within ten calendar days of issuance of the determination. (Ords. 98-_ § 5, 96-50, 96-20, 91-49, 90-92, 86100.) 84-63.810 Determinations - Further Public Notice. For projects with a point assignment between 70 and 79, inclusive, within five working days of issuing a determination of non-coverage, the Community Development Director shall mail notice on the date of the determination to all organizations and individuals who have previously submitted a written request for such notice. The Community Development Director shall publish a four-inch by six inch advertisement in a newspaper of general circulation within ten calendar days of issuing a determination of non-coverage. The notices required by this section shall state the name of the applicant, briefly describe the project, provide the names and phone numbers of a representative of the Community Development Department and a representative of the applicant who will be available to answer questions about the project, and shall state the date by which an appeal must be filed. (Ords. 98-_ § 5, 96-50, 96-20, 91-49, 90-92) 84-63.812 Appeals. Any appeal of a determination of non-coverage shall be filed within ten calendar days of the date the determination is listed on the Zoning Administrator's agenda or 3l2110014AW9 Page 28 G.4 3-21-00 ten calendar days from the date of publication pursuant to section 84-63.810, whichever provides the longer period of appeal. Appeals from a determination of non-coverage shall be heard by the Board of Supervisors. Except as expressly provided in this section, appeals from all decisions and determinations made pursuant to this chapter shall be governed by the land use permit provisions of article 26- 2.24 and are subject to the provisions of article 26-2.30. (Ords. 98-_ § 5, 96-50, 96-20, 86-100.) Article 84-63.10 Land Use Permits -When Required 84-63.1002 Hazard Score; Permit Required. Unless otherwise exempt from the requirements of this chapter, a land use permit shall be required for a development project proposed for the management of hazardous material and/or hazardous waste if any of the following apply: (a) the development project obtains a hazard score of 80 or more pursuant to the formula set forth in section 8463.1004; or (b) for hazard category A materials, the development project stores twice the quantity specified as the Threshold Planning Quantity on the Extremely Hazardous Materials List (Appendix A of 40 Code of Federal Regulations Chapter I, Subchapter J Part 355), as amended from time to time, or 2000 pounds, whichever is less; or (c) for hazard category A or B materials, the development project will result in a new process unit(s) unless the process unit complies with Section 84-63.1004 (d) 1 through 6 - Credit for reductions or projects to be closed. Modifications to an existing process unit does not constitute a new process unit; or (d) for hazard category B materials, any development project that has a fill to the maximum capacity of 40,000 tons or more unless the development project complies with Section 84-63.1004 (d) 1 through 6 - Credit for reductions or projects to be closed. subject to the provisions of this article. (Ords. 98-_ § 5, 96-50, 96-20.) 84-63.1004 Hazard Score. (a) Formula. The hazard score of a proposed development project shall be determined pursuant to the following formula: [(T + C +P) xH] +D +A; where the following symbols have the following designations: "T" refers to the point assignment for "Transportation Rask"; 3/21/0038 Page 29 "D" refers to the paint assignment for "Community Risk-Distance from Receptor"; "C" refers to the point assignment for "Community Risk- Type of Receptor"; "A" refers to the point assignment for "Facility Risk- Size of Project- Total Amount"; "P" refers to the point assignment for "Facility Risk- Size of Project -Percent Change"; and "H" refers to the point assignment for "Hazard Category of Material or Waste." (b) Project Hazard Score. If more than one category of hazardous material or hazardous waste is used, the formula set forth in this section will be used to calculate a separate score for each material category. The material hazard category which results in the highest hazard score - for the project will be used. (c) Point Assignment. The factors set forth in subdivision (a), above, shall have the following paint assignments: TRANSPORTATION RISK(T) POINTS Truck- residential/commercial 10 (>25% increase or new) Truck - residential/commercial 9 (>5 - 25 % increase) Truck - Industrial (>25% increase or new) 8 Truck - Industrial (>5 - 25% increase) 7 Rail - (>25% increase or new) 6 Rail - (>5 - 25% increase) 5 Marine Vessel- (>5% increase) 3 Pipeline - (>5% increase) 1 0 - 5% increase 0 COMMUNITY RISK Distance of project from receptor(D): 3/21/001449�" Page 30 0-300 feet 30 >300 - 400 feet 29 >400 - 550 feet 28 >550 - 700 feet 27 >700 - 900 feet 26 >900 - 1200 feet 25 >1200 - 1500 feet 24 >1500- 1800 feet 23 >1800 - 2100 feet 22 >2100 - 2500 feet 21 >2500 - 2800 feet 20 >2800 - 3200 feet 19 >3200 - 3500 feet 18 >3500 - 3 800 feet 17 >3800 - 4000 feet 16 >4000 - 4200 feet 15 >4200 - 4500 feet 14 >4500 - 4800 feet 13 >4800 - 5400 feet 12 >5400 - 5700 feet 11 >5700 - 6000 feet 10 >6000 - 6500 feet 9 >6500 - 7300 feet 8 3/21/00434" Page 31 D.4 >7300 - 8000 feet 7 >8000 - 8600 feet 6 >8600 - 10,000 feet 5 >10,000 - 11,000 feet 4 *11,000 - 12,500 feet 3 *1.2,500 - 14,000 feet 2 >14,000 - 15,840 feet 1 Type of receptor(C): Sensitive Receptor 7 Residential Property 5 Commercial Property 4 FACILITY RISK: SIZE OF PROJECT Total Amount of Change, tons (Conversion to tons; i ton = 2000 pounds) (A): >40,000 30 >32,000 - 40,000 29 > 18,000 - 32,000 28 >10,000 - 18,000 27 >6,000 - 10,000 26 >4,000 - 6,000 25 >2,100 - 4,000 24 C 3l21I0044AW 8 Page 32 DA 3-21-00 Ilk >1,200 - 2,100 23 >750 - 1,200 22 >400 - 750 21 >200 - 400 20 >150 - 200 19 >90 -150 18 >50 - 90 17 >30 - 50 16 >20 - 30 15 >10 - 20 14 >6 - 10 13 >4 - 6 12 >2 - 4 11 >1 -2 10 >0.8 - 1 9 >0.5 - 0.8 8 >0.35 - 0.5 7 >0.25 - 0.35 6 >0.20 - 0.25 5 >0. 18 - 0.20 4 >0. 14 - 0.18 3 >0. 12 - 0.24 2 >0, 10 - 0. 12 1 3/21/00434AU Page 33 D.4 3-21-00 no change(0. 10 or less) 0 Percent Change(P) New b >200% 5 >100% - 200% 4 >50% - 100% 3 >10% - 50% 2 >1% - 10% 1 0%-l% 0 HAZARD CATEGORY OF MATERIAL (H) Category A. 5 Category 13 3 Category C 1 (d) Credit for reductions or projects to be closed. A development project that would have a hazard score of 80 or more as determined by the formula in this section shall be entitled to a reduction credit for project closures and/or reductions in accordance with the criteria set forth in this subdivision. Reduction credit shall be given if the Community Development Director determines that the applicant will concurrently close another project or reduce its operations and finds that all of the following criteria are met: (1) The project to be closed or reduced is in the same facility in which the development project is proposed. (2) The project to be closed or reduced is currently in operation and has been in operation for at least three years prior to the date of application, during which period the production schedule has been reflective of a normal production schedule; (3) The project to be closed or reduced is the direct result of the proposed development project; (4) The project to be closed or reduced has a higher hazard score than the proposed development project; 3/21/004Q4" Page 34 DA 3-21-00 15110 (5) The hazard category of the material or waste in the development project will be no greater than the hazard category of the material or waste in the project to be closed or reduced; and (6) The development project will be more than 300 feet from the property line of the nearest residential property or sensitive receptor. The hazard score for the project to be closed shall also be determined by the formula set forth in subdivisions (a) and (b) of this section and pursuant to the provisions of this article. An determining the hazard score for the project to be closed or reduced, said project shall be deemed a new project. The hazard score of the development project shall be subtracted from the hazard score of the project to be closed or reduced. The resulting difference will then be subtracted from the hazard score of the development project to obtain a hazard score adjusted for the closure or reduction. The adjusted hazard score shall be the basis for determining whether a land use permit shall be required under this chapter. A determination by the Community Development Director that a project is not subject to the land use permit requirement of this chapter as a result of credit afforded for a project closure or reduction shall be reported to the Zoning Administrator pursuant to section 84-63.808 and shall be subject to the public notification requirements set forth in section 84-63.810. (e) Closure, reduction required. Projects proposed for closure or reduction for which closure or reduction credit was afforded under this section shall be closed or reduced as proposed within one year of completion of the development project. This subdivision (e) applies only in cases where a land use permit would have been required but for the closure or reduction credit afforded under this section. (Ords. 98-_ § 5, 96-50, 96-20.) 84-63.1006 Determination of 'Transportation Risk. The transportation risk point assignment shall be calculated based upon planned total quantities of materials in a hazard category, measured in terms of tons per year for each hazard category proposed. The transportation risk point assignment shall be calculated for each mode of transportation proportionally within a single hazard category. That transportation point assignment shall be compared by hazard category with the total amount of material in the hazard category transported during the baseline period in order to obtain the percent change in section 8463.1004(b), Transportation Risk. For purposes of determining whether truck transportation is through residential/commercial or industrial areas, the shortest legal route from the closest two-lane (or larger) freeway shall be considered. If the route used in the County does not traverse a two-lane (or larger) freeway, the entire route shall be considered. (Ords. 98-- § 5, 96-50, 96-20.) 84-63.1008 Determination of Community Risk - Distance to Receptor. "Distance to Receptor" shall be the shortest distance between an exterior wall or other part of the development 3/21/0()444" Page 35 D.4 3-21-00 project and the property line of the residential property, commercial property or the sensitive receptor used to determine the hazard score of a development project. (Ords. 98-- § 5, 96-50, 96-20.) 84-63.1010 Determination of Community Risk - 'Type of Receptor. A hazard score shall be developed for each type of receptor (residential property, commercial property and sensitive receptor) within three miles of the development project based upon the distance of the parcel of each type of receptor that is closest to the development project. The receptor that produces the highest hazard score shall be used to determine the hazard score of the development project. Receptors more than three miles from a development project shall not be considered. (Ords. 98-_§ 5, 96-50, 96-20.) 84-63.1012 Determination of Project Risk - Size. The size of a development project shall be measured in terms of tons of hazardous material and/or hazardous waste stored as a result of the development project, based upon the fill-to-the-maximum capacity of the development project, including amounts stored in tanks; reactors; columns; process lines; tank cars, tank trucks or rail cars when connected to process equipment; or any other receptacle used for the containment of hazardous materials and/or hazardous wastes. The amount of material in hazard categories A, B, or C to be added to the site as a result of the development project will be used to determine the total amount of change. If more than one category of hazardous material is used, the amounts of materials (A, B, or C) shall be used with the respective hazard category in the formula in section 84-63.1004. The specific gravity of hazardous materials or hazardous wastes may be required to calculate the number of tons (or pounds) of hazardous materials and/or hazardous waste managed at the development project. The standard of 2000 pounds equaling one (1)ton shall be used. The point assignment for storage of containerized material in buildings, such as labs or warehouses, shall be based upon the maximum anticipated amount of materials for each hazard category as a result of the development project. (Ords. 98-_ § 5, 96-50, 96-20.) 84-63.1014 Determination of Project Risk- Percent Change. The percent change of a hazard category shall be determined by comparing the amounts of materials for the respective hazard categories A, B, or C to be added to the site as a result of the development project to the total amount of all materials for the respective hazard categories A, B, or C handled at the site from the baseline period. (Ords. 98-_ § 5, 96-50, 96-20.) 84-63.1016 Determination of Hazard Category. (a) Method of Determination. The hazard category of a material or waste shall be determined pursuant to this section. (1) The primary method of determining the material hazard category of a hazardous waste or material shall be by reference to the Winter 1994 version of the U.S. Department of Transportation ("D.O.T.") Code of Federal Regulations, Title 49 (1149 CFR"), Section 172. 101, Hazardous Materials Table." From columns (3) and (5), extract the "Hazard 3/21/OW44" Page 36 D.4 3-21-00 Class or Division" and "Packing Group" information, then proceed to 49 CFR 173.2 to determine the "Name of Class or Division." Proceed to subdivision (c) of this section to determine the material hazard category as either A, B or C. If a material is listed in 49 CFR 172. 101 more than once, the rating that results in the highest hazard category shall be used. The hazard category of a mixture is determined according to its common name as defined in Title 49. (2) Where a hazardous material, waste, or mixture is not referenced in 49 CFR 172. 101, and the hazard category cannot be determined using the primary method, refer to the manufacturer's MSDS for the D.U.T. "Hazard Class or Division," "Packing Group" and "Name of Class or Division." Proceed to subdivision (c) of this section to determine the material hazard category as either A, B or C. (3) Where the preceding methods are not successful, the Contra Costa County Health Services Director or his designee shall be responsible for determining a material's hazard category. (4) Regardless of the hazard category obtained using the methods set forth above, materials with the word "poison" in column (6) of 49 CFR 172. 101, Methyl chloride, and the metals Antimony, Mercury, Lead, Arsenic, Thallium and Cadmium and their compounds, shall be Hazard Category A materials, and denatured alcohol and methanol shall be Hazard Category B materials for purposes of this chapter. (b) Exclusions. Regardless of the hazard category obtained using the methods set forth in subdivision (a), above, Hot Coke, Hot Coal Briquettes, and materials not regulated by D.O.T. or which have no D.O.T. Hazard Class or Division are not regulated by this chapter. (c) Hazard Categories. Hazard Catepory A Materials I. Forbidden Materials As referenced in 49 CFR 173.21 and 173.54. II. Explosives and Blasting Agents Class 1, as defined in 49 CFR 173.50(b)(1)through 173.50(b)(6). III, Reactive Materials A. Air Reactive Materials - Class 4, Division 4.2 as defined in 49 CFR 173.124(b)(1) and (2). B. Water Reactive Materials - Class 4, Division 4.3 as defined in 49 CFR 173.124(c). C. Organic Peroxides - Class 5, Division 5.2 as defined in 49 CFR 173.128. IV. Radioactive Materials 3/21/OO444W4& Page 37 DA 3-21-00 Class 7 as defined in 49 CFR 173.403(y). V. Oxidizers D.O.T. Packing Group I Class 5, Division 5.1 as defined in 49 CFR 173.127(a) when Packing Group I is required per 49 CFR 173.127(b)(2)(1). VI. Poisons,D.O.T. A. Poisons, Class 6, Division 6.1 as defined in 49 CFR 173.133 (applies to all hazard zones). B. Infectious Substances, Class 6, Division 6.2 as defined in 49 CFR 173.134. VII. Poison Gas Class 2, Division 2.3 as defined in 49 CFR 173.115(c). Hazard Category B Materials VIII. Flammable Liquids Class 3 Packing Groups I and II as defined in 49 CFR 173.120(x). IX Flammable Solids Class 4, Division 4.1 as defined in 49 CFR 173.124(x). X. Oxidizers,D.O.T. Packing Group H Class 5, Division 5.1 as defined in 49 CFR 173.127(a) when Packing Group 11 is required per 49 CFR 173.127(b)(2)(ii). XI, Flammable Gases Class 2, Division 2.1 as defined in 49 CFR 173.115(x), MI. Corrosives, D.O.T. Packing Group I or H Class 8 Packing Groups I or II as defined in 49 CFR 173.136(x) and 173.137(x) and (b). Hazard Category C Materials j 3/21/00444" Page 3 8 DA 3-21-00 .�y XIII. Non-flammable Compressed Gases Class 2, Division 2.2 as defined in 49 CFR 173.115(b). XIV. Combustible Liquids Class 3 Packing Group III as defined in 49 CFR 173,120(b). XV. Miscellaneous Hazardous Materials Class 9 as defined in 49 CFR 17"3.155. XVI. Oxidizers D.O.T. Packing Group III Class 5, Division 5.1 as defined in 49 CFR 173.127(a) when Packing Group III is required per 49 CFR 173.127(b)(2)(iii). XVII, Corrosives D.O.T. Packing Group III Class 8 Packing Group III as defined in CFR 49 173.136(a) and 173.137 (c). (Ords. 98-_ §5, 96-50, 96-20.) Article 84-63.12 Land Use and Variance Permits 84-63-1202 Granting. An applicant for a land use permit shall submit a project description. Land use permits required under this chapter may be granted in accordance with the provisions of chapters 26-2 and 82-6. (Ords. 98-_§ 5, 96-50, 96-20, 86- 1.00.) Article 84-63.14 Offsite Hazardous Waste Facility Compliance With County Hazardous Waste Management Plan 84-63.1402 Authority. This article is enacted pursuant to Health and Safety Code sections 25135.4 and 25135,7, concerning the siting ofoifsite hazardous waste facilities. (Ords. 98-_ § 5, 96-50, 96-20, 90-73.) 84-63.1404 Definitions. (a) General, Unless otherwise specified in this section or indicated by the context, the terms used in this article have the meanings ascribed to them in Health and Safety Code Chapter 6.5 (§ 25100 et seq.). (b) "County Hazardous Waste Management Plan" means the county hazardous waste management plan adapted by the Board of Supervisors on August 29, 1989 and amended by the 3/21100444W" Page 39 DA 3-29-00 ,50 Board of Supervisors on January 30, 1990, approved by a majority of the cities within the county which contain a majority of the population of the incorporated area, and approved by the State Department of Health Services on February 28, 1990, as said plan is amended from time to time. (c) "Hazardous waste facility" means all contiguous land and structures, other appurtenances, and improvements on the land used for the treatment, transfer, storage, resource recovery, disposal, or recycling of hazardous waste. A hazardous waste facility may consist of one or more treatment, transfer, storage, resource recovery, disposal, or recycling hazardous waste management units, or combinations of these units. (d) "Offsite hazardous waste facility" means a hazardous waste facility at which either or both of the following occur. (1) Hazardous waste that is produced offsite is treated, transferred, stored, disposed or recycled. (2) Hazardous waste that is produced onsite is treated, transferred, stored, disposed or recycled and the hazardous waste facility is not owned by, leased to or under the control of the producer of the hazardous waste. Ords. 98-_ § 5, 96-20, 96-50, 90-73.) 84-63.1406 County Hazardous Waste Management. All land use permit, variance or other land use entitlement granted for the operation or expansion of an offsite hazardous waste facility shall be consistent with the portions of the County Hazardous Waste.Management plan which identify siting criteria, siting principles or other policies applicable to hazardous waste facilities. Before granting the application, the division of the planning agency hearing the matter initially or on appeal shall find that the application complies with the applicable siting criteria, siting principles and other policies identified in the County Hazardous Waste Management flan, and that the proposed offsite hazardous waste facility is consistent with the County Hazardous Waste Management flan. (Orris. 98-_ § 5, 96-50, 96-20, 90-73,Health& Safety Code, §§ 25135.4. 25135.7.) 84-63,1408 Exclusion. The requirements of this article do not apply to projects which are exempt projects under section 84-63.604. (Ords. 98-_ § 5, 96-50, 96-20, 90-73.) SECTION V. SEVERABH.1TY, This ordinance shall be construed to achieve its purpose and preserve its validity. If any provision or clause of this ordinance or application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this ordinance which can be given effect without the invalid provision or application, and to this end the provisions of the ordinance are declared to be severable and are intended to have independent validity- 3/21/00434" Page 40 DA 3-21000 SECTION VI. PREEMPTION. Nothing in this ordinance is intended, and nor shall it be deemed, to excuse or prevent compliance with any state or federal law. If any provision of this ordinance, or the application thereof to any person or circumstance is found by a court of competent jurisdiction to be preempted by any applicable state or federal law, the Board of Supervisors declares that its intent (1) that such provision be severable from the remainder of the ordinance, and (2) that the remainder of the ordinance be given effect in accordance with the provisions of Section I of this ordinance. In the event of any conflict or inconsistency between this ordinance and applicable federal or state statutes or regulations, the federal or state requirements shall control. SECTION VI. EFFECTIVE DATE. This ordinance becomes effective 30 days after passage, and within 15 days after passage shall be published once with the names of the Supervisors voting for and against it in the CONTRA COSTA TIMES, a newspaper published in this County. PASSED on by the following vote: AYES: NOES: ABSENT: ABSTAIN: ATTEST: Phil Batchelor, Clerk of the Board of Supervisors and County Administrator By: Deputy Chair [SEAL] 3/21/00444W" Page 41 Alice Davis Diablo Municipal Advisory Committee Discovery Bay M.A.C. Clyde Civic Improvement Association P.O.Box 35 1555 Riverlake Rd., Ste.D 142 Wellington Avenue Box 134 Clyde, CA 94520 Diablo, CA 94528 Discovery Bay, CA 94514 Richard Drury,Legal Director Thomas Duffy EI Sobrante M.A.C. Conummities for a Better Environment 1140 Canyon Green Drive 3550 San Pablo Dam Road, Suite E533 500 Howard Street, Ste. 506 San Ramon,CA 94583 El Sobrante,CA 94803 San Francisco, CA 94105 Scott Foiwarkow Chuck Flagg Valerie Fraga Martinez Refining Company Western States Petroleum Association 605 Twinbridge Court P O. Box 711 1115 a 11 Street, Ste. 150 Pleasanton, CA 94523 Martinez,CA 94553-0071 Sacramento,CA 95814 Sharon Fuller Steve Gallo Sabiha Gokcen,Ph.D. (A) Maat Youth Academy Southern Energy,Pittsburg Power Plant 2047 Olympic Drive 420 Pebble Drive, Ste.E P.O.Box 192 El Sobrante,CA 94803 Pittsburg,CA 94565 Martinez,CA 94553 Marina.Gottschalk Valerie Gray Marjorie Hatter Inforin/Dynamic Networking General Chemical Tosca Refining Company(Avon) 816 Main Street 525 Castro Street Martinez,CA 94553-1487 Martinez,CA 94553 Richmond,CA 94801 Keith Howard Mark Hughes Jo Haegert Cooper, White&Cooper LLP Martinez Refining Company Hazardous Materials 1333 N. California Blvd. Ste. 450 P.O. Box 711 4333 Pacheco Blvd. Walnut Creek, CA 94596 Martinez,CA 94553 Martinez, CA 94553 Nancy Kaufman,Planning Director Mark Kehoe City of Richmond GWF Power Systems Company Mark Keller 2600 Barrett Ave. 4300 Railroad Avenue Criterion Catalyst 59 P.O.Box 4046 Pittsburg,CA 94565 P.O. Box 5 Richmond,CA 94804 Pittsburg, CAA 94565 Kensington M.A.C. Michael Kent Knightsen Town Advisory Council Hazardous Materials Ombudsman 51 Kenyon Avenue P.O. Box 170 5 Kensington,CA 94707 95 Center Avenue#120Knig Martinez, CA 94553 lttseri, CA 9454$ Paulette Lagana Dennis Larson Linda Lewis P.O. Box 1128 Communities for a Better Environment 1425 Ash Street 500 Howard Street, Ste. 506 Pittsburg, CA 44565-2021 San Francisco, CA 94105 Martinez, CA 94553 Stephen Linsley Bob Mannenberg Paul Masta 6753 Glen Mawr Avenue Contra Costa College Equilon Refining Company El Cerrito,CA 94530 #3 Rampo Court P.O. Box 711 Pleasant Hill, CA 94523 Martinez, CA 94553 y�! 106 Kathleen McDonald Tom McKnight Kay McVay McCutchen,Doyle,Brown&Enersen Equilon Refining Company 3644 Ranchford Court 1331 N.California Blvd., Ste.600 P.O.Box 711 Concord,CA 94520 Walnut Creek,CA 94596 Martinez,CA94553 Ed Morales David Nesmith N.Richmond Municipal Advisory Comm. 521 Frumenti Court Sierra Club(S.F. Chapter) P.O. Box 471 Martinez,CA 94553 2530 San Pablo Avenue, Ste. I Richmond,CA 94808 Berkeley, CA 94702-2000 Oakley Municipal Advisory Council Pacheco Municipal Advisory Committee Lewis Pascalli,Deputy Director P.O.Box 212 c/o Pacheco Town Hall Comm. Center Hazardous Materials Programs Oakley,CA 94561 3800 Pacheco Blvd. 4333 Pacheco Blvd. Pacheco, CA 94553 Martinez,CA 94553 Jim Payne Kent Peterson 12 PACE,Local 8-5 Pereyra Crockett Improvement Association P.O. Box 349 121 Gardenia Court P.O. Box 191 Martinez,CA 94553 Martinez,CA 94553 Crockett,CA 94525 Michael Polkabla Rhodia,Inc. BioMax Environmental Jimmy Rodgers Attn:Tony Koo 775 San Pablo Avenue 2083 Murphy Drive 100 Mococo Rd. Pinole, CA 94564 San Pablo,CA 94806 Martinez, CA 94553 Ralph Sattler, C.S.E. Michael Schweickert Mike Shimansky 1204 Ulfinian Way 3100 Peppermill Circle 126 Redondo Way Martinez,CA 94553 Pittsburg,CA 94565 Danville, CA 94526 Stuart Shoults Dennis Spaniol Leslie Stewart 2977 Grant Street Council of Industries 3398 Wren Avenue Concord,CA 94520 P.O.Box.5189 Concord,CA 94519 Hercules, CA 94547 Thomas E. Stewart,President Tim Storrs Steve Sullivan Inform Public Relations Chevron Riclunond Refinery PACE Local 8-5 816 Main Street P.O. Box 1272 P.O. Box 349 Martinez,CA 94553 Richmond,CA 94802 Martinez, CA 94553 Terry Swartz Beatrric Wong,esq. Michael Yarbrough Chevron Riclunond Refinery Communities for a Better Environment Intl. Brotherhood of Electrical Workers P.O. Box 1272 500 Howard Street, Ste. 506 620 Contra Costa Blvd.,#204 Richmond,CA 94802 San Francisco, CA 94105 Pleasant Hill, CA 94523 Eric Zell Diana.Silver,Deputy County Counsel Mr. Denny Larson,No. Cal Director 3260 Blume Drive, Ste. 400 Office of the County Counsel Communities for a Better Environment Richmond,CA 94806 County Administration Building 500 Howard Street, Ste. 506 651 Pine St.,9�Floor San Francisco, CA 94105 Martinez,CA 94553 Nancy Valcke Tri-Valley 625 Court Street,Room B-10 Martinez,CA 94553 d: sanderson\lndustrial Safety Ordinance s: Interested Parties Dist List—ISO .doc Dist.List.doc rev: 3/6/00(sc) Updated 12/21/99, 1/3/00: Revised Title(DRS) .... ed Nancy Kaufman Jim Payne Denny Larson Richmond Planning Department P.O.Box 349 500 Howard St., Ste.506 2600 Barrett Ave. Martinez,CA 94553 San Francisco,CA 94105 Richmond,CA 94804 Richard Loshiyuki Drury,Legal Director Diana Silver,Deputy County Counsel Office of the County Counsel Communities for a Better Environment County Administration 500 Howard St., Ste. 506 Building 651 Pine St.,9h Floor San Francisco, CA 94105 Martinez, CA 94553 ........... .........-....................................... ............................. Contra DA Community 1Jont1 C.� Dennis M. Barry,AICP 3-21-00 Community Development Director,�,c, Development Cost'' Department County County Administration Building 651 Pine Street 4th Floor,North Wing Martinez,California 94553-0095 h Phone: (925)335-1208 w .s a x•c� March 8, 2000 Re: Industrial Safety Ordinance, 98-48, Board of Supervisors Meeting Scheduled Dear Interested Party: On December 14, 1999 County Planning Commission adopted recommendations to the Board of Supervisors concerning the Industrial Safety Ordinance, Ordinance 98-48. These recommendations include the following: 1. Adopt the Negative Declaration for this project, 2. Decline to adopt the Items 7(a), (b) and (c) as presented for consideration in the Stipulated Judgment, as amendments to Ordinance 98-48, and 3. Adopt Chapter 450-8 with minor modifications, as described in the December 14, 1999 Staff Report (with one minor revision) to clarify the information requirements and access to outside grants, and 4. Adopt Chapter 84-63 with no modifications. The Board of Supervisors will consider these recommendations at a public hearing on Tuesday, March 21, 2000, at 1:00 P.M. The meeting will be held in Room #107, 651 Pine Street, Martinez. A copy of the Board Order for this item is available upon request from Shirley Casillas at the address above or (925) 335-1211. If you have any questions, please don't hesitate to call. Sincerely, Debra R. Sanderson, Special Projects Manager ca Dennis Barry, CDD Lewis Pascalli, HSD Denny Larson, CBE Diana Silver, County Counsel Richard Drury, CBE Beatrice Wong, CBE Nancy Kaufman, City of Richmond Jo Heagert, HSD Office Hours Monday- Frday:8:00 a.m.-5:00 p.m. rWir.a is riocarl thp 1 ct ."Ird & 5th Fridays of each month "Interested parties" Revisions Requested(by DRS): Revisions(by SC) Industrial Safety Ordinance (98- 1/3/00: Add Beatrice Wong(CBE) 3/6/00:Add Nancy Valcke, 48) 1/3/00: Add Richard Drury(CBE) Tri-Valley Hearld 3/2/00: Add Diana Silver,C. Court. 3/6/00: Add Denny Larson Howard Adams Kathy Adams Shoreline Environmental Alliance Industrial Association 720 Kendall Avenue P,O.Box 988 Crockett,CA 94525 Martinez,CA 94553 Tom Adams Pain Aguilar Maria Alegria 176 Val de Flores Drive 2272 Bayberry Circle 3781 Brazil Court Burlingame,CA 94010 Pittsburg,CA 94565-4268 Pinole,CA 94564 Scott A. Anderson Brent Babow Bay Point Municipal Advisory Dow Chemical Company California Contractors Alliance 3105 Willow Pass Rd. P.O. Box 1398 P.O. Box 601. Pittsburg,CA 94565 Benicia,CA 94510 Bay Point, CA 94565 Michael Bender Bethel Island Municipal Advisory Comm. Elinor Blake,Executive Assistant Polypure Incorporated P.O.Box 1388 Hazardous Materials Commission P.O. Box 5069 Bethel Island, CA 94511 20 Allen Street Pittsburg,CA 94565 Martinez,CA 94553 Pic Bonner Michelle Boortz, Attn: CAP, Paul Borenstein "Tosco Refining Company The Chevron Companies Tosco Refining Company Avon Refinery 841 Chevron Way SPAR at Avon Martinez,CA 94553 Richmond,CA 94802 Martinez, CA 94553 Laura Brown Dan Cardozo Martinez RefiningCom Byron Municipal Advisory Committee Adams Broadwell&Joseph y P.O. Box 268 651 Gateway Blvd., Ste. 900 Martinez,CA 94553 MBox 711 Byron, CA 94514 South Sart Francisco,CA 94080 Martinez, Henry Clark John Cheater Contra Costa Council West County Toxic Coalition Air Products and Chemicals,Inc. Environmental Task Force 1019 MacDonald Avenue Martinez (Shell)Hydrogen Plant 877 Ygnacio Valley Road Richmond,CA 94801 Martinez,CA 94553 Walnut Creek, CA 94596 Rosemary Corbin Dennis Cuff,County News Bureau John Dalrymple 2600 Barrett Avenue Contra Costa Times Contra Costa Labor Council Ricluttond,CA 94801 821 Main Street 877 Ygnacio Valley Road Martinez,CA 94553 Walnut Creek,CA 94596 ........................................................................................................................................................................................... ot- t �cnent A► In I .. I I '' and Pro r C 1 Cga...I �► I,,,A -,. .I Dennis M.Barry,AICD s Community Centra community Development Director Development Costa Department County County Administration Building g_... 651 Pine Street ••�:% .�` . 4th Floor, North Wing Martinez,California 94553-0095 Phone: (510)335-1208 August 5, 1999 Mr. Denny Larson Communities for a Better Environment 500 Howard Street, Suite 506 San Francisco, CA 94105 Re: Initial Study, Ordinance 98-48 Notice of Intent to Adopt a Negative Declaration Dear Mr. Larson: Attached is an August 5, 1999 revised Initial Study on Ordinance 98-48 and the four options identified in Item 7 of the Stipulated Judgment. In addition, a Notice of I ntent to Adopt a 13egative Declaration for this project is also enclosed. Consistent with the requirements of the Stipulated Juci�ett1eui, we have revised the June 7, 1999 Initial Study and determined the nature of the environmental report by August 6, 1999. We are distributing this Notice of Intent to Interested Parties notifying them that, the revised Initial Study and the Negative Declaration are available for their review, inviting their comments by September 15, 1999. Please let me know if you have any questions on the pig for making comineuts on this document. We look forward to your input. Sincerely, 4�z� �-s . Debra R. Sanderson, Special Projects Manager cc: Dennis Barry County Counsel Nancy Kaufman Lewis Pascalli Office Hours Monday - Friday:8:00 a.m.-5:00 p.m. Office is closed the 1 st, 3rd&5th Fridays of each month -z? Initial Study and Proposed Negative Declaration on the Adoption of County Ordinance 98-48 and on Stipulated Judgment Items 7(a), (b), and (c) Prepared by the Contra Costa County Community Development Department with assistance of the Contra Costa County Health Services Department and the City of Richmond Planning Department August 5, 1999 t f� Initial Study,Ordinance 98-48 August 5, 1899 Page 2 Table of Contents I. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 3 II. Project Description:. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 7 A. Summary of Changes B. Chapter 450-8, the Risk Management Program C. Revisions to Chapter 84-63, Land Use Permits D. Applicability to the City of Richmond III. Major Changes and Potential Impacts . . . . . . . . . . . . . . . . . . . . . .. Page 12 A. Potential Impacts Due to Adoption of Chapter 450-8 . . . . . . . ..Page 12 1. Prevention & Emergency Response Programs 2. human Factors Program 3. Root-Cause Analysis 4. Safety Plans and Programs 5. Increased Regulatory and Public Review 6. Summary B. Potential Impacts from Proposed Amendments to Chapter 84-63. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 16 1. Restricting Applicability to Non-agricultural Zoning Districts. 2. Expanding Land Use Permitting Requirements for Additional Types of Projects C. Options Presented in the Stipulated Judgment . . . . . . . . . . . . .Page 22 1. Option 1: Allow County to Mandate Improvements 2. Option 2: Technical Assistance Grants 3. Option 3 & 4: Lower the Hazard Score Threshold Comment on the Initial Study Checklist and Overall Conclusions IV. Comments from Interested Parties . . . . . . . . . . . . . . . . . . . . . . . . . Page 30 A. Comment Period#1 (April 19 through May 20, 1999) B. Comment Period#2 (June 7 through JUIN' 7, 1999) V. Summary Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 33 VI. Presentation of CEQA Checklist . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 34 VII. Notice of Intent to Prepare a Negative Declaration Attachments: A: Hazard Score Risk Scenarios, prepared by the Hazardous Materials Comm. B: "Interested Parties" Comment Letters I Initial Study,Ordinance 98-48 August 5, 1939 Page 3 !. Background A. Regulatory History: Chapter 84-63 of the Contra Costa County Ordinance Code was first enacted in 1986 through adoption of Contra Costa County Ordinance 86-100. This Ordinance required certain facilities involving hazardous waste and/or hazardous materials to obtain a land use permit prior to construction of the facility or modification. Chapter 84-63 was amended, with minor changes, in 1990 and 1991. No facilities were actually required to obtain a land use permit under these provisions because the threshold for triggering the land use permit requirement was relatively high. In June 1996, the County adopted Ordinance 96-20, which amended Chapter 84-63 by introducing a risk-based system for determining which proposed projects must obtain a land use permit. In December 1996, the County adopted Ordinance 96-50 (commonly referred to as the"Good Neighbor Ordinance"), which further amended Chapter 84-63. On December 15, 1998, the County adopted Ordinance 9848 (commonly referred to as the "Industrial Safety Ordinance"), which repealed Ordinance 96-50, amended Chapter 84-63, and added Chapter 450-8. In adopting these Ordinances, the County had determined that its actions were exempt from the California Environmental Quality Act (CEQA), relying on the'Class 8 Categorical Exemption. On December 16, 1998, the State District Court of Appeal Court overturned the lower court, clearly stating that the County cannot use this exemption for adoption of amendments to Chapter 8463. B. Stipulated Judgment: On April 8, 1999, Contra Costa Count- and Communities for a Better Environment(CBE) settled a lawsuit over the adoption of the Industrial Safety Ordinance (Ordinance 98-48). The settlement took the form of a"Stipulated Judgment" in which the County agreed to conduct an environmental review of this ordinance, in accordance with the California Environmental Quality Act (CEQA), with the ordinance remaining in effect pending completion of the environmental review. r 1 Stipulated Judgment, Communities for a Better Envirownent u. County of Contra Costa, et al., Civil.No. C99-00094. �f�f i ,,fiqrr Initial Study,Ordinance 98-48 August 5, 1999 Page 4 Items 4 through 8 of this Stipulated Judgment obligate the County to do the following, as summarized: ■ Item 4: Prepare an initial study within 60 days of this Judgment(by June 7, 1999). ■ Item b: Commence the appropriate environmental analysis within an additional sixty days(by August 6, 1999). ■ Item 6: Complete the environmental review process within twelve to fifteen months of the Judgment(by April 8 to July 8, 2000). • Item 7: Evaluate the Industrial Safety Ordinance as well as the four options described in the stipulated Judgment [Items 7(a), (b), and(c)]. ■ Item 8: Conduct the review of these specified options through "an inclusive review process involving all interested parties." In addition, the County Board of Supervisors instructed the Community Development Department [the Department] to conduct this review in cooperation zirith the City of Richmond and the County's Hazardous Materials Division of the Health Services Department [H SD]. C. Compliance with the Stipulated Judgement Items 4 & 7: The` Stipulated Judgement(Item 4) requires the County to"prepare an initial study regarding the adoption of the ISO within sixty (64) days from entry-of judgment." The County has adopted the following plan to comply with this item: 1. The judgment was entered on April 8, 1999, making the deadline for completing the initial study June 7, 1999. 2. The initial study has focussed on changes due to the adoption of the Industrial Safety Ordinance (Ordinance 98-48), evaluating changes as if Ordinance 98-48 had not yet been adopted. The initial study has also focussed on the four options identified in Item 7 of the Stipulated Judgment. (Item 7) 3. Section 15063(a) of the CEQA Guidelines specifies that the lead agency [in this case Contra Costa County] shall conduct an initial study to determine"if the project may have a significant effect on the environment." If the agency determines that there is"substantial evidence that any aspect of the project may cause a significant effect on the environment", then the Initial Study,Ordinance 98-48 August 5, 1999 Page 5 CEQA Guidelines instruct the County either to (1) prepare an environmental impact report or(2) use a previously prepared environmental impact report determined by the County to adequately analyze the project.2 4. Section 21068 of the CEQA Guidelines defines a"significant effect on the environment" as a"substantial, or potentially substantial, adverse change in the environment." The CEQA Guideliness further obligate the Department to "prepare a negative declaration if there is no substantial evidence that the project or any of its aspects may cause a significant effect on the environment. In summary, this initial study has sought to determine if there is substantial evidence that any aspect of this project(as defined below) may cause a substantial, or potentially substantial, adverse change in the physical environment. Throughout this document"significant impact" refers only to "substantial, or potentially substantial, adverse change in the environment," consistent with the CEQA definition in Section 21068 of the CEQA Guidelines. Where beneficial impacts are likely, this initial study so indicates. However, since the requirement to prepare either an initial study or an environmental impact report is determined by substantial evidence of adverse impacts, staff has not continued to analyze an impact once it's impact is determined to be beneficial. Item 5 of the Stipulated Judgment requires the County to initiate environmental analysis by August 6, 1999. To meet this requirement, by August 6, 1999, the County has, as it considered appropriate, revised the June 7, 1999 Initial Study; however, the County has not revised its Preliminary.Determination concerning the appropriate form of the environmental review. This action ensures that the appropriate form of environmental analysis would be initiated by this date, if not sooner. Item 8 of the Stipulated Judgment requires a review process that includes interested parties. To meet this requirement, the County and City created an extensive mailing list of"Interested Parties," invited their written comments at two points during the development of the Initial Study, and invited their participation in two discussion meetings. "Interested Party" comments are presented and summarized in this document and were considered in the preparation of this Initial Study. 2 CEQA Guidelines, Section 15063(b)(1). a CEQA Guidelines, Section 15063(b)(2). ,3 00 Initial Study,Ordinance 98-48 August 5, 1999 Page 6 D. Project Definition: On December 16, 1998, the State District Court of Appeal overturned the Good Neighbor Ordinance (Ordinance 96-50), the predecessor of the Industrial Safety Ordinance (Ordinance 98-48.) Ordinance 96-50 had repealed and replaced Ordinance 96-20. Since Ordinance 96-50 was overturned, or"set aside," Ordinance 96-20 becomes the predecessor of Ordinance 98-48. As a result, this initial study will evaluate a"project"comprised of(1) those changes that would occur by replacing Ordinance 96-20 with Ordinance 98-48 and(2) the four options identified in Items 7(a), (b), and(c)of the Stipulated Judgment [referred to hereafter as "Item 7 options."] E. Potential Impacts: Consistent with the CEQA guidelines and definition summarized above, this Initial Study will focus on identifying potential significant impacts, i.e., substantial or potentially substantial adverse changes in the physical environment that may be caused by the adoption of Ordinance 98-48. The first step will be to identify changes in County procedures and requirements that would result by replacing Ordinance 96-20 with Ordinance 98-48 and by adopting any of the Item 7 options'. Next the analysis will determine whether the potential impacts would be positive or negative. If the impacts could be negative, the analysis would then determine whether there is substantial evidence that a particular aspect of the project may cause a substantial or potentially substantial adverse impact. Aspects of the project that clearly could not cause a significant impact will not be evaluated further. F. Determination of the Appropriate Form of Environmental Analysis: If substantial evidence exists that any aspect of the project may cause a potential significant adverse impact to the environment, then staff would determine whether an EIR or a Negative Declaration should be prepared. Consistent with CEQA Guidelines, Section 15068(b)(2), the Department must prepare a negative declaration if there is no substantial evidence that the project, or any aspect of the project, may cause a significant effect on the environment. If no EIR is required, the staff will then determine whether a negative declaration or a mitigated negative declaration should be prepared, to comply with CEQA. 4 Item 7(a), (b), and(c)of the Stipulated Judgment. Initial Study,Ordinance 98-48 August 5. 1999 Page 7 it. Project Description As explained above, the"project" evaluated by this Initial Study comprises (1) those changes in Contra Costa County Code that would occur by replacing Ordinance 96-20 with Ordinance 98-48 and (2) the four"Item 7" options.5 A. Summary of Changes Ordinance 98-48, the Industrial Safety Ordinance, contains two distinct parts. One part would create a new Chapter 450-8, entitled Risk Management. This chapter would require certain major industrial facilities in the County(1) to implement Safety Programs, (2) to prepare Safety Plans and to submit them for public and HSI) review. This chapter would also allow the County Health Services Department to audit these Safety Programs and to evaluate major chemical accidents and releases. The other part of Ordinance 98-48 would amend the existing Chapter 84-63, which under Ordinance 96-20 requires land use permits for certain industrial or commercial facilities. These amendments (1) would restrict application of the Ordinance to non-agricultural zoning districts and(2) would include three neve categories of development projects that would be required to obtain land use permits, independent of their hazard scores. B. Chapter 450-8, the Risk Management Program Chapter 450-8 seeks to prevent and reduce the probability of accidental releases of regulated substances that have the potential to harm public health and to increase both industry and general public participation in industrial accident prevention. Chapter 450-8 would affect facilities located in unincorporated Contra Costa County that a. Have at least one industrial process covered by the federal "Program 3" regulations (as defined in Title 19 (T19) California Code of Regulations (CCR), Division 2, Chapter 4.5, the CaIARP program regulation), and b. Are classified as either 324 (petroleum and coal products manufacturing) or 325 (chemical manufacturing) industrial 5Ibid. Initiat Study,Ordinance 98-48 August 5, 19949 Page 8 process under the North American Industrial Classification System (NAICS). Currently, seven facilities in unincorporated Contra Costa County meet these criteria: Tosco Rodeo, Tosco Avon, Air Products (at Martinez Refining Company),Air Products (at Tosco Avon), Polypure Inc., General Chemical Baypoint, and Martinez Refining Company(MRC). This new Risk Management Program created by Chapter 450-8 expands on two portions of the existing California Accidental Release Prevention Program (referred to as"CaIARP") 6. ■ Expanded Prevention and Emergency Response Programs The "Program 3" Prevention Program and Emergency Response Program would be expanded to cover every process in a facility if any process in a facility is covered by CaIARP's "Federal Program 3" requirements Additionally, Chapter 450-8 would impose a deadline (approximately one year) on a company to implement the corrective actions resulting from"process hazard analyses" (PHA's). Chapter 450-8 would also introduce the following new programs, not otherwise required under existing statutes or regulations. • A"human factors" program.. "Human factors" refer to weakness or deficiencies in a facility's operation that may eventually cause, contribute to, or exacerbate human error that results in a chemical accident or release. Section 450-8.016(B)of the ordinance requires facilities to develop written human factors programs that address, but are not limited to, elements listed in the ordinance. The ordinance also requires the County Health Services Department to develop or adopt a guidance document that specifies the contents of the human factors program. • A Root-Cause Analysis Program Chapter 450-8 would require these companies to complete a Root-Cause Analysis (RCA)7 for anv major chemical accidents or releases (referred to as "MCAR") at their facilities. G in Title19 CCR Division 2, Chapter 4.5. rk1'" Initial Study,Ordinance 98-48 August 5, 1999 Page 9 Companies would frequently have to update the Contra Costa County Health Services Department on the status of Root- Cause Analyses while they are underway, since these analyses may take months to complete. In addition, the Health Services Department could perform independent incident investigations or root-cause analyses for major chemical accidents or releases, should they choose to do SO. ■ Safety Program and Safety Flans: Section 460-8.016 would require these companies to develop and implement a Safety Program and to submit a Safety Plan describing this program. The Health Services Department would review these Safety Plans for completeness, issue "Notice of Deficiencies" where appropriate, and conduct a public hearing on the Safety Plan once determined to be complete.-8 Companies would be required to submit an accident history of major chemical accidents or releases, including events from June 1, 1992 to the present.9 The Health Services Department would evaluate these Safety Programs, develop initial and final audit reports (called "Preliminary and Final Determinations"), and conduct formal public meetings and public comment periods on the Safety Plans, the Safety Programs, and their findings. ■ Increased Agency and Public Review: The new program would require the health Services Department to conduct an annual performance review and evaluation of both Chapter 450-8 and the industrial facilities' compliance with the ordinance. To facilitate public access to information, it would also create an "ombudsperson" position to be funded through industry fees. In addition, it would create a public information bank by December 2000, to ensure that certain reports prepared by these companies (such as 72-hour reports or 30-day reports 7 A Root-Cause Analysis seeks to identify the factors causing or contributing to an accident or release. 8 Chapter 450-8.018(A) of the County Ordinance Code. 9 Chapter 450-8.016(E)of the County Ordinance Code. Initial Study,Ordinance 98-08 August 5, 1999 Page 10 following an incident or Risk Management Plans) are readily accessible to the public. Should members of the public or representatives of a company be dissatisfied with findings made by the Health Services Department, they could appeal a"Final Determination" to the County Board of Supervisors.10 C. Revisions to Chapter 84-63, fund Use Permits Ordinance 98-48 would make numerous changes to Chapter 84-63. Changes in Sections 84-63.410, 63.418, and 63.8 would be mostly technical and clarifying. These changes would not affect the overall applicability of the ordinance. However, two changes, summarized below, would alter the County's land use permitting program by changing its applicability: a. Section 84-63.602 would make Chapter 84-63 applicable in any non-agricultural zoning district, whereas under Ordinance 96- 20, this chapter applied in any zoning district. As a result, projects that would involve hazardous materials within an agricultural zoning district would no longer be subject to Chapter 84-63. b. Section 84-63.10 would be amended to include three new categories of development projects that would be required to obtain land use permits, independent of the results of their hazard scoring. ■ A development project that would store a Category A material, Extremely Hazardous Substances, if the amount stored is twice the"threshold planning quantity"I I, or 2000 pounds, which ever is smaller; ■ A development project that would result in a new process unit that uses a Category A or B material; • A development project with Category B materials that are equal to or greater than 40,000 tons. These three changes would broaden the requirement for a land use permit to certain types of development projects that io Chapter 450-8.018(D) of the County Ordinance Code. 11 The quantity specified as the Threshold Planning Quantity on the Extremely Hazardous Materials List(Appendix A to 40 Code of Federal Regulations Chapter I, Subchapter J, Part 355, as amended from time to time), whichever is less. 4 Initial Study,Ordinance 98-48 August 5, 1999 "' Page 11 otherwise might not trigger such a requirement through the hazard scoring method. D. Applicability to the City of Richmond: The risk management portion [Chapter 450-81 would be entirely new, with no predecessor in either the County or the City of Richmond. Thus the environmental analysis of this portion would apply to both jurisdictions, since the existing settings are similar. In this case, the Chevron Refinery, located within the City of Richmond, meets the two criteria identified above for triggering application of Chapter 450-8. Should the City of Richmond adopt legislation similar to the County's Chapter 450-8, then Chevron and General Chemical-Richmond would be subject to the same procedures as the other industrial sites in the County.12 The land use permitting portion of the Industrial Safety Ordinance would amend a previous County ordinance [Chapter 84-63] that currently requires land use permits for certain projects involving hazardous materials. The environmental analysis of the land use permitting portion of Ordinance 98-48 may not apply to the City of Richmond, since the existing settings are quite different between the two jurisdictions. The County's predecessor to Ordinance 98- 48 used a risk scoring mechanism similar to that contained in Ordinance 98-48; whereas Richmond has not previously adopted a similar mechanism to determine when a land use permit is required for hazardous material facilities. The City of Richmond currently requires conditional use permits for certain types of facilities handling hazardous materials. However, since Richmond's existing conditions may be quite different from the County's, at some point Richmond may have to prepare its own analysis, independent of the County. 12 According to records of the Health Services Department,only these two facilities within Richmond satisfy the criteria that determine applicability of Chapter 450-8. Initial Study,Ordinance 98-48 August 5. 1999 Page 12 III. Major Changes and Potential Impacts A. Potential Impacts Due to Adoption of Chapter 450-8 The adoption of Chapter 450-8 would change the regulatory framework in a manner that is likely to reduce potential risks associated with the operation of major industrial facilities. Referring to the five categories of program changes summarized in Section ILA above, staff anticipates the following potential changes: 1. Prevention &Emergency Response Programs The expansion of the Prevention and Emergency Response Program would strengthen risk reduction activities throughout the facility. Chapter 450-8 would increase the number of processes subject to Process Hazard Analyses (PHA). Process Hazard Analysis is a primary tool used in complex industrial facilities to predict and remedy potential weaknesses in their physical plants as well as in their management and safety systems. Chapter 450-8 would also provide the Health Services Department oversight of all prevention program elements, including Process Hazard Analyses, and would thus provide input from experts outside the company. These changes appear likely to generate either no changes in the implementation of prevention programs (when a company is implementing the programs as well as possible) or an improvement in the implementation of prevention programs (such as correction of more problems and weaknesses.) Thus, the risk of an accident would either stay the same or decrease, generating either no impact or a potentially beneficial impact on the physical environment. Staff determines that there is no substantial evidence that this aspect of the project may cause a significant effect on the environment. 2. Human Factors Program The Human Factors Program would broaden the evaluation of potential causes of an accident, leading to a better understanding of those factors that cause"human error". The company would then be able to take action to minimize these factors, again reducing the possible severity or probability of an accident. 7 Initial Study,Ordinance 98-48 " Y August 5, 1999 Page 13 Thus, the risk of an accident would either stay the same or decrease, generating either no impact or a potentially positive impact on the physical environment. Staff determines that there is no substantial evidence that this aspect of the project may cause a significant effect on the environment. 3. Root-Cause Analysis The Root-Cause Analysis Program would increase opportunities to understand the factors causing and/or contributing to a major accident or release. By requiring the root-cause analysis, both the private and public sector would gain knowledge about how to prevent future accidents. Thus the likely outcome of this program would be either to leave risks unchanged or to reduce the probability of future accidents, thereby reducing the risk of a future major release. This change would therefore generate either no impact or a potentially beneficial impact on the physical environment. Staff determines that there is no substantial evidence that this aspect of the project may cause a significant effect on the environment. 4. Safety Plans and Programs Chapter 450-8 requirements for Safety Programs and Safety Plans would be similar to the CalARP requirements for risk management programs and risk management plans. Chapter 450-8 would provide public and agency review of these Safety Programs and Safety Plans, which is likely to cause either no change or a positive change in safety efforts by these private companies. In addition, requiring presentation of both accident records and agency compliance reviews would also provide additional public scrutiny. This increase in public and agency and scrutiny of the safety efforts in an industrial facility could have either no effect or a positive effect by increasing a sense of accountability. This change would thus lead either to no change in the environment or to a potentially positive impact on the physical environment through reduction in accident risk. Staff determines that there is no substantial evidence that this aspect of the project may cause a significant effect on the environment. Initial Study,ordinance 98-48 August 5, 14399 J ` Page 14 5. Increased Regulatory and Public Review The increased regulatory review includes annual performance reviews, annual reviews of the Ordinance itself, an ombudsman, and increased public information. It also includes an opportunity to appeal the agency's"Final Determinations" concerning these reviews to the County Board of Supervisors, or in the case of Richmond, to the City Council. These changes are likely to broaden public and agency knowledge about safety factors and to make private companies more accountable for their on-site programs. Even though Chapter 454-8 provides that agency findings could be appealed to the Board of Supervisors, that opportunity already exists for an Administrative Finding made by the Health Services Department and cannot be attributed to Chapter 454-8. Chapter 454-8 would increase the number of units the Health Services Department is able to audit/inspect and mandate changes. However, the Health Services Department must provide a basis (e.g. regulation, standards, and guidelines) for each mandated change to bring the facility into compliance with Chapter 454-8. Chapter 454-8 would allow the Health Services Department to require a company to conduct its evaluations appropriately, to submit important information to the Health Services Department, and to successfully implement remedies resulting from these various analyses within a reasonably short period of time (about one year). These actions are likely to lead either to no change in risk or to reduced risks, as additional weaknesses are revealed and appropriate remedies are implemented. Thus the County concludes that this change would therefor lead either to no impact or to a potentially beneficial impact on the physical environment through a reduction in risk of an accident or a major release. In summary, staff determines that there is no substantial evidence that this aspect of the project may cause a significant effect on the environment. 6. Sununary In summary, the prevention program elements discussed above are directed at preventing releases of toxic and flammable substances, thereby reducing the risk to the physical environment. The emergency response program is directed at mitigating releases of toxic and flammable substances, thereby minimizing the impact of an event on the physical environment. The remaining elements of the program (those that are not othennvise required by existing IV? Y Initial Study,Ordinance 98-48 August 5, 1999 ',/ Page 15 regulations) are also directed at preventing and mitigating releases as well as enhancing communication between the facility operator and the public. Since companies are likely performing at different levels of effectiveness in accident prevention and emergency response, the County and City staff cannot determine the total potential for improvement in all cases. However, the staff can determine, based on its previous experience with industrial facilities, that at least some companies could make changes that would reduce accident risks. This previous experience derives in part from. the Health Services Department's management of the County's former Risk Management Prevention Program, in which the County worked with companies to identify improvements in facility design and operation to reduce risk. Staff cannot conclusively identify potentially significant adverse physical impacts that might result from the adoption of Chapter 450-8. Thus, staff concludes that adoption of Chapter 450-8 would have either no potential impact on the physical environment or a potential beneficial impact on the physical environment. Staff determines that there is no substantial evidence that this aspect of the project may cause a significant effect on the environment. _ _.__ Initial Study,Ordinance 98-48 August 5, 1999 Page 16 B. Potential Impacts From the Proposed Amendments to Chapter 84-63. As summarized above, Ordinance 98-48 would make two primary changes in the County's current land use permitting requirements. The first of these changes would make Chapter 84-63 applicable in all non-agricultural zoning districts, as opposed to all zoning districts. The second change would result in certain development projects being subject to the land use permit requirements, independent of their expected hazard scores. The potential impacts of these two changes are evaluated below. 1. Restricting Applicability to Non-agricultural Zoning Districts Making Chapter 84-63 applicable in all non-agricultural zoning districts (as opposed to all zoning districts) would potentially remove certain agricultural activities involving hazardous materials from Chapter 84-63 land use permitting requirements. In order to evaluate the magnitude of this change, one must first understand what types of facilities and uses are currently allowed in agricultural zoning districts without a land use permit. The County has seven types of agricultural zoning districts, as listed below. In each district, certain uses are allowed without a land use permit and certain uses are allowed only with a land use permit. Zoning Zoning District Uses -- Uses Type permitters requiring land use permit A-1 Li ht Agriculture 84-36.402 84-36.404 A-2 General Agriculture 84-38.402 84-38.404 A-3 Heavy Agriculture 84-40.402 84-40.404 A-4 I Agricultural Preserve 84-42.402 84-42.404 A-20 Exclusive Agricultural 84-80.402 84-80.404 A-40 Exclusive Agricultural 84-82.402 84-82.404 A-80 Exclusive A ricultural L84-84.402 84-84.404 The following list summarizes the t;-Tes of facilities and uses that are currently allowed in agricultural districts without a land use permit: ■ A-1 Light Agricultural Districts allow small farming, nurseries, poultry raising, the keeping of livestock, and small foster home and family day care facilities (i.e., not more than six minors). A-2 General Agricultural Districts allow all types of agriculture plus such agricultural uses as wareliouses, dehydration plants, 1 Initial Study,Ordinance 98-48 August 5, 1999 Page 17 packing plants, cold storage plants, and small foster home or day care facilities. ■ A-3 Heavy Agricultural Districts allow the A-2 permitted uses, except for single-family homes. However, residences are allowed for those owning or leasing land on which an agricultural use is located. ■ A-4 Agricultural Preserve Districts allow types of agricultural production similar to that allowed in an A-2 district, but related uses (such as warehouses, storage facilities, and packing plants) require a land use permit. ■ A-20 Districts allow all types of agriculture plus other agricultural uses, such as sheds, warehouses, dehydration plants, packing plants, and product storage facilities. • Both A-40 and A-80 districts allow the same uses as allowed in an A-20 zoning district. In general all of these districts allow agriculture, and the A-2, A-3, A-20, A-40, and A-80 districts also allow agricultural uses (such as warehouses, packing plants, cold storage plants). Only the A-2 and A-3 Districts allow small foster homes or childcare facilities. None of these districts allow uses considered"sensitive receptors"13---i.e., churches, hospitals, community buildings, medical facilities, etc. —as a matter of right. Four of the seven districts (A-1, A-2, A-3, and A-20) allow such sensitive uses with a land use permit. The remaining three districts exclude such uses entirely. In addition, none of these districts allows hazardous material operations—with or without a land use permit -- that are unrelated to agriculture. Analysis: Given the existing zoning restrictions that apply to the seven agricultural zoning districts, the potential is quite small for conflicting land uses between hazardous material facilities and sensitive land uses (such as hospitals, large day-care facilities, and community buildings). In these districts, "sensitive" land uses (as defined by Ordinance 98-48) either are not allowed or require a land use permit. Prior to granting a land use permit for these "sensitive" uses, the County would be required to evaluate the proposed facility's compatibility with surrounding land uses and to determine that public health and safety would not be jeopardized. The types of"agricultural uses" allowed in five of the districts typically would not include facilities associated with a hazard score of 80 or more. Hazardous material storage would be allowed in a general agriculture zoning district, but only as necessary to support an individual land owners' agricultural operations. 13 As defined by the Industrial Safety Ordinance, Section 84-63.484. . ,. Initial Study,Ordinance 98148 August 5, 1999 Page 18 The agricultural sector is not expanding in Contra Costa County. No new facilities involving significant quantities of hazardous materials have been built in recent years; given the shrinking agricultural sector, new major facilities are not anticipated. The types of agricultural facilities (i.e., food packing plants, dehydration plants) that have been built typically use small amounts of hazardous materials that would not have triggered a requirement for a land use permit under Ordinance 98-48. In addition, agricultural facilities using hazardous materials are subject to the same requirements as other types of facilities to prepare and file Business Plans with the County, identifying the types and quantities of hazardous materials on-site.14 The Agricultural Commission regulates and monitors the use of these materials. Thus, excluding development projects in agricultural districts from Chapter 84-63 would not decrease the numbers of projects that would otherwise be required to obtain land use permits. The types of facilities permitted by right in these districts typically would not use hazardous materials in sufficient quantities and types to require a land use permit under Chapter 84-63. This conclusion is consistent with the recommendation made by the National Institute for Chemical Studies to amend Chapter 96-20 so that it applied only in non-agricultural zoning districts.15 "Interested Parties" Comments and Responses: There were no comments on this portion of the Initial Study. Conclusion: In summary, staff has evaluated information summarized above and determines that there is no substantial evidence that this aspect of the project may cause a significant effect on the environment. 14 Telephone Interview with Mr. Edward P. Meyer, CCC Agricultural Commission, July 28, 1999. 15 National Institute for Chemical Studies. "Report to the Contra Costa County Board of Supervisors," November 19, 1995, page 13. Initial Study,Ordinance 98-48 August 5, 1999 Page 19 2. Expanding Land Use Permitting Requirements for Additional Types of Projects The second change would require three types of development projects to acquire land use permits, independent of their hazard score. As a result, the number of projects subject to the County's existing land use permitting procedures may increase. The development projects in this category include (1) those storing industrial quantities (rather than planning quantities) of extremely hazardous substances (i.e., Category A)16; (2) those storing extremely large amounts of flammable materials and less dangerous corrosives and oxidizers (i.e., Category B)17t and(3) those adding a new process unit that uses either Category A or B materials. Note that these inclusions apply only to projects involving hazardous materials above the exemption thresholds specified in Section 84-63.604(e). The staff has insufficient information to determine what number or portion of these three types of facilities would be required to obtain a land use permit due to this change in applicability (Section 84-63.10). Although staff can deduce that this change is likely to increase the number of development projects to obtain a land use permit, staff cannot draw this conclusion with certainty. Thus this change may increase public and agency scrutiny of certain proposed development projects (through the land use permitting process) but it clearly would not reduce the level of scrutiny. Analysis: The land use permitting process increases opportunities for both public and agency scrutiny of proposed projects, and often it generates Conditions of Approval that would reduce potential adverse impacts. To approve a land use permit requires a positive finding"that the proposed conditional land use shall not be detrimental to the health, safety and general welfare of the county."1$ It also requires a positive finding"That it shall not create a nuisance and/or enforcement problem within the neighborhood or community."19 The process of evaluating a proposed project and making such a finding is highly unlikely to lead to negative impacts on the physical environment. 16 Category A materials include"forbidden materials", explosives, blasting agents, reactive materials, radioactive materials, oxidizers, and poisons. 17 Category B materials include flammable liquids, solids, and gases;oxidizers (DOT Group I1); and corrosives(DOT Group I or II). 18 County Code Section 26-2.2008 (1). 19 County Code Section 26-2.2008 (5). Initial Study,Ordinance 98-48 August 5, 1999 Page 20 However, this process could create beneficial environmental impacts by leading to reductions in risks of proposed projects. In the process of evaluating proposed projects for land use permits, previous experience by County staff indicates that project proponents often revise their projects so that staff can make the necessary findings of no detrimental impact to health, safety and general welfare. These projects also become subject to CEQA review. The CEQA process often generates additional information on how to reduce risks to public health and safety. Project proponents often revise their proposed projects in order to avoid or mitigate potential significant impacts, as defined by CEQA. Such changes are likely to lead to beneficial impacts on the environment. Staff has found no evidence that this process of increased public and agency review in and of itself would create adverse impacts on the physical environment. Thus staff concludes that these proposed changes to expand applicability of Chapter 84-63 would have either no impact or a beneficial impact on the physical environment. "Interested Parties" Comments and Responses: The July 7, 1999 letter from Communities for a Better Environment,20 (CBE) states that the Industrial Safety Ordinance would(1) raise the Hazard Score Threshold for requiring land use permits from 60 to 80 points and(2) add land use permitting requirements for certain limited uses. The letter then asserts that these changes would(a) lower the safety threshold for numerous facilities, (b) thereby greatly increasing the probability of"plant blow ups," (c) remove public scrutiny of these facilities prior to permitting, and (d) thus directly resulting in significant environmental impacts. The evidence provided quotes a study by the National Institute for Chemical Studies stating that the hazard score is not a true statement of risk. In response, staff disagrees with CBE that the Industrial Safety Ordinance raises the score from 60 to 80. As discussed above under"Project Description," staff concludes that adopting Ordinance 98-48 would continue the hazard score threshold of 80 which was set by Ordinance 96-20, its legally valid predecessor. Second, CBE has presented no"substantial evidence" to support its view. CEQA considers "substantial evidence" to be facts and opinions supported by facts. It eXCiudes "speculation and conjecture" as well as "unsubstantiated opinions, concerns, and 20 Pages 1 and 2, Section A,of the July 7, 1999 letter from Denny Larson, Communities for a Better Environment, to Debbie Sanderson, CCC Community Development Department. �7 Initial Study,Ordinance 9848 August 5, 1999 Page 21 suspicions" from consideration as"substantial evidence."2r Thus, the CBE argument does not qualify as"substantial evidence." Third, CBE's presumption that failure to require a land use permit would directly lead to a great increase in the probability for"plant blow-up or accidents"entirely overlooks the steadily expanding safety requirements for industrial facilities--entirely independent of the County's Land Use Permitting Process. Fourth, staff concurs with CBE that the analysis prepared by the National Institute for Chemical Studies does conclude that the hazard scoring formula could be improved—it underestimates some risks while overestimating others.22 However, staff disagrees with CBE on the implications of this conclusion. The study authors did not in their conclusions recommend that the score be lowered from 80 to 60 or that the scoring formula be revised as part of the adoption of Ordinance 98-48. Instead, they concluded that"the Hazardous Materials Commission had done a good job in setting a reasonable threshold [of a hazard score of 80] that would meet public safety needs."23 The report did not recommend lowering the hazard score. Conclusion In summary, staff has considered comments by the interested parties, as well as other information discussed in the preceding paragraphs, and has determined that there is no substantial evidence that this aspect of the project may cause a significant effect on the environment. 21 See Michael Remey, et. al, "Guide to the California Environmental Quality Act(CEQA), 1996 Edition,"pages 139-146. 22 Ibid.,Appendix D. 23 Ibid.,page 5. Ora Initial Study,Ordinance 98-48 August 5, 1999 Page 22 C. Options Presented in the Stipulated Judgment As indicated above, Section 7 of the Stipulated Judgment obligates the County to evaluate the potential environmental impacts of four options or alternatives to the Industrial Safety Ordinance. These options are as follows: 7. Through the environmental review process, the County shall analyze, at a minimum the following mitigation measures and/or alternatives to the ISO [Industrial Safety Ordinance]: (a) Amending the ISO to allow the County to require facilities to implement technical, managerial and/or other improvements at industrial facilities to promote public health and/or safety; (b) Establishing a technical assistance grant program with funding of$100,000 per year that will be available to community organizations to hire technical experts to assist with analysis of the safety plans submitted by industrial facilities; (c) Revising the thresholds contained in Section 84-63.1007 of the ISO for determining when new development projects are subject to environmental review to 60 and 70 hazard points. The County interprets item 7(c) to include two cases—reducing the hazard score threshold from 80 to 70 and from 80 to 60. Thus the County will evaluate these items as four potential changes to the Industrial Safety Ordinance. Option 1: Allow County to Mandate Improvements: Option 1 would allow the County(in this case the Health Services Department) to require a facility to implement some change— either technical or managerial—in its facility operations in order to promote public health and/or safety. For analytic purposes, the County assumes that"technical improvements" comprise improvements to the physical system and"managerial improvements" comprise improvements to programs and procedures. Analysis: Under Chapter 4508 (an expansion of the CaIARP program) the Health Services Department could require only managerial changes that are necessary to ensure compliance with Chapter 4508. If a facility fails to comply with the ordinance, Health Initial Study,Ordinance 98-48 August 5, 1999 Page 23 Services Department could issue a"Final Determination" identifying modifications in the Safety Plan or Safety Program necessary to bring the facility into compliance with Chapter 450- 8.23 The Health Services Department could enforce three types of compliance, as outlined in Chapter 450-8: (1) the Safety Plan(which summarizes the Safety Program) include all of the elements required by the Ordinance (such as Process Hazard Analyses, Management of Change procedures, training, etc.); (2) the facility's Safety Program is consistent with the Safety Plan submitted to the Health Services Department and the public. [This consistency is determined through an on-site audit of the Safety Program]; and (3) the facility's management practice is consistent with its written Safety Program (also determined through an on-site audit.) Chapter 450-8 would require a facility operator to develop programs that help personnel prevent and mitigate potential hazards, as opposed to requiring installation of specific physical systems. The Safety Programs developed through this ordinance could vary substantially from facility to facility, and even from unit to unit within the same facility. For example, Section 450- 8.016(A)(11) of County Ordinance 98-48 would require a facility operator"...when selecting a contractor, [to] obtain and evaluate information regarding the contract owner or operator's safety performance or programs." Facilities may adopt different procedures for meeting this requirement. Option 1 would allow (although not mandate) Health Services Department to also require certain physical changes that it concludes would improve public health and safety. Such authority could have beneficial physical environmental impacts, depending on how this authority is applied and whether additional safety options actually exist. Option 1 specifies that the change would have to promote public health and safety. Health Services Department has a long history of working effectively with industrial facility operators to reduce risk and increase public safety. Assuming the Health Services Department continues to make decisions consistent with its previous practice, then the environmental impacts are likely to be beneficial. Should a company disagree with a change mandated by Health Services 23 Chapter 450-8, Section 8.018. r�_ 7 �C Initial Study,Ordinance 98-48 August 5, 1999 Page 24 Department, it could appeal the decision to the Board of Supervisors, as with any administrative decision. In order for a negative impact to result from Option 1, Health Services Department would have to mandate a change that in some way compromised the industrial process, probably over the objections of the facility. Such a decision could be appealed to the Board of Supervisors. Staff can identify no reason why the opportunity to mandate physical improvements in an industrial facility would be any more likely to lead to adverse impacts than the opportunities already provided in Chapter 450-8. Thus staff concludes that Option 1 is likely to create beneficial impacts on the environment. "Interested Parties" Comments and Responses: Three letters commented on staffs evaluation of this option. Ms. Leslie Stewart24 commented that staff overlooked the possibility that a party might appeal HSD's lack of action, the Board of Supervisors would have to choose among experts, and the Board of Supervisors might err. While staff concurs that this outcome is theoretically possible, Ms. Stewart presents no evidence to support this argument. Under CEQA arguments that are not inference from evidence do not qualify as "substantial evidence." Thus staff disagrees with the commentor that an EIR should be prepared. A second letter, from Tosco Refining Company, asserts that significant impacts are likely from the adoption of Option 7a. The letter presents as supporting evidence the story of U.S. EPA's 1994 adoption of ethylene oxide emission reduction regulations [40 CFR Part 63 Subpart O]. Over a three-year period, the EPA determined that the emission control equipment required by these regulations caused increased likelihood of explosions and the regulations were repealed. Tosco asserts that this story provides substantial evidence that allowing the Health Services Department to require safety improvements without the benefit of full public review of the requirement could lead to potential significant environmental impacts. Staff has evaluated this evidence and concludes that it does not apply in the consideration of adopting Option 7a. First, these EPA regulations were subject to a full public review process —staff analysis, public review, public comment, noticing, etc. After this full review of the requirement, EPA adopted the regulations. Three years later EPA determined that it had erred and withdrew the requirement. This evidence supports an argument that agencies and public decision-makers can err 4 even with full 24 Letter of June 25, 1999 from Leslie Stewart to Debbie Sanderson, CCC Community Development Department. Initial Study,Ordinance 98-48 August 5, 1999 Page 25 public, industry, and technical review of the proposed changes. It does not provide evidence that they are more likely to err without full public review prior to adoption of a requirement. One could argue that agencies would be even more cautious without full public review and thus might be less likely to err. Staff does not concur with Tosco that this information comprises"substantial evidence" supporting an argument that an EIR should be prepared. A third letter, from Communities for a Better Environment(CBE), asserts that the failure to give the County discretionary authority may lead to significant environmental effects and thus triggers the requirement to prepare an Environmental Impact Report. CBE summarizes arguments both supporting and rejecting this position and then concludes that the ambiguity on this issue qualifies as "substantial evidence" and the County must therefore prepare an EIR to resolve this ambiguity. CBE presents no evidence to support either argument, and CEQA does not treat arguments and disagreements, ipso facto, as evidence. Disagreements among experts may trigger the requirement for an EIR, but in this case CBE has not presented any evidence that there is a disagreement among experts in the field that addresses the question at hand.25 Conclusion: In summary, staff has considered these comments by the "interested parties", as well as other information referenced above, and finds no substantial evidence indicating that the impacts of Option 1 may cause a significant effect on the environment. Option 2: Technical Assistance Grants This option would establish a technical assistance grant program with funding of$100,000 per year made available to community organizations to hire technical experts to assist with analysis of the Safety Plans submitted by industrial facility operators. As background, recall that the Safety Plans are documents that summarize companies` on-site safety program. An audit performed by Health Services Department would determine whether a Safety Plan truly reflected a company's Safety Program and whether the Safety Program was actually being implemented on-site. Analysis: Providing communities with additional technical expertise to review Safety Plans could lead to much more intense public questioning of both the company that prepared a Safety Plan and 25 See M. Remy, et. at., page 144145. �.t Initial Study,Ordinance 98-48 August 5, 1999 Page 26 the staff who conducted an audit. This public scrutiny and discussion could create an incentive for companies to reduce risks by improving their Safety Programs, altering the chemicals handled, or modifying technology. There is at least anecdotal evidence that implementation of some Community Right to Know Programs and enforcement of Safety Programs has motivated some companies to reduce on-size hazards and improve work place safety. Staff analysis has determined no scenarios likely to lead to detrimental environmental impacts due to increased public access to technical experts to scrutinize a company's Safety Plan. On the other hand, the impacts could be positive due to increased public review of and input to companies' Safety Programs and Safety Plans. "Interested Parties" Comments and Responses: There were no new comments received addressing this option, other than Tosco Refining Company reiterating its earlier comments. Conclusion: As with Option 1, staff has considered comments by the "interested parties," as well as other information summarized above, and finds no substantial evidence indicating that the impacts of Option 2 may cause a significant effect on the environment. Option 3 and 4: bower the Hazard Score Threshold The Industrial Safety Ordinance would not amend the hazard score threshold that triggers requirement of a land use permit. Projects with a score of 80 or more would still be required to obtain a land use permit in order to build and/or operate the proposed development project. Those with a score between 70 and 79 would still be subject to public review and comment on their risk scoring and on the Community Development Department's Determination of Coverage. The score of eighty was initially recommended by the hazardous Materials Commission, comprised of representatives of a wide variety of parties interested in developing a risk-based system for requiring land use permits. This group evaluated eighty-seven hypothetical development projects grouped by hazard scores, and determined that those in the Hazard Score 80 category (and higher) were the types of facilities that should be required to obtain a land use permit prior to construction or operation. The Industrial Safety Ordinance would not alter this threshold hazard score or the formula for deriving a project's hazard score. _ Q1. Initial Study,Ordinance 98-48 August 5, 1999 Page 27 Analysis: In order to evaluate the potential impacts of lowering the threshold score either to 70 or to 60, staff has reviewed information compiled previously by the Hazardous Materials Commission when establishing the hazard score threshold of 80. These scenarios(Attachment A) provide examples of hypothetical development projects that would be in each of these groups—those with scores in the seventies and those with scores in the sixties. The purpose of this analysis in the Initial Study is to determine the potential environmental impacts of requiring land use permits of those projects with scores in the seventies and also of those with scores in the sixties. Attachment A presents the listing of the types of facilities that would have scores in each of these categories and explains the process original used by the Hazardous Materials Commission in choosing the threshold score of eighty. This Commission determined that numerous facilities with scores of eighty or more could be made safer, reducing their project hazard below eighty, while still remaining viable. However, the Hazardous Materials Commission determined that these facilities could not readily reduce their hazard scores below sixty and remain economically viable. The Commission also reasoned that requiring land use permits for projects with scores of 80 or above would create an incentive for applicants to make their projects safer—i.e., make a project safer, reduce the hazard score to below 80, and thereby avoid the lengthy land use permitting process. In keeping with the conclusions drawn by the Hazardous Materials Commission, one possible outcome of lowering the threshold hazard score would be a reduced number of projects with scores between under 80 and an increased number of projects with scores over 80. Applicants with projects that could be made safer would, in theory, not do so, since it would no longer help them avoid the land use permitting procedures. Without this incentive, applicants would simply propose projects with scores of 80 or more, even though they could have proposed safer projects that were economically viable. Staff has considered the analysis performed by the Hazardous Materials Commission and does not find substantial evidence that the result—i.e., projects that are eventually permitted and built— would be any more dangerous. In staff's experience, "proposed projects" do not equate to"built projects," largely because there are other incentives for applicants to lower the risks of their projects. For example, in order to find that either Option 3 or 4 may create a negative environmental impact, staff would have to conclude that the County could not deny permits or cause a proponent to alter Initial Study,Ordinance 9848 August 5, 1999 Page 28 the proposed project in such a way that would reduce risks. Such conclusions contradict staff experiences with land use permitting, which frequently result in project proponents amending their proposed to reduce risk, for a variety of reasons -- to satisfy the County's performance criteria for issuance of land use permits; to satisfy concerned neighbors, to avoid a"significant impact" finding under CEQA;or to avoid other types of regulatory requirements. Thus staff concludes that there is no substantial evidence that adopting Option 3 or 4 may lead to potentially significant adverse environmental impacts. On the other hand, adopting either Option 3 or 4 could create an even greater incentive for proponents to reduce risks even further, to levels below a hazard score of either 70 or 60. This hypothesis, if true, could result in beneficial environmental impacts. The experience with hazardous waste generation in the United States provides extensive evidence that industry can, over time, develop new, less hazardous ways of operating in order to avoid costly regulations or permitting procedures. "Interested Parties" Comments and Responses: Leslie Stewart commented that lowering the threshold could reduce the incentive for a company to reduce risk, leading to proposed projects with higher than necessary risks. Ms. Stewart further infers that facilities would tend to become out-of-date. Staff concurs that this outcome is theoretically possible, but notes that Ms. Stewart has present no evidence supporting this position. As mentioned previously, inference or argument must be based on evidence to be considered as "substantial evidence" under CEQA. Tosco Refining Company's letter encourages the Board of Supervisors to allow the threshold to remain at its current level. However, Tosco provides no evidence supporting an argument that significant impacts may follow if the Board of Supervisor's lowers the threshold. Conclusions: As discussed above, staff has riot identified substantial evidence supporting a conclusion that lowering the threshold either from eighty to seventy or from eighty to sixty may cause adverse environmental impacts. Staff finds some evidence that potential beneficial impacts are likely to occur; but staff finds no substantial evidence indicating that Options 3 or 4 may cause a significant adverse effect on the environment. Comment on the Initial Study Checklist and Overall Conclusions: Section D of the CBE letter comments on the conclusion reflected in Section VII of the Initial Study Checklist attached to this 4/1 4.• Initial Study,Ordinance 98-48 August 5, 1999 Page 29 analysis. CBE asserts that since facilities transporting, using, or disposing of hazardous materials may be within one quarter mile of a school [VII(c)], and since a toxic release may affect a school, then there is substantial evidence of potential significant impacts. CBE presents no evidence to support this argument or inference. To be considered"substantial evidence", CES►4 requires that the inference be based on evidence, not logic. Indeed, schools themselves may transport and use hazardous materials, which does not lead to the conclusion that significant environmental impacts are present. Thus staff does not concur with CBE that they have submitted substantial evidence supporting a fair argument that significant environmental impacts may occur. Section B of the CBE letter asserts that there is a disagreement among technical experts about the adoption of the"Section 7 options", and that this disagreement automatically triggers a requirement that the County prepare an Environmental Impact Report. Staff has evaluated this assertion and disagrees with its application in this case. First, CBE has not presented evidence of a disagreement among technical experts. Second, staff review of the full record does not reveal a disagreement among technical experts based on evidence. The parties to this debate have presented various arguments, opinions, and inferences from opinions concerning the advisability of adopting one or more of these options. However, these are not disagreements based on evidence concerning the question at hand—that is, would adoption of an option lead to potential significant environmental impacts? In addition, staff does not consider all of these parties to be "technical experts" in the field of determining potential environmental impacts. Thus staff disagrees with CBE that in this case a review of the record supports the conclusion that CEQA requires preparation of an Environmental Impact Report. .s �.. Initial Study,Ordinance 98-48 August 5, 1999 9- Page 30 IV. Comments from Interested Parties A. Comment Period #1 (April 19 through May 20, 19991. &guest for Comments: Consistent with Items 7 and 8 of the stipulated Judgment, on April 19, 1999, the County Community Development Department distributed a letter to"Interested Parties" inviting them 1. to submit written comments by May 20, 1999 concerning potential adverse impacts of the adoption of Chapter 98-48, 2. to attend a meeting on April 28, 1999 to discuss the pending CEQA analysis, and 3. to suggest additions to the County's"Interested Parties" distribution list. In addition, on April 21, 1999, the City of Richmond distributed a similar letter to"Interested Parties" within Richmond. Over two hundred letters were distributed by the two agencies. The County and City distributed the letters to those in the County and City who had previously shown interest in this ordinance, plus the County's Municipal Advisory Councils, the City's Neighborhood Councils, and the Citizen Advisory Panels for industrial facilities. The County and City goal was to provide an opportunity for input to anyone who was interested. The County and City invited written public comments that would provide evidence of potential environmental impacts either (1) due to the adoption of the Industrial Safety Ordinance or (2) due to the possible adoption of any of the four options identified in Item 7 of the Stipulated Judgment. Comments were requested by Thursday, May 20, 1999. At the meeting on April 28, 1999, the County described the basis for the CEQA analysis, the baseline conditions (i.e., Chapter 8463 as amended by Ordinance 96-20), and the type of public comments that would prove useful. Comment Period#1 —Letters received: The Department received comment letters from the following individuals; these letters are included in Attachment B: 1. Mr. Stephen Linsley, member of the Hazardous Materials Commission 2. Mr. Chuck Flagg, Refinery Manager, Martinez Refining Company 3. Mr. Brent Babow, Vice President, California Contractors Alliance Initial Study,Ordinance 98-48 August 5, 1999 Page 31 4. Ms. Marjorie Hatter, Manager, Health & Safety, Tosco Refining Company In summary, the letters make minimal comments on the potential impacts from the adoption of Chapter 98-48. Commentors either make no comments or opine that the impacts are probably beneficial or at least not negative. No evidence is presented to support either view. These letters were considered by staff in preparation of the Initial Study and Preliminary Negative Declaration, released June 7, 1999. The letters primarily focus on the options described in Item 7 of the Stipulated Judgment. As concerns Option 7a (County authority to mandate facility changes to improve public health and safety), commenters anticipate both negative and positive impacts, although no one submitted substantial evidence to support either type of impact. One commentor suggested that the Tosco accident and the Chevron fire were evidence indicating that adopting this option would have beneficial impacts. however, staff has found no clear nexus between these events and the lack of such County authority to justify the conclusion. As concerns Option 7b (grants to community groups) and 7c/d (reduction in hazard score threshold from 80 to either 70 or 60), again comments ranged from negative to beneficial impacts but no commentor provided substantial evidence to support a conclusion of potential significant impacts. In conclusion, staff found no evidence of physical environmental impacts presented in these comment letters. Several commenters describe the same analysis presented in this Initial Study, which staff views as inconclusive evidence of physical environmental impact. Much of the content of these letters presents concerns that are more appropriately brought before the County or City decision- making body when considering the possible adoption of these four options. B. Comment Period #2 (June 7 through July 7, 1999) On June 7—9, 1999, the Department and the City of Richmond notified interested parties of their Preliminary Determination to prepare a Negative Declaration for this project and invited written comments for the staffs consideration in making its final determination (due August 6, 1999). The staff made the Initial Study and Preliminary Negative Declaration available for public review, held an open-discussion meeting on June 30, 1999, and requested written comments by Jul} 7, 1999. Staff received the Initial Study,Ordinance 98-48 August 5, 1999 Page 32 following comment letters, included in Appendix.B of this document: 1. Ms. Leslie Stewart, dated June 25, 1999. 2. Mr. Denny Larson, Communities for a Better Environment, dated July 7, 1999. 3. Ms. Marjorie Hatter, Tosco Refining Company, dated July 7, 1999. Staff considered these comments in preparing this revision of the July 7 Initial Study, as summarized above. Initial Study,Ordinance 98-48 August 5, 1999 97 Page 33 V. Summary Conclusions In conclusion County and City staff find no substantial evidence of potential significant impacts due to 1. The adoption of Chapter 450-8, as presented in Ordinance 98- 48, or 2. The amendments to Chapter 84-63, as presented in Ordinance 98-48, or 3. The adoption of any of the four options presented in the Stipulated Judgement, Items 7(a), (b), or (c). Staff has identify potentially beneficial impacts from 1. The adoption of Chapter 450-8, as presented in Ordinance 98- 48, 2. The amendments to Chapter 84-63, as presented in Ordinance 98-48, and 3. The adoption of any of the four options presented in the Stipulated Judgement, Items 7(a), (b), or(c). While staff analysis concludes that the environmental impacts from these items appear likely to be beneficial, staff has not identified substantial evidence that would support this conclusion. As required by the Stipulated Judgment, the County has completed an initial study on the items as instructed and finds that a negative declaration is required by CEQA for this project. CEQA Guidelines Section 15063(b)(2)obligates the County or City to"prepare a negative declaration if there is no substantial evidence that the project or any of its aspects may cause a significant effect on the environment." CEQA (Section 21068) defines a"significant effect on the environment" to be "a substantial, or potentially substantial, adverse change in the environment." Thus to determine that any aspect of this project would create a significant impact, staff would have to determine that substantial evidence exists that a specific aspect of this project may cause a substantial or potentially substantial adverse change in the environment. Staff has identified no such substantial evidence and thus recommends that a Negative Declaration be prepared for this project. Initial Study,Ordinance 98-48 August 5, 1999 Page 34 Vi. Presentation of CEQ,A Checklist (follows) NOTICE OF A PUBLIC HEARING BEFORE THE CONTRA COSTA COUNTY BOARD OF SUPERVISORS COUNTY-WIDE NOTICE is hereby given that on Tuesday.March 21, 2000- at 1_:00 Vim.- in the County Administration Building, 651 Pine Street, (Comer of Pine and Escobar Streets), Martinez, California,the Contra Costa County Board of Supervisors will hold a public hearing to consider the following matter: Hearing on the recommendation and findings of the Contra Costa County Planning Commission pertaining to the proposed modification and readoption of The Industrial Safety Ordinance, (Ordinance 98-48), Chapters 450-8 and Chapters 84-63 of the County Ordinance Code. If you challenge this project in Court,you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the County at, or prior to, the public hearing. If you have any questions,please contact: Debbie Sanderson, Community Development Department, 651 Pine Street,North Wing,4'Floor,Martinez CA 94553 or call (925) 335-1208. Date: March 6, 2000 PHIL BATCHELOR, Clerk of the Board of Supervisors and County Administrator B4 L,4r artiara S. Grtt-'he6uty Clerk Environmental Checklist Form 1. Project Title: Initial Study on the Contra Costa Counta Industrial Safety Ordinance (Ordinance 98-48) 2. Lead Agency Name and Address: Community Development Department Contra Costa County 651 Pine Street, 4th Floor, North Wing Martinez, CA 94553-0095 3. Contact Person and Phone Number. Debbie Sanderson, (925) 335-1208 4. Project Location: Contra Costa County 5. Project sponsor's Name and Address: n.a. 6, General Plan Designation: n.a, 7. Zoning:any non-agricultural zoning district 8. Description of Project: (Describe the whole action involved,including but not limited to later phases of the project,and any secondary,support,or off-site features necessary for its implementation. Attach additional sheets if necessary): This project is an Initial Study evaluating the potential environmental impacts of(1) changes that would occur by replacing Contra Costa County Ordinance 96-20 with Contra Costa County Ordinance 98-48 and(2) the four options identified in Items 7(a), (b), and(c) of the Stipulated Judgment(Civil No. C99-00094), 9. Surrounding Land Uses and Setting: Briefly describe the project's surroundings. Not applicable. 10. Other public agencies whose approval is required(e.g., permits, financing approval, or participation agreement). None ENVIRONMENTAL FACTORS POTENTIALLY AFFECTED: The environmental factors checked below would be potentially affected by this project, involving at least one impact that is a"Potentially Significant Impact" as indicated by the checklist on the following pages. — Land Use and Planning — Transportation/ v Public Services .,_ Population& Housing Circulation Utilities&Service _ Geological Problems — Biological Resources Systems Water — Energy&Mineral _ Aesthetics _ Air Quality Resources Cultural Resources ,_ Mandatory Findings of _ Hazards Recreation Significance Noise 2 DETERMINATION On the basis of this initial evaluation: Xi I find that the proposed project COULD NOT have a significant effect on the environment, and a NEGATIVE DECLARATION will be prepared. I find that although the proposed project could have a significant effect on the environment,there will not be a significant effect in this case because the mitigation measures described on an attached sheet have been added to the project. A MITIGATED NEGATIVE DECLARATION will be prepared. I find that the proposed project MAY have a significant effect on the environment, and an ENVIRONMENTAL IMPACT REPORT is required. I find that the proposed project MAY have a significant effect(s)on the environment, but at least one effect(1)has been adequately analyzed in an earlier document pursuant to applicable legal standards,and(2)has been addressed by mitigation measures based on the earlier analysis as described on attached sheets, if the effect is a"potentially significant impact"or"potentially significant unless mitigated." An ENVIRONMENTAL IMPACT REPORT is required, but it must analyze only the effects that remain to be addressed. I find that although the proposed project could have a significant effect on the environment,there WILL NOT be a significant effect in this case because all potentially significant effects(a)have been analyzed adequately in an earlier EIR pursuant to applicable standards and(b)have been avoided or mitigated pursuant to that earlier EIR, including recisions or mitigation measures that are imposed upon the proposed project. 11-7 Signature Date 11 Printed Name or EVALUATION OF ENVIRONMENTAL IMPACTS: The attached"Initial Study Evaluation of the Industrial Safety Ordinance" provides the analysis supporting the conclusions reflected in this Initial Study Checklist. Staff concludes that the there are no potential significant impacts associated with the adoption of Ordinance 98-48 or with the adoption of any of the four options described in Item 7 of the above-referenced Stipulated Judgement. 3 SOURCES In the process of preparing the Checklist and conducting the evaluation, the following references (which are available for review at the Contra Costa County Community Development Department,651 Pine Street 5th Floor-North Wing, Martinez)were consulted: 1. Contra Costa County Ordinance 96-20. 2. Contra Costs County Ordinance 98-48. 3. Chapter 84-63 of the County Ordinance Code. Less than Significant Potentially with Less Ilan Significant Mitigation Significant No Impact Incorporation Impact Impact I. AESTHETICS-Would the project: A. Have a substantial adverse effect on a scenic vista?(Source# ) B. Substantially damage scenic resources,including,but not limited to,trees,rock outcroppings, and historic buildings within a state scenic highway?() C. Substantially degrade the existing visual character or quality of the site and its surroundings? D. Create a new source of substantial light or glare which would adversely affect day or nighttime views in the area?() SUMMARY: it. AGRICULTURAL RESOURCES:In determining whether impacts to agricultural resources are significant environmental effects,lead agencies may refer to the California Agricultural Land Evaluation and Site Assessment Model(1997)prepared by the California Dept.Of Conservation as an optional model to use in assessing impacts on agricultural and farmland. Mould the project: A. Convert Prime Farmland,Unique Farmland,or Farmland or Statewide Importance(Farmland),as shown on the maps prepared pursuant to the Farmland Mapping and Monitoring 4 Program of the California Resources Agency,to non-agricultural N/ use?() B. Conflict with existing zoning for agricultural use,or a Williamson Act contract?() \1 C. Involve other changes in the existing environment which,due to their location or nature,could result in conversion of Farmland, to non-agricultural use?{) SUMMARY: [t[. AIR QUALITY-Where available,the significance criteria established by the applicable air quality management or air pollution control district may be relief upon to make the following determinations. Would the project: A. Conflict with or obstruct implementation of the applicable air quality plan?() B. Violate any air quality standard or contribute substantially to an existing or projected air quality violation?() C. Result in a cumulatively considera- able net increase of any criteria pollutant for which the project region is non-attainment under an applicable federal or state ambient air quality standard(including releasing emissions which exceed quantitative thresholds for ozone precursors)?() D. Expose sensitive receptors to substantial pollutant concentrations?() L Create objectionable odors affecting a substantial number of people?() V SUMMARY: - ....._................._........................................................................................ ................................................................... IV. BIOLOGICAL RESOURCES-Would the project: A. Have a substantial adverse effect, either directly or through habitat modifications,on any specie identified as a candidate, sensitive,or special status species in local or regional plans,polices, or regulations,or by the California Department of Fish and Game or U.S.Fish and Wildlife Service?() B. Have a substantial adverse effect on any riparian habitat or other sensitive natural community identified in local or regional plans,policies,regulations or by the California Department of \ Fish and Game or US Fish and Wildlife Service?() C. Have a substantial adverse effect on federally protected wetlands as defined by Section 4034 of the Clean Water Act(including,but not limited to,marsh,vernal pool,coastal,etc.)through direct. removal,filling,hydrological interruption,or other means?() D� Interfere substantially with the movement of any native resident or migratory fish or wildlife species or with established native resident or migratory wildlife ti corridors,or impede the use of native wildlife nursery sites?() _E. Conflict with any local policies or ordinances protecting biological resources,such as tree preservation policy or ordinance?() �. F. Conflict with the provisions of an adopted Habitat Conservation Plan,Natural Community Conservation Flan,or other approved local,regional,or state habitat conservation plan? , SUMMARY: ]0 Y 6 V. CULTURAL RESOURCES-Would the project? A. Cause a substantial adverse change in the significance of a historical resource as defined in§15054.5? B. Cause a substantial adverse change in the significance of an archaeological resource pursuant to§15054.5?() C. Directly or indirectly destroy a unique paleontological resource or site or unique geologic feature? () D. Disturb any human remains, including those interred outside of formal cemeteries?{} SUMMARY: VI. GEOLOGY AND SOILS-Would the project? A. Expose people or structures to potential substantial adverse effects,including the risk of loss,injury,or death involving: I. Rupture of a known earthquake fault,as delineated on the most recent Alquist-Priolo Earthquake Fault Zoning Map issued by the State Geologist for the area or based on other substantial evidence of a known fault? Refer to Division of Mines and Geology Special Publica- tion 42.() 2. Strong seismie ground shaking? L 3. Seismic-related ground failure,including liquefaction?(} 4. Landslides?O B. Result in substantial soil erosion or die loss of topsoil? 2�1 V 7 C. Be located on a geologic unit or soil that is unstable,or that would become unstable as a result of the project,and potentially result in on-or off-site landslide,lateral spreading,subsidence, liquefaction or collapse?() D. Be located on expansive soil,as defined in Table 18-I-B of the Uniform Building Code(1994), creating substantial risks to life or property?() E. Have soils incapable of adequately supporting the use of septic tanks or alternative waste disposal systems where sewers are not available for y the disposal of waste water?() SUMMARY: VII. HAZARDS AND HAZARDOUS MATERIALS- Would the project: A. Create a significant hazard to the public or the environment through the routine transport,use,or disposal of hazardous materials?() B. Create a significant hazard to the public or the environment through reasonably foreseeable upset and accident conditions involving the release of hazardous materials into the environment?() C. Emit hazardous emissions or handle hazardous or acutely hazardous materials,substances,or waste within one-quarter mile of an existing or proposed school? {) D. Be located on a site which is included on a list of hazardous materials sites compiled pursuant to Government Code Section 65862.5 and,as a result, would it create a significant hazard to the public or the environment?() 8 E. For a project located within an airport land use plan or,where such a plan has not been adopted,within two miles of a public airport or public use airport,would the project result in a safety hazard for people residing or working in the project area() F. For a project within the vicinity of a private airstrip,would the project result in a safety hazard for people residing or working in the project area? () G. Impair implementation of or physically interfere with an adopted emergency response plan or emergency evacuation plan?() H. Expose people or structures to a significant risk of loss,injury or death involving wildland fires, including where wildlands are adjacent to urbanized areas or where residences are intermixed with wildlands?() SUMMARY: Vill. HYDROLOGY AND WATER QUALITY- Would the project: A. Violate any water quality standards or waste discharge requirements?() B. Substantially deplete groundwater supplies or interfere substantially with groundwater recharge such that there would be a net deficit in aquifer volume or a lowering of the local groundwater table level(e.g.,the production rate of pre-existing nearby wells would drop to a level which would not support existing land uses or planned uses for which permits have been granted)?() C. Substantially alter the existing drainage pattern of the site or area,including through the alteration of the course of a stream or river,in a manner which would result in substantial erosion or siltation on-or off- 9 site?() D. Substantially alter the existing drainage pattern of the site or area,including through the alteration of the course of a stream or river,or substantially increase the rate or amount of surface runoff in a manner which would result in flooding on-or off-site?() E. Create or contribute runoff water which would exceed the capacity of existing or planned storm water drainage systems or provide substantial additional sources of polluted runoff?() F. Otherwise substantially degrade water quality?() G. Place housing within a 1170-year flood hazard area as mapped on a federal Flood Hazard Boundary or Flood Insurance Rate Map or other flood hazard delineation map?() H. Place within a 1(70-year flood hazard area structures which would impede or redirect flood flows?{) 1. Expose people or structures to a significant risk of loss,injury or death involving flooding, \ including flooding as a result \fir of the failure of a levee or dam? J. Inundation by sciche,tsunami, or mudflow?{} SUMMARY: IX. LAND USE AND PLANNING-Would the project: A. Physically divide an established community?() B. Conflict with any applicable land use pian,policy,or regulation of an agency with jurisdiction over the project(including,but not limited to the general plan, Specific plan,local coastal program, or zoning ordinance)adopted for the purpose of avoiding or 10 mitigating an environmental effect? () C. Conflict with any applicable habitat conservation plan or 1 natural oortununity conservation plan?() SUMMARY: X MINERAL RESOURCES-Would the project: A. Result in the loss of availability of a known mineral resource that would be of value to the region and the residents of the state?() B. Result in the loss of availability of a locally-important mineral resource recovery site delineated on a local general plan,specific plan or other land use plan? SUMMARY: XI. NOISE-Would the project? A. Exposure of persons to or generation of noise levels in excess of standards established in the local general plan or noise ordinance,or applicable standards of other agencies? B. Exposure of persons to or generation of excessive ground- borne vibration or ground borne noise levels?() C. A substantial permanent increase in ambient noise levels in the project vicinity above levels existing without the project? D. A substantial temporary or periodic increase in ambient noise levels in die project vicinity above levels existing without the project?{} 11 E. For a project located within an airport land use plan or,where such a plan has not been adopted,within two miles of a public airport or public use airport,would the project expose people residing or woddng in the project area to excessive noise levels? F. For a project within the vicinity of a private airstrip,would the project expose people residing or working in the project area to excessive noise levels?() SUMMARY: XII. POPULATION AND HOUSING- Would the project: A. Induce substantial population growth in an area,either directly(for example,by proposing new homes and businesses)or directly(for example,through extension of roads or other infrastructure)? B. Displace substantial numbers of existing housing,necessitating the construction of replacement housing elsewhere?() C. Displace substantial numbers of people,necessitating the construction of replacement housing elsewhere?(} SUMMARY: X111. PUBLIC SERVICES A. Would the project result in substantial adverse physical impacts associated with the provision of new or physically altered governmental facilities,need for new or physically altered governmental facilities,the construction of which could rause significant environmental impacts, /10 i 12 in order to maintain acceptable service ratios,response times or other performance objectives for any of the public services: I. Fire Protection? 2. Police Protection? 3. Schools? 4. Parks? 5. Other Public facilities? SUMMARY: xlv. RECREATION- A. Would the project increase the use of existing neighborhood and regional paras or other recreational facilities such that substantial physical deterioration of the facility would occur or be accelerated?{) B. Does the project include recreational facilities or require the construction or expansion of recreational facilities which might have an adverse physical effect on the environment?() SUMMARY: XV. TRANSPORTATION/TRAFFIC-Would the project: A. Cause an increase in traffic which is substantial in relation to the existing traffic load and capacity of the street system (i.e.,result in a substantial increase in either the number of vehicle trips,the volume to capacity ratio on roads,or congestion at intersections)? - -- 13 B. Exceed,either individually or cumulatively,a level of service standard established by the county congestion manage- meant agency for designated roads or highways?() C. Result in a change in air traffic patterns,including either an increase in traffic levels or a change in location that results in substantial safety risks? {) D. Substantially increase hazards due to a design feature(e.g.,sharp curves or dangerous intersections) or incompatible uses(e.g.,farm equipment)?() E. Result in inadequate emergency access? () F. Result in inadequate parking capacity?() G. Conflict with adopted policies, plans,or programs supporting alternative transportation(e.g., bus turnouts,bicycle racks)? SUMMARY: XVI. UTILITIES AND SERVICE SYSTEMS- Would the project: A. Exceed wastewater treatment requirements of the applicable Regional Water Quality Control Board?() B. Require or result in the construction of new water or wastewater treatment facilities or expansion of existing facilities,the construction or which could cause significant environmental effects?() C. Require or result in the construction of new storm water drainage facilities or expansion of existing facilities,the construction of which could cause significant environmental � y 11�.. 14 effects? () D. Have sufficient water supplies available to serve the project from existing entitlement and resources, or are new or expanded entitlement needed? () E. Result in a determination by the wastewater treatment provider which serves or may serve the project that it has adequate capacity to serve the project's projected demand in addition to the provider's existing commitments?() F. Be served by a landfill with sufficient permitted capacity to accommodate the project's solid waste disposal needs?() G. Comply with federal,state and local statutes and regulations related to solid waste?{) SUMMARY: XVII. MANDATORY FINDINGS OF SIGNIFICANCE- A. Does the project have the potential to degrade the quality of the environment,substantially reduce the habitat of a fish and wildlife species,cause a fish or wildlife population to drop below self-sustaining levels,threaten to eliminate a plant or animal community,reduce the number or restrict the range of a rare or endangered plant or animal or eliminate important examples of the major periods of California \� history or prehistory?() B. Does the project have impacts that are individually limited,but cumulatively considerable? ("Cumulatively considerable" means that the incremental effects of a project are considerable when viewed in connection with the effects of past projects,the effects of other current projects,and the effects of probable future projects)? C. Does the project have environ- mental effects which will cause substantial adverse effects on t✓ huam bungs,either directly or indiroW 2�} SUMMARY: j:\groupslydadpoOl\shelts\ChoMis.n99 Initial Study, Ordinance 98A8 August 5, 1999 Page 35 VII. Notice of Intent to Adapt a Negative Declaration (follows) [SpgM,doc,8/5/99, Hage t Commuty (� ►^�{ Dennis M.Barry,AICP nity Contra Community Development director Development Costa County County Administration Building E `J 651 Pine Street 4th Floor, North Wing Martinez,California 94553-0095 Phone: ` (925)335-1210 syA eo Lr August 5, 1999 NOTICE OF PUBLIC REVIEW AND INTENT TO ADOPT A PROPOSED NEGATIVE DECLARATION COUNTY ORDINANCE 98-48 (Industrial Safety Ordinance) Pursuant to the State of California Public Resources Code and the "Guidelines for Implementation of the California Environmental Quality Act of 1970" as amended to date, this is to advise you that the Community Development Department of Contra Costa County has prepared an initial study on the following project: The adoption of County Ordinance 98-48 (the Industrial Safety Ordinance) and on the Stipulated Judgement Items 7(a), (b) and (c). The proposed development will not result in any significant impacts. A copy of the negative declaration and all documents referenced in the negative declaration may be reviewed in the offices of the Community Development Department, and Application and Permit Center at the McBrien Administration Building, North Wing, Second Floor, 651 Pine Street, Martinez, during normal business hours. Public Comment Period -The period for accepting conuttents on the adequacy of the environmental documents extends to 5:00 P.M., September 15, 1999. Any comments should be in writing and submitted to the following address: Name: Debbie Sanderson Community Development Department Contra Costa County 651 Pine Street, North Wing, 4th Floor Martinez, CA 94553 I � 1 { AUG 5 1999 31.WEER, (,01LIi 3 T Y CLERK CGPY-IMA fCCSTr C•01_WY t 8Y .f` � _ i'i1TY Office Hours Monday- Friday:8:00 a.m. -5:00 P.m. Office is closed the 1 st, 3rd&5th Fridays of each month It is anticipated that the proposed Negative Declaration will be considered for adoption at a meeting of the County Planning Commission on October 12, 1999 at 7:30 P.M. The hearing is anticipated to be held at the McBrien Administration Building, Room 107, Pine and Escobar Streets, Martinez. It is expected that the County Planning Commission will also conduct a hearing on the application at that same meeting. Additional meetings will be held by the County Community Development Department and the City of Richmond Planning Department at the following dates and times, in Room 108 of the McBrien Administration Building, concerning this proposed project (beyond the CEQA concerns); Thursday, August 26, 1999 at 10:00 A.M. Wednesday, September 8, 1999 at 1:30 P.M. Debbie Sanderson Special Projects Planner cc: County Clerk's Office (2 copies) noi.ltr Initial Study,Ordinance 98-48 August 5, 1999 Page 36 Attachment A: Lazard Score Risk Scenarios, prepared by the Hazardous Materials Commission (follows) Initial Study,Ordinance 98-48 August 5, 1999 j Page A-I Attachment A Prepared by health Services Department for the Hazardous Materials Commission Staff reviewed approximately 87 land use scenarios originally evaluated by the Hazardous Materials Commission in 1996 and 1997. These scenarios were used as a basis for establishing the hazard score necessary to require facilities to obtain land use permits for development projects. The maximum hazard score possible using the Hazard Score Formula included in Section 84-63.1004 is 175. Many of the scenarios within the 50 to 80 point range are actually variations of original scenarios that scored greater than 80 points. Variables such as distance to receptor, material used, and size of project were manipulated to determine the lowest feasible hazard score that could be attained while keeping the development project a viable option. The Hazardous Materials Commission also identified the variables necessary to obtain a hazard score of 60. This often resulted in development projects that were not viable options (i.e., a hazard score of 60 was unattainable even by reducing the hazards associated with some development projects). The Hazardous Materials Commission concluded that if the hazard score required to obtain a land use permit was too low, there would be no incentive for facilities to incorporate hazard reduction measures into their original development project. For example, the first bullet in the 80-89 point range (Casco Refinery) includes storage of a Hazard Category B material 3,400 feet from a receptor. The material is transported to and from the facility by rail. The second bullet in the 70-79 point range is the same scenario (i.e., Casco Refinery) only the facility has opted to move the storage vessel farther from receptors (:3,850 feet as opposed 3,400 feet) and to transport to and from using marine vessels as opposed to rail. These changes , decrease the hazards, and therefore, the hazard score, associated with the project. If the hazard score required to trigger a land use permit is 60, the facility may not elect to incorporate these changes into the original development project. They have to go through the land use permit process and may or may not be asked to incorporate these mitigations through the CEQ,A process, If the hazard score required to trigger a land use permit is 80, the facility will not have to go through the land use permit process if the elect to incorporate these changes. A representative sample of the scenarios between the 50 to 89 point range is shown below. NOTE. These scenarios are shown for demonstration purposes only. The difference between many of these scenarios is simply the type of receptor and distance to receptor. If these were actual scenarios, the facility would compute the hazard score based on each receptor type and distance to receptor combination and report the greatest hazard score, Initial Study,Ordinance 98-48 August 5, 1999 Page A-2 Revisions to the June 7, 1999 Initial Study: Italicized text represents additions to or corrections of these scenarios as presented in the earlier version of this Initial Study. 5049 • Delta Chemical Company proposes switching from hydrogen chloride (Hazard Category A) to hydrochloric acid(Hazard Category B) and increasing storage capacity from 1,000 gallons to .8 tons. The new tank is 4803 feet from a residential receptor. There will be a 25%increase in truck transportation and a .74% increase in hazard Category B storage. (59: not a viable alternative because of the small storage capacity) • Facility XYZ proposes to replace a 1000 gallon hydrochloric acid(37%) tank due to the tank's age and condition with a 2000 gallon tank. The tank is located approximately 3000 feet from residential receptors. The larger tank results in increased storage of 15%. (53) Revisions to the June 7, 1999 Initial Study: The point score 52 assumed that the development project included both removal of the old tank and construction of the new tank. The size of project was incorrectly assumed to be 1000 gal. A point score of 53 is obtained if the development project only includes construction of the new tank. The size of project should therefore be 2000 gallons • The facility proposes to construct an MTBE manufacturing unit(producing about 2500 barrels/day) using 000 barrels/day of methanol and 2100 barrels/day of an existing isobutylene stream. The 46,000 tons/year of methanol would be delivered via rail and would result in a 15% increase in rail traffic. The project is construction of the processing unit and a 100,000 barrel tank.. This is a less than 1% increase of hazardous materials use. The construction area is located 2 miles from a residential receptor(61). Revisions to the June 7, 1999 Initial Study: The project size, `'A; was incorrectly assigned a value of 25 which corresponds to 4,000 tons to 6,000 tons. The correct value of"A"is 27 which corresponds to 10,000 tons to 13,000 tons. NOTE. this project would require a land use permit, regardless of score, because it is a new process unit with a hazard category B material(Section 84-63.1002(c)). + A major supplier of compressed gases proposes to store 62.5 tons of carbon dioxide (Hazard Category C) at a new site located 1584 feet from a residential receptor. The compressed gases will be shipped bN• truck. (59) « A major supplier of compressed gases proposes to stare 62.5 tons of carbon dioxide (Hazard. Category C) at a new site located 3696 feet from a sensitive receptor. The compressed gases will be shipped bytruck. (55). Revisions to the June 7, 1999 Initial Study: NOTE. The score was incorrectly calculated based on a distance to receptor of 3969 feet which corresponds to a "D"value of 16 as opposed to a distance to receptor of 3696 feet which corresponds to a "D"value of 17. l Initial Study,ordinance 98-48 August 5, 1999 I,a2 7 Page A-3 • A facility proposes adding a 5000 gallon storage tank to fuel trucks (Hazard Category B) doing maintenance on site. This results in a 2% increase in truck transportation and a .5% increase in storage capacity. The tank will be located 750 feet from a residential receptor. (55) 60-69 • Delta Chemical Company proposes switching from hydrogen chloride (Hazard Category A) to hydrochloric acid(Hazard Category B) and increasing storage capacity from 1,0100 gallons to 5,500 gallons. The new tank is 4801 feet from a residential receptor. There will be a 25%increase in truck transportation and a 25% increase in Hazard Category B storage. (69) • The facility proposes to construct one additional tank(350 ton) to store petroleum products (Hazard Category B material). The material will be moved to via pipeline and the tanks is located approximately 500 feet from a residential receptor. The additional tank results in a 1% increase of Hazard Category B material existing on site. (63) • The facility proposes to construct one additional tank(100,000 barrel) to store petroleum products (Hazard Category B material). The material will be moved to via pipeline and the tanks are located approximately 1 mile from a sensitive receptor. The additional tank results in a 1% increase of Hazard Category B material existing on site. (60). Revisions to the Jure 7, 1999 Initial Study. There are two discrepancies. First, the transportation: risk, "T"was incorrectly assigned a value of 1 when in fact, it was a I% increase in pipeline usage which corresponds to a "7"value of 0. The second inaccurao, was that size of project "A" was incorrectly assigned a value of 25 which corresponds to 4000 tons to 6000 tons rather than a value of 27 which corresponds to 10,000 tons to 18,000 tons. • The facility proposes to construct one additional tank. (1OO,000 barrel capacity) to store gasoline (Hazard Category B) in the tank farm. This represents a 5% change in the facility storage capacity. Materials will be moved to and from the tank by pipeline. The construction site is located 1 mule from a sensitive receptor. (63) 70-79 • Delta Chemical Company proposes switching from hydrogen chloride (Hazard Category A) to hydrochloric acid(Hazard Category B) and increasing storage capacity from 1,07003 gallons to 5,500 gallons. The new tank is 30100 feet from a residential receptor. There will be a 25% increase in truck transportation and a 25% increase in Hazard Category B storage. (76) • Gasoco Refinery proposes adding three methanol storage tanks. The refinery will provide methanol for it's own operations as well as supply a neighboring refinery. This results in increased storage capacity-of a Hazard Category B material of 52,0007 tons or 10%. The tanks are located 3, 850 feet from a school Initial Study,Ordinance 98-48 August 5, 1999 Page A-4 (sensitive receptor). The material will be transported by marine vessel into and out of the facility resulting in increased traffic of 6%. (79)) Revisions to the June 7, 1999 Initial Study: NOTE. This project would require a land use permit under 98-48, regardless of score, because the development project is in excess of 40,000 tons of hazard category B material(Section 84-63.1002(d)). • ABC Farms uses anhydrous ammonia in their vapor-compression refrigeration system. They use chlorine, sodium hydroxide, and nitric acid in a small waste water treatment plant. They propose to build two new wash water storage tanks of 5000 gallons each and will need to add more storage for the water treatment chemicals. They also propose to switch from chlorine(Hazard Category A material)to 4 tons of hypochlorite solution(Hazard Category B). The plant is located 3700 feet from a sensitive receptor. The change results in a 22% increase in transportation and a 10% increase in storage capacity. (79). .Revisions to the June 7, 1999.Initial Study. NOTE. The provisions of Chapter 84-63 of Co. Ord. 98-48 apply to any non-agricultural zoning districts. • A refinery proposes to build ten new storage tanks(100,000 barrels each) and ten new processing units. The project involves a 0%increase in truck traffic and a 15% increase in rail traffic. The total increase in volume is 1.5 million barrels. The expansion will be built 2 miles from a residential receptor (73). Revisions to the June 7, 1999 Initial Study. The project would result in a 6% increase in storage capacity. NOTE• this project would require a land use permit, regardless of score, because it is a new process unit with hazard category B materials (84- 63.1002(c)) • The facility proposes to construct one additional tank(100,000 barrel capacity) to store gasoline (Hazard Category B) in the tank farm. This represents a 5% change in the facility storage capacity. Materials will be moved to and from the tank by pipeline. The construction site is located 1000 feet from a residential receptor. (70) r The facility proposes to construct two additional 30,000 gallon tanks (each approximately 400 tons) for 93.6% nitric acid. The nitric acid will be moved to and from the site via pipeline. The facility is located 100 feet from a residential receptor. This results in an 81% increase in storage of hazardous materials. (97) Revisions to the June 7, 1999 Initial Study. The hazard scare has been changed from 79 to 97. Nitric acid at 93.6% is considered "funning nitric acid",however, this information is not provided in the DOT guide, which is the first avenue for determining hazard category. The reader would have to review an MSDS to determine this information. "lied fuming nitric acid"is considered a hazard category A material, while nitric acid below 86% is considered a hazard category B material. The score of 79 incorrectly assumes that 93.6% nitric acid is a hazard category B, which corresponds to an "B"'valise of 3. The score of 97 assumes that 93.6% nitric acid is a hazard category A, which corresponds to an "Il"value of 5. ,22 Initial Study,Ordinance 98-48 August 5, 1999 / Page A-5 Currently a facility stores 10,000 gallons of acetone and 10,000 gallons of toluene. Transportation to and from the site is by truck. The proposed change in operation will continue to store 10000 gallons of acetone, but will double the number of trucks supplying the acetone. The use of toluene will increase so it will be brought in by.20,000 gallon railcars at the rate of one railcar a week. A second storage tank of 20,000 gallons will be installed. The proposed tank site is located 1.75 miles from a sensitive receptor(76). Revisions to the June 7, 1999 Initial Study. The Percentage Change, "P". is 100%. `7""was originally assigned a value of 4 which actually corresponds to >100%-200%. The correct value of"P" is actually 3 which corresponds to >50%-100%.. The score changes from 79 to 76 Currently a facility stores 10,000 gallons of acetone and 10,000 gallons of toluene. Transportation to and from the site is by truck. The proposed change in operation will continue to store 10000 gallons of acetone, but will double the number of trucks supplying the acetone. The use of toluene will increase so it will be brought in by 20,000 gallon railcars at the rate of one railcar a week. A second storage tank of 20,000 gallons will be installed. The proposed tank site is located 1.25 miles from a residential receptor (73). Revisions to the June 7, 1999 Initial Study: The hazard score changes from 76 to 73. The Percentage Change (P)is 100%. "P"was originally assigned a value of 4 which actually corresponds to >100%-200%. The correct value of"P"is actually 3 which corresponds to >50%- 100%. 80-89 • Gasoco Refinery proposes adding three methanol storage tanks. The refinery will provide methanol for it's own operations as well as supply a neighboring refinery. This results in increased storage capacity of a Hazard Category B material of 52,000 tons or 10%. The tanks are located 3, 400 feet from a school (sensitive receptor). The material will be transported by rail into and out of the facility resulting in increased traffic of 10%. (87) • ABC Farms uses anhydrous ammonia in their vapor-compression refrigeration system. They use chlorine, sodium hydroxide, and nitric acid in a small waste water treatment plant. They propose to build two new wash water storage tanks of 5000 gallons each and will need to add more storage for the water treatment chemicals. They also propose to switch from chlorine (Hazard Category A material) to 4 tons of hypochlorite solution (Hazard Category B). The plant is located 2250 feet from a sensitive receptor. The change results in a 22% increase in transportation and a 10% increase in storage capacity. (83). Revisions to the June 7, 1999 Initial Study: NOTE: The provisions of Chapter 84-63 of Co. Ord. 98-48 apply to any non-agricultural Zoning districts. Also note that development projects in which both the size and monthly transportation quantity of hazard category B material are less than 5 tons are exempt (84- 63.604). + A pool chemicals and toy supply business proposes to add a new line of carboys of bleach solution (total increase of 2000 pounds). This represents a 60% increase Initial Study,Ordinance 98-48 August 5, 1999 Page A-6 in hazardous materials stored. Trucks will be delivering the bleach solutions once per month through industrial areas. The facility is 500 feet from a residential receptor. (85) Currently a facility stores 10000 gallons of acetone and 10000 gallons of toluene. Transportation to and from the site is by truck.The proposed change in operation will continue to store 10000 gallons of acetone, but will double the number of trucks supplying the acetone. The use of toluene will increase so it will be brought in by 20000 gallon railcars at the rate of one railcar a week. A second storage tank of 20,000 gallons will be installed. The proposed tank site is located 2640 feet from an industrial receptor(82). Revisions to the June 7, 1999 Initial Study. The hazard score changed from 85 to 82. The Percentage Change (P)is 101%. `P"was originally assigned a value of 4 which actually corresponds to >100%-200%. The correct value of"P"is actually 3 which corresponds to >50%- 100%. Initial Study,Ordinance 98-48 August 5, 1999 ` Page 37 Attachment B: Comment Letters Received by County from "Interested Parties' (follows) 6753 Glen Mawr Avenue ����Y � 7 P� �; 0$ El Cerrito, CA 94530 .May 14, 1999 01U."j U*1;i Debbie Sanderson Community Development Department 651 Pine Street, 4'Floor Martinez, CA 94553-0095 Dear Ms. Sanderson: I have the following comment on the"Stipulated Judgment" on the Industrial Safety Ordinance (ISO). I believe that there have been environmental impacts by not adopting language pertinent to item 7.(a) of the judgment. This has been illustrated by the problems the Board of Supervisors has had addressing the two most recent releases, the 1999 Tosco and Chevron refinery fires. The inadequacy of the current ISO has been amply demonstrated by the inability of the County to halt all operations at the Tosco plant until the incident investigation was complete enough to prove whether a threat to the public existed, and by its inability to require Tosco to commit itself to a schedule to implement the Arthur D. Little recommendations before starting back.up. Fortunately, Tosco voluntarily agreed to both of those steps, but what would have happened if Tosco had fought them? The impotence of the ISO within the city limits of Richmond was graphically illustrated by the Chevron fire. As I stated in the process of adopting the ISO, the County must be empowered "to require facilities to implement technical, managerial and/or other improvements at industrial facilities to promote public health and/or safety." I recommend that the ISO be amended to empower the Board of Supervisors to shut down any facility covered by the Ordinance immediately, before the incident investigation has been completed, in order to assure the health and/or safety of the public, and to set conditions for the facility to restart. I also recommend that the County work closely with the cities within the county, such as Richmond aitd Pittsburg, to amend the ISO so it applies equally to all equivalent facilities in the County, whether or not they fall within city limits. Sincerely, Step en Linsley, Member Hazardous Materials Commission MHU 99 I1AY 24 PN 12: 04 P.O.Box 711 filARTINUREONING ' Martinez,Ca)itomia 94553-0071 COMPANY A OIvisbn of EQuilon E.nWpd"s LLC Telephone: (925)313-3400 - 1 •. + 1:..+11 ;+t_1 + May 19, 1999 Dennis Barry Director Contra Costa County Community Development Department 651 Pine Street,4th Floor,North Wing Martinez,CA 94553 Re: CBE Stipulated Judgement Dear Mr. Barry: Both in the County letter to "Interested Parties" dated April 19, 1999,and at the County sponsored meeting on the above topic held on April 28, 1999, written comments,,vere solicited regarding the environmental impacts of the adoption of the Industrial Safety Ordinance("ISO")and the potential implementation of the CBE Stipulated Judgement. This letter provides the comments of the Martinez Refining Company("MRC"). MRC does not believe that either the adoption of the ISO or the adoption of the four options 'identified in Item 7 of the Stipulated Judgement("CBE Options")caused or will cause any potential adverse environmental impacts. The land use portion of the ISO is essentially-the same as the provisions of the former Ordinance 96-20 which is the baseline for evaluating environmental impacts. The only substantive difference between the land use portion of Ordinance 96-20 and the ISO is the addition of provision requiring land use permits for certain projects regardless of project score based on the volutne of hazardous material to be handled. See Section 84-63-1002(b).(c).(d). This provision can only have a beneficial environmental impact. The second portion of the ISO imposes new requirements above and beyond Ordinance 96-20. These new requirements expand the application of the Federal and State RMF' program to otherwise exempt processes, require the performance of root cause analysis for major accidental releases, and add enhanced auditing and inspection of stationary sources. These provisions also should only have a beneficial environmental impact. While the CBE Options do have potential adverse consequences,the,. do not appear to be adverse environmental impacts for the purposes of an Initial Study. MRC reserves the right to submit comments on the non-environmental impacts of the CBE Options at a later date as part of the County's process for the implementation of the CBE Stipulated Judgement. Sincerely, t��.+•ice'. Chuck Flagg Refinery Manager 05/19/99 i CALIFORNIA CONTRACTORS ALLIANCE g •V�/Y P.O. Box 601,Benicia,CA 94510 "Voice Mail(707)746-5594 99 t'A y 17 Ph 3;51 ASPEN Two,INC. May 17, 1999 T Mr. Dennis Barry BENICIA FABRICATION&MACHINE,INC. Director V CCC-Development Department 651 Pine Street,North Wing COREY DELTA CONSTRUCTORS Martinez, CA 94553 JEFFCO PAINTING&COATING,INC. Dear Mr. Barry: In the Contra Costa County's(County) role as lead agency under a stipulated Nom GROUP,INC. judgment to perform an environmental review of the Industrial Safety Ordinance (Ordinance 98-48), you requested in a letter dated April 19, 1999 PETROCHEM INSULATION,INC. (see attached) that comments regarding "potential environmental impacts either r, (1) due to the adoption of the Industrial Safety Ordinance(ISO) or(2) due to the possible adoption of any of the four options identified in Item 7 of the PLANT MAINTENANCE,INC. stipulated agreement(see attached)," be submitted not later than May 20, T 1999. In accordance with your request, please find below the comments of the SONNIKSON&STOROAHI California Contractors Alliance. CONSTRUCTION T It is the position of the California Contractors Alliance that the County's environmental analysis of the ISO must focus exclusively on safety, both for TtMEC the workers and for the communities in which industrial facilities exist. The V environmental analysis should not be allowed to stray from the original TOTAL WESTERN,INC. elements contained in the ordinance or as required to be analyzed in the stipulated judgment. To do so would be to undermine the intent of the ordinance or to open it up to special interests seeking to achieve objectives ONOERGROUNO CONSTRUCTION unrelated to industrial safety. Further, the analysis should avoid incorporating COMPANY,INC. issues unrelated to hazard assessment, such as worker training and T certification. It was the stated intent of the Contra Costa County Board of UCI CONSTRUCTION,INC. Supervisors in adopting the ISO that the issue of worker testing and certification, if required, should be dealt with in a separate venue through a process independent of the ISO. To that specific issue, CCA is not opposed to worker testing and certification, provided that it be objective, non- exclusionary, administered by an independent third-party, and affords all employees, regardless of affiliation, equal opportunity. Turning to the specifics of the stipulated judgment, Item 7 requires that the County's environmental review process shall, at a minimum, analyze the following mitigation measures and/or alternatives to ISO: CALIFORNIA CONTRACTORS ALLIANCE P.O.Box 601,Benicia,CA 94510 Voice Mail(707)746-5594 ASPEN Timm,INC. (a) amending the ISO to allow the County to require facilities to implement technical, managerial and/or other improvements at industrial facilities to promote public health and/or safety; BENICIA 1=A wAmN&MACHINE,INC. (b) establishing a technical assistance grant program with funding T of$100,000 per year that will be available to community organizations to hire /a technical experts to assist with analyses of the safety plans submitted by COREY DELTA CONSTRUCTORS industrial facilities; (c) revising the thresholds contained in Section 84-63.1004 of the .JEFECO PAINTING&COATING,INC. ISO for determining when new development projects are subject to T environmental review to 60 and 70 hazard points. IVOYA GROUP,INC. Item 8 of the stipulated judgment requires that the County shall conduct the V review of the mitigation measures and/or alternatives outlined in paragraph 7 PETROCHEM INSULATION,INC. (above)to the ISO through an inclusive review process involving all interested T parties, including the Petitioner(i.e., Communities for a Better Environment) in this action. PLANT MAINTENANCE,INC. T Without dwelling on Communities for a Better Environment (CBE) essentially SONNIKSON&STOROAHL duplicating industry's successful challenge of its predecessor ordinance, the so- CONSTRUCTION called "Good Neighbor Ordinance(GNO)," it is somewhat ironic to note that T those items to be evaluated in Item 7 are essentially an attempt by CBE to infuse back into the ISO elements that were found to be unrelated and, in fact, TIMEe contrary to industrial safety. Our comments regarding the specific elements in T Item 7 are as follows: TOTAL WESTERN,INC. V Item 7 (a) - Allowing the County to require industrial facilities to implement improvements to promote public health and/or safety, places the tJNOERGROUNO CONSTRUCTION County in jeopardy of mandating improvements which, if ineffective or COMPANY,INC. counterproductive, raises serious questions regarding County liability. T Furthermore, numerous federal and state agencies, as well as professional UCI CONSTRUCTION,INC. organizations have, through their legislated authority or long-standing expertise, developed regulations and standards of practice that an expansion of the ISO might undermine, even to the level of negatively impacting the health and safety of the workers and the communities surrounding industrial facilities. The CCA opposes such an amendment to the ISO. Item 7 (b) - Establishing a technical assistance grant program at a level of $100,000 per year that would be available to hire technical experts to assist with analyses of industrial safety plans is nothing short of using public moneys to fund a private organization. Recently, communities in the unincorporated 1 'd CALIFORNIA CONTRACTORS ALLIANCE P.O.Box 601,Benicia,CA 94510 Voice Mail(707)746-5594 ASPEN Timco,INC areas of the County have strongly criticized the litigious and self-serving actions of CBE. It is the expectation that governmental agencies, charged to ♦ protect the health and safety, should fulfill that obligation and be responsible to BauCIA FABRICATION&MAat K INC. the communities in which industrial facilities are located. Further, it is the right ♦ and obligation of those truly community-based organizations to advocate for and represent the interests of their communities, not some special interest COREY DELTA GiNSTRucraRs organization located elsewhere. The CCA opposes such an amendment to the 's ISO. ,IEFCO FAINTING&COATING,INC. V Item 7 (c) -Revising the thresholds contained in Section 84-63.1.004 of the ISO to 60 and 70 hazard points is contrary to the intent of the ordinance, NovA GROUP,INC. which was designed to encourage industries to reduce quantities of hazardous +I' materials and establish buffer zones. The Contra Costa County Hazardous PEMOCHEM INSULATION,INC. Materials Commission and numerous organizations, including those representing industrial workers, argued successfully that the intent of the point score in the land-use component of the ISO was to promote reductions in PLANT MAINTENANCE,INC. hazards in order to avoid the land-use entitlement process. To lower the score would be to do exactly the opposite, i.e., to provide no advantage for reducing SONNIKSON&STOROARL potential hazards. The CCA opposes such an amendment to the ISO. CONSTRUCTION V Item 8 mandates that, through an inclusive review process involving all interested parties, the County shall conduct its review of the mitigation TlnneC measures and/or alternatives outlined in Item 7. CCA formally requests its V inclusion in all aspects of the environmental review and any subsequent TOTAL WESTERN,INC. processes, including but not limited to receiving announcements, agendas, T minutes and documents, participating in all informal and formal discussions and proceedings leading up to and `including the rendering of any decisions by the COMPANY,INC.UNaPR INCRMCTiON Contra Costa Planning Commission, Hazardous Materials Commission, Board of Supervisors or any other body that may deliberate on this issue, should any of the measures in Item 7 be incorporated into the ISO. The CCA's UCI CONSTRUCTION,INC. membership includes many of the premier contractors performing a majority of the routine maintenance and turnaround ser,.tices for the County's industrial facilities, making;them vested stakeholders. To achieve the goal of an industrial safety ordinance that does not place the county at jeopardy, that does not bow to special interests and maintains an incentive to reduce industrial hazards, the environmental review, and subsequent deliberations and decision-making, must focus exclusively on the 1 CALIFORNIA CONTRACTORS ALLIANCE P.O. Bax 601,Benicia,CA 94510 Voice Mail(707)746-5594 ASPEN TIMcO,INC. issue of industrial safety. We are committed to working toward this objective and participating in that process. BENICIA FmFucAwN&MAww,INC. Sincerely yours, 7 COREY DELTA CONSTRUCTORS�rrT`�L� `� `�''�WU� T Brent Babow .JEFFCO PAINTING&COATING,INC. Vice President Copies To: Contra Costa County Board of Supervisors NOVA GROUP,INC. Clerk of the Board of Supervisors r Debbie Sanderson, Contra Costa County Community PETROCHEM INSULATION,INC. Development Department V PLANT MAINTENANCE,INC. V SONNIKSON&STOROAHL CONSTRUCTION 7 TIMEC V TOTAL WESTERN,INC. UNDERGROUND CONSTRUCTION COMPANY,INC. V UCI CONSTRUCTION,INC. Tosco Refining Company A Division of Tosco corpore6on San Francisco Area Refinery - at Avon `, Martinez,California 94553-1487 Telephone:(510)228-1220 1rasco 99 HAY 20 P1ki ! fl3) May 19, 1999 Ms. Debbie Sanderson Contra Costa County Community Development Department County Administration Building 651 Fine St.,2dFloor, North Wing Martinez,CA 94553 DELIVERED BY HAND Re: CEQA Review of Industrial Safety Ordinance and four options listed in Contra Costa County/CBE settlement Dear Ms. Sanderson: The Tosco Refining Company wishes to submit written comments on the California Environmental Quality Act (CEQA) Review of Ordinance 98-48, the Industrial Safety Ordinance(ISO), and the possible adoption of any of the four options identified in Item 7 of the stipulated agreement between CBE and Contra Costa County. Ordinance 98-48 has no adverse environmental impacts and offers environmental benefits beyond any of the previous County Ordinances 96-50, 96-20 or 86-100. Ordinance 98-48 is more stringent in its land use permitting requirements and it addresses industrial safety, which had not been previously addressed by any ordinance. Ordinance 98-48 was adopted under the County's authority to protect public health and safety by prevention of accidental releases of hazardous materials and to assure protection of the environment. Ordinance 98-48 establishes and expands safety measures for industrial processes beyond that required by state and federal law, it creates requirements for use of rigorous methods of investigating accidents and it creates the first human factors program in the nation. Furthermore, this ordinance is locally enforced, allowing for greater regulatory oversight than previously existed. There are no negative environmental impacts in adopting Ordinance 98-48. CB'EIContra Costa County stipulated agreement Iter- 7(42) "amending the ISO to allow the County to require facilities to implement technical, managerial andlor other improvements at industrial facilities to promote public health andlor safety. ., Item 7(a) in the stipulated agreement between CBE and Contra Costa County will have a negative environmental impact if Ordinance 98-48 is amended to include this language. Ordinance 98-48, as currently written, grants the County the authority to require changes in the safety program at an industrial facility. T, I/ Section 450-8.014 (n) of Ordinance 98-48 defines the Safety Program as follows: "Safety Program" means the documentation, development, implementation, and integration of management systems by the Stationary Source to comply with the safety requirements set forth in Section 450-8.016 of this chapter. Section 450-8.018 (H)(1) of Ordinance 98-48 grants the Health Services Director, or any of his authorized deputies, the authority to require changes to the safety program implemented at a facility. It states as follows: Based upon the Department's audits, safety inspection, or an incident inspection, the Department may require modifications or additions to the Safety Plan submitted by the Stationary Source or Safety Program to bring the Safety Plan or Safety Program into compliance with the requirements of this chapter. Furthermore, if the Department's decision is appealed, the Board of Supervisors has the same authority as the Department in requiring changes at a facility's safety program. Section 450-8.018 (H)(2) states: In acting on the appeal, the Board shall have the same authority over the Notice of Findings as the Department. The Board ntatr require modifications or additions to the Safety Plan submitted by the Stationary Source or Safety Program to bring the Safety Plan or Safety Program into compliance with the requirements of this chapter. Ordinance 98-48, as currently written, already provides the County the authority to require changes at a facility to promote public health or safety. However, Ordinance 98- 48 was carefully written to limit decision-making discretion to industrial safety measures contained within the ordinance. This was done purposefully to allow the County to require safety-based measures, yet avoid triggering CEQA. If CEQA was triggered each time the County required safety measures at a facility, the implementation of these safety measures would be significantly delayed by the CEQA process. This delay could have negative environmental impacts and serve to decrease public health and safety. CBEIContra Costa County stipulated agreement Item 7(b) "establishing a technical assistance grant program with funding of$100,000 per,gear that will be available to community organizations to hire technical experts to assist with analysis of the safety plans submitted by industrial facilities. " Item 7(b) in the stipulated agreement between CBE and Contra Costa County offers no beneficial environmental impact if Ordinance 98-48 is amended to include this language. The County already has a Health Services Department, which regulates public health and safety and can act as a technical resource to the public. Health Services also employs an Ombudsman to assist the public with issues involving hazardous materials, such as the issues covered in Ordinance 98-48. Finally, the County also has a Community 2 Development .Department, which serves as the environmental steward by assuring that specific development projects go the CE+QA process and that environmental issues are addressed. CBEIContra Costa County stipulated agreement Item 7(c) "revising the thresholds contained within Section 84-63.1004 of the ISO for determining when new development projects are subject to environmental [sic] review to 60 and 70 hazard points. " *It is assumed for purposes of this discussion that Item 7(c) contains a typographical error and was intended to reference Section 84-631002 rather than 84-63.1004. Ordinance 96-20 was the original ordinance containing the mathematical formula to determine land use permitting scores for industrial development projects. The threshold score for land use permits was set at 80 points by the Hazardous Materials Commission, which held more than three years of public meetings and hearings to develop the ordinance and that threshold score. The Commission scored many real and hypothetical industrial development projects to determine the 80 score. Ordinance 98.48 contains the same mathematical formula and threshold score as Ordinance 96-20. However, 98-48 contains additional language(Section 84-63.1002 (b)- (d) ) that requires large development projects to obtain a land use permit regardless of the score of those projects. This language was added in response to the concerns raised during public hearings for Ordinance 96-20 that certain large projects would not score as high as 80 and therefore not be required to obtain a laird use permit. The language contained within Ordinance 98-48 states as follows: 84-63.1002 Hazard Score; Permit Required. Unless otherwise exempt from the requirements of this chapter, a laud use permit shall be required for a development project proposed for the management of hazardous material and/or hazardous waste if wy of the following apply: (a) the development project obtains a hazard score of 80 or more pursuant to the formula set forth in section 84-63.1004; or (b) for hazard category A materials, the development project stores twice the quantity specified as the Threshold Planning Quantity on the Extremely Hazardous Materials List (Appendix A of 40 CFR Chapter 1, Subchapter 3 Part 355), as amended from time to time, or 2000 pounds, whichever is less; or (c) for hazard category A or B materials, the development project will result in a new process unit(s) unless the process unit complies with Section 84-63.1.004(d) 1-6 — Credit for reductions or projects to be closed. Modifications to an existing process unit does not constitute a new process unit; or 3 l�,5 (d) for hazard category B materials, any development project that has a fill to the maximum capacity of 40,000 tons or more unless the development project complies with Section 84-63.1004 (d) 1-6 — Credit for reductions or projects to be closed. The additional language in 84-63.1002 serves to catch large development projects that score below 80 points without capturing smaller business projects scoring below 80 points. We submit that the County should allow sufficient time to pass in order to determine the effects of this language on land use permitting, before making before any more changes to this section. In conclusion, the Tosco Refining Company supports Ordinance 98-48 as currently written and believes the ordinance should be given time to determine its effectiveness. The changes proposed by the CBE/Contra Costa County stipulated agreement offer negative environmental impacts or no environmental benefits and should not be incorporated into Ordinance 98-48. Sincerely, Marjo Hatter, Mana r, Health and Safety 4 /.3 • 'jets��`'� � f t 3398 Wren Avenue ,_ Concord, CA 94519 .Tune 25, 1999 ��`����8 p/1 3. 08 Debbie Sanderson, Community Development Department Contra Costa County 651 Pine Street, North Wing Martinez, CA 94553 Re: Initial Study on Ordinance 9848 and Options Dear Ms. Sanderson, I am writing to disagree with the Community Development Department's proposal of a Negative Declaration for two of the Options under the Stipulated Agreement. I believe that adoption of Option 7a and/or Option 7c could have significant negative environmental effects on the County. Option 7a The CDD analysis of possible effects under Option 7a discusses the possibility that HSD staff might require a facility to make changes which would have a negative environmental effect, but notes that a facility could disagree and appeal the decision to the Board of Supervisors. CDD concludes that the Board could then make the environmentally desirable decision. In fact, the final decision would be made by elected officials who do not have expertise in the specialized field involved, relying on their personal determination of which expert group (HSD staff or facility personnel) was correct. The possibility certainly exists that the final decision by the Board might in fact be incorrect and have negative impacts. The CDD analysis also assumes that the facility would actually appeal the HSD requirement if it might have negative impacts. In fact, the facility might be unNvilling to extend the process of approving the plan, or fear political and community reaction to an appeal, and thus the HSD decision might stand. The CDD analysis does not consider the possibility that the staff might not require a change, and that some other party which desires the change could then appeal the decision to the Board, although this is certainly allowed under the Option, and was in fact the rationale when this amendment was proposed during the initial adoption of 98-48. In this case, the Board would again be choosing between groups of experts, with the probable additional component of emotional community pressure. Again, the possibility exists that the Board might make aft decision with the potential for environmental problems in the future. Based on these three scenarios, I cannot agree with the Negative Declaration proposed for this Option. . ... ... .... . ....... s .V7 Sanderson, CDD -2- 6/25/99 Option 7c The CDD analysis of Option 7c concludes that lowering the threshold for hazard scores would have a beneficial effect, if any, by including facilities in the environmental review process that otherwise would avoid the review by modifying their proposals. Since the modifications could be included in conditions for a permit which would be required under the environmental review, the result would be similar, according to CDD. If a facility decided not to ask for a permit because of the need to do an environmental review, the result is also presumed to be beneficial (i.e., no project, no additional risk). However, removing the incentives for risk-reduction from the hazard assessment process could in fact have a real impact on which projects would be proposed in the county in the future. As someone who has been involved in each of the successive versions of industrial land use permit ordinances leading to 98-48, I am very aware of the need for an ordinance which will accommodate modernizations and upgrades to existing facilities. In many cases these modernizations may result in less risk to the community, but this is not the primary reason for such improvements. Lowering the threshold may result in corporate decisions to postpone or eliminate planned improvements to a facility because the environmental review process makes them less cost-effective or otherwise desirable. While lowering the threshold to 70 rather than 60 might have less effect on this scenario, it would raise the possibility that the county might continue to tinker with the threshold level. This could still introduce an element of uncertainty for corporate planners which might have the same chilling effect on future facility improvements. While postponing or eliminating such projects will have only a neutral effect on the community initially, since risk is not immediately increased, the result will be a facility which is not up-to-date, and one where management and employees may become less concerned with operating safely. Corporate leadership, especially if based in another state, may"write off' the facility in future corporate plans, and become uninterested in running it in a responsible, risk-free manner. In fact, all the elements cited in the recent Tosco audit could be present, with the potential for significant environmental impact in the case of accidents or releases. Therefore, I am not comfortable with the Negative Declaration proposed for Option 7c. I believe that further environmental review is necessary for both Option 7a and Option 7c. Sincerely, G �__ /J& PCZ £ Leslie Stewart 4 r C.O'M' V UNITIES FOR A 7 July 1999 BEICTER .99-.JUS g P3 . 40 Debbie Sanderson Community Development DepartmentrTRO1V'C 651 Pine street,4th V10or ' f ; , ;.; ; (,- •r , lvlactinez;CA 94553-0095 : 4T 7/ Re. .Prci . sed Ne ative l7eclaration.for the Safety Ordinance l • " Dear'Ms. Sandersoin: . .. Conuntinitiees for a Better;Environmentl C'CBE.')strongly urges the Cop* Contra Costa ("County"}to prepare an enviranniental impact re rt.("EIR')-.for the'lndustrial a ety Ordinaace:("ISQ'). T 'o initial Study:l valuation of the.:lctdtzstrial Safety Ordmance.erroneousty' ronoluded that the:1SO.would have no'enYironmental-�impact:The C6unty will-'violatethe Califoi-tiia Environmental:Quality'Aet'("CEQA"') Pub. Resources Code;section':2•14Q et s'N, and- CEQA's implementing Guidelines�"CEQA Guideline');,'Title 14 of the Caiifornia'Code of. Regulations Section 1540 et.seq,-if the County dotes not prepcue an FIR before reconscdering anti readopting the ordinance, .An EIR is required because tl►c ordinance iYcay have a significant ' adverse environmental impact. An EIR-must'be prepared whenever substantial evidence:supports.a fair.arguiiient that.a proposal. may have a*significant adverse impact on the environrnent. See Laurel Heights Impr6yerh . Ass'n:V. Regents of the Z1niy:of Cal.,6 Cal. 4th 1112, 1123,26 Cal.Rptr.2d 231 (1993). :A . significant environmental impact exists when there is a substantial or potentially substantial adverse change to the environment. See Pub.Res. Code§ 21068; 14`Cal:-Code Regs.§:15382. A substantial adverse change to the.environment exists if there is.a reasonable probability that the proposal will result ' .a significant impact: See No Oil Inc. v. City of Los Angeles, 13 Cal. . 3rd,68,83, fn:;'16, 11.Cap:Rptr. 34 (1974): -There are four reasons.why the.propos6d ordinance may have significant adverse environmental impacts requiring the preparation of an EIR. -Any-one of these impacts justifies.preparation of an A. First, the ISO raises the risk threshold for environmental.review for requiring land use permits for:new projeets.or'stignificarit•recodifications from 60 points-toi 80.points, which may have a significant adverse environmental impact. . The ISO revised the thresholds for determining when new development projects are subject to environmental review from 6.0 points•to,aft increased threshold of 80 points. Whiie.additional conditions were added in an attempt to prevent increased risk, the possibility still exists:for new development projects with,increased risk to escape review and cause a.negative environmental impact. :For exaiiiple, the•'additional language addresses:only very, specific-cases where a project i CSE is a non-profit:environmental organization with-statewide membership and offices in San Francisco, Laos Angeles and Huntington Park: CBE is committed to supporting communises in an effort to.improve.the - 'environment and public health.in urban areas..CBE,which*has 20,000 memt' rs statewide,hundreds-of whom live in•Contra Costa County,worked to pass.the Good Aleighbor Ordinance in Contr�i•Casta Coupty: - 500*Koward'Sire6t, -Suite •5.0.�: Son:Francisco' CA•941.05 (415) 243=$3.73' -In'Southern.('alifornia;:605"W.01yimpic 131vd;Suite-$50 Los Angeles, CA 90015 (213)486=51;14.. 7 July 1.099 CBE Cominent Letter on:Proposed_Negative Declaration Page 2'6(3' scoring 80 points.will require revgew,such as projects with new units containing certain , chemicals or increases in chemical usage. A negative environinental impaot may occur from projects that"do not meet these narrow criteria but!still increase risk. t. There is,substantial.eviAt nce that supports a.fair argument that raising the,threshold for environmental review may have a significant adverse impact ori'the.etivironment, With ` decreased safety requirements,the potential for plant blow-u' accidents increases=gr tl y This Creates a great pQtential of allowing�rojects with'increased threat of egative . enviroarAental impact to-dvoid•public scrutiny and environmental review prior to permitting, ydirectly re's_ulting in a`significant adverse environmental.impact. The.very!putpose of the ISO, and similar ordinances, is to saddress the issue of industrial accidents. t . Moreover, Mt. ivlarc'Scott,an indep odent.expert W!red by the,C,ounty,:Qeritikkes A number of negative impacts ofthe ASO seonng sy"stem;incit}dittg the possibility that more dangerous . * projects can get lower scores aiid)less dangerous`proje is can get hig ler scores. (Report to thee, Cont a,Costa?County Board of Supervisors,.Rtview of Proposed'Indtistrial,Safety Ordinance t n Contra Cogta C`ounty.p. q-21,attached as ExhibitA. Additicinally;Mr.,Scott.identifies..that the scoring system does not take the mobility bf chemicals into consideration.- Therefore, low mobility,-chemicals are:.penalized while high-rnobility'materiiais are looked'upon leniently. For certain gases that have veli' low.limits for toxic exposure;releases may have the potential for serious health impacts be wyond the 3 miles shown,in the Hazard Score tables. Again;this may result in a significant adverse environmental impact because ofthepotential for harm to the . environment when a release occurs. Thus,there is substantial evidence supporting a fair argument that the proposal may have a significant adverse impact on the environment requiring that an EIR be completed before passing the ISO. B. Experts disagree whether-Ord posed amendments to the ISO will have a'negative impact on the environment. This disagreement requires the'County to prepare an EIR. The county must conduct an environmental impact review because experts.disagree as to whether proposed amendments could result in negative environmental impacts. Comments have been submitted to the County which argue that the impacts of amending the ISO Could' 'create . negative environmental impacts.through.thedelayof permits and other actions. The County and others believe that the lower threshold would not'have an actual or potential significant-adverse environmental impact. Whenever there is a disagreement among experts over the significance of an effect, the-effect must be treated as significant'and an EIR must be prepared. See Sierra Club V. Countv'of Sonoma, 6 Cal.'App.4th 1307,,1317,,1322-23 (1992). Therefore,there is substantial evidence that supports a fair argument that the proposal may have a significant adverse impact on the environment. As such,"an EIR must be conducted. Y {j 7 July 1999 CBE Comment Letter on Proposed Negative Declaration Page 3 of 3 C. The existing ISO does not give power to the county to increaseor change safety measures not initiated by the industry resulting in compromised regulatory. authority,which,may have a significant adverse environmental.impact. Pursuant to the Stipulated Judgement in Commumitiesfor a Better Environment v. 'County of Ciimlra`Costa—Civil No, Q99-0409 ',the Uounty dust consider whether,it has'the at�t ority to require instaliatign o.f certain safety measures'(".Amendment 7(a)"), The existiftISO does not - give power to the county to increase or change:safety measures not.initiate'd bythe-iridustry.' p > Therels a dispute over the necessity ofsuch authority. On,the one Band, it is argued that the County must have,,this authority to ensure the-protection ofthe people living irk the county and the pratectio"n of the environment. Without this authority, the County does notUveian, opportunity;to ensure that the needs of the enviro mu nt are met. All the-power is left in the ' hands of the industry Whom,in order to out cost,may avoiH implementing costl ;'though n ,-safety equipment. tin the other hand; it has lin argued that�tlie Arnendmez{t.7(a) -could have a negatiyeimpAdtifthe permit process delayed safety improvements because of additional time necessary far environmental review:. The existing ambiguity-alone is substantial evidence that.supports a fait argument that the proposal may have a significant adverse impact bp the environment. The only way to ensure that these concerns"are addressed is'for the County to prepare an EIR,. D., Section VII of.the Initial Study, dealing with significant hazards to the public or the environment from the transport, use,oe disposal of hazardous'materials cannot be concluded'to have no environmental impact. In §VII of the Initial Study, which addresses the impact of transporting, using,or disposing of hazardous materials, the County concluded that the ISO would cause no,environmental impact, .However, §VII(c), which addresses the existence of hazardous materials near existing.or . proposed schools, will be violated because there are plants located '/s mile from.schools. If there is a toxic release to the air, soil, or water it,may effect an existing school. Thus, there is substantial evidence that.supports a fair argument of significant environmental impact. The county cannot conclusively claim that the ISO will have no impact on schools within 1/ mile of industrial facilities because,the degree to which the ordinance subjects industrial facilities to . environmental review may have a significant adverse environmental impact. Therefore, the only way to continue in a"Iawful manner is to conduct an EIR. For all of the above reasons, CBE respectfully requests that the County 'reject the Initial Study's proposed negative declaration. Further, CBE strongly urges the County to proceed and conduct an EIR to sec what the'true environmental impact will be. Please contact Beatrice Wong at(415) 243-8373 e't., 202 with any questions or concerns. Respectfully submitted, Denny Larson, orthern California Program irector Beatrice Wong, Staff Attorney J. Mij in Cha, Legal Intern 11 Tosco Refining company /e// u A Division of Toscp Co ration 1 San Francisco Area Refinery ` at Avon Martinez.CaGfomia 94553-1487 Telephone:(510)228-1220 Tt3soo i a Tla atl c . July 7, 1999 Ms.Debbie Sanderson Community Development Department,North Wing-4t'Floor County Administration Building 651 fine St., Martinez,CA 94553 DELIVERED BY HAND Re: Initial Study and preliminary determination of a Negative Declaration for the Industrial Safety Ordinance and four options listed in Contra Costa County/CBE settlement Dear Ms. Sanderson: The Tosco Refining Company hereby submits written comments on the Initial Study for the Industrial Safety Ordinance(Ordinance 98-48)and the possible adoption of any of the four options identified in Item 7 of the stipulated agreement between CBE and Contra Costa County. Tosco supports the conclusion of the preliminary determination in the Initial Study that a Negative Declaration is required under CEQA for Ordinance 98-48. As stated in our previous letter, there are no adverse environmental impacts associated with adoption of Ordinance 98-48 as it is currently written. Several State and Federal regulations address industrial safety in the same manner as Ordinance 98-48, by allowing regulatory agencies to require managerial changes in safety programs at facilities(29 CFR§ 1910, CCR Title 8 Chapter 5189, 40 CFR§ 68, CCR Title 19 Chapter 4.5). These regulations have been in place for many years with no observable adverse impacts to the environment. However, with respect to the stipulated agreement Item 7(a), Tosco submits that a negative declaration, is not appropriate. Item 7(a) refers to "amending the ISO to allow the County to require facilities to implement technical, managerial and/or other improvements at industrial facilities to promote public health and/or safety." The Initial Study interprets "technical improvements"to refer to improvements to the physical system and"managerial improvements"to refer to improvements to programs and procedures. Evidence exists that requiring technical improvements of this sort may cause significant adverse environmental impacts. For example, in 1994, the EPA adopted an Ethylene oxide emission regulation, 40 CFR fart 63 Subpart O. By July 1997, there%%-as evidence that the emission control equipment required by this regulation may have been responsible for four industrial explosions. One explosion, in Indiana, killed one person and injured 69 others. The Director of EPA's Office of Air Quality Planning and Standards issued two letters to the EPA expressing safety concerns with the implementation of Subpart O. The EPA suspended compliance with Subpart O for one year, while accident investigations determined the role of the regulation in these accidents. Presently, three investigations are complete and the fourth investigation is pending. 1 The preliminary investigation findings suggest that two of the three mandated types of Ethylene oxide control equipment were involved in the explosions and that the cause of the accidents was related to difficulties in operating the required control equipment in conjunction with certain processes. In the near future, the EPA and the National Institute for Occupational Safety and Hazard (NIOSH) will be issuing an alert regarding the difficult nature of operating these types of control equipment in conjunction with sterilization processes (Craig Matthiesson, EPA investigator, conversation on 7/6/99). The Ethylene oxide regulation clearly demonstrates that requiring specific types of technical modifications to ongoing industrial processes may have unintended consequences that can be extremely detrimental to the environment as well as human health and safety. Similarly, we believe that the sort of"technical improvements"required under Item 7(a) could have significant adverse environmental consequences that cannot be adequately addressed in a Negative Declaration. Our previous letter sets forth comments on CBE/Contra Costa County stipulated agreement Item 7(b)("establishing a technical assistance grant program with funding of$100,000 per year that will be available to community organizations to hire technical experts to assist with analysis of the safety plans submitted by industrial facilities") that need not be repeated here. With respect to CBE/Contra Costa County stipulated agreement Item 7(c) ("revising the thresholds contained within Section 84-63.1004 of the ISO for determining when new development projects are subject to environmental [sic] review to 60 and 70 hazard points"), we continue to maintain that the County should allow sufficient time to pass in order to determine the effects of the new land use permitting language in Ordinance 98-48 before making before any more changes to this section. In conclusion, the Tosco Refining Company supports a Negative Declaration for Ordinance 98-48 as currently written and believes the ordinance should be given time to determine its effectiveness. Item 7(a), proposed by the CBE/Contra Costa County stipulated agreement, offers potentially adverse environmental impacts and should be not be subject to a Negative Declaration. Sincerely, i2 �c t , Matjor Z�L- Hatter, Mana r, Health and Safety Attachments: 7/18/97 Letter from John Seitz, Director,OAQPS 7/29/97 Letter from John Seitz, Director,OAQPS 40 CFR Part 63 Subpart O 12/4/97 Action by Carol Browner,Administrator, EPA (Attachments to this letter available upon request from the Community Development Department) 2 ............................... /-o Attu+ him+ Ott B; N.6tices t Pub it Review , adlatent to Adopt a �'r+ pr�►s d N gati ►e D �l trsCIOn IV Community M.Barry,AICP / 7 Community Contra Community Development Director Development Costa Department County County Administration Building 651 fine Street 4th Floor, North Wing Martinez,California 94553-0095 Phone: (925)335-1210 August 5, 1999 NOTICE OF PUBLIC REVIEW AND INTENT TO ADOPT A PROPOSED NEGATIVE DECLARATION COUNTY ORDINANCE 98-48 (Industrial Safety Ordinance) Pursuant to the State of California Public Resources Code and the "Guidelines for Implementation of the California Environmental Quality Act of 1970" as amended to date, this is to advise you that the Community Development Department of Contra Costa County has prepared an initial study on the following project: The adoption of County Ordinance 98-48 (the Industrial Safety Ordinance) and on the Stipulated Judgement Items 7(a), (b) and (c). The proposed development will not result in any significant impacts. A copy of the negative declaration and all documents referenced in the negative declaration may be reviewed in the offices of the Community Development Department, and Application and Permit Center at the McBrien Administration Building, North Wing, Second Floor, 651 Pine Street, Martinez, during normal business hours. Public Comment Period -The period for accepting comments on the adequacy of the environmental documents extends to 5:00 P.M., September 15, 1999. Any comments should be in writing and submitted to the following address: Name: Debbie Sanderson Community Development Department Contra Costa County 651 Pine Street, North Wing, 4th Floor Martinez, CA 94553 AUG F 1999 t p } S.L.WEIR,COUNTY CLERK CONTRA COSTA COUNTY 8Y ' ! -.. DEPUTY Office Hours Monday-Friday:8:00 a.m.-5:00 p.m. Office is closed the 1 st, 3rd&5th Fridays of each month dzv/eT111 It is anticipated that the proposed Negative Declaration will be considered for adoption at a meeting of the County Planning Commission on October 12, 1999 at 7:30 P.M. The hearing is anticipated to be held at the McBrien Administration Building, Room 107, Pine and Escobar Streets, Martinez. It is expected that the County Planning Commission will also conduct a hearing on the application at that same meeting. Additional meetings will be held by the County Community Development Department and the City of Richmond Planning Department at the following dates and times, in Room 108 of the McBrien Administration Building, concerning this proposed project (beyond the CEQA concerns); Thursday, August 26, 1999 at 10.00 A.M. Wednesday, September 8, 1999 at 1:30 P.M. Debbie Sanderson Special Projects Planner cc: County Clerk's Office (2 copies) noi.ltr EGO test-.....Ift P 4 Community Contra __�-�..�. �-�-- _ ,� m�Y E�e#c�prrt�t�# Director Development Cost DepartmentCounty ' } County Administration Building SEP 2 81999 -. 651 Pine Street — ---- -�� S.L.WEIR,COUNTY CLERK 4th Floor,North Wing : .. -�' t C TRA COSTA COUNTY Martinez,California 94553-0095 a # -81 PUTY Phone: (925) 335-1208 r, ember 28, 1999 S p lu NOTICE OF PUBLIC REVIEW AND INTENT TO ADOPT A PROPOSED NEGATIVE DECLARATION County Ordinance 98-48 (Industrial Safety Ordinance) Pursuant to the State of California Public Resources Code and the "Guidelines for Implementation of the California Environmental Quality Act of 1970" as amended to date, this is to advise you that the Community Development Department of Contra Costa County has prepared an initial study on the following project: The adoption of County Ordinance 98-48 (the Industrial Safety Ordinance) and the four options contained in Items 7(a), (b) and (c) of the Stipulated Judgment entered into by Contra Costa County and Communities for a Better Environment on April 8, 1999. The proposed project will not result in any significant impacts. A copy of the negative declaration and all documents referenced in the negative declaration may be reviewed in the offices of the Community Development Department, and Application and Permit Center at the McBrien Administration Building, North Wing, Second Floor, 651 Pine Street, Martinez, during normal business hours. Public Comment Period -The period for accepting comments on the adequacy of the environmental documents extends to S.-OO P.M., October 25, 1999. Any comments should be in writing and submitted to the following address: Name: Debbie Sanderson Community Development Department Contra Costa County 651 Pine Street, North ging, 4th Floor Martinez, CA 94553 Office Hours Monday-Frday:8:00 a.m.-5:00 p.m. nffirn ie rlrticar#tura i ct ''4M R. rzth Fririnvq of s-,ich month /4f? It is anticipated that the proposed Negative Declaration will be considered for adoption at a meeting of the County Planning Commission on October 26, 1999 at 7.30 P.M. The hearing is anticipated to be held at McBrien Administration Building, Room 107, Pine and Escobar Streets, Martinez. Debbie Sanderson Senior Planner 4 cc: County Clerk's Office(2 copies) Iamc S.LETTERSUSOR DNO[ -2- _.......... ..............._.. 1.111_.. . . .. . .. . .. ................................................................................................................................................................................................................................................................ , ttk t C S .,te pu d "dge ne t, C* *1 N . 9 -C} 94 I Richard Toshiyuki Drury(State Bar No. 163559) Beatrice Wong(State Bar No. 191276) COMMUNITIES FOR A BETTER ENVIRONMENT 504 Howard Street, Suite 506 3 San Francisco,California 94105 Telephone: (415)243-8373; Fax: (415) 357-42.57 4 Attorneys for Petitioner and Plaintiff` 5 COMMUNITIES FOR A BETTER ENVIRONMENT 6 Victor J. Wetmyan(State Bar No. 34444) 7 Silvan B. Marchesi (State Bar No. 42965) Lillian Fujii(State Bar No. 83439) OFFICE OF THE COUNTY.COUNSEL s County Administration Building 651 Pine Street, 9 Floor 9 Martinez, CA 94553 to Telephone: (925) 335-1814; Fax: (925) 646-1478 Attorneys for Respondents and Defendants 1 COUNTY OF CONTRA COSTA, et al. 12 SUPERIOR COURT OF THE STATE OF CALIFORNIA 13 COUNTY OF CONTRA COSTA 14 15 16 COMMUNITIES FOR.A BETTER Civil No. C99-00094 ENVIRONMENT, a nonprofit California 17 corporation, STIPULATED JUDGMENT 18 Petitioner and Plaintiff, 19 Vs. 20 {COUNTY OF CONTRA COSTA COUNTY; BOARD OF SUPERVISORS FOR CONTRA 21 COSTA COUNTY, and Does 1 through 25, 22 Respondents and Defendants. 23 24 25 26 27 _ 28 Communities Stipulated Judgment page 1 fora t ,».,.a r„ 6—- n........ <., ........ r i WHEREAS, Petitioner. Communities for a Better Environment("CBE") has been concerned that the residents of Contra Costa County live amidst serious environmental hazards due to actual and threatened accidents at the industrial facilities located therein and has actively 4 sought measures to address these environmental threats; WHEREAS, Respondents,County of Contra Costa{"the County")and the Board of 6 Supervisors for the County("the Board")(collectively"respondents"")have attempted to address the 7 hazards and risks caused by industrial facilities by adopting ordinances that require County 8 review of proposed development projects at those facilities; 4 WHEREAS, the first such ordinance, Ordinance 86-100, adopted in 1986, required 10 facilities that handle hazardous materials in specified quantities to obtain a land use permit from I the County; 12 WHEREAS, Ordinance 96-20, adopted in June 1996,clarified Ordinance 86-100 and 13 made various substantive changes; 14 WHEREAS, the next ordinance, Ordinance 96-50, commonly referred to as the Good 15 Neighbor Ordinance, was adopted by Respondents in December 1996; 16 WHEREAS, the Good Neighbor Ordinance was challenged in Contra Costa Council et 17 al. vs. Contra Costa Courxty, et al.,Contra Costa Count= Super. Ct. Nos. C97-00186, C97- 18 01372, C97-00037 ("the Prior Litigation"'), in which Petitioner intervened in defense of the Good 19 Neighbor Ordinance; 20 WHEREAS, on December 15, 1998, Respondents adopted the Industrial Safety Ordinance - 21 - Land Use Permits for Development Projects Involving Hazardous Waste or Hazardous 22 Materials("ISO?"), which is the subject of the current action("the Current Litigation") and 21 determined that such action was exempt from the California Environmental Quality Act 74 ("CE-QA") as a Class 8 categorical exemption; 2' WHEREAS, on December 16, 1998, the County issued a Notice of Exemption, claiming 26 a Class 8 categorical exemption for its adoption of the ISO,- 27 50;27 __ __ I WHEREAS,on December 16, 1998,the Court of Appeal for the First District rendered 2 its decision in the Prior Litigation, holding that the Respondents had improperly relied on a Class 3 8 exemption under CEQA in adopting the Good Neighbor Ordinance, and that such an 4 exemption is unavailable to the re-adoption of the same ordinance or"any similar ordinance,, (Exhibit A of the Verified Petition and Complaint herein); 6 WHEREAS,on January 12,°1999,after providing Respondents with prior notice, 7 Petitioner filed the.Current Litigation alleging CEQA violations; 8 WHEREAS,Respondents,and each of them,deny any violations of CEQA in adopting the 9 ISO; to WHEREAS, Petitioner and Respondents wish to resolve Petitioner's claims against each I t of the Respondents in the Current Litigation; 12 WHEREAS, Petitioner and Respondents consent to the entry of this Stipulated Judgment 13 to resolve all of Petitioner's claims against Respondents; and 14 THEREFORE,TIME PARTIES AGREE AS FOLLOWS: 15- 1. Petitioner and Respondents, and each of them by and through their undersigned 16 counsel of record, hereby agree that this action will be disnussed with prejudice upon entry of 17 judgment. This Stipulated Judgment resolves the entire scope of any and all allegations is contained in the Verified Petition for Writ of Mandate and Complaint for Declaratory Relief 19 herein. 20 2. Before the taking of any testimony, and Niithout trial of any issue of fact or law, 21 Petitioner and Respondents have agreed to this Stipulated Judgment. 22 3. Pursuant to Public Resources Code §21168.9,the ISO shall remain in place as 23 Respondents conduct an environmental review of the ordinance in accordance with CEQA. 24 4. The County shall prepare an initial study regarding the adoption of the ISO 25 within sixtyfrom en 64( )days y try of judgment. 26 27 28 Communities Stipulated ludgrncnt page 2 r„.. - i 5. The County shall commence the appropriate environmental review process,the 2 form of which shall be determined in the County's discretion in accordance with CEQA within 3 60 days of completiounf�h�initial_ dy, 4 6. The environmental review process discussed in paragraph 5 shall be completed s within twelve(12)months of entry of'ud try ) gment. This time limit may be extended once, for up to three months,in the sole discretion of the County if the environmental review process cannot be completed by the County with due diligence within the twelve month period. s 7. Through the environmental review process,the County shall analyze,at a g minimum the following mitigation measures and/or alternatives to the ISO: 10 ti (a) amending the ISO to allow the County to require facilities to implement 12 technical, managerial and/or other improvements at industrial facilities to 13 Promote public health and/or safety; (b) establishing a technical assistance grant programwith funding of 14 is $100,000 per year that will be available to community organizations to ib hire technical experts to assist with analysis of the safety plans submitted by industrial facilities; 17 18 (c) revising the thresholds contained in Section 84-63.1004 of tile ISO for 19 determining when new development projects are subject to environmental review to 60 and 70 hazard points. 20 8. The County shall conduct the review of the mitigation measures and/or 21 alternatives outlined in paragraph 7 to the ISO through an inclusive review process involving all 22 interested parties, including the Petitioner in this action. 23 24 9. The Board shall vote on whether to adopt each of the mitigation measures and/or alternatives outlined in paragraph 7 within twelve(12) months from entry of judgment. Such a 2s 26 vote shall be held at a regularly scheduled meeting of the Board that shall be open to the public. This time limit may be extended once,for up to three months, in the sole discretion of the 27 28 County if the environmental review process or the planning and zoning process cannot be . . ........................................................................................................................................................... __. ._.. ......... ....._.. ......... .......... ......... ... ...... ........ . ........ ....._._.. ._........... _.._.... ....................................._._. Atti h ent D# IIS wit +noun Pl�n�ting ComMISS'l n'l Oct€ bier 2.6 i Agenda. Item #a. Community Development Contra Costa County CONTRA COSTA COUNTY PLANNING COMMISSION TUESDAY OCTOBER-26. 1999 -- 7:04 P.M. I. INTRODUCTION: On April 8, 1999, Contra Costa County and Communities for a Better Environment entered into a Stipulated Judgment to resolve litigation over the adoption of the Industrial Safety Ordinance (Ordinance 98-48). In compliance with this Stipulated Judgment, the County Planning Commission will consider three items for recommendation to the Board of Supervisors. First, it will consider certification of a Negative Declaration, prepared according to the California Environmental Quality Act, on the existing Ordinance 98-48 and on four amendments to it- Second, the Commission will consider the re-adoption of Ordinance 98- 48. Third, the Commission will consider the adoption of four amendments to the Industrial Safety Ordinance (Ordinance 98-48), as specified in Items 7(a), (b) and (c) of the Stipulated Judgment. These amendments would (1) allow the Health Services Department to require additional safety changes in industrial facilities, (2) would provide $100,000 in grants for community review of industrial Safety Plans, and (3) would lower the hazard score threshold triggering the requirement of a land use permit for certain industrial facilities. II. RECOMMENDATIONS A. Accept public testimony on the Notice of Intent to Adopt a Negative Declaration for this project and on the recommendations that the Board of Supervisors re-adopt Ordinance 98-48 and decline to adopt the Stipulated Judgment Item 7 options as amendments to Ordinance 98-48. B. Adopt a motion recommending that the Board of Supervisors (1) certify the Negative Declaration for this project, (2) re-adopt Ordinance 98-48, and (3) decline to adopt the Stipulated Judgment Item 7(a), (b) and (c) as amendments to Ordinance 98- 48. C. Request staff to prepare a resolution that documents the Commission's recommendations and findings. r� III. BACKGROUND- Recommendations presented above represent the conclusion of the Community Development Department's implementation of the provisions of the Stipulated Judgment entered into by Contra Costa County and Communities for a Better Environment to settle litigation concerning the adoption of Ordinance 98-48, the Industrial Safety Ordinance. Recommendations adopted by the County Planning Commission will be conveyed to the Board of Supervisors for final action, as specified by this Stipulated Judgment. This staff report summarizes the following topics, as listed below. A. Regulatory background, B. Requirements of the Stipulated Judgment, C. 'County actions to comply with the Stipulated Judgment D. Comments from Interested Parties E. Results of the required environmental.analysis F. Recommendations to the Board of Supervisors concerning re- adoption of Ordinance 98-48 and the Item 7 amendments to the Industrial Safety Ordinance (Ordinance 98-48). G. Summary Recommendations With the exception of the last items (F) & (G), each of these topics is discussed in more detail in the Initial Study and proposed Negative Declaration for this project (Attachment A). Also, attachments to this report include the following documents: Attachment A: Initial Study and Proposed Negative Declaration Attachment B: Notices of Public Review and Intent to Adopt a Proposed Negative Declaration. Attachment C: Stipulated Judgment, Civil No. C99-00094. Attachment D: Industrial Safety Ordinance, (Ordinance 98-48) Attachment E: Additional Comment Letters (Received since August 5, 1999) A. Regulatory History: Chapter 84-63 of the Contra Costa. County Ordinance Code was first enacted in 1986 through adoption of Contra Costa County Ordinance 86-100. This Ordinance required certain facilities involving hazardous waste and/or hazardous materials to obtain a land use permit prior to construction of the facility or modification. Chapter 84-63 was amended, with minor changes, again in 1990 and 1991. In June 1996, the County adopted Ordinance 96-20, which amended. Chapter 84-63 by introducing a system based on S-2 l hazard-scoring for determining which proposed projects must obtain a land use permit. In December 1996, the County adopted Ordinance 96-50 (commonly referred to as the 'Good Neighbor Ordinance"), which further amended Chapter 84-63. On December 15, 1998, the County adopted Ordinance 98-48 (commonly referred to as the 'Industrial Safety Ordinance"), which repealed Ordinance 96-50, amended Chapter 84-63, and added Chapter 450-8. In adopting these Ordinances, the County had determined that its actions were exempt from the California Environmental Quality Act (CEQA), relying on the Class 8 Categorical Exemption. On December 16, 1998, the State District Court of Appeal Court overturned the lower court, clearly stating that the County cannot use this exemption for adoption of amendments to Chapter 84-63. B. Requirements of the Stipulated Judgment: On April 8, 1999, Contra Costa County and Communities for a Better Environment (CBE) settled a lawsuit over the adoption of the Industrial Safety Ordinance (Ordinance 98-48). The settlement took the form of a'Stipulated Judgment" in which the County agreed to conduct an environmental review of this ordinance, in accordance with the California Environmental Quality Act (CEQA), with the ordinance remaining in effect pending completion of the environmental. review. [Stipulated Judgment, Communities for a Better Environment v. County of Contra Costa, et al., Civil No. C99-00094. A copy of this document is included as Attachment C.] Items 4 through 8 of this Stipulated Judgment obligate the County to do the following, as summarized: Item 4: Prepare an initial study within 60 days of this Judgment (by June 7, 1999). Item S: Commence the appropriate environmental analysis within an additional sixty days (by August 6, 1999). Item 6: Complete the environmental re-.iew process within twelve to fifteen months of the Judgment (by April 8 to July 8, 2000). Item 7: Evaluate the Industrial Safety Ordinance as well as the four options described in the Stipulated Judgment. (a) Allow the County to mandate improvements at a facility, (b) Provide $100,000 in community grants to review Safety Plans; (c) Lower the hazard score threshold by 10 points (from 80 to 70) or by 20 points (from 80 to 60) for requiring land S-3 use permits, and similarly for requiring Determinations of Non-Coverage. Item 8: Conduct the review of these specified options through "an inclusive review process involving all interested parties." Item 9: Board of Supervisors `shall vote on whether to adopt each of the . . . alternatives outlined in paragraph 7 [Item 71 within 12 months from entry judgment." (by April 8, 2000). In addition, the County Board of Supervisors has instructed the Community Development Department (hereafter, the Department] to conduct this review in cooperation with the City of Richmond and the County's Hazardous Materials Division of the Health Services Department [hereafter, Health Services Department]. C. County Actions to Comply with this Stipulated Judgment The requirements of the Stipulated Judgment fall into the following three categories. The County has complied with these requirements as summarized below: 1. Environmental Analysis (CEQA) (Items 4, 5, 6, and7); 2. Interested Parties review process (Item 8), and 3. Considering amendments to Ordinance 98-48 (Items 7 and 9). 1. Environmental Analysis (CEQA) (Items 4, 5, 6, and7) • Items 4 & 7: Prepare Initial Stud, by_June 7, 1999: Item 4 requires the County to prepare an initial study regarding the adoption of the ISO within sixty (60) days from entry of judgment." Item 7 requires the analysis to evaluate the adoption of the Industrial Safety Ordinance as well as the four options listed in Item 7. The judgment was entered on April 8, 1999, making the deadline for completing the initial study June 7, 1999. Actions to Comply: On June 7, 1999, the Department completed preparation of an initial Study covering the required items and submitted it to Communities for a Better Environment. That initial study included a preliminary finding that the Department would recommend adoption of a Negative Declaration on the adoption of Ordinance 98-48 as well as on the adoption of the four options identified in Item 7 of the Stipulated Judgment. S-4 -.... • Item 5, Commence Appropriate Environmental Analysis within another 60 days: This Item of the Stipulated Judgment requires the County to initiate "appropriate environmental analysis" by August 6, 1999. Actions to Comply To meet this requirement, on August 5, 1999, the Department (1) revised the June 7, 1999 Initial Study, addressing comments by interested parties, and (2) issued a Notice of Intent to adopt a Negative Declaration on this project. Since the Department has recommended adoption of a Negative Declaration, no further analysis is necessary at this time. • Item 6: Complete the Environmental Review Process within 12 months: If the Department had determined that an Environmental Impact Reports was required, then the Stipulated Judgment allowed 12 (15 with an extension) months, or to July 8, 2000, to complete the analysis. Actions to Comply: Unless directed by the Board of Supervisors to prepare an environmental impact report, the Department has completed the environmental analysis of this project and recommended adoption of a Negative Declaration. 2. Involving Interested Parties (Item 8) This Item requires the County to engage in an inclusive review process, involving all of the interested parties in the environmental review and the formation of recommendations. Actions to Comp1Y: To meet this requirement, the County and the City of Richmond did the following: • Created an extensive mailing list of about 250 `Interested Parties." List includes Communities for a Better Environment, others who have shown interest in this ordinance, the Richmond Neighborhood Councils, City of Richmond elected and appointed officials, the Municipal Advisory Councils, and (through an S-5 independent party) the Community Advisory Panels for industrial facilities within both the City and the County. • Sent four notices to interested parties, informing them of the Department's plans, documents released, open discussion meetings, and opportunities for public comment: #1: April 19 -22, 1999 #2: June 10, 1999 #3: August 9, 1999 #4: September 29, 1999 • Invited written comments from the foregoing parties at four points during the development of the Initial Study, and notified them when each document was released: #1: April 19 through May 20, 1999 #2: June 7 through July 7, 1999 #3: August 9 through September 15, 1999 #4: Extended #3 to October 25, 1999 • Invited their participation in four open discussion meetings held on these dates: #1: April 28, 1999 92: June 30, 1999 #3: August 26, 1999 #4: September 8, 1999 • Reviewed and considered comments from "Interested Parties" when preparing each document released: #1: June 7, 1999: Preliminary Initial Study . . . #2: August 6, 1999: Final Initial Study . . . 43: October 26, 1999: Staff Report with recommendations to the County Planning Commission. + Circulated comments from "Interested Parties" as attachments to both versions of the Initial Studies, making all comments readily available to all other parties Made Department staff available throughout the seven- month process for questions and guidance concerning actions to comply with the Stipulated Judgment. S-6 "50 • Made a special effort to involve Communities for a Better Environment. Mailed all documents directly to them; rescheduled the June 30th meeting so they could attend (which they did not attend); and Dept them abreast of all schedule changes. • Published two notices for the County Planning Commission Meeting-a standard legal notice in late September in numerous papers; a 1/8 page advertisement display on October 15th, in the Contra Costa Times. 3. Consider Amendments to Ordinance 98-48 (Item 9) Item 9 of the stipulated judgment specifies that the County Board of Supervisors shall vote whether to adopt the four options described in Item 7(a),(b) and (c). Actions to Comply: This staff report evaluates these four options as possible amendments to Ordinance 98-48, and recommends that the Board of Supervisors decline to adopt these options as amendments. Through this staff report and County Planning Commission meeting, the County Planning Commission is being asked to consider this information and any public comment received at this meeting, and to make a recommendation to the Board of Supervisors. The Board of Supenisors will consider these recommendations at a subsequent meeting. D. Comments from Interested Parties: The County received nine comment letters during the three comment periods. The comments are described and discussed below within the applicable subsection of this staff report. Comments on the Initial Study and Proposed Negative Declaration are also discussed in more detail within that document (See Attachment A, pages 20-21, 24-25, and 28-291. Comments on the Item 7(a), (b), or (c) are summarized below in Subsection F of this staff report. 1. Comment Period #1 (April 19 through May 20, 1999): Letters received: The Department and the City of Richmond requested comments in their April 19th and 22nd letters to interested parties, and received four comment letters as listed below. (These letters are included in the Initial Study, Attachment A, and are discussed in detail in Initial Study, ) S-7 I. Mr. Stephen Linsley, member of the Hazardous Materials Commission, 5/17/99- 2. Mr. Chuck Flagg, Refinery Manager, Martinez Refining Company, 5/19/99. 3. Mr. Brent Babow, Vice President, California Contractors Alliance, 5/17/99. 4. Ms. Marjorie Hatter, Manager, Health & Safety, Tosco Refining Company, 5/19/99. Meeting Participation; At the meeting on April 28, 1999, the County described the basis for the CEQA analysis, the baseline conditions (i.e., Chapter 84-63 as amended by Ordinance 98-48), the type of public comments that would prove useful. Questions concerned the basis for analysis. Staff'received no substantive comments at this meeting. Other than County and City of Richmond staff, ten individuals attended the meeting, representing Pace, Contra Costa Labor Council, Equilon (MRC), Tosco, Chevron, CBE, and the news media. 2. Comment Period #2 (June 7 through July 7, 1999) Letters Received: In its June 101h letter to Interested Parties, the Department requested comments on the I'relitninary Initial Study and Negative Declaration, and received the following three letters. [These letters are included in the Initial Study, Attachment A] 5. Ms. Leslie Stewart, 6/25/99, 6. Mr. Denny Larson, Communities for a Better Environment (CBE), 7/7/99. 7. Ms. Marjorie Hatter, Tosco Refining Company, 7/7/99. Meeting Participation: At the June 30, 1999, County and City of Richmond staff'met with six individuals representing Tosco, Equilon, PACE, Local 8-5, and the CAPS. Staff answered questions concerning the overall process and schedule and discussed substantive issues raised by participants. Staff"had rescheduled this meeting to accommodate CBE's schedule but they did not attend. 3. Comment Period #3 (August 9 to September 15, 1999) Letters Received: On August 9, 1999, the Department and the City of Richmond notified interested parties of the County's intent to adopt a Negative Declaration under CEQA for this project. The letter invited them to two open- discussion. meetings (August 26th and September 8, 1999), and invited written comments by September 15, 1999- S-8 The Department received two comment letters: 8. Scott Folwarkow, Western States Petroleum Association, 9/14/99. 9. Marjorie Hatter, Tosco Refining Company, 9/14/99. Meeting Participation: • Meeting #3, August 26, 1999: County and City staff met with staff`from Tosco and Equilon. • Meeting #4, September 8, 1999: County staff met with staff from Tosco and PACE. 4. Comment Period #3 Extension: (to October 25, 1999) On September 29, 1999, the Department notified Communities for a Better Environment that the County Planning Commission hearing date had been postponed to October 26, 1999, and that the comment period had been extended to October 25. This letter was sent to all interested parties. As of the writing of this staff report, no additional comments have been received during this extension period. E. Results of the Required Environmental Analysis 1. Project Definition: The Initial Study evaluated a "project" comprised of two major parts. The first part included those changes that would occur by replacing Ordinance 96-20 with Ordinance 98-48. The second part included those changes that would occur by adopting each of the four options described in Item 7 of the Stipulated Judgment. [See Attachment A, Initial Study, pages 7 - 11, for a more detailed description of the Project.] Part 1: Adopting Ordinance 98-48 would create a new Chapter 450-8 and would make Mo major changes in Chapter 84-63: i. A new Chapter 450-8, Disk Management: This chapter would require certain major industrial facilities in the County (1) to implement Safety Programs, (2) to prepare Safety Plans and to submit them for public and HSD review. This chapter would also allow the County Health Services Department to S-9 I--- /b audit these Safety Programs and to evaluate major chemical accidents and releases. ii. Changes to Chapter 84-63: These changes would (1) restrict application of the Ordinance to non- agricultural zoning districts, rather than all zoning districts; and (2) include three new categories of development projects that would be required to obtain land use permits, independent of their hazard scores. Part 2: Four Options identified in Items 7(a), (b) and (c) of the Stipulated Judgment: i. Items (a) and (b) would amend Chapter 450-8, by expanding authority of the Health Services Department (Item 7a) and by providing$100,000 in community grants to evaluate Safety Plans (Item 7b). ii. Item 7c would amend Chapter 84-63 by lowering the hazard score thresholds by either 10 points or 20 points (from 80 to 70, or from 80 to 60 for requiring land use permits). The Stipulated Judgment has kept Ordinance 98-48 in place while this analysis was being completed. Nonetheless, the analysis was undertaken as if Ordinance 98-48 had not yet been adopted. 2. Comments on the Initial Study and Proposed Negative Declaration: Staff received seven comment letters on the Initial Study and Proposed Negative Declaration. Staff received an eight letter on commenting on the CEQA analysis [These comments are summarized and addressed under the subheading "Interested Parties" Comments and Responses" found on pages 20-21, 24-25, and 28-29 of the Initial Study, (Attachment A).) • Staff received only one comment letter that questioned the proposed adoption of the Negative Declaration, as it relates to the re-adoption of the ezdsting Ordinance 98- 48. The July 7, 1999 letter from Communities for a Better Environment (CBE) commented that an EIR should be prepared prior to re-adopting the Industrial Safety Ordinance. [Pages 20 and 21 in the Initial Study, Attachment A, responds to this argument in more S-10 detail.] CBE first argued that the Ordinance raised the hazard score threshold from 60 to 80, thereby reducing safety, thereby increasing the probability of explosions, and thus creating significant impacts. CBE provided no evidence to support this hypothesis. Second, CBE concluded that the current ISO would create significant impacts because it failed to give the Health Services Department sufficient power to mandate improvements other than those recommended by a facility owner. Again, CBE provided no evidence supporting this theory. Third, CBE argued that Item VII.0 of the Initial Study Checklist incorrectly concluded no significant impacts since a facility with hazardous materials could be within V4 mile of a school, could have a release, and therefore it may effect a school. Staff Ronse: Staff disagreed with CBE that this scenario constituted substantial evidence. In sum, staff concluded that CBE had not provided substantial evidence that supported a fair argument that potentially significant impacts would result from the re-adoption of Ordinance 98-48. • Staff received numerous comments opposed to the adoption of the Negative Declaration as it relates to adopting Options 7(a), (b) or(c) as amendments to Ordinance 98-48. Concerning all of the options: CBE commented that the disagreement among experts concerning these four options required the preparation of an environmental impact report. Staff Response: Staff disagreed with this position; this process has revealed disagreements based on opinion and hypothesis, not evidence, and among individuals without credentials in the field applicable to the possible occurrence of significant environmental impacts. Staff concludes that the disagreements thus far do not qualify as a disagreement among experts that would trigger the requirement to prepare an environmental 'impact report. Concerning Option 1: (Item7(a)], one commenter asserted that not adopting 7(a) would create significant impacts, citing as evidence the recent incidents at Tosco and Chevron. Four commenters concluded that adopting 7(a) would create significant impacts. Their reasons included increased liability, an undermining of other safety regulations, delaying projects because of land use permitting requirements that result in increased impacts, errors in required improvements resulting from appeals, and that mandated technical 5-11 improvements could create adverse impacts. Staff Response: Staff found that all of these arguments were in theory and not,supported by substantial evidence. However, staff has considered these points when evaluating the possible adoption of Item 7(a); see Section F below. Concerning Option 2: (Item7Lb1(, commenters opposed this option, but provided no theory or evidence that it might lead to environmental impacts. Their comments are addressed later in Section F below. Concerning Option 3 and 4: We , two commenters opined that lowering the hazard score threshold would remove the incentive for developers to reduce the inherent risk in proposed projects, and thus would lead to significant impacts. A third comment noted that frequent changes in the hazard score threshold could create uncertainty among developers and make it difficult for them to plan projects effectively. A fourth comment noted that the current thresholds should be given more time prior to being adjusted. Staff Response: None of the comments on Option 7(c) provided substantial evidence supporting the comment submitted. As with the other comments above, these comments are addressed later in Section F below. Staff has considered these comments on the potential impacts from adopting any of these four amendments to the Industrial Safety Ordinance. Staff finds that none of these comments provide substantial evidence of a potential significant impact, as required by CEQA [CEQA Guidelines, Section 150631 to direct preparation of an Environmental Impact Report. Nonetheless, staff did consider all of these comments when evaluating the Item 7 options as amendments to Ordinance 98-48; see Section F below. 3. Potential Impacts: Consistent with the CEQA guidelines and definitions, the Initial Study evaluated the possible changes that comprise the "Project Description" and sought to iidentify potential significant impacts, i.e., substantial or potentially substantial adverse changes in the physical environment that may be caused by the adoption of Ordinance 98-48. S-12 ..................................... 1 As discussed fully in the attached "Initial Study and Proposed Negative Declaration" (Attachment A, Initial Study . . . , pages 12 --291, the Department staff has evaluated the information available, consulted with the City of Richmond and the Health Services Department, and considered the public comments received throughout this process. Department staff has determined that there is no substantial evidence that any aspect of the project may cause a significant effect on the environment. 4. Summary Conclusions: After careful and thorough analysis, and consistent with CEQA Guidelines Section 21068 and Section 15063(a), County and City staff find no substantial evidence of potential significant impacts due to: a. the re-adaption of Chapter 450-8, as presented in Ordinance 98-48, b. the re-adoption of the amendments to Chapter 84-63, as presented in Ordinance 98-48, or c. the adoption of any of the four options presented in the Stipulated Judgment, Items 7(a), (b), or (c). While staff analysis concludes that the environmental impacts from these items appear likely to be beneficial, staff' has not identified substantial evidence that would support this conclusion. 5-13 As presented in detail in the Initial Study, County staff found no substantial evidence that any aspect of the project might cause a potential significant adverse impact to the physical environment. Thus staff`determined that a Negative Declaration should be prepared. CEQA Guidelines, Section 15063(b)(2), require the Department to prepare a negative declaration if there is no substantial evidence that the project, or any aspect of the project, may cause a significant effect on the environment. F. Re-adoption of Ordinance 98-48 and Adoption of Items 7(a), (b), and (c) Item 9 of the Stipulated Judgment requires that "the Board shall vote on whether to adopt each of the mitigation measures and/or alternatives outlined in paragraph 7 [Item 71, within twelve (12) months from entry of Judgment" (which was April 7, 1999. These options are as follows: 7. Through the environmental review process, the County shall analyze, at a minimum the following mitigation measures and/or alternatives to the ISO [Industrial Safety Ordinance]: (a) Amending the 180 to allow the County to require facilities to implement technical, managerial and/or other improvements at industrial facilities to promote public health and/or safety; (b) Establishing a technical assistance grant program with funding of$100,000 per year that will be available to community organizations to hire technical experts to assist with analysis of the safety plans submitted by industrial facilities; (c) Revising the thresholds contained in Section 84-63.1007 of the ISO for determining when new development projects are subject to environmental review to 60 and 70 hazard points. The Department interprets item 7(c) to include two cases - reducing the hazard score threshold from 80 to 70 and from 80 to 60. Thus the County will evaluate these items as four potential amendments to the Industrial Safety Ordinance. Re-adopt Ordinance 98-48: The Department has completed the analysis required by the California Environmental Quality Act and, as summarized above, finds no potentially significant environmental impacts that might restrict the County's consideration of these options. [See Section S-'14 41- E 1 E above and Pages 12 -29 in 71w Initial Study . . . . Attachment A to this Staff Report.] The Department and the Health Services Department have been implementing Ordinance 98-48 for almost a year. The Department requests that the County Planning Commission recommend that the Board of Supervisors re-adopt the Industrial Safety Ordinance (Ordinance 98-48). The following analysis of these options reflects broad public policy considerations that are more encompassing than the CEQA analysis, focusing on overall strengths and weaknesses of each option as an amendment to the current Industrial Safety Ordinance, Ordinance 98-48. Option Y: Allow the County to Mandate Improvements in Facilities (Item 7(a)) La. Description: Option 1 seeks to allow the County (in this case the Hazardous Materials Division of the Health Services Department, hereafter referred to as the Health Services Department) to require a facility to implement some change - either technical or managerial-in its facility operations in order to promote public health and/or safety. Staff assumes that "technical improvements" would comprise improvements to the physical system and that"managerial improvements" would comprise improvements to programs and procedures. Suggested Text of the Amendment:: To evaluate this option, staff has rephrased Item 7(a) as a text amendment of Chapter 450-8, inserting the text below as a new paragraph in Section 450.018: �S• °Sif °5 y.1 S-15 /dam Explanation for this Phrasing: This amendment would expand the basis for the Health Services Department (and on appeal, the Board of Supervisors) to require safety improvements in a facility. Chapter 454-8 currently limits both the Health Services Department and the Board of Supervisors to modifications necessary "to bring the Safety Plan or Safety Program into compliance with the requirements of this chapter." The amendment under consideration would expand the basis for such required modifications by allowing the Health Services Department and the Board of Supervisors to also require improvements necessary 'to promote public health anal/or safety." This amendment as drafted would frame the required improvement in the content of the Safety Plan or Safety Program. All of the procedures outlined in Section 450-8.018 which require written notice to the company involved and to the public would still stand and would apply to any mandated improvements, These requirements would be implemented either through a Preliminary Determination (450-8.018(B)(1)), a Final Determination (450-8.018(0)), or a Notice of Findings (450- 8.018(H)(1)). Thus, they would be subject to the same appeal provisions as currently provided in Chapter 450-8 for these three types of decisions. I.B. Synopsis of Public Comments Comment: One comment in favor of the amendment referenced the recent Chevron and Tosco (Avon) incidents and concluded that they were evidence that the Health Services Department had insufficient authority to protect public health and safety. Staff Response: While it is true that increased authority for the Health Services Department might have reduced the likelihood of the two recent refinery incidents, it is not obvious that such an increase in authority would have prevented these events entirely. Comments opposing this amendment stated a variety of reasons: * Comment- Health Services Department already has sufficient authority to mandate safety improvements. Staff Response: Staff has no comment on whether the Health Services Department authority is sufficient. • Comment: Increases liability to the County. Staff Response: staff strongly concurs with the comments 5-16 that adopting this amendment would increase liability, due in part to the lack of specific standards or guidance to the Health Services Department in mandating improvements. • Comment May undermine other regulatory agencies with mandates to improve safety. Staff`Response: Staff disagrees with this comment in light of the level of expertise and regulatory knowledge displayed by the Health Services Department staff. • Comment: Leads to possible errors by the Board in resolving appeals or by the Health Services Department when mandating improvements. Staff'Response: The Board has long depended on the advice of the agency staff when resolving the many technical matters brought before the Board. The substantive matter brought before the Board covers a very broad spectrum. Thus staff disagrees that having the Board resolve appeals on these matters is any more problematic than other types of issues due to the Boards dependence on staff expertise. • Comment: Increases opportunities to appeal a failure of the agency to take action; %kith no clear standards, appeals become difficult to resolve. Staff Response: Staff concurs that there will be more opportunities to appeal, including an agency decision to take no action in response to a community request. Staff also concurs that, in the absence of guidelines, it could be difficult to evaluate and resolve the appeal. However, it does not follow that an increase in opportunities to appeal is necessarily bad. I.C. Potential Strengths The primary benefit of this amendment would be to provide the Health Services Department an opportunity to require safety improvements in addition to those resulting from the Safety Program procedures described in Chapter 450-8. These safety improvements would be in the context of the Chapter 450-8 Safety Pian audits and incident investigations. A second benefit would be the provision of additional public review of the decisions being made by the Health Services Department through the public review of safety plans. The Health Services Department is quite knowledgeable about the operations and safety aspects of many of the facilities in the County that involve hazardous materials. S-17 f. O With this expanded authority, the Health Services Department could take action to require safety improvements, even if the improvement had not been generated by the analytic procedures required by Section 450-8.016. Thus the Health Services Department would be free to combine its knowledge of the work place and its various safety investigations to require improvements that may not have been readily apparent to others developing these recommendations. These improvements could take the form of technical changes, performance standards, additional reporting, or new management procedures. I.D. Potential Weakness: A primary weakness of this amendment is that it would create a potentially substantial liability exposure for the County, should it ever require a facility owner to implement an improvement against the owner's advice. The County could be held liable for future problems at a facility, even if the County mandates only managerial changes. This increased exposure results because the responsibility for the safe management of the facility could become shared. Whereas now the facility owner is entirely responsible, the adoption of this amendment could share that responsibility between the facility owner and the County. A second weakness of this amendment is its lack of effective boundaries to guide the Health Services Department in determining when to take charge and mandate an improvement at a facility. The language of the Stipulated Judgment itself is quite broad and provides very little guidance. The suggested text for this amendment deviates somewhat from the language of the Stipulated Judgment, in an effort to make this authority manageable. The suggested text for the amendment provides the opportunity for required improvements within the context of the Safety Plans and Safety Program procedures. However, the Health Services Department does not have an administrative precedent to follow in making these findings, and the amendment provides no other basis for guiding their actions. For example, there is no language suggesting how the Health Services Department might balance opportunities to promote public health and safety against economic or technical feasibility of the potential improvement. Without some basis for its decision-making, the actions by the Health Services Department may be subject to numerous appeals. Resolving these appeals without the benefit of some guidelines may prove difficult. S-18 I.E. Recommendation After careful consideration of the public comments presented and the possible strengths and weaknesses of this option, staff recommends that the Board of Supervisors decline to adopt Option 1 as an amendment to Chapter 450-8. Option 2: Technical Assistance Grants This option would establish a technical assistance grant program with funding of$100,000 per year made available to community organizations to hire technical experts to assist with analysis of the Safety Pians submitted by industrial facility operators. 2.A. Description Staff assumes that this grant program would be an amendment to Chapter 450-8, applying to the public review of Safety Plans. Staff also assumes that the $100,000 in grants would be distributed by the Board of Supervisors to established community organizations. The Board might define technical experts" as those experienced and knowledgeable in technical areas concerning hazardous materials and industrial safety, not Olegal experts". The grants might also be restricted to hiring expertise, not to purchasing equipment (such as sampling equipment or computers), and to tasks that could be demonstrated to provide a basis for a better understanding of a facility's safety plan. 2.8. Synopsis of Public Comments Four comment letters opposed this amendment. Reasons given included the following: • Comment: The current support from Health Services Department is sufficient. Staff Response: The issue is not whether the Health Services Department provides sufficient technical support, but rather whether that support is sufficient to facilitate public involvement and understanding of the Safety Plans. The Ombudsman Program was intended to support community involvement. • Comment: The funds would support private groups that the communities do not necessarily support. Staff Response: In some County programs, the County collects fees and distributes some portion of those fees to private groups, to be used for a variety of purposes. S-19 Thus, the fact that the groups may be private does not seem problematic. However, it may prove difficult to conclude what private organizations actually represent 'the community", since no community is homogeneous. Staff finds that this issue is a serious consideration in adopting this option. • Comment: It is too much money for the tasks at hand. Staff Response: Staff concurs that the annual grant amount seems unreasonably high. 2.C. Strengths The primary benefits of this program would be to be to ensure that community groups had direct access to technical experts in whom they had a high degree of comfort and confidence. For some community organizations, this benefit is highly sought. Such a grant program could provide community organizations the ability to evaluate a facility's safety records with expertise that is technically comparable to that of the HSD and the facility owner itself. This expertise could help facilitate community involvement in the Safety Plan review process, and could help the community organizations focus their efforts in a more productive manner. 2.D. Weaknesses The primary weakness of this option is that the public health benefit is likely to be small, although the public participation benefit may be large. The analysis would be redundant to the efforts of the Health Services Department. The grant amount is available for a specified task, which is reviewing the publicly available Safety Plans. Safety Plans are lay descriptions of a much larger, more complex safety program; these plans will probably not change much from year to year, so the incremental analysis in subsequent years should be much less involved than in the first year. The $100,000 is equivalent to at least one full-time technical expert to evaluate a fear Safety Plans. The amount of resources seems to be large and out of proportion to the specified use of the funds. 2.E. Recommendation After careful consideration of the public comments presented and the possible strengths and weaknesses of this option, staff recommends that the Board of Supervisors decline to adopt Option 2. 5-20 Option 3 & 4: Lower Hazard Threshold from 80 to 60 or to 70, for requiring a Land Use Permit. Option 3 and 4, if adopted, would become amendments to Chapter 84-63. 3/4.A. Description Chapter 84-63 includes a formula for calculating a "hazard score" for proposed development projects that involve hazardous materials. Currently, if the hazard score is 80 or more, then a Land Use Permit is required. If the hazard score is between 70 and 79, then the applicant must request a"Determination of Non-coverage" to confirm that the hazard score is under 80. Item 7(c) of the Stipulated Judgment proposes two options that would change these hazard threshold scores. The first, Option 3, would lower the hazard score thresholds by 10 points -- requiring a land use permit for projects with a score of 70 or more, and requiring a"Determination of Non- Coverage" for projects with a score of 50 to 69. Option 4 would lower these hazard score thresholds by another 10 points - to 60 for requiring a land use permit and 50 to 59 for requiring a"Determination of Non-coverage" If either of these options were adopted, then a series of changes could follow. First, more types of projects would be subject to the land use permitting requirements of Chapter 84-63. Applicants that expected to need only building permits would frond that they needed anot4er six to twelve months to obtain a land use permit prior to receiving any building permits. Developers may alter their projects, to the extent possible, to lower their hazard scores in an effort to avoid the land use permitting requirements. Some developers are likely to succeed, leading to improved public safety through projects with less inherent risk. Those projects that cannot be changed to fall under the hazard score threshold would be subject to increased public scrutiny through the land use permitting process or through the evaluation of Determination Requests. Both of these review procedures often result in project improvements that benefit the public health and safety. S-21 3/4.B. Synopsis of Public Comments: Staff received no comment letters supporting this amendment and five comment letters opposing it. • Comment: Several comments shared the view that the County has not yet had enough experience with the current hazard score thresholds to come to a valid conclusion whether the threshold should be lowered. Staff'Response: Staff concurs with this comment, as discussed in more detail below in the subsection 3/4.D. • Comment: Similarly, several comments noted that there is no analysis supporting this change. Staff Response: Staff also concurs with this comment, as discussed in more detail below in the subsection 3/4.1). Staff has identified no information providing guidance on the "correct" location of the hazard score threshold. • Comment: Another frequent comment is best summarized by the position of the Hazardous Materials Commission. This comment asserts that, with a hazard score threshold of 80, developers have an incentive to reduce risks to avoid the land use permitting requirements. The comment also asserts that most projects could not reduce their hazard scores below 60 and remain viable. Thus, the commenters argue, reducing the hazard score threshold from 80 to 60 (or 70) would remove the incentive to reduce a project's risks, since the developer cannot lower the score enough to gain exemption from land use permitting requirements. Staff Response: Staff disagrees with this comment. First, avoiding land use permitting requirements is not the only incentive for reducing the hazardous aspects of a proposed project. The cost of insurance, employee lost time costs, and neighborhood support for example, are, among others, factors that create incentives to reduce a project's inherent risk. Second, products on the market are constantly changing, in response to customer demand. In the long run, lowering the hazard score threshold may increase market demand for less- hazardous intermediate products and less-hazardous production process. While the commenters'view may be true in the short run, history demonstrates that in the long run this outcome is not likely to occur. The analysis below expands on this topic. S-22 4 + 3/4.C. Strengths The primary benefit of either of these two options would be an increase in public scrutiny of projects handling hazardous materials. The decreases in hazard score thresholds -in either option-would require land use permits and/or"Requests for Determination of Non- coverage" for more facilities, including smaller operations (such as new gasoline storage tanks, small warehouses, and small processing plants). It is also possible that lowering the hazard score thresholds for requiring a land use permit would create an incentive for facility owners to make changes in the type or amount of hazardous materials used, in order to lower the project's hazard score. Over the past twenty years increased regulatory requirements and enforcement concerning hazardous materials has created an effective market demand for intermediate materials that are less hazardous. Several industrial sectors -such as paint and coatings manufacturing and chemical refining -- now produce products with much lower hazard ratings than they had 20 years ago. Service firms using these products- such as printers -now have work places that are significantly less hazardous than. 20 years ago, due to the less toxic inks and dyes available to them. These changes occurred because of increased regulations and enforcement affecting the handling of hazardous waste and hazardous materials. In the case of Contra Costa Counter, lowering the hazard score thresholds may cause short-run disruptions in the development of industrial facilities; however, after a period of adjustment, the long-term benefits could be large. 3/4.D. Weaknesses A primary weakness of each of these two options is that the staff`has little analytic support for identifying a new threshold for the hazard score. while staff presumes that a lower score would mean increased public scrutiny of development projects, staff has no analysis or evidence indicating what the correct threshold should be. Staff can only hypothesize what the impacts would be for different types of facilities and how it would affect the requirement for land use permits and the County's ability to condition those permits. The current hazard score threshold (80) has been in effect for less than a year, and the Hazardous Materials 5-23 Commission invested an extraordinary amount of time trying to determine the "correct" hazard score threshold. No development project has yet been required to apply for a land use permit during the past year. Although the Community Development Department has received numerous Requests for Determination of Non-Coverage, none of these projects have been required to apply for a land use permit It is difficult at this time to demonstrate sufficient experience with the current thresholds to justify changing them. Every time the County shifts this threshold, it takes the private sector several months to become aware of the change and adjust their business planning efforts accordingly. 3j4.E. Recommendation After careful consideration of the strengths and weakness of this option and the public comments addressing it, staff recommends that the Board of Supervisors decline to adopt either Option 3 or 4. H. Summary Recommendations: 1. Negative Declaration and Re-adoption Ordinance 98-48: Staff has concluded this review of the existing Industrial Safety Ordinance and of the four options being considered as amendments to that Ordinance. For the reasons specified in Section E above and in the attached Initial Study and Proposed Negative Declaration, the Department requests that the County Planning Commission recommend that the Board of Supervisors (1) certify this analysis in compliance with the California.Environmental Quality Act, and (2) re-adopt the Industrial Safety Ordinance, Ordinance 98-48. 2. Proposed Amendments to Ordinance 98-48: Consistency with the General Plan: As concerns the four amendments under consideration, staff has evaluated these options for consistency with the County General Plan and finds no apparent conflicts. In particular, the Safety Element (Section 10) of the County General Plan includes the following policy that applies to the consideration of these amendments Policy 10-64. Industrial facilities shall be constructed and operated in accordance with up-to-date safety and environmental protection standards. S-24 The Option 1 [Item 7(a)] amendment being considered would be consistent with this General Plan Policy, since it provides the Health Services Department additional opportunities to require safety improvements that reflect the most current knowledge in industrial safety. Option 2, 3, and 4 do not conflict with this Policy, although it is difficult based on our current knowledge of these amendments to assess how strongly they might support this policy. Recommendations Concerning the Industrial Safety Ordinance Amendments. After careful consideration and analysis, the Department requests the County Planning Commission to recommend that the Board of Directors decline to adopt any of the amendments, as described in the Stipulated Judgment in Paragraph 7, Items (a), (b), or (c). S-25 ......................................................................................................................................................... ......... ......... ......... ....................... ....... .......... ....__.. ..... .. _ _. . ............. ....._... ...... _ _ ___ _ chmen�E: �t tie brt, Coote l lin ins m ssi€ n, December 14:1 t "71 Agenda Item Community Development Contra Costa County CONTRA COSTA COUNTY PLANNING COMMISSION TUESDAY, DECEMBER 14, 1999 -- 7:00 P.M. I. INTRODUCTION: On April 8, 1999, Contra Costa County and Communities for a Better Environment entered into a Stipulated Judgment to resolve litigation over the adoption of the Industrial Safety Ordinance (Ordinance 98-48). In compliance with this Stipulated Judgment, the County Planning Commission will consider three items for recommendation to the Board of Supervisors. First, it will consider certification of a Negative Declaration, prepared according to the California Environmental Quality Act, on the existing Ordinance 98-48 and on four amendments to it. Second, the Commission will consider the re-adoption of Ordinance 98- 48. Third, the Commission will consider the adoption of four amendments to the Industrial Safety Ordinance (Ordinance 98-48), as specified in Items 7(a), (b) and (c) of the Stipulated Judgment. These amendments would (1) allow the Health Services Department to require additional safety changes in industrial facilities, (2) would provide $100,000 in grants for community review of industrial Safety Plans, and (3) would lower the hazard score threshold triggering the requirement of a land use permit for certain industrial facilities. (Continued from. October 26, 1999) II. R.ECOMMENTATIONS A. Accept public testimony on the Notice of Intent to Adopt a Negative Declaration for this project and on the recommendation that the Board of Supervisors decline to adopt the Stipulated Judgment Item 7 options as amendments to Ordinance 98-48. B. Adopt a motion recommending that the Board of Supervisors 1. certify the Negative Declaration for this project, 2. re--adopt Ordinance 98-48, 3. decline to adopt the Items 7(a), (b) and (c), as presented in the Stipulated Judgment, as amendments to Ordinance 98-48, and 4. adopt minor modifications to Chapter 450-8, as described below, clarifying information requirements and access to outside grants. C. Request staff to prepare a resolution that documents the Commission's recommendations and findings. III.BACKGROUND: On October 26, 1999, the County Planning Commission opened the public hearing on various items prepared by County staff to comply with the Stipulated Judgement entered into by Contra Costa County and Communities for a Better Environment (CBE), concerning on Ordinance 98-48. The County Planning Commission continued the hearing to December 14, 1999 to allow County staff time to consider comments by CBE, to circulate their comments to the other "Interested Parties," and to try to reach consensus on possible amendments to Ordinance 98-48. On November 4, 1999, staff circulated a letter to "Interested Parties" informing them of the outcome of the October 26, 199 County Planning Commission meeting and inviting them to a meeting on Wednesday, November 17th, to consider comments from CBE. Staff attached a copy of CBE's suggested amendments and staff responses to them. On November 11, 1999, staff received the attached letter from CBE, addressing questions of legal liability. On November 17, 1999, five individuals (other than County staff) met; reviewed comments from CBE and discussed possible amendments that would respond to the concerns raised by CBE. The recommendations are the same as in the October 26, 1999 staff report, with one change in recommendation II.13.4 to incorporate the modifications listed below. IV. DISCUSSION: A. Option 7(a): Expanded authority In the November 17th meeting of"Interested Parties", most of the discussion centered on Option 7(a), which would give the County authority to mandate changes at an operating facility. Staff explained the increased liabilities to the should such increased authority be granted to the County Department [Health Services Department]. Discussion then focused on opportunities to clarify the options available to a"Stationary Source" [term used in Chapter 450-8 to describe facilities subject to that chapter] to claim that a recommended improvement was not "feasible" and therefore did not need to be implemented. Pursuant to the Interested Parties' request, staff agreed to draft proposed amendments to the Chapter 450-8 portion of Ordinance 98-48 that (1) would clarify the definition of"feasible", and (2) would require additional information from Stationary Sources to justift. their claim that either an inherently safer system or a PHA recommendation were not "feasible." S-2 l�Sf The definition of"feasible" [Section 450-=8.014(c)] is taken directly from CEQA. Staff turned to legal interpretations of the CEQA definition for guidance on how to improve the definition in Chapter 450-8. The Appellate Court decision on Citizens of Goleta Valley v. Board of Supervisors rGoleta P) (I 988)provides the following clarification under CEQA: "[t)he fact that an alternative may be more expensive or less profitable is not sufficient to show that the alternative is financially infeasible. What is required is evidence that the additional costs or lost profitability are sufficiently severe as to render it impractical to proceed with the project." (197 Cal.App.3d 1167, 1181) Suggested amendments 1 and 2 below incorporate this language, clarifying that a Stationary Source claiming that either an Inherently Safer System or a PHA recommendation is "infeasible" requires submittal of sufficient documentation to justify this claim. CBE has recently submitted for staff consideration a copy of relevant language used in the Clean Water Program. Staff will continue to explore this suggestion, as well as others that might be received prior to the upcoming meeting. B. Oration 7 b) Technical_Assistance Grants Discussion at the November 17, 1999 meeting concerning Option 7(b), Technical Assistance grants, revealed that the County probably could not assess fees on the affected Stationary Sources to cover the costs of these grants because the nexus study required by Government Code Section 6600 could not be demonstrated. Thus, these grants would have to be funded through general fund revenue or grants from outside organizations. In addition, the Department and the Ombudsman already have the authority to apply and receive outside grants, on behalf of the County, to support public information activities surrounding Safety Plans. However, there was general consensus among the Interested Parties that this authority should be stated clearly. Suggested amendment 3 below clarifies the authority of the Ombudsperson to include use of outside grants and programs to provision of technical assistance to community groups. C. Orations 7 cl Lowered Hazard Score Thresholds There were no issues raised by those attending the November 17, 1999 Interested Parties meeting concerning Option 7(c) to lower Hazard Score Thresholds for requiring Land Use Permits under Chapter 84-63. S-3 G A? V. Recommendation: Suggested Amendments to Chapter 450-8: Staff presents the following three amendments for consideration by the County Planning Commission to clarify the concept and application of "feasible" in Chapter 450-8. 1. Add the following language to the end of this paragraph, clarifying what information is required of a Stationary Source when presenting the feasibility of Inherently Safer Systems. [Section 450-8.016 (D)(3)]: "This documentation shall include (1) sufficient evidence to demonstrate to the County's satisfaction that implementing this inherently safer system is impractical, and (2) the reasons for this conclusion. A claim of"financial infeasibility" shall not be based solely on evidence of reduced profits or increased costs, but rather shall include evidence that the financial impacts would be sufficiently severe to render the inherently safer system as impractical." 2. Insert the following language at the end of the first sentence of this paragraph, clarifying what information is required as concerns implementing process hazard analysis recommendations [Section 450-8.016 (D)(4)1: "Any documentation justifying a decision not to implement a process hazard analysis recommended action shall include (1) sufficient evidence to demonstrate to the County's satisfaction that implementing this action is impractical, and (2) the reasons for this conclusion. A claim of"financial infeasibility" shall not be based solelN- on evidence of reduced profits or increased costs, but rather shall include evidence that the financial impacts would be sufficiently severe to render the improvement as impractical." 3. Substitute the following language for the last sentence in Section 450-8.022, clarifying authority to receive outside funding for community technical assistance grants: "The ombudsperson may retain appropriate technical experts in order to fulfill technical assistance requests from community groups. The cost of experts may be funded through programs established by the U.S. EPA or other appropriate entities." S-4 ��y ............ :..:.:.:. AI"rAak ENr A f C B E Communities for a Better Environment October 19, 1999 Debbie Sanderson Community Development Dept. Contra Costa County 851 fine Street Martinez, CA 94553 fax 925-335--1222 Dear IVIS. Sanderson: Thank you for making some time available today, along with Dennis Barry .and others to discuss the ISO amendments issue. I am forwarding to you basic language for text additions/changes to the ISO that would clarify CBE's position on improving the ordinance. AUTHORITY (3) (page 14) (add final sentences) "'If the Department does not concur with the conclusions for the Stationary Source's rejection of a Inherently Safer System, the Department shall find the Source out of compliance with the ordinance. If the Department determines that economic factors were the major factor in the Source's rejection of a safer system, while other factors of feasibility were satisfied, then the Department may require the Source to implement the safer system. If the Department does not require the Source to implement the safer system, the decision may be appealed to the Board of Supervisors." (4}(pages 14-15) (add sentences after the next to the last sentence) "If the Department does not concur with the conclusions for the Stationary Source's rejection of a recommended action or the timing of its implementation, the Department shall find the Source out of compliance with the ordinance. If the Department determines that economic factors were the major factor in the Source's rejection of a safer system, while other factors of feasibility were satisfied, then the Department may require the Source to implement the recommended actions. If the Department does not agree with the schedule for implementing the actions, then the Department may require the Source to implement the actions on a different timetable. If the Department does not require the Source to implement the safer system, the decision may be appealed to the Board of Supervisors." (H) (page 18) (add sentences after the first sentence) "The Department may as a result of its audit, safety or incident inspection require the Source to CBE , 500 Howard . # 506 . S . F . , CA-941 05 415 - 243 - 8373 • email : cbebuckel@igc . org a-.,e. x CRE Communities for a Better Environment implement Inherently Safer Systems or recommended actions previously rejected by the Source or the Department in order to prevent or minimize future industrial accidents. The decision of the Department to reject or require Inherently Safer Systems or recommended actions may be appealed to the Board of Supervisors." TECHNI ASSISTANCE GRANTS 45M.422 Ombudsperson (page 19) (add final sentences) "The ombudsperson may retain appropriate technical experts in order fulfill technical assistance requests from community groups. The cost of experts shall be fended through appropriate county funding and/or funding through programs established by the US EPA or other appropriate entities." These are our initial thoughts; please feel free to contact me for additions or clarifications necessitated by the addition of this text to the ISO. Sincerely, Denny Larson N. Cal. Director CBE ORE . 500 Howard . # 505 . S . F . . CA 9 4105 . Al.l{'1t+CMLL;+IYi 1J OMMUNITIES OR A'- November 11, 1999. 9 NOV l� 1�E'1�T'ER Via Facsrmile•and U.S. Mail AHS 11' 22 Debbie Sanderson EN'VIRONMENT. Community Development Department Contra Costa County. 851'Pirie Street Martinez, CA 14553 Fax. (925) 335-1222 Diana Silver, Esq. Office of County.Counsel County Administration Building 651 Pine Street,-9`"'Floor Martinez. CA 94553 Fax: (925)646-1071 Dear Ms. Sanderson and Ms. Silver: Weare wvriting to address.the concerns raised in the Contra Costa County Planning Commission Staff Report for October 26, 1999, and again in the November 4, 1999 letter from . Debra Sanderson to interested parties, regarding the adoption of proposed amendments to Ordinance.98=48, as described in �17 of the Stipulated Judgment for Communities fora Better Environment v, County of Contra Costa County, et al. --Civil No. C99-00094. We hope that this letter will facilitate an open and cooperative dialogue at the November 17, 1999 meeting. It is our understanding that County staff.does not support adoption of the proposed amendment described in¶7(a) of the Stipulated Judgment, which provides the Health Services Department with-authority.to require facilities to implement safety improvements, because it- would allegedly expose the County to"potentially substantial liability." Since the staff report, and subsequent conversations between our organizations, have not provided specific citations to the legal basis upon,which it is believed liability arises, we have not, since we cannot,addressed those specific concerns directly. However, based on a review of the law, we have concluded the County (including the Board of Supervisors,and the staff.of the Planning Commission. Community Development Department, and Health Services Department) would be protected from liability for injuries arising from the'required improvements under the Torts Claini Act. CA Govt. Code §810 et seq. Govt. Code §815 specifically provides that"except as otherwise provided by statute, a public entity! is not liable for any injury, whether such injury arise out of an act or omission of the public entity or a public employee or any other person." Gov. Code ,§815.(a). When the Torts Claim Act was enacted, it was intended to `abolish all common law or judicially declared forms of liability to public entities, except for such liability as may be required under the state or federal Constitution." Cochran v. Herzog,engraving Co. (1981) 155 Cal App. 3d 405, 409. It is recognized that"the Torts Claim Act was intended to make immunity the rule, liability is t A"public entity" includes the county and any other political subdivision or public corporation . of the state. Govt. Code §811.2. 500 Howard Street, Suite 506 * San., Francisco, CA 04105 *J415) 243-.8973 In Southern California:005 W. Olympic Blvd., Suite 850 • Los Anceles, GA:90015 • (213)486-5114 r imposed,onty if provided by statute." Thompson v. City-of Lake Elsinore (1993) 18 Cal, App. 4" 49, 63 (emphasis in original)(citations omitted): The proposed amendment to the Industrial Safety Ordinance("ISO") would.provide the Health Services Departmeint with the authority and discretion to require*safety improvements at faciliiie.s•as part of the approval process for the Safety Plan or Safety'Program. The,County is generally immune.for liability for discretionary.acts. Gov. Code §820:2. In addition,the County cannot be held liable*for injuries caused by,"the issuance; denial,.suspension;or revocation of, or by the failure or,refusal to issue,deny, suspend,or revoke any permit, license, certificate, Uproval, order or similar authorization where the public entity or an employee of the public entity is authorized by enactment lo-determine whether or not such authorization should be issued,denied, suspended or revoked." Gov. Code §818.4(emphasis added), In other words, the County'cannot be held liable.for any.injuries arising from the approval of a Safety:Plan or Safety. Program containing"required improvement." See also Locklin iCity of Lgf4yette (1994).7 Cal. 4th 327, 353 fn. 15 (.public entities enjoy broad.statutory immunity for injuries resulting from approval of development of private property);Landgate, Inc. ti,. California Coastal Commission (1998) 17 Cal. 4th 1006, 1021 fn. 5 (government agency not liable for injuries resulting from an aborted condemnation proceeding that delayed development project because the principle that a government agency will not be liable in damages for mistakes committed in the development approval process is congruent with Gov. Code §818.4.") Moreover, a public entity cannot be liable for the acts and omissions of its employee that were performed within the scope of employment unless the employee herself would'have been liable and not immune for such acts or omissions. Gov. Code §815.2. Except as otherwise provided by statute, a public employee is*not liable for any injury resulting from his or her,act or omission,where the act or omission was the result of the exercise of discretion vested•in him or her, whether.or not such discretion is abused..Gov. Code §820.2; Caldwell V. Montoya(1995) 10 . Cal. 4th 972, 98.4 (discretionary immunity applies to protect against common-law as well as statutory causes of action based on prohibitory state statutes of-eneral application:). A public employee is immune for the issuance, denial, suspension, revocation of or the failure or refusal to issue, deny suspend, or.revoke any permit, license, certificate,approval order or similar 'authorization by the employee as authorized by.enactment. Gov. Code §821.2, Therefore,even ' if Health Service-Department staff mistakenly require the implementation of certain safety improvements as part of a Safety Pian or Safety Program, neither the employee nor the County can be held liable for those acts or omissions because such actions would be discretionary and made pursuant to discretion vested in him or her by the ISO amendment. We hope this clarifies the liability issue. If the'County has citations for its position, we would again request that those be provided in the spirit of good faith. Please feel free to contact either of us if you have questions regarding this letter, otherwise; we look forward to speaking with you further on November 1701 Sincerely, -Denny Larson, N. Cal. Director B ' rice \Yong, Staff Attorney ATTACHMENT C l 07 1996 (Ninth] Edition Guide to the California Environmental Quality Act ( EA) Michael H. Remy Tina A. Thomas James G. Moose Whitman F. Manley r Solano Press Books Paint Arena, California App.3d 467,473 [137 Cal.Rptr.3041;Native Sun/Lyon analysis, no meaningful conclusions regarding the fea- Communities v. City of Escondido(4th Dist. 1993) 15 sibiliity of the alternative could have been reached." Cal.AppAth 892,910(19 Cal.Rptr.2d 344];McKinney (197 Cal.App.3d at 1180-1181 [243 Cal.Rptr. 3391 v Board of Trustees(1982)31 Cal.3d 79, 88 [181 Cal. (emphasis added).)The Court of Appeal added that Rptr.549]; Cormier a County of San Luis Obispo(2d "[t]he fact that an alternative may be more expen- Dist. 1984) 161 Cal.App.3d 850, 855 [207 Cal.Rptr. sive or less profitable is not sufficient to show that 880].) Under CEQA, however, the distinction be- the alternative is financially infeasible. What is tween these kinds of agency decisions means little as required is evidence that the additional costs or lost regards the requirement for findings 45 The Discus- profitability are sufficiently severe as to render it sion following Guidelines section 15091 explains that impractical to proceed with the project." "(a]lthough the courts have often drawn the distinc- (197 Cal.App.3d at 1181 (243 Cal.Rptr.3391(empha- tion between quasi-adjudicatory findings which sis added);see also Kings County Farm Bureau v. must be supported by substantial evidence and City of Hanford(5th Dist. 1990) 221 Cal.App.3d quasi-legislative findings which need not be sup- 692,736[270 Cal.Rptr.650].) ported by substantial evidence, the Legislature has In a subsequent case closely related to Goleta 1, blurred this distinction by requiring all agencies to the California Supreme Court, emphasizing CEQA's make the[] findings [required by CEQA Guidelines, focus on potentially"feasible"alternatives,concluded: § 15091] in response to specific facts in the EIR without regard to whether the decision could be "Surely whether a property is owned or can reason- classified as legislative or adjudicatory. In requiring ably be acquired by the project proponent has a this finding, the Legislature appears to have re- strong bearing on the likelihood of a project's ulti- moved the partition between the two pigeon holes mate cost and the chances for an expeditious and and required agencies to grapple with the facts as successful accomplishment."' presented in the EIR." (Citizens of Goleta Valley v. Board of Supervisors (Discussion following CEQA Guidelines, § 15091.) ("Goleta 1T')(1990) 52 Cal.3d 553, 574 (276 Cal. Findings need not be perfect. If they contain some Rptr. 410):see also CEQA Guidelines, §§ 15126, ambiguity or are unclear on some point, a court may subd. (d)(5)(A) (discusses "feasibility" in the con- text of formulating alternatives for inclusion in an examine the EIR or other administrative documents to EIR) 15364(defines"feasible").) resolve the confusion or to seek clarification on a point. (No Oil, Inc. v. City of Los Angeles ("No Oil Another leading case indicates that fairly general If') (2d Dist. 1987) 196 Cal.App.3d 223, 239-242 references to the economic and fiscal shortcomings of (242 Cal.Rptr. 371,citing City of Poway v City of San project alternatives may suffice to satisfy findings re- Diego (4th Dist. 1984) 155 Cal.App.3d 1037, 1046 quirements. In Foundation for San Francisco's Archi- [202 Cal.Rptr. 366].) tectural Heritage% City and County of San Francisco Although a finding of infeasibility must be sup- (1st Dist. 1950) 106 Cal.App.3d 893, 913-914 (165 ported only by "substantial evidence," such evidence Cal.Rptr. 4011, the Court of Appeal upheld findings generally must be specific and concrete. In Citizens of adopted in connection with a proposal to demolish an Goleta Valley a Board of Supervisors("Goleta I") (2d existing architecturally notable building and replace it Dist. 1988) 197 Cal.App.3d 1167, 1180-1183 (243 Cal. with a new structure.The respondent agency's findings Rptr. 3391, which involved a proposed coastal hotel, relied on both economic and fiscal information, as the Court refused to accept assertions that a particular well other matters: alternative was economically infeasible simply be- "(T]he record contains ample substantial evidence cause it would be more expensive or less profitable to to support the Board's conclusion as to the problems the applicant. "in the absence of comparative data and presented by the rehabilitation alternatives.The EfR indicated that each of the alternatives considered 45 would have increased construction costs from 1.5 The distinction is significant,however,as regards agencies' duty to issue adequate notice to persons affected by agency million dollars to over 4 million dollars. The fact decisions.(See section Vttt(F),supra.) that the alternatives would generate between ap- 202 GUIDE TO CEQA ................. ............................................... .............................. . ( U / proximately 15 to 50 percent less sales revenue for mechanically restated at every stage of an approval Neiman-Marcus would,therefore,greatly reduce tax process. In this sense, `feasibility' under CEQA revenues for the City. The Board's findings were encompasses `desirability' to the extent that desir- also based on the data pertaining to the new employ- ability is based on a reasonable balancing of the rei- ment opportunities and the economic multiplier evant economic, environmental, social, and effect on the City of the establishment of the spe- technological factors." cialty retail store proposed by Neiman-Marcus.The Board also considered the seismic safety and build- ing code matters mentioned above and the needs of In Sequoyah Hills Homeowners Association v. the City's many constituencies." City of Oakland(1st Dist. 1993) 23 Cal.AppAth 704, (106 Cal.App.3d at 913 [165 Cal.Rptr.401].) 714-717 [29 Cal.Rptr.2d 182], the Court of Appeal upheld findings approved by a city in connection with When making a finding that an environmentally its approval of a 46-unit residential subdivision. In re- superior alternative is infeasible, an agency may be jetting as infeasible an alternative project configuration entitled to rely on evidence that the alternative would with only 36 housing units, the respondent agency re- not promote the underlying goals and objectives of lied on statements in the EIR indicating that a lower- the project. In City of Del Mar v. City of San Diego density alternative"would defeat the project objective (4th Dist. 1982) 133 Cal.App.3d 410 [183 Cal.Rptr. of providing 'the least expensive single-family housing 898], the Court of Appeal considered whether it was for the vicinity,"' and concluded that"requiring a de- proper for the City of San Diego to reject certain prof- crease in project density would be legally infeasible in ect alternatives as 'infeasible in approving planning that it would be prohibited by Government Code sec- decisions governing the first phase of buildout in a tion 65589.5, subdivision (j)." (23 Cal.AppAth at 715 community plan area to be fully developed in nine [29 Cal.Rptr.2d 1821 (emphasis in original).) That phases. The underlying community plan, as well as statute, the Court explained, prohibits agencies from the first phase approvals, assumed that growth would reducing the density of a proposed housing project inevitably continue in the northern part of San Diego that"complies with the applicable general plan, zoning, County. In considering the EIR for the phase one ap- and development policies" unless the project "would provals, the City rejected as infeasible several alter- have a specific. adverse effect upon the public health natives that conflicted with the assumptions of the or safety" that cannot be mitigated without lowering City's existing "growth management program" (which the density. Because the only significant unavoidable presumably was part of the City's General Plan). The impact associated with the subject project was its visual petitioner, a neighboring city, asserted that it was im- impact, the respondent agency could not have made permissible for the City to treat the assumptions of the the required finding to justify reducing the project's growth management program as a "given," because density from 46 to 36 units. (23 Cal.AppAth at 715- doing so artificially restricted consideration of feasi- 716[29 Cal.Rptr.2d 182].) ble alternatives. Stated another way, the petitioner as- One of the leading cases on findings is Citizens serted that San Diego had confused its sense of what for Quality Growth, supra, 198 Cal.App.3d 433 [243 kind of development was "desirable" with what was Cal.Rptr. 727]. which involved a general plan amend- "feasible" for CE-QA purposes. (133 Cal.App.3d at ment and rezone allowing the industrial and commer- 416 [183 Cal.Rptr. 398].) tial use of sensitive wetlands. In that decision, the The Court disagreed. Assuming that the growth Court of Appeal rejected several arguments offered by management program embodied a reasonable accom- the respondent city in support of its failure to issue modation of"various `economic environmental,social, findings with respect to both mitigation measures and and technological factors'" (see Pub. Resources Code project alternatives. § 21061.1), the Court explained that: At trial,the city tried to justify its failure to make "San Diego is entitled to rely on [the program] in findings on the feasibility of 21 mitigation measures evaluating various project alternatives. The cost- set forth in the ECR by arguing that such adoption benefit analysis which led to the accommodation is would be premature until the applicant had submitted of course subject to review, but it need not be a "specific development plan." On appeal, the city V10 The EIR Process 203 �- Attichment Y. Co m nt etter Otecei ed th , h, t t� pracesi tI°f COMMENT LETTER RECEIVED The County received comment letters during the five comment periods identified below, and one comment letter since the County Planning Commission hearing. 1. Comment Period #1 (April 19 through May 20, 1999): Letters received: The Department and the City of Richmond requested comments in their April 19th and 22nd letters to interested parties. These letters are included in the Initial Study. 1. Mr. Stephen Linsley, member of the Hazardous Materials Commission, 5/17/99. 2. Mr. Chuck Flagg, Refinery Manager, Martinez Refining Company, 5/19/99. 3. Mr. Brent Babow, Vice President, California Contractors Alliance, 5/17/99. 4, Ms. Marjorie Hatter, Manager, Health& Safety, Tosco Refining Company, 5/19/99. 2. Comment Period #2 (June 7 through July 7, 1999) Letters Received: In its June I& letter to Interested parties, the Department requested comments on the Prelin inai y Initial Swgy and Negative Declaration. These letters are included in the Initial Study. 5. Ms. Leslie Stewart, 6/25/99. 6. Mr. Denny Larson, Communities for a Better Environment (CBE), 7/7/99. 7. Ms. Marjorie Hatter, Tosco Refining Company, 7/7/99. 3. Comment Period #3 (August 9 through September 15, 1999) Letters Received: On August 9, 199, the Department and the City of Richmond notified interested parties of the County's intent to adopt a Negative Declaration under CEQA for this project. The letter invited written comments by September 15, 1999. The Department received two comment letters (attached): 8. Scott Folwarkow, Western States Petroleum Association, 9/14/99. 9. Marjorie Hatter, Tosco Refining Company, 9/14/99. 4. Comment Period #3 Extension: (to October 25, 199) On September 29, 1999, the Department notified Communities for a Better Environment and all interested parties that the comment period had been extended to October 25, 1999. The County received one comment letter, which is attached to the December 14, 1999 Staff Report. 10. Denny Larson, Communities for a Better Environment, 10/19/99. 5. Comment Period #4 (October 26 through December 14, 1999) After preparation of the October 26th Staff Report, the County received two comment letters, which is attached to the December 14, 1999 Staff Report, 11. Beatrice Wong, Communities for a Better Environment, 11/11/99. The County received two additional letters on December 9, 1999, after preparation of the December 14, 1999 Staff Report(attached herein): 12. Denny Larson& Beatrice Wong, Communities for a Better Environment, 12/8/99. 13. Chuck Flagg, Equilon Enterprises, LLC, 12/9/99. 6. Recent Letters 14. Denny Larson and Beatrice Wong, Communities for a Better Environment, 2/9/99. DS/sc &curr-ping-Industrial Safety-DRS,SC 2110/00 rev.3/7/00sc .7J W*"' PA Westem States Petroleum Association Scott lw olwa.rkow Bay Area Coordinator (916)498-7756 (916)444-8997 FAX folwarko@emaii,msn.com September 14, 1999 Ms. Debbie Sanderson Contra Costa County Community Development Department N. Wing—4h Floor 651 Pine Street Martinez, California 94553 Subject: The Industrial Safety Ordinance Environmental Review and Citizens for a Better Environment Proposed Amendments Dear Ms. Sanderson: The Western States Petroleum Association(WSPA) appreciates the opportunity to provide comments on the County's Industrial Safety Ordinance (ISO) environmental review and amendments proposed by Communities for a Better Environment. WSPA is a trade association whose members consist of companies engaged in the exploration, production, refining, and marketing of crude oil and petroleum products. WSPA and WSPA member companies have been working with County staff and supervisors on the ISO for the last several years and offer the attached comments for your review and consideration. Please contact me should you have any questions or wish to discuss our comments further. Very tru4 yours, Attachment: S f. 1115 11th Street, Suite 150 • Sacramento, California 95814 • (916)444-9981 • FAX: (916)444-5997 Printed an recycled paper The Industrial Safety Ordinance Environmental Review and Citizens for a Better Environment Proposed Amendments As a result of a lawsuit filed by Citizens for a Better Environment(CBE)against Contra Costa County, the County and CBE entered into a Stipulated Judgment whereby the County agreed to consider certain amendments to the Industrial Safety Ordinance(ISO) and to conduct an environmental review of the ISO and the amendments to the ISO proposed by CBE,all in conformance with the California Environmental Quality Act(CEQA). CBE AMENDMENTS The ISO was adopted in December of 1998. Its land use elements have only been in effect for seven months and the first Safety Plans required by the Ordinance are not due until January 15, 2000. The Ordinance should have a chance to be fully implemented and its impacts observed before changes and/or amendments to the Ordinance are considered and/or adopted. Further, each and every one of the proposed CBE amendments was presented and debated at length in the process that led up to the adoption of the ISO last December. The same reasons that led to the rejection of the CBE proposals in the original ISO deliberations are equally applicable now. A. Giving the County additional powers to require facilities to implement technical and/or managerial improvements is not necessary or desirable. The ISO already gives the County the power to require managerial and technical changes if they are needed to comply with the requirements of the Ordinance. The ISO spells out the requirements and gives the County the power to insure that they are met. The CBE proposal has no requirements or standards for when, or under what circumstances, the County could impose the additional requirements or how the County would determine what technology or changes to require. Historically, given their limited expertise in this area, and to avoid liabilities, public entities and regulatory bodies generally have not imposed "equipment and/or technical requirements". Instead they set minimum standards which must be met and leave it up to the regulated community to determine how to meet these standards. This process leaves technology and equipment decision making to those who know the most about the equipment and/or technology, encourages and promotes innovative and new technology approaches to problems, and exempts the agencies from liability if the technology does not meet expectations. B. The ISO contains extensive public participation opportunities and an additional $100,000 in funding to potential special interests is not needed. The ISO is replete with opportunities for public participation. In the Safety Plan portion of the Ordinance, a public hearing to solicit public comment is held after a complete safety plan is submitted to the County. Another public hearing and 1 opportunity for public comment is held when the County Health Department makes a preliminary determination regarding the Safety Plan. The final determination is made available to the public and any person dissatisfied with the Safety Plan or Health Department determination has the right to appeal to the Board of Supervisors. The Land Use portion of the Ordinance has similar opportunities for public input. It requires public notice for all non-coverage determinations and special public notice and a hearing before the County Zoning Administrator for non-coverage determinations for projects with a point score between 70 and 79. Rights of Appeal are available to the Board of Supervisors. If it is determined that a land use permit is necessary, then the full public participation process associated with the issuance of use permits is applicable. In addition to the above,the Ordinance establishes a Public Information Bank and requires the County to employ a Hazardous Materials Ombudsperson to work with the public regarding environmental issues. In light of the foregoing,there is no need to provide an additional $100,000 per year to go to undefined "community organizations" to review facility Safety Plans. Such a proposal is redundant, fiscally burdensome, and has great potential for abuse. The only issue with respect to the individual Safety Plans is whether they comply with the ISO requirements. This issue will be determined by the County Health Department, whose Staff members clearly have a great deal of"technical expertise" and ,N-ho. after all, represent the public and community of Contra Costa County. Safety Plans are only updated once every three years, and it is highly unlikely that a facility and the County combined will expend anywhere near$100,000 to review and prepare updates. As such$100,000 is not needed annually. There are also serious questions regarding who will determine what community groups receive grants, and on what basis the (1) grants will be made and(2) who will monitor how the money is spent by the "community groups". Any grant program such as suggested would require the promulgation of a whole new set of rules and regulations and the hiring of personnel to administer the program. Given that the ISO is already replete with public participation requirements, the proposed amendment is unnecessary. C. Three years of study went into the establishment of the ISO point scoring system. The Hazardous Materials Commission, made up of public entities, consultants, community representatives, representatives of environmental organizations, and industry representatives spent a full three years in developing the paint system in the ISO and establishing the land use permit requirement cut off to best protect the public. To arbitrarily raise or lower the land use permit trigger score without first having ample time to observe how the ISO works flies in the face of the years of effort that went into the 2 Ordinance. If changes are to be made, it should only be after a thorough analysis is completed to understand the implications of each proposed change. One of the criticisms of Ordinance 96-20 was that in some circumstances the point system potentially could allow certain large projects to escape the land use permit process. The ISO remedied this situation by adding a requirement that all such projects obtain land use permits regardless of score. Arbitrarily lowering the score could require hundreds of minor insignificant projects per year to go thorough the land use permit process, and its resulting delays, expense and staff time, with no potential public benefit. ENVIRONMENTAL REVIEW The County has conducted an Initial Study,which is the first step in the CEQA review process, and has informally indicated their intention to issue a Negative Declaration finding that neither the ISO or the proposed CBE amendments have the potential to adversely impact the environment. The Negative Declaration is entirely appropriate. A. The ISO must be compared to Ordinance 96-20. The ISO repealed and replaced what was known as the"Good Neighbor Ordinance." The Good Neighbor Ordinance in turn repealed and replaced Ordinance 96-20. However, because the Good Neighbor Ordinance was struck doxNm by the Court, it is 96-20 and not the Good Neighbor Ordinance that must be used as the basis for an environmental review of the ISO. The entire land use section of the ISO is essentially a reenactment of Ordinance 96-20. The principal change is to require land use permits for projects of a certain size regardless of their point score. This change has a beneficial environmental impact rather than an adverse impact. Since the rest of the land use sections are essentially the same, there can be no adverse environmental impact from the enactment of the land use portion of the ISO. While the County notices soliciting public comment on the proposed Negative Declaration clearly state the comparison was between the ISO and Ordinance 96-20, some commenters have compared the ISO to the Good Neighbor Ordinance, claiming there will be an adverse environmental impact because the point score triggering the requirement to obtain a land use permit is 20 points higher in the ISO than it was in the Good Neighbor Ordinance. This argument is entirely «k ithout merit because the ISO must be compared with 96-20 and not the Good Neighbor Ordinance. The point scoring systems for the ISO and Ordinance 96-20 are identical. It has also been contended that the County improperly found "no impact" for Section VII entitled "Hazards and Hazardous Materials" from the checklist filled out in the Initial Study. Because there is no change in impacts for any of the categories listed in Section 3 ......................................... VII of the checklist when the ISO is compared to Ordinance 96-20, the County's determination is completely accurate. It has also been alleged that a contractor has indicated that the scoring system in the ISO could result in potential adverse impacts because the system might score certain projects that may pose a public risk below the land use trigger point. However, because the scoring system for the ISO is identical to that for Ordinance 96-20, no adverse environmental impact can exist. B. New Safety Plan Requirements. The ISO has two separate and independent sections. One section deals with land use issues and the need for land use permits. As discussed above, it is largely a reenactment of Ordinance 96-20. The second section imposes new requirements on industry requiring the submittal of Safety Plans,the expansion of the types of equipment covered by the Federal and State Risk Management programs, and the expansion of audit, inspection, and public participation programs run by the County. Because this is new legislation patterned after State and Federal programs designed to protect the public and the environment against risk from industrial operations,and because the County did not have such powers before the ISO, this later portion of the ISO can only have a beneficial impact on the environment. One comment submitted to the County suggests that while the ISO gives the County new and additional powers, it does not give the County unrestricted discretion to impose any new safety requirements as it sees fit. It is alleged that the lack of such power could have a negative environmental impact. C. There is no dispute among experts. Some have suggested that an Environmental Impact Report must be prepared because the "experts" disagree over the impacts of the adoption of the ISO and/or the CBE amendments. They have cited comments made to the County that one of the CBE amendments could cause delay and potentially have an adverse impact. While the CEQA Guidelines under specified circumstances require an EIR where qualified experts disagree over whether a project will have a negative impact, no experts qualified or otherwise have offered any comment or evidence in these proceedings. The comment cited to support the allegation of a dispute among the experts was made by a member of industry affected by the ISO and is not testimony of a qualified expert. In judging a potential environmental impact under CEQA one must measure the project (in this case the ISO and the proposed CBE amendments) against existing law. As referenced, the ISO adds to the existing powers of the County to protect the public and the environment against the potential for industrial upsets. The allegation that the ISO does not go far enough in that regard, cannot be an adverse impact under CEQA when the County did not have such authority before the ISO. 4 In summary, the County's Initial Study finding that the adoption of the ISO and the proposed CBE amendments would have no adverse impact on the environment is completely justified under applicable law. 5 Tosco Refining Company Q 0 A Division of Tosco Corporation San Frandsoo Area Refinery(SEAR)at Avcx Martinez,California 94553-1487 Ir Telephone:(925)228-1220 Yosco September 14, 1999 1 Ms.Debbie Sanderson Community Development Department,North Vying-4"'Floor CONTRA COSTA COUNTY County Administration Building APPLICATION&PERMIT CENTER 651 Pine St. Martinez,CA 94553 DELIVERED BY HAND Re: Negative Declaration for the Industrial Safety Ordinance and four options listed in Contra Costa County/CBE settlement comments for recommendations from staff. Dear Ms. Sanderson: The Tosco Refining Company would like to reiterate the comments made in our previous letters, submitted on May 19, 1999 and July 7, 1999. We request that our written comments be considered during staff's development of recommendations to the Planning Commission and the Board of Supervisors. Sincerely, Marjo Hatter, Mana er, Health and Safety 1 DEC-10-1999 15:57 C-ITRA C09TA-CDD 510 335 1222 P.M/06 Facsimue Cover Sheet To: County Planning Commissioners o Len Battaglia . Hyman Wang Gordon limber Jahn Haneoak a Carmen Caddis o Marvin Terrell * Richard Clary CC: Dennis M. Barry, Community Development Director From: Debra R. Sanderson Company: CCC CDL Phone: (5 10) 518-8580 or (925) 335-1248 Fax: (510) 548-'5557 or (925) 335-1222 Date-, December 10, 1999 Topic-, Amendments to the Industrial Safety Ordinance Wages Weludiug thh cover page: 6 The Department has received the attached two letters as comments on the Staff Report concerning the Industrial Safety Ordinance Amendment, which is scheduled for your consideration on Tuesday, December 14th. We wanted you to have time to review these letters prior to the meeting. Staff will be prepared with a response to these comments at the meeting. DEC-10-1999 15:57 CONTRA COSTA—CDD 510 336 1222 P.02i06 oaf 99 C �.9 . ' i.,. o1vn > v�t VOR �i . . 47 "ljecernber 8,' .1999 Uri B E T'TE' I E't 'Via Faosjinile an&U.S. Mail ' " Debbie Sanderson:.' NVIRONMENT 'Coritra Costa County.'Conimunity Development Department ; 851 Pine Street : . . . Martinez, CA 9455 ' Fax:. (915) 33.5-1222 Dear Ms: Sanderson We received-the Staff Report for the,DecGmbes.K 1999 Planning.Commission Meeting and are writing to clarify ani issue;that the Staff-Report seems to gloss.over, specifically the concerns about the County"s''alleied ifiereased liabilityif its authority over.Safety Program-and Safety flans were expanded.t + Based on comments.inade by.staff during the.November 17th meeting, it is our understanding that the County disagreed with CBE's assessment that the'Tort'Ciaims'Aet protected the County, from..liability if if were authorized to mandatc•'changes at operating-facility - purstizt to the,Sa&ty Program and.•Safety'Plan.review process. The reasons given seem io be: (1) the Tort Claims.Act did riot c0or actions.taken under general police power, Ani&(2).the. Health and Oaf ty I�c'r►artri+pnt°`revip. of Cafaty 'Plane anr{.PrnLi,-arizr <#id not 00:nct4tuto =a "'approval" covered-under-the Act, Interestingly, County Counsel has xtever,provided CBE with a written response;as it CBE has.requested ort at'least three different accasions,.de. Iling;-the legal basis of its eofieltision that expanded authorty,Would result in ifidreased liability.. We' again respectfully request that County,Counsel.,provide the public xitli their legal•analysis.regarding this issue. However,a careful review of the,law,as detailed below, clearly sliows that the`1'.ort Claims.Act would in fact provide broad immuAity to the County(including:the Beard of ' Supervisors, and the staff of the Planning Commission,Community Development Department, and'Health-Services Dei3artment)if the Countv�were..emt �owered'to require'faciIities-to` 'implement specific safety changes. Gov;.Code §810 e.t seq. The Tort Claims Act tnalees' ' immunity the rule; liability is imposed only ifprovided by statute- Thompson v, City of Linke Elsinore (1993)'18 Cal. App, 4`''•49,63 (emphasis in anginal) (citations oniitted), It would seem then that the underlying reason for refusing to eriact'a more health and safety'protective is ' political rather than legal. There is-n6 question that the'County may exercise'its police power to enact ordinances.. that protect public health safety and welfare...Cal.,Const. Art. XIII §7. •Indeed the purpose for As we know.Ordinance 48-48,among other things;requires that certain major industrial facilities to 'implement a Safety Program and to prepare Safety Plans that are then'submitted to the public and the Health Services Department ('HSD")-for review: HSD assesses these S.afety,Prograciis and Safety Pips and determifies if-the Programs and ' Plans are"in comtiliance"with the requirements of the Ord'utance. .HSD may scck.necessary m(ldificationc to brine' the Safety Plan or'SafetyPrograrrn lino coiupliance with ehe Ordinance requirements. 'rhe amendment the County is required toconsider in accordance with17 of the Stipulated Judgment in Communities fir a Beaer Environment v. County of Contra'C:osid County, et at.-Civil No.C99-00094.seeks to empower the,County to require facilities to .'implement technical;manager;al attdlor other.improvements to promote public health and/or safety.:• �fl'0 Hawa:rd Street; Suite 506 .. S'a Y:ancisco, CA- 9410)5 + ,(415) •243-8373 In.'St uthern Cali fnriz%a:605 W. Olympie-Blvd., Sttite.850 • Los Angeles, CA 90015 • (213)48 6-5 114 ' CMorine•FreC 100PJo pas!•CCnsumer`Co< " " ' ' DEC-10-1999 15:55 Cr RA COSTA-CDB 510 335 1222 P.03/06 rd e enacting:the risk m'amgetnentportion 0the indu trial safety ordinance is to protect the public .frcm axcidcrital release thtotigh ttnproVing,ij id trial safety:...The Fort Clain Act prote'cts'public entities and,its,employees;from litrbilt't}r for injuries caused by the adoption car.failure tri adopt an enactment or by the failure toenforce An enactrneiit,"Oov. Code.§§•:818.2 and 821; Land Waste . .Managemeis('v..Camra Cot-,* Oodtw of Slipervisars(1990 22 Cal, App.3d 950, 962. Thus,• the County would be finriuiiized from liability for enacting:aria ordinance that'contained a.' provision that.empowers'it to require cbAr ges to Sa&ty Pla.ns.or Safety Programs to promote public hcalth'and-'safety. .The Tort Claim Act also'imm' unities County employees.and the County Itself frotrt liability for injuries resulting from acts or.omissions performe4 in the exercise'oi^discretion vested isi hitn or her, Gov,-Codc§§.81.5.2 and.8.20.2,..Tike 0rdinance.ctirrenfly allows the. "County may require.niodificatioas and additions to-the Safety'Program or Safety Plan t4 brim the program or.plan into compliaTice with•the''requj ementi of the ordinance. •Chapter•450=8:01 A. . . 'The Count} dries not seem to,be dispiile that the Tart Claims Act would ptotect.it from liability` for requii ng these modifications and additions. The saxrte lel al analysis would apply if " Ordinance were amended'to.authorize.Aaffto mandtd6 improvements to promote public health and safety-during the Safety'Program acid Safety Plan review process. The Tort Claims Act would-likewise.prot+eet the,•County and its-staff from liability for mandating•irnproveirients because the ordinance would authoti.re such actions: Moreover,rlie Tort Claims Actinununirxs the.County from liability for injuries'caused - by"the.issuance;taenial, susp9plo'n, or revocation'of`, or by the failure or,refusal to,.issue, deny, suspend,or.revoke' any permit, license, certificate,'ap rte, oval, order or:similar authorization where the public entity or'an employee of the public entity is authorized by enactment to determine whether or hot such authorization should-be issued; denied,suspended or.revoke Gov. Code §8 a 8.4,(emphasis added). .Alth dgh the Safety Plan and Progran,review process is not technically called an`approval'.'.under,the ordinance, that is in fart what it-is,'sufficient to be covered under the Tont Claiins Act. HSL reviews,a facility's Safety Program and Safety plan aril de.ir rrnirie.€if tha-.roAnc an,A prngraans nre in`corn,p1!axice \%Ath tho.ordinance., A.f4poeitive assessment" of a•facility's Safety Program and Safety'Plan ensures its-continued operation since the.consequence o€beistg."out of compliance" is that.the facility is deemed a public nuisance. A facility whose Safety Program and/or Safety.plan is not given"a positive assessment," is not approved, and is trot deemed"in compliance" with the requirements cif the ordinance is. threatened with shat down..Thi s.revi.ew process"can hardly be said to be ministerial with 'ittooilsCL,uchtial�U' Utuurndsl Cl3g previously:suggested that the authority to mandate changes be limited io those' instances when fhe.HSD did,not concur.with the Stationary Source's'rejection of an Inherently Safer System and'iietermined that econori-lic factors were tn'he major factor• such A rejection. See Gutter fiom Denny Larson to Debbie Sanderson, October 14, 1999.attached to the County's November 4, 1999 Memorandum to Interested Parties. ;The Staff is planning to recommend the adoption of additional'language that clarifies the definition of"feasible"Arid tlie information ri i i ded to justify such;claims of`°ec6n6mi.c infeasibility." The County rnust go further. It is logical that:ifthe County determines that the rhajor reason for rejecting an.lnherently .Safer System.is economic, and.-the measure is economically and otherwise feasible,the County should,'at the very least,deem the facility'"vut•of•compliance".NNith the,ordinance and a'' _ DEC-10-1999 1559 CONTRA COSTA-CDD 510 335 1222 P.04/76 ,� irntttirt'ettt.thre.at to public health anti sc fei}. `Ihe,County should also have the�.uthorify to. require the Source to implement the,stifer system dr ari equivalent as a condition to being".in . compliance"wiith'the ordin-ano'e: Without such authority,t� Count'y'would have..difficulty bringing a pudic nuisance,or'crimirial'.enfbrc6ment action nainst the facility.. Tori itistatice, to ' pr'evail in a ptibiie nuisance.action;the County would have too prove that the fAcility is"ivjuriaus tohealth or,is.indecent.or'offensive't6 the'sense . .: so as toiniterfere with,th' poinfortole, ,enjoyment oflife or properk ' and that-affects at the same time tiy-an entire camrnunity or neighborhood or considerable number"of persons: Civ. Code.§§ 3479,348.0. Non-r*mpliance with the ordinAnce, without also a finding that the facility is unsafir and'aft imrninent'threat to,the public„would not sufficient•for�ihe:County to succeed-in shutting down a facifity its a public nuisance.. :. We hope this letter helps to'clarify the:lit bility'issue,and willf4cilitate a rreacconsideration of the County's position: Please do trot hesitate to contaefus vAth.any,questions or,to discuss the matter farther, ; Sincerely, ' T)enny lrarsc�ri,N. aI. i�irector B rice Wong,-Staff Atto e Cc: , . Diana Silver, Esq.. Interested Farties DEC-10-1999 15:59 Com-' TRA COSTA-CM 510 335 1222 P.05/06 a4�1 EQUILON � @NTERPaieea LLG 1@tier#6'R�Aob 1Nlidu+kkkp Tc+pelitM' December g, 1999 Dennis M. marry Community Development Director Contra Costa County 651 Pine Street, 4th Floor, North Wing Martinez, CA 94553 Re: CBS Stipulated Judgement; Proposed Amendments to Chapter 469-8. Bear Mr. Barry: The Martinez Refining Company (MRC) is In receipt of the letter from Debbie Sanderson dated Dumber 2, 1999, regarding the above subject. MRC believes that the proposed amendments to Chapter 450-8 are inappropriate and that under the existing language Chapter 450-8 the Issues covered by the proposed amendments are already addressed. Given this fact and the long history behind Chapter 450-8 it does not appear reasonable to reopen the Chapter before the County has actual experience with the administration of the Ordinance. The existing language In Chapter 450-8.016(d)(3) reads as follows: "For all covered processes, the stationary source shall consider the use of Inherently safer systems in the development and analysis of mitigation Items resulting from a process hazard analysis and in the design and review of new processes and facilities. The stationary source shall select and implement inherently safer systems to the greatest extent feasible. if a stationary source concludes that an inherently safer system is not feasible, the basis for this conclusion shall be documented in meaningful aelall." The term "feasible" is currently defined in Chapter 450 as meaning: "capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, Segal, social, and technological factors_" Mnu RetKt V Company a rlivWW d Equilun CnIrpnses LLO P.O.Box 711 Ma*ez,CA 945531071 Y' DEC-10-1999 16:00 CONTRA COSTA-CDD 510 335 1222 P.06/06 , As it now stands, the Ordinance requires that a stationary source explain the basis for any rejection of Inherently safer technology in "meaningful detail". The Information referenced in the proposed amendment Is certainly within the realm of"meaningful detail." If the County does not accept the explanation, It can reject the Safety plan/Program, and require further explanation of the rejection decision, Including the information referred to in the proposed amendment. The now language adds nothing to the power the County already has under the existing Ordinance, except to add a new undefined standard (Le., "impractical"). The proposed new language addresses only one potential reason for the rejection of Inherently safer technology, If anything, by addressing only one reason for rejection, the proposed amendment could be viewed as limiting options available to the County. Option 7( The Staff report clearly states that"the Department and the Ombudsman already have the authority to apply and retrive outside grants, on behalf of the County, to support public Information activities surrounding Safety Plans,"As such, the amendment proposed under Option 7{b} Is unnecessary. Option 7( This options was not a part of the most recent discussions between the County and the interested parties. MRC incorporates herein by reference the comments previously submitted to the County by the Western States Petroleum Association regarding this option and the proposed CBE amendments in general, Conclusion Since the adoption of Ordinance 96.20 in the Summer of 1996, a constant series of new ordinances, challenges, lawsuits and proposed amendments have been proposed for facilities utilizing hazardous materials in the County. Forte of these enactments has yet been fully implemented and had its impacts evaluated. The Safety Plains, which are a key element of Chapter 450-8, are required to be filed with the County by January 15, 2000. It is unknown whether there will be rejections of Inherently Safer Technology in the programs or if there are, on what basis such rejections might be made. MRC believes that at this point in time the County should allow the Ordinance to be fully implemented without amendment, and then review the Ordinance based on actual experience, before determining if any changes are needed and/or appropriate. Sincerely, d 0, qv-z-", Chuck Flagg, President ....:.,..:..::::......... ..::. :::... .... ............. Ts1T{'1{ b t".tG FE8-09-2000 17:33 FROM CBE LECCAL 415 357-0257 T0:510 335 1222 P.002/003 COYDUJNITEES FOR A February 9,2000 �E"T"PER Wiac�imile and t T S Mail ENVR.ON'M'W'— , Debbie Sanderson Contra costa County Community Development Department 851 Pine Street Y*tinei,CA 94553 Fax: (925)33.5-1222 Dcaz`Ms>'Sandc;son: •These comments supplemenf our letter;dated December 8, 1999,in-which we urged the Couniy.to reconsider its erroneous position that it would be b#osed to °`potentially substantial.liability„ if its authority were expartdcd to require industrl"a1 far�ilities to imp lement•technical,managerial or other irnprgvemcnts. As Communities for a:Better Envi'ronmenv("CBE")has previously stated. the Tort Chums Act would protect the County from liability if it were authori7.ed to mandate`' changes at facilities pursuant to the Safety Program and Safety Planreview process.. The Fort Claims Act immunises the County and its employees from liability for injuries arising from acts br-omissions performed in the exercise of discretion vested in them. Gov, Code §§ 815.2 and 820.2. The decision to approve a Safety Program or Safety Plan,with or,without a requirement to implement certain health and safety improvement, is a discretiona#y act protected by the staiute. A discretionary act is one that requires the•exercise ofludl meat or deliberation'when determining whether to grant or deny.approval. Cal.Admin. Code §153.57. A.ministerial act,on the other hand,is one that involves little or no personal judgmept by the public'official as to the wisdom or manner of carrying out the protect. A ministerial decision involves only the use offixed standard or objective measures and the` public official cannot use personal subjective judgment in making a decision. Cal. Admin., Code:§l 5369.. The County's approval of a Safety Plan or Safety Prograln is not merely a matter of checking to see if an industry has submitted all required documents.There.are.no guidelines or regulations specifying�vhen the County must approve a Safety plan or Safety- Program.:Instead,}iealth Services Department CHSD'' assesses these Safety Programs and Safety Plans and determines if the Prof rams and'Plans arc."in compliance"with the, requirements of the Ordinance. Although HSI -may seek necessary modifications and, additions to bring the Safety.Plan or Safety.Progrdm into compliance with'the Ordinance requirements, Chapter 450-8.018,there are no fixed standards for "being in compliance." Thus, such HSD review is an exercise of judgment acid deliberation and the Safety flan` and Safety.Program approval.process is a discretionary act that is protected by the Tort C)airns'Act. 500 Howard Street, Suite 506 +,'San Francisca, CA 94105 (415) .243-8373 In-Southern California..605 W. Olympic Blvd.,Suits 8�0 •Us Angeles,CA 9401 r • (Y13)486-51.14 • Ohlodne-Free 100%pori oorSSamCf "t� FEB-09-2eeo 17:33 FROM CBE t"' :qL 415 357•-0257 ,Y,3,510 335 1222 r.clJll S��S . . • cis '� 02109/00• Page 2 CBE strongly urges the Board of Supervisors to reconsider its position. The underlying purpose ofadopting ordinances such as the Industrial Safety Ordinance is to address.the danrger and very really impact workers and Contra Costa County residents face each day Trom the oil refinery accidents.' The Board:of Supervisors-must be able to protect its residents to-the fullest extent possible,by requiring sufficient safety measures at these industrial facilities. The Board of Supervisors should not leave the decision of what is deemed"sufficiently-safe" to industry. We hopc this letter further clarifies the liability issue. Please do not hesitate to contact us with any qucstions or to discuss the matter• further. Sincerely, LAV- Denny Larson ja trice'Wong N. Cal.Director ttorney Ce: Diads:Silver,Esq. Board of Supervisors.- Haney Kaufman 9-17-1995 7:31 PM FROM ###I RV I NG/#KESSLER I 929 933 2466 P. 2 "NSIDER WiTe P013225 * WCKM` CA. 94525 3-21-00 To the +Aeric of the Board of Supervisors RF* 0-4. Industrial Safety Ordinance Dear Contra Costa Supervisors; On behalf of the Members, staff and Board of Directors of the Shoreline Environmer Alliance I am writing in strong support of an unanimous vote from the Contra Costa Board of Supervisors to strengthen the Refinery Safety Ordinance to allow safety and policy changes at County industries, when deemed necessary, by the County. We at SEA have suffered with unhealthy and unsafe environments In our communities for years under the°present system of safety issues left to the sole discretion of Industry management. A tragic example is the 1994 +CataccaErb rely from the thea Unocal refinery, in the Crockett/Rodeo area. lives were irrevocably tram apart by the ongoing poor health effects of that release. Another example is last February's catastrophic explosion and killings at the Tosco Avon refinery. How many more deaths, and countless community health impacts, is this County government willing to tolerate by allowing the current version of the Industrial Safety Ordinance, which relies on safety policy and equipment to be mandated by area industry management, and not the elected officials of the people cif Contra Costa County's An industry management whose own past record shows that their primary concern is not the best possible safe and healthy environment for their own workers, or adjacent communities, but production of product and the "bottom line"? We at SEA implore the Gard of Supervisors to make changes to this current version of the Industrial Safety Ordinance to close this dangerous loop hole in the ordinance by allowing safety and equipment changes to be implemented through County officials, not by management in the employment of industry! The only argument against Initiating this change has been by County staff suggesting that this would leave the County vulnerable to lawsuits if their safety, or equipment, changes caused an error. This is a false assumption not backed up by State statute_ In this state lawmakers are immune from such lawsuits. And indeed, isn't it totally Irresponsible of the County not to demand the safest policies be implemented and best equipment be used in these facilities? By not taking on this responsibility and strengthening this Safety Ordinarroe today all of our health, and workers lives, are 9-17--1995 7:31 PM FROM ###I R V I NG/##KESSLER I 926 933 2466 P. 3 I pg• in jeopardy . Leaving safety procedure and safety equipment decisions in the hands of Industry is irresponsible of the County and a recipe for disasWi !think the past speaks eloquently of haw much can go deadly wrong fo#lowing this path. Please pass a. stronger Safety Ordinance today for all of your constituents sakes! Respectfully, Kasha Kessler, Executive Director, the Shorelines Environmental Alliance and Signatory to the Good Neighbor Agreement 9-17-1995 7:30PM FROM ###I RV I NG,/#KESSLE R I 92B 9.33 2ASS , ltd row C � 4 tftl t#. t7 itt PoaW cel to=0M rpt . DATE: 3-21-00 +;L'R�r ndby return fax TO; Clork of Broad, re: 01-4 i El Cat+only if tram is w=mpWa FAX NUMBER.3351913 FRom: Kash* Kessler, S.E.A. PHONE: 92.5 933 2464 OUR FAX. 925 933 2466 # OF PAGES t 4MUD t COVER.3 '•�', ..fin. 44 ,�..»» :5e.�.r:71� .. .r.. ....e. .�"'r.:ei.'m..:x`�.:2, 'j. ,ani,:`_......-.�. �.."4; ��i :'�s�;'P%i. 4.r..�,.v..�i ti'i.il i.'. •.Wti•��..,......����i...r.R'...�xL�'t+'ygv:n"k.t�yy:f`. .v.�, ''9.�,:.J.'�-Xiw:.uw1)�.n'%^.i�i��..Y'.s.LYti'.Jn��,4:". .an. N W'...)p',,.r z•;X �:'ta;,4, 5t.""�ex'��4:.*."i '...t i.^. :a%�ai' Dear Clerk; Enclosed is my tester to be reed on this ime, D-4, SWely Ordkmnce, Way at the Boards meeting, 3t one o'clock. Thanks so much for your help, St[1 eAy, Kasha Ke"er, SeA I BOARD OF SUPERVISORS, CONTRA.COSTA COUNTY, CALIFORNIA AFFIDAVIT OF MAILING INDUSTRIAL SAFETY ) ORDINANCE [Ordinance ) 98-48] ) I declare under penalty of perjury that I am now, and at all times herein mentioned have been, a citizen of the United States and over the age of 18. Today, I deposited the self-addressed stamped envelopes containing the notice of hearing attached as#1,the addresses mailed to attached as#2, in the United States Postal Service mailbox at 651 Pine Street,Martinez, CA. See two attachments I declare under penalty of perjury that the foregoing is true and correct, executed at 651 Pine Street,Martinez, California. Dated: March 6, 2000 By Bar a S. G+Dutyerk NOTICE OF A PUBLIC HEARING BEFORE THE CONTRA COSTA COUNTY BOARD OF SUPERVISORS COUNTY-WIDE NOTICE is hereby given that on luesday. March 21, 200Q. a„al:00 p.m.. in the County Administration Building, 651 Pine Street, (Comer of Pine and Escobar Streets),Martinez, California,the Contra Costa County Board of Supervisors will hold a public hearing to consider the following matter: Hearing on the recommendation and findings of the Contra Costa County Planning Commission pertaining to the proposed modification and readoption of The Industrial Safety Ordinance, (Ordinance 98-48), Chapters 450-8 and Chapters 84-63 of the County Ordinance Code. If you challenge this project in Court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the County at, or prior to, the public hearing. If you have any questions, please contact: Debbie Sanderson, Community Development Department, 651 Pine Street,North Wing, 4'Floor,Martinez CA 94553 or call(925) 335-1208. Date. March 6, 2000 PHIL BATCHELOR., Clerk of the Board of Supervisors and County Administrator B0arbLqa.ra-4S'1Grtt,/5 uty Clerk Nancy Kaufman Tim Payne Denny Larson Richmond Planning Department p P.O.Box 349 500 Howard St., Ste. 506 2600 Barrer Ave. Martinez,CA 94553 San Francisco,CA 94105 Richmond, CA 94804 Richard Loshiyuki Drury,Legal Director Diana Silver,Deputy County Counsel Communities for a Better Environment Office of the County Counsel 500 Howard St.,Ste.506 County Administration Building San Francisco, CA 94105 651 Pine St.,9 Floor Martinez,CA 94553 PROOF of PUBLICATION RECEI ED (2015.5 C.C.P.) NOTICE OF APUBLIC HEARINU STATE OFCALIFORNIA BEFORE THE MAR 14 2000 County of Contra Costa CONTRA COSTA COL N I am a citizen of the United States and a resident of thei PERVISORS County aforesaid; I am over the age of eighteen years, and BOARD OF SUPERViCi.EEiK NIRA COS CO. not a party to or interested in the above-entitled matter. I am the Principal Legal Clerk of the Valley Times COUNTY-WIDE Mincorporating The Pleasanton Times)/San Ramon Valley mes, a newspaper of general circulation, printed and NOTICE is hereby given that on published Creek,County of Contra Costa,94598 to the City of Walnut TUESDAY, MARCH 21 , 2000, AT 1 .00 And which newspaper has been adjudged a newspaper of P.M., in the County Administration general circulation by the Superior Court of the County of Building, 651 Pine Street, (Corner of Contra Costa, State of California, under the date of May 1, 1947. Case Number 39468. Pine and Escobar Streets), Martinez, The notice, of which the annexed Is a printed ccpy (set in California, the Contra Costa County, type not smaller than nonpareil),has been published in eachBard of Supervisors will hold apub-' regular and entire issue of said newspaper and not in any supplement thereof on the following dates,to-wit: lic hearing to consider the following March 1Q planning matter: all in the year of 2000 Hearing on the recommendation and I certify (or declare) under penalty of perjury that the findings of the Contra Costa County foregoing is true and correct. Planning Commission pertaining to Executed atWalnut Creek,California. On this 10 day of March, 2000 proposed the used modification and re- adoption ....... ........ .. . ....... adoption of The Industrial Safety Or Sign'at .ure ....... dinance (Ordinance No. 98-48),, San Damon Valley mes Chapters 4.50-8 and Chapters 84-63 P a Box 6aof. the (noun Ordinance Code. Danville,CA 94526-0068 `3' (510)837-4267 If you challenge this matter in Court, Proof of Publication ft u be limited to•raisin only, (attached Is a copy of the legal advertisement that published) you may g y. those issues you or someone else; raised at the , public hearing de- scribed . in this notice, or in written correspondence delivered to the, County- at, or prior to, the public' hearing: If you have any questions, please contact: Debbie Sanderson, Com- munity Development Department,I 651 Pine Street, North Wing, 4th floor, Martinez; CA 94553 or call 925/335®1208. Date: March 6, 2000 PHIL BATCHELOR, Clerk of the Board of Supervisors and County Administrator B /s/ Barbara S. Grant, Deputy Clerk Leal PTVT/SAV"r 3731 Publish: March 10, 2000 PROOF OF PUBLICATIONR 14 2000 (2015.5 C.C.P.) NOTICE OF A PUBLIC HE RN STATE of CALIFORNIA BEFORE THE - }(�} 5ilkiVISRS County of Contra Costa ` jbTA M I am a citizen of the United States and a resident of the CONTRA COSTA COUNTY B F County aforesaid; I am over the age of eighteen years, and SUPERVISORS not a party to or interested in the above-entitled matter. I am the Principal Legal Clerk of the Ledger Dispatch and COUNTY-WIDE Brentwood News. Newspappers of general circulation,printed and published at 2640 Shadelands Drive in the City of Walnut Creek,County of Contra Costa,94598. Notice is hereby given that on TuesdU, March And which newspaper has been adjudged a newspaper of 21.2000 at 1:00 p.m., in the County general circulation by the Superior Court of the County of Administration Buildin 651 Dine Street, Contra Costa, State of California, under the date of March ' 26,1870. Case Number 746370, (Corner of bine and Escobar Streets),Martinez, The notice, of which the annexed Is a printed copy (set in Cali€ornia, the Contra Costa County-Board of type not smaller than nonpareil),has been published in each Supervisors will hold public hearing to consider regular and entire Issue of said newspaper and not in any the following matter. supplement thereof on the following dates,to-wit g March 10 Hearing on the recommendation and findings of all in the year of 2000 the Contra Costa County planning Commission I certify (or declare) under penalty of perjury that the pertaining to the proposed modification and foregoing Is true and correct. readoption of The Industrial Safety Ordinance, Executed at Walnut Creek,California. (Ordinance 98-48),Chapters 450-8 and Chapters On this 10 day of March, 2000 , 84-63 of the County Ordinance Code. If you challenge this project in Court, you may LLeddgeerr Dispatch and Br twood Ne be limited to raisin only those issues you or x 2299 Antioch,CA 94531-2299 someone else raise at the public hearing. (510)757-2525 described in this notice, or in written Proof of Publication of: correspondence delivered to the County at, or (attached Is a copy of the legal advertisement that published) prior•to, the public hearing. If you have any questions, please contact: Debbie Sanderson, Community Development Department,651 fine Street, North Wing,4th Floor,Martinez, CA 94553 or call (925)335-1208. Date:March 6, 2000 Phil Batchelor, Clerk of the Board of Supervisors and County Administrator By: J s/Barbara S. Grant, Deputy Clerk 4.epe 1 LD60 4069 P sh:March,10,2000 l b El ED PROOF OF PUBLICATION (2015.5 C.C.P.) NOTICE OF A PUBLI SARI 2000 STATE OF CALIFORNIA LERK BOARD°FS1J R1t1SORS County of Contra Costa BEFORE TH E o. I am a citizen of the United States and a resident of the CONTRA COSTA`COU County aforesaid; I am over the age of eighteen years, and BOARD OF SUPERVISORS not a party to or interested in the above-entitled matter, I am the Principal Legal Clerk of the Contra Costa Times, a (OUN7Y—WIDE newspaper of general circulation, printed and published at of Contra Costa,94598.Drive in the City of walnut Creek, County NOTICE is hereby given that on And which newspaper has been adjudged a newspaper of TUESDAY, MARCH 21 , 2000, AT 1 :00 general circulation by the Superior Court of the County of P.111"l., in the County Administration Contra Costa,State of California, under the date of October 22, 1934.Case Number 19764, Building, 651 Pine Street, (Corner of The notice, of which the annexed Is a printed copy (set in Pine and Escobar Streets), Martinez, type not smaller than nonpareil),has been published in each California, the Contra Costa County regular and entire issue of said newspaper and not in any supplement thereof on the following dates,to-wit: Board of Supervisors will hold a pub- March 9 lic hearing to consider the following all in the year of 2000 planning matter: 1 certify (or declare) under penalty of perjury that the Hearing on the recommendation and foregoing is true and correct, findings of the Contra Costa County On this 9 at dpy oflnut March,Creek,California. Plannlr Commission pertaining to On this 9 d y of March, 200 ,g l� 'g the proposed modification and reti ...g............... ......." ...... adoption of The industrial Safety Or - Contra nature Contra CostaTlmes dinance (Ordinance No. 98-48), P O Bax 4147 Chapter's 45th-8 and Cha walnut Creek,CA 94696 pter�i 84-63(510)935-2526 I of the County Ordinance Code. Proof of Publication of: Ify ou challens maourt , a thitter in C (attached Is a copy of the legal advertisement that published) g , you may be limited to raising only those issues you or som' eone else raised - at the public hearing de- scribed in this notice, or in Written correspondence delivered to the County at, or priorto,to, the public hearing. If you have any questions, please contact: "Debbie . Sanderson, Com- munity Devel6pment Departrinent, 551 Pine Street, North Wing, 4th floor, Martinez, CA 9455$ or call 925/835-1208. Date: March 6, ,2000 PHIL BATCHELOR, Clerk of the Board of Supervisors and County Administrator By:/sit Barbara S. Grant, Deputy Clerk Le al O T 7888 Publish, March 9, 2000 ORDINANCE NO.2000-2Q (AMENDMENTS TO ORDINANCE CODE CHAPTER 450-8, ON INDUSTRIAL. SAFETY) The Contra Costa County Board of Supervisors ordains as follows(omitting the parenthetical footnotes from the official text of the enacted or amended provisions of the County Ordinance Code): SECTION 1. Subdivision(D)of section 450-8.016 of the County Ordinance Code, added by Section Il of Ordinance No. 98-48, is amended by adding specific documentation requirements to subsections(3)and (4)of subdivision (D), to read: (D) Process Hazard Analysis/Action Items. (1) Process hazard analyses will be conducted for each of the Covered Processes not included in the Federal program level 3 Risk Management Program according to one of the following methods: What-If, Checklist, What- If/Checklist, Hazard and Operability Study(HAZOP),Failure Mode and Effects Analysis (FMEA), Fault Tree Analysis or an appropriate equivalent methodology approved by the Department prior to conducting the process hazard analysis. The process hazard analysis shall be appropriate to the complexity of the Covered Process and shall identify, evaluate, and control the hazards involved in the Covered Process. The process hazard analysis shall address: the hazards of the process; the identification of any previous incident which had a likely potential for catastrophic consequences; engineering and administrative controls applicable to the hazards and their interrelationships such as appropriate application of detection methodologies to provide early warning of releases. (Acceptable detection methods might include process monitoring and control instrumentation with alarms, and detection hardware such as hydrocarbon sensors.); consequences of failure of engineering and administrative controls; Covered Process and Stationary Source siting; Human Factors; and a qualitative evaluation of a range of the possible safety and health effects of failure of controls. All process hazard analyses shall be performed by a team with expertise in engineering and process operations,and the team shall include at least one employee who has experience and knowledge specific to the process being evaluated. Also, one member of the team must be knowledgeable in the specific process hazard analysis methodology being used. (2) The process hazard analyses shall be conducted within 1 year of the effective date of this Chapter and no later than the submittal date of the Safety Plan. Previously completed process hazard analyses that comply with the California Code of Regulations, Title 8, Section 5189,and/or the California Code of Regulations,Title 19, Section 2760.2 are acceptable for the purposes of this Chapter. Process hazard analyses shall be updated and revalidated at least once every 5 years after completion of the initial process hazard analysis. Updated and revalidated process hazard analyses completed to comply with the California Code of Regulations,Title 8, Section 5189,and/or the California Code of Regulations,Title 19, Section 2760 are acceptable for meeting the update and revalidation requirement. External events, including seismic events, ORD. 2000-22(1 - 1 - shall be considered for processes containing a substance defined in the California Code of Regulations, Title 19, Chapter 4.51, Section 2770.5, if the distance to the nearest public receptor for a worst case release scenario specified by the California Code of Regulations,Title 19, Chapter 4.51, Section 2750.3 is beyond the distance to a toxic or flammable endpoint as defined in California Code of Regulations, Title 19,Chapter 4.51, Section 2750.2(a). (3) For all Covered Processes,the Stationary Source shall consider the use of Inherently Safer Systems in the development and analysis of mitigation items resulting from a process hazard analysis and in the design and review of new processes and facilities. The Stationary Source shall select and implement Inherently Safer Systems to the greatest extent Feasible. If a Stationary Source concludes that an Inherently Safer System is not Feasible,the basis for this conclusion shall be documented in meaningful detail. This documentation shall include(1) sufficient evidence to demonstrate to the County's satisfaction that implementing this inherently safer system is impractical, and(2)the reasons for this conclusion. A claim of"financial infeasibility"shall not be based solely on evidence of reduced profits or increased costs,but rather shall include evidence that the financial impacts would be sufficiently severe to render the inherently safer system as impractical. (4) For all Covered Processes,the Stationary Source shall document the decision made to implement or not implement all process hazard analysis recommended action items and the results of recommendations for additional study. The Stationary Source shall complete recommended actions identified by the process hazard analysis and selected for implementation by the Stationary Source as follows: all actions not requiring a process shutdown shall be completed within one year after submittal of the Safety Plan; all actions requiring a process shutdown shall be completed during the first regularly scheduled turnaround of the applicable process subsequent to one year after submittal of the Safety Plan unless the Stationary Source demonstrates to the satisfaction of the Department that such a schedule is infeasible. For recommended actions not selected for implementation,the Stationary Source shall include the justification for not implementing the recommended action. For all Covered Processes, the Stationary Source shall retain documentation of closure,and any associated justifications,of actions identified by the process hazard analysis. The Stationary Source shall communicate the actions to operating, maintenance, and other employees whose work assignments are in the process and who may be affected by the recommendations or actions. Any documentation justifying a decision not to implement a process hazard analysis recommended action shall include(1) sufficient evidence to demonstrate to the County's satisfaction that implementing this action is impractical,and (2)the reasons for this conclusion. A claim of"financial infeasibility„ shall not be based solely on evidence of reduced profits or increased costs,but rather shall include evidence that the financial impacts would be sufficiently severe to render the improvement as impractical. (Ords. 2000-2Q, § 1; 98-48, § 2.) SECTION H. Section 450-8.022 of the County Ordinance Code,added by Section II of Ordinance No. 98-48,is amended,to allow the ombudsperson to retain technical experts and to ORD. 2000-2Q _ 2 _ r' allow the cost of experts to be funded through programs established by the U.S. EPA or other appropriate entities,to read: 450.8.022 HAZARDOUS MATERIALS OMBUDSPERSON. The Department shall continue to employ an ombudsperson for Hazardous Materials Programs. The ombudsperson will serve as a single point of contact for people who live or work in Contra Costa County regarding environmental health concerns, questions, and complaints about Hazardous Materials Programs. The ombudsperson will be empowered to identify and solve problems and make recommendations to the Department. The ombudsperson's role will be one of investigating concerns and complaints, facilitating their resolution and assisting people in gathering information about programs,procedures, or issues. The ombudsperson may retain appropriate technical experts in order to fulfill technical assistance requests from members of the public. The cost of experts may be funded through programs established by the U.S. EPA or other appropriate entities. (Ords. 2000-20; § 2; 98-48 § 2.) SECTION IIL EFFECTIVE DATE. This ordinance becomes effective 30 days after passage, and within 15 days after passage shall be published once with the names of the Supervisors voting for and against it in the Contra Costa Times, a newspaper published in this County. PASSED on March 281 2000 ,by the following vote: AYES: Supervisors Gioia, Uilkema, DeSaulnier, Canciamilla and Gerber NOES: None ABSENT: None ABSTAIN: None ATTEST: Phil Batchelor, Clerk of the Board of Supervisors and County Administrator By- Deputy Bo hair [SEAL] LTA' Much 20,2400 H+1CDDM1SC&wrd300.wpd ORD. 2000-M 3 NOTICE OF A PUBLIC HEARING BEFORE THE CONTRA COSTA COUNTY BOARD OF SUPERVISORS COUNTY-WIDE NOTICE is hereby given that on Tuesday,M� rah 21.x- at 1:00 p.m., in the County Administration Building, 651 Pine Street, (Corner of Pine and Escobar Streets), Martinez, California,the Contra Costa County Board of Supervisors will hold a public hearing to consider the following matter: Hearing on the recommendation and findings of the Contra Costa County Planning Commission pertaining to the proposed modification and readoption of The Industrial Safety Ordinance, (Ordinance 98-48), Chapters 450-8 and Chapters 84-63 of the County Ordinance Code. If you challenge this project in Court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the County at, or prior to, the public hearing. If you have any questions,please contact: Debbie Sanderson, Community Development Department, 651 Pine Street,North Wing, 4`h Floor,Martinez CA 94553 or call(925) 335-1208. Date: March 6, 2000 PHIL BATCHELOR, Clerk of the Board of Supervisors and County Administrator B arbara S. Gr t, uty Clerk ISGIAL PUBLICATION RZOVIiITION Contra Costa County 7Proa s Clark of the Board Was Contra Cos a mines 651 Pin* St. , Room 106 PO Bor 5134 lsartin*s;. CA 94553 Walnut Creek, CA 94596 batol x, /YJ 4- #Lrgs A0 nub obioett ° Task s Activi gs Publicatioll Date(a) t c 'c1C, So. 'Panes �' **"I. dlatetr uponwpiretien of pubtioetien,�+++ send in wo affidevlt for oath pubtieatian in Birder tMt the aud4tor my be ou!tWf"d to pap your bitt. '' ,• LEGAL PUBLICATION REQUISITION Contra Costa County h OU' From: Clark rk 2f the Board +lin: T.odggr Di stat h 651 Fine St. . Roam 146 PA Box 2299 Martinez. CA 94553 Antioch. CA 94549 241t zC �c:J �I Phone No: + � _ iauisitio 1�0; t,37V Orgs //00 Bub Object; Tasks Activity;Publication D&t*(olt • / U Rc. Pages ! 17 , .. %" ""Immodioutyr upon aepirstion of pubtieatian,++� sand in one off idwit for sea publication in order that the auditor nay be mudwi n d to pay Vwx bt t t. I A6 LEGAL PUBLICATION REQUISITION Contra Costa County y° c Fr2a: Clerk of the Board To: San Ramon Valley_ Times 651 Pine St. . Rogm Room106 PO Box 68 MA rtinez. CA 94553 Danville, CA 94526 gagMested Dys vau� Date: Phone NO: c c.J' / R*ggfsition NO: .. Ora: /`�l.�D Sub Qbj 90t:Vvl/90 Task: Aativf tv: No. Pages MAL PUBLICATIMm- *"*tardfatety upon oWfration of pbiieation,sr�. nand in one affidavit for ow* publication in order that the auditor my be autborfxed to pay yaur bill. v 17 OFFICE OF THE CLERK. OF THE BOARD OF SUPERVISORS CONTRA COSTA COUNTY 651 PINE STREET, ROOM 106 MARTINEZ, CA 94553 Phone: (925)335-1900 FAX (925)335-1913 MATE: `I C;000 TO: -, -- 9�2 0Q FROM: ' t7 SUBJECT: + y TOTAL PAGES INCLUDING THIS COVER: PLEASE ADVISE IF FOR ANY REASON YOU DO NOT RECEIVE THIS ITEM COMPLETE! PLEASE CALL]IF YOU RECEIVE THIS FAX IN ERROR OFFICE OF THE CLERK OF THE BOARD OF SUPERVISORS CONTRA COSTA COUNTY 651 PINE STREET,ROOM 106 MARTINEZ, CA 94553 Phone: (925)335-1900 FAX(925)335-1913 DATE:, r FROM: A"-A�� SUBJECT: ` TOTAL PAGES INCLUDING THIS COVER: �. r PLEASE ADVISE IF FOR ANY REASON YOU DO NOT RECEIVE THIS ITEM COMPLETE! PLEASE CALL 1F YOU RECEIVE THIS FAX IN ERROR OFFICE OF THE CLERK OF THE BOARD OF SUPERVISORS CONTRA COSTA COUNTY 651 PINE STREET, ROOM 106 MARTINEZ, CA 94553 Phone: (925)335-1900 FAX (925)335-1913 DATE: , r FROM: SUBJECT: TOTAL PAGES INCLUDING THIS COVER: `- r od PLEASE ADVISE IF FOR ANY REASON YOU DO NOT RECEIVE THIS ITEM COMPLETE! PLEASE CALL IF YOU RECEIVE THIS FAX IN ERROR COUNTY PLANNING COMMISSION CONTRA COSTA COUNTY STATE OF CALIFORNIA RESOLUTION NO. 34-1999 RESOLUTION OF THE COUNTY PLANNING COMMISSION OF THE CONTRA COSTA COUNTY, STATE OF CALIFORNIA, INCORPORATING RECOMMENDATIONS AND FINDINGS PERTAINING TO THE PROPOSED MODIFICATION AND READOPTION OF THE INDUSTRIAL SAFETY ORDINANCE, CHAPTERS 450-8 AND CHAPTER 84-63 OF THE COUNTY ORDINANCE CODE. WHEREAS on April 8, 1999, Contra Costa County and Communities for a Better Environment entered into a Stipulated Judgment to resolve litigation over the adoption of the Industrial Safety Ordinance (Ordinance 98-48); WHEREAS this Stipulated Judgment, as fully described in the October 26, 1999 Staff Report for the County Planning Commission, obligates the County to prepare an initial study; to commence and complete environmental analysis by specified deadlines;to evaluate four possible amendments to Ordinance 98-48, as outlined in paragraph 7 of this Stipulated Judgment within twelve months from entry of judgment [by April 8, 20001; and to conduct these reviews using an inclusive process involving all interested parties; WHEREAS, for purposes of compliance with the provisions of this Stipulated Judgment,with the provisions of the California Environmental Quality Act(CEQA), and with State &County CEQA Guidelines, 1. Staff prepared a preliminary Initial Study by June 7, 1999 and a revised Initial Study by August 5, 1999 which identified no substantial evidence of potential significant impacts due to the project under consideration; 2. Based on these findings, staff determined that a negative declaration is required by CEQA for this project; 3. Staff posted a Notice of Intent to Adopt a Negative Declaration with the County Clerk's office on August 5, 1999 and again on September 28, 1999, and noticed as otherwise required by law; WHEREAS, after notice was lawfully given, a public hearing was scheduled before the County Planning Commission originally on Tuesday, October 26, 1999 at which time the County Planning Commission opened the public hearing, accepted public testimony, and continued the open public hearing to December 14, 1999, at which time the County Planning Commission accepted additional public testimony and closed the public hearing; and having fully reviewed, considered, and evaluated all of the evidence and testimony presented on this matter; Page 2 P.1- .-)LUTION NO.34-1999 NOW, THEREFORE, BE IT RESOLVED that the County Planning Commission recommends that the Board of Supervisors 1. Adopt the Negative Declaration for this project, 2. Decline to adopt the Items 7(a), (b) and(c)as presented for consideration in the Stipulated Judgment, as amendments to Ordinance 98-48, and 3. Adopt Chapter 450-8 with minor modifications, as described in the December 14, 1999 Staff Report(with one minor revision)to clarify the information requirements and access to outside grants, and 4. Adopt Chapter 84-63 with no modifications. BE IT FURTHER RESOLVED that: 1. The County Planning Commission concurs with staff findings that expanding County Authority to mandate changes in operation of a Stationary Source, beyond the authority already provided the County through Ordinance 98-48, exposes the County to unacceptably high levels of liability. 2. The County Planning Commission also concurs with staff findings that $100,000 per year grant program for the purpose of reviewing Safety Plans is excessive in relation to the task to be performed and in relation to other demands on the County's general revenue. The Stationary Sources producing these Safety Plans probably could not be assessed fees to cover the costs of these grants because the nexus required by Government Code Section 6600 could not be demonstrated. 3. The County Planning Commission also concurs with staff`findings that the County has too little experience with the current hazard score thresholds and too little analytic support for identifying alternative thresholds to justify revising them at this time. 4. The County Planning Commission finds that the proposed Industrial Safety Ordinance is consistent with the County General Plan, particularly the Safety Element(Section 10)thereof. EVIDENCE: See Page S-24 of the October 26, 1999 Staff Report to the County Planning Commission. BE IT FURTHER RESOLVED that the Secretary of the County Planning Commission shall respectively sign and attest the certified copy of this Resolution and deliver the same to the Board of Supervisors all in accordance with the planning laws of the State of California; and Page 3 RL..-,LLJTION NO.34-1999 The instructions by the County Planning Commission to prepare this Resolution were given by motion of the Planning Commission on Tuesday, December 14, 1999 by the following vote: AYES: Commissioners— Terrell,Fong, Battaglia, Hanecak, Clary NOES: Commissioners— Kimber ABSENT: Commissioners— Gaddis ABSTAIN: Commissioners— Richard Clark Chairman County Planning Commission County of Contra Costa State of California I, Dennis M. Barry, Secretary of the County Planning Commission, certify that the foregoing was duly called and approved on December 14, 1999. ATTEST Dennis M. 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Umr w ro �• C^mr a CD a c �. < - .-.w ar - CD C) `C tD 9.. �r CD Co (D {p .x... = { a'm :=^O �-6 Cl- t�'n �" (D Cr ` (7 .a to @ to Cllr 9 caro M c mz CD 0mm0 naocs ° (n <'� `s,a t to CD`C `< 0 Cn CO CD a a w ill C w m N ' OF r PUBLIC HFAkWG ANDNC' 'ICE't3F TO ADOPT A NDGNT MDECL,RA' ON t 3 Yoct any hereby nofi�ied that on" at 7:00 p.m.in Room 107,McBt +Admin But 14Puse Straet nay, Califf lo,ate Conirp Colla Akar I Cgmmiuion kvi�l a >V �rt AM 8,1 9.Wr C-60-ii d6mil 1imitles 6 a Better ,Errtiizinine_nri$r�1t#�erJod in#a Sit its vo i1littotion aaverr the :�of e5hldustria i )• `^"'#" nIS ndn latiCe +;viih this loted e ri nn ng Comnsission vdH consider s ile�ii tar to B of Supervisors;First,it will consider certification of a -Oectorafion, aoxrdira to the California Envirnnmen#nl CRY Ad,on the m aNria tx&e 98A and on four amendments to it.Second the Commission Will ptinsklor the M*doption of In Ordinance 9848.Third,.i a Commisaiari consider the adoption of tour `� amendmen#s to the industrissi Safety Ondinanco(Ordinance 9848),as specified Y in hems 7(a), )'and W of the,Stipulated Theca amendments would(1) chow the Ilea Sxvicaa Uehnsnt b add�fiSonol safety in Industrial facilities (�},v ld 100,006 In grams for commun�y,inview of industrial Satelyi a,'a o{(3 6yer the hazard scare threshold triggering roqu permit for certain industrial iacilifies. E you challenge the protect in court,you may be limped to.raising on those Issues you or someone else raised at the public hearing described In ibis notice, or in written correspondence delivered to the County at,or prior to,the public hearing, c For purposes of compliance with the t3°tyf the Californ ironmenlal Quall y Act(C impact f Environm n niRc ace(no Environmental R prepared ,s proj_ A copy of the id 0 8 doan Will In#ho negative d�;and Application' Permit Center r�en�ne Y rem nt i Administration ButldIng,North W4 Second ,451'P� ;Martinez,during normal business hours +, Pubfit Cannwnt Period Tho period for aoeeptin comments on the ...._ , ';adequacy'of the environmental do,umonis'oidends 10 3too PJL1 Octiber 2S, 19 9.Any ailxxrki tee s wrning'.and submitted to the toileowing address me*Debbie Sorrdernan '" �srks ,fiommunity'Developmem Department ssa t Contra Collo Courr#y 651 Pine Street,North W+ng,dth Floor Marfinez,'CA 94553 ,M For.further details,eor tad)he`Contro Costa County Communittyy De"lopmen# the D�eeppartment,,651 Pine Street,Martinez,Cai forma,or phone DEBBIESaim SAID MSON at 1925)33S-1208 iEs ' k iDpnnls�IVi.carry,�AICP C''mmunity Developmen#Director any Centra Costa County A