Category Archives: California Environmental Quality Act (CEQA)

CA Attorney General weighs in against ORCEM & Vallejo Marine Terminal

Repost from the Vallejo Times-Herald
[Editor – view the Attorney General’s 13-page letter.  Does this remind you of the CA Attorney General’s support in our 2013-2016 fight against Valero’s dirty and dangerous Crude By Rail proposal?  Hope this helps in Vallejo – keep up the resistance!  – R.S.]

DOJ sends letter, states reports on Orcem/VMT project are misleading

By JOHN GLIDDEN, November 12, 2018 at 5:41 pm
The site of the Vallejo Marine Terminal/Orcem Americas project proposed for South Vallejo is shown. (Times-Herald file photo)

The California Department of Justice has sent city officials a scathing letter arguing environmental documents prepared for the Orcem Americas and Vallejo Marine Terminal project are misleading and violate state law.

In the 13-page letter obtained by this newspaper, Erin Ganahl, deputy attorney general for the State of California, contends that a draft final environmental impact report (DFEIR),
an Environmental Justice Analysis (EJA), and Revised Air Analysis, contain flawed data which prevents the Vallejo City Council from making an informed decision about the controversial project proposed for development in South Vallejo.

“The environmental documents for the project fail to provide adequate legal support for the city of Vallejo to approve the project,” Ganahl wrote on behalf of state Attorney General Xavier Becerra. “The DFEIR fails to adequately disclose, analyze, and mitigate the significant environmental impacts of the project; the EJA improperly concludes that the project would not disproportionately impact low-income communities of color, and thus misleads decision makers and the public by minimizing the projects significant environmental justice concerns.”

Ganahl urges city leaders to either revise, or consider recirculating the DFEIR but she and the DOJ stop short of taking an official position on the project. The impact report is required under the California Environmental Quality Act (CEQA) which identifies significant environmental impacts of a proposed development and the ways the impacts can be mitigated.

VMT has applied to open a modern deep-water terminal, while Orcem is seeking approval to operate a cement facility with both projects located on 31 acres at 790 and 800 Derr St.

The project, if built, is expected to generate 552 truck trips per day, along with 200 rail car trips per week. According to the letter, 509 of the truck trips would travel through the nearby residential community. Four large vessels, and an average of 3.5 smaller vessels are expected to be unloaded each month. One of the more unsettling portions of the letter addresses the DFEIR’s revised Air Quality Analysis, which, according to Ganahl, suffers from significant analytical flaws. Ganahl cites a particular flaw with the amount of proposed diesel pollution expected to be generated from the engines of docked ships. “Based on these faulty assumptions, the Revised Air Analysis estimates an excess lifetime risk of 18 per million (unmitigated) or 9 per million (with mitigations),” she wrote. “But using the appropriate assumptions, the excess lifetime cancer risk from the project would be 627 per million, nearly 35 times the unmitigated risk and 70 times the mitigated risk disclosed in the revised analysis.”

Ganahl further argues that the Revised Air Analysis also underestimates the project’s toxic air contaminant emissions, which relies on flawed assumptions that the project will not result in any chromium, arsenic or cadmium emissions, “and will result in only minimal lead emissions.”

“In fact,” she writes “relying on appropriate assumptions reveals that the project will emit toxic air contaminants, including approximately 18 times the amount of lead disclosed in the revised analysis.”  Ganahl argues the analysis uses “inappropriate modeling techniques” that undercut the conclusions reached in the documents. She goes on to recommend that the analysis be revised using the proper assumptions.

“The likelihood that the project’s air impacts will be far greater than disclosed in the environmental review documents is troubling on its own,” she wrote. “And is more so given the surrounding communities’ already heavy pollution burden and high rates of pollution-related illness. These analytical flaws must be cured, and the data and analysis be made publicly available, before the project is considered for approval.

“It is essential that the public and decision makers be made aware of the project’s true impacts, and that those impacts be mitigated to less-than-significant levels, if the project is to move forward,” she added.

Ganahl bashes the DFEIR for failing to consider the significant impact if coal and/or petcoke were transported through the terminal. “The DFEIR states that the terminal would not handle coal or any other petroleum- based products,” Ganahl said. “But, the DFEIR does not point to any enforceable condition that would prevent the handling or transport of coal through the terminal or guarantee that no coal could be transported through the terminal.”

“Transportation of coal can have serious and far reaching environmental and human health impacts,” she added.

The letter also contends the documents fail to take into account the area’s current environmental condition, which includes “the high number of contaminated sites, leaking underground storage tanks, and contributors to air pollutants such as nearby refineries and freeways.”

The letter notes the California Environmental Protection Agency, through use of a special tool, can rank every census tract in the state based off of socioeconomic, environmental, and health information. Those numbers suggest that the area in South Vallejo ranks high for the number of sites contaminated with harmful chemicals, and impaired water bodies.

“The communities have an extraordinary high rate of asthma (99th percentile) and cardiovascular disease (96th percentile), both conditions that are caused and exacerbated by air pollution,” Ganahl wrote. “Babies born from this area are more likely than 83 percent of babies in the state to be born with a low birth weight.”

Ganahl takes aim in her letter at the Environmental Justice Analysis (EJA) prepared for the project.

The EJA reviews how a certain project might have a disproportional impact on minority and low-income communities living near a proposed site.

Calling it “misleading,” and “illogical” she explains that the analysis compares impacted areas to that of Vallejo’s general population — instead of comparing the areas to Solano County, the state, or a comparable area. “Using Vallejo as the point of comparison skews the significance of the proposition of low-income and minority households in the impact areas because Vallejo itself has significantly greater minority and low-income populations than Solano County, the State of California and the United States,” she wrote.

A data table taken from the analysis shows that the two impacted areas have a minority population of 76.8 percent and 75.7 percent, respectively. The city has a similar minority population of 75.4 percent the same report states.

“Comparing the impact areas to the city’s populations, the EJA concludes that the impact areas do not have a significantly greater minority population than Vallejo, and thus there is not a minority population that could suffer a disproportionate impact from the project,” she wrote. “Where a project’s impact area plainly has a high proportion of minority residents — in this case roughly 76 percent minority — it strains logic to state that there is not a minority community that will be disproportionately impacted.”

Many in the local community have expressed concern that the project will harm the surrounding neighborhoods and city. Peter Brooks, president of Fresh Air Vallejo, a group opposed to the project, said he wasn’t surprised by the contents of the DOJ letter.

“Today, the Department of Justice confirmed what we’ve been saying for three years, that Orcem/VMT’s pollution and traffic would be an injustice to our community,” he wrote in an email to the Times-Herald. “It was never a good idea to propose a cement factory so close to homes and an elementary school.”

Meanwhile, Sue Vacarro, on behalf of Orcem, inquired about the timing of the DOJ letter.

“We are surprised at the timing of the AG office’s comments, referencing a nearly 2-year-old document, rather than wait another 2-weeks to see the Final EIR, but after reviewing the AG’s comments we believe they will all be thoroughly addressed when the FEIR is published later this month,” she wrote in an email to the Times-Herald.

“Orcem and VMT’s goal from the beginning has been to provide a state of the art facility that minimizes the environmental and community impacts while providing our sustainable building materials, terminal services and living wage jobs to Vallejo,” she added. “Our understanding today is that after exhaustive analyses, the City’s environmental consultants and the regulatory agency for air quality in the Bay Area, arguably the toughest in the world, agree we have done so.”

The path to a council vote regarding the project has been lengthy. The Vallejo Planning Commission voted 6-1 in the first half of 2017 to reject the VMT/Orcem project, agreeing with City Hall that the project would have a negative effect on the neighborhood, that it would impact traffic around the area and the proposed project was inconsistent with the city’s waterfront development policy. The project also has a degrading visual appearance of the waterfront, City Hall argued.

City Hall originally completed the DFEIR — stating that a final impact report wasn’t necessary since it was recommending denial of the project.

Orcem and VMT appealed the Planning Commission decision, and during the June 2017 City Council hearing four of the council members — Jess Malgapo, Rozzana Verder-Aliga, Hermie Suna, and Pippin Dew-Costa — directed City Hall to complete the impact report before ruling on the appeal. The city, along with third-party consultants are finishing up the impact report. It’s expected to be released this month with the City Council deciding on the appeal in January.

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    Bay Area Air District proposing to give refineries a pass on air monitoring

    [Editor: For more, including HOW TO SEND THE AIR DISTRICT YOUR COMMENT, see the Bay Area Air Quality Management District’s Notice of Public Hearing.  Plan to attend on December 19, 2018.  – RS]

    BAAQMD: Costs for daily air monitoring too expensive… poor refineries…

    By Benicia Vice Mayor Steve Young, October 23, 2018 
    Steve Young, Benicia Vice Mayor

    The Bay Area Air District (BAAQMD) recently released their proposal on how to deal with the problem of excess ROG (Reactive Organic Gas) emissions from refinery cooling towers. Here are my favorite two sections from their proposed way of dealing (or more accurately, not dealing), with the problem …

    Amendments to Rule 11-10 reduce monitoring of cooling towers for hydrocarbon leaks from daily to weekly, with provisions to extend monitoring periods after proving no leaks for an extended time. Costs for daily monitoring were found to be excessive relative to the potential hydrocarbon emission reductions. Requirements for cooling tower best management practices and reporting were eliminated when found to be focused primarily on Process Safety Management and cooling water chemistry rather than leak detection.

    The only feasible method to reduce ROG emissions from cooling towers is more frequent monitoring and repair, but this method was concluded to not be feasible due to economic factors as per CEQA Guidelines §15364. Thus, no feasible mitigation measures have been identified that could avoid the significant impact or reduce the impact to less than significant.

    Generally, CEQA (the California Environmental Quality Act) does not allow  an environmental impact to be ignored based on the fact that reducing those impacts will cost money. And refineries certainly SHOULD be expected to spend money on such things as more frequent monitoring and repairs.

    Going to testify at these hearings – where testimony is limited to no more than three minutes, and often shorter – is both necessary and, seemingly, pointless.

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      New Economic Study Shows CEQA Protects Environment without Stunting Economic Growth

      Repost of a Planning and Conservation League Press Release

      New Economic Study Shows CEQA Protects Environment without Stunting Economic Growth

      August 15, 2016
      BAE Urban Economics report includes quantitative analysis of CEQA’s impacts on litigation, development costs and affordable housing

      Click for the full report

      Berkeley, Calif. – Economic analysis firm BAE Urban Economics released a new report today that shows the California Environmental Quality Act (CEQA) supports economically and environmental sustainable development in California. The report was commissioned by the Rose Foundation in response to a number of flawed analyses released in recent years that inaccurately blame CEQA for economic challenges in the state.

      “This report uses quantitative analysis to clarify that anti-CEQA rhetoric really has no basis in fact,” said Janet Smith-Heimer, President of BAE Urban Economics. “After extensive analysis, we found that CEQA does not have an actual dampening effect on California’s economy.”

      The report includes a number of significant findings, including:

      • There is no quantitative evidence that CEQA has a retarding effect on the state’s economic prosperity.
      • Legislative changes to CEQA aimed at streamlining the CEQA process to encourage infill development are working. In San Francisco, only 14 environmental impact reports were prepared in the last three years. In that time, 100 projects proceeded with CEQA exemptions or expedited review.
      • Despite rapid population growth and development, the number of CEQA lawsuits statewide has remained constant over the past 14 years. Between 2013 and 2015, legal challenges were filed in 0.7 percent of projects subject to CEQA review.
      • Less than one percent of projects subject to CEQA review face litigation.
      • Direct costs for complete environmental reviews under CEQA typically range from 0.025% to 0.5% of total development costs.
      • California is the 11th most densely populated state in the nation. Its urban areas compare favorably to cities around the country with regard to the rate of infill vs. greenfield development.
      • The state’s largest cities show ongoing improvement in walkability. California is home to 12 of the nation’s 50 most walkable cities.
      • CEQA does not hamper the development of affordable housing in urban areas. Although the need to provide more affordable housing in California is undisputed, when compared to other states, California produces the second highest number of affordable housing units per 100,000 residents in the nation.
      CEQA was signed into law in 1970 by then-Governor Ronald Reagan. CEQA requires public agencies to identify environmental impacts associated with development and to reduce or eliminate such impacts whenever feasible. The law provides provisions to ensure transparency and invites community involvement in development decisions.“CEQA is often the only legal protection afforded to communities of color and low-income communities disproportionately burdened by environmental harms,” noted Gladys Limón, Staff Attorney with Communities for a Better Environment. “It identifies environmental health and safety impacts that would otherwise be passed off to residents and taxpayers generally. CEQA ensures smart development that respects the right of a decent home and suitable living environment for every Californian.”

      The report’s analysis includes:

      • A literature review of recent studies on CEQA’s impacts.
      • A detailed review of legislation, legal findings and regulatory changes intended to streamline the CEQA process, and the degree to which those efforts have been successful.
      • Five case studies that illustrate how the CEQA process works (a transit center in Anaheim, an affordable senior housing project in Richmond, a Specific Plan for the Millbrae BART station, a solar installation in the Mojave Desert, and the contested SCIG railyard development at the Port of Los Angeles).
      • An analysis of the direct costs for the environmental review portion of a project, placed into context of other planning and constructions costs.
      • A review of California’s ranking compared to other states with regard to infill development, population density, walkability (a key metric of sustainable development) and economic prosperity.
      “Public enforcement of CEQA plays a crucial function in protecting public health and the environment in California’s most vulnerable communities,” said Sean Hecht, Co-Executive Director, Emmett Institute on Climate Change and the Environment, UCLA School of Law. “At the same time, this report shows that litigation under CEQA affects only a small fraction of projects in the state.”To read the full report, CLICK HERE.

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