Baykeeper notice of intent to sue Amports

By Roger Straw, October 6, 2021
[See also: Video and photos at Port of Benicia show fossil fuel polluter in the act; Marilyn Bardet – Petcoke pollution in Benicia, photos going back to 1995; Cracking Down on Refinery Emissions – all about “cat crackers”]

Summary and Details of the Pollution Lawsuit

Click image for full 20-page Notice of Intent

In a previous post, I shared the Baykeeper press release announcing the photo and video evidence of illegal polluting of the Carquinez Strait and San Francisco Bay by Benicia AMPORTS.

Here, I want to highlight the discoveries outlined in the 20-page legal notice issued by Baykeepers.

You may jump to the following sections below:

Summary and notice of 60 days to settle

Re: Notice of Ongoing Violations and Intent to File a “Citizen Suit” Under the Clean Water Act

To Whom It May Concern:

I am writing on behalf of San Francisco Baykeeper (“Baykeeper”) regarding violations of the Clean Water Act1 (“CWA” or “Act”) at the Amports Port of Benicia Terminal, owned and operated by Amports, Inc. (“Amports”) at 1997 Elm Road, Benicia, CA 94510 (“Facility”) and 1007 Bayshore Road, Benicia, CA 94510. The purpose of this letter (“Notice Letter”) is to put Amports on notice that, at the expiration of sixty (60) days from the date the Notice Letter is served, Baykeeper intends to file a “citizen suit” action against Amports in U.S. Federal District Court. The civil action will allege significant, ongoing, and continuous violations of the Act and California’s General Industrial Storm Water Permit2 (“General Permit”) at the Facility, including but not limited to, the direct deposition of petroleum coke (“petcoke”) into the water from the conveyance system, equipment, and ship, aerial deposition of petcoke directly to the water from the deck of the ship, and the uncontrolled discharge of polluted storm water to the Carquinez Strait, a part of the San Francisco Bay.

Detailed list of violations

As described in detail below, Amports is liable for ongoing violations of the Act as a consequence of the Facility’s: (1) direct discharge of petcoke into the Carquinez Strait, both through deck washing and direct aerial deposition; (2) inaccurate use of SIC code designations to avoid coverage for regulated industrial activities under the General Permit; (3) failure to comply with the terms and conditions of the General Permit resulting in unpermitted storm water discharges, including but not limited to the preparation and implementation of a proper Storm Water Pollution Prevention Plan related to Amports’ petcoke loading operation, preparation and implementation of a Monitoring Implementation Plan, and compliance with technology-based Effluent Limitations.

60-day notice and offer of settlement

CWA section 505(b) requires that sixty (60) days prior to the initiation of a civil action under CWA section 505(a), a citizen must give notice of their intent to file suit. 33 U.S.C. § 1365(b). Notice must be given to the alleged violator, the U.S. Environmental Protection Agency (EPA), and the State in which the violations occur. As required by section 505(b), this Notice of Violation and Intent to File Suit provides notice to Amports of the violations that have occurred and which continue to occur at the Facility. After the expiration of sixty (60) days from the date of this Notice of Violation and Intent to File Suit, Baykeeper intends to file suit in federal court against Amports under CWA section 505(a) for the violations described more fully below.

During the 60-day notice period, Baykeeper would like to discuss effective remedies for the violations noticed in this letter. We suggest that you contact us as soon as possible so that these discussions may be completed by the conclusion of the 60-day notice period. Please note that it is our policy to file a complaint in federal court as soon as the notice period ends, even if discussions are in progress.

Background and photos

A. San Francisco Baykeeper

San Francisco Baykeeper (“Baykeeper”) is a non-profit public benefit corporation….

Members of Baykeeper reside in Benicia, California, as well as in many of the surrounding communities. Baykeeper’s members and supporters use and enjoy San Francisco Bay and other waters for various recreational, educational, and spiritual purposes. Baykeeper’s members’ use and enjoyment of these waters are negatively affected by the pollution caused by the Facility’s operations….

B. The Owner and/or Operator of the Facility

Amports, Inc. is a dba of APS West Coast Inc. and is identified as the owner and operator of the Benicia Port Terminal Company. All three entities have the same address, CEO, Secretary, CFO, and Controller.

C. The Facility’s Industrial Activities and Discharges of Petcoke and Other Pollutants

The Facility is a roughly 400-acre site which includes marine cargo loading equipment, the petcoke loading equipment and conveyor system, parking for cars, docking area and equipment for ships, silos to store petcoke, train car petcoke offloading area and equipment, vehicle maintenance, equipment cleaning, ship cleaning, ship maintenance, and other facilities. According to Amports’ 2015 Notice of Intent to comply with the General Permit under the Clean Water Act, at least 8 acres at the Facility consisted of areas that were exposed to storm water.

The Valero Benicia Refinery processes crude oil by separating it into a range of hydrocarbon components or fractions. Petroleum fractions include heavy oils and residual materials used to make asphalt or petcoke, mid-range materials such as diesel (heating oil), jet fuel, and gasoline, and lighter products, such as butane, propane, and fuel gases.

The petcoke is transported via rail to the Facility and is stored there in silos. Amports transfers the petcoke from the silos to a ship’s hold at the Facility’s dock by way of a covered conveyor system. During this process, the petcoke may escape in half a dozen or more ways.

First, petcoke spills off of the conveyor belt system and is deposited onto the wharf and directly into Carquinez Strait. This occurs while the crane boom is in the lowered position, and, as depicted below, continues as the boom is raised while the conveyor continues to operate.

March 2021

Second, petcoke is deposited onto the deck of the ship and into the water, potentially due to overspray from the loading mechanism or other operations, leaving visible plumes of petcoke that can be seen in the water.

February 2021

Third, at the conclusion of the loading, longshoremen hose off the deck of the ship, and the related loading equipment on and around the ship, cleaning the equipment and forcing contaminated runoff directly into the Carquinez Strait, again leaving visible plumes of petcoke that can be seen in the water.

February 2021

Fourth, as the ship is being loaded, large visible clouds of black particulate matter, presumably petcoke dust, drift through the air away from the ship before being directly deposited into the water and/or onto the nearby shoreline.

Additionally, petcoke may escape and be deposited onto the Facility or into the water during: (a) the offload from trains, (b) the movement of petcoke around the Facility, (c) storage at the Facility, (d) from equipment and vehicle cleaning, (e) from equipment and vehicle maintenance or repair, and (f) each time a sufficient rain event occurs due to the Facility’s discharge of pollutants from industrial activity in storm water, through direct discharges of industrial pollutants.

The deposition of petcoke and other pollutants into San Francisco Bay is harmful and deleterious to the Bay’s wildlife and communities. Petcoke is a petroleum byproduct and is known to contain pollutants including heavy metals such as copper, zinc, nickel, arsenic, mercury, and vanadium, all of which are harmful to aquatic life, including fish and birds.

Additionally, people exposed to petcoke pollutants can experience severe health problems like asthma, lung cancer, and heart disease.

Detailed harmful effects of Petcoke

The deposition of petcoke and other pollutants into San Francisco Bay is harmful and deleterious to the Bay’s wildlife and communities. Petcoke is a petroleum byproduct and is known to contain pollutants including heavy metals such as copper, zinc, nickel, arsenic, mercury, and vanadium, all of which are harmful to aquatic life, including fish and birds. Additionally, people exposed to petcoke pollutants can experience severe health problems like asthma, lung cancer, and heart disease.

Amports is permitted by the Bay Area Air Quality Management District (BAAQMD) to process and load 2 million tons of petcoke onto export ships over a 12-month period. Amports does not have any permits from the San Francisco Bay Regional Water Quality Control Board (“Regional Board”). Amports is not permitted to discharge petcoke directly into the Carquinez Strait. And Amports is also not permitted to discharge any storm water, directly or indirectly, that is the result of industrial activity, including water that is commingled with industrial discharges.

Baykeeper’s suit will allege that petcoke is deposited on the site with every instance of: petcoke being transported by rail to the site, petcoke offloading from a train at the Facility, and petcoke being handled and transported on the Facility’s premises. Additionally, Baykeeper will allege that petcoke enters the Carquinez Strait with every instance of: petcoke being loaded and/or oversprayed onto a ship docked at the Facility, petcoke-related equipment, including the conveyor systems, cranes, and ships, being maintained and/or cleaned, and each storm event at the Facility in excess of 0.1” of precipitation.

The discharge of pollutants from industrial facilities contributes to the impairment of surface waters and aquatic-dependent wildlife. These contaminated discharges can and must be controlled for ecosystems to regain their health and to protect public health. As part of its investigation of the Facility, Baykeeper observed and documented by video numerous instances of illegal discharges during Amports’ various activities and handling of marine cargo (specifically petcoke) at the Facility between November 2020 and March 2021.

Additionally, with every significant rainfall event, millions of gallons of polluted storm water originating from industrial operations such as the Facility pour into storm drains and local waterways. The consensus among agencies and water quality specialists is that storm water pollution accounts for more than half of the total pollution entering surface waters each year. Such discharges of pollutants from industrial facilities contribute to the impairment of downstream waters and aquatic dependent wildlife. These contaminated discharges can and must be controlled for the ecosystem to regain its health.


Click image for full 20-page notice

THE REMAINDER OF THE DOCUMENT is organized into the following sections, which you can study at length here.

II. THE CLEAN WATER ACT (p. 7)
A. The NPDES Permit Program (p. 7)
B. California’s General Industrial Storm Water Permit (p. 8)
C. The Facility’s Permit Enrollment Status (p. 12)
III. NAME AND ADDRESS OF NOTICING PARTY (p. 13)
IV. COUNSEL (p. 13)
V. VIOLATIONS OF THE ACT AND GENERAL PERMIT (p. 13)
A. Amports’ Direct, Non-Storm Water Discharges Without an
NPDES Permit (p. 14)
B. Amports’ Illegal Indirect Discharges Without An NPDES
Permit (p. 15)
C. Amports’ Illegal Storm Water Discharges (p. 15)
D. Violations of the Act and General Permit Reporting and
Monitoring Rules (p. 16)
E. Violations of the General Permit’s SWPPP Requirements (p.
17)
VI. RELIEF SOUGHT FOR VIOLATIONS OF THE CLEAN WATER
ACT (p. 17)
VII. CONCLUSION (p. 18)
ATTACHMENT 1: DATES OF ALLEGED EXCEEDANCES BY
AMPORTS FROM OCTOBER 4, 2016 TO OCTOBER 4, 2021
(p. 19)
ATTACHMENT 2: SERVICE LIST (p. 20)

Video and photos at Port of Benicia show fossil fuel polluter in the act

[See also: Baykeeper notice of intent to sue Amports; Marilyn Bardet – Petcoke pollution in Benicia, photos going back to 1995; Cracking Down on Refinery Emissions – all about “cat crackers”]

Lawsuit noticed against the petcoke loading operation at the Port of Benicia

Amports’ Port of Benicia, petcoke plume in the Carquinez Strait.  Photo: SF Baykeeper

For immediate release: October 6, 2021

Public Tips Lead to Catching Fossil Fuel Polluter in the Act – Baykeeper Notifies Benicia Petcoke Polluter of Intent to Sue

Oakland, CA—San Francisco Baykeeper yesterday served a notice of intent to sue Amports, the owner of the Port of Benicia, alleging repeated violations of the Clean Water Act.

Baykeeper, responding to tips to its pollution hotline, observed several instances of petroleum coke dust being discharged directly into the Carquinez Strait portion of the Bay during the loading of cargo ships.

Petroleum coke (petcoke) is an oil refinery waste product that contains copper, zinc, nickel, arsenic, mercury, and vanadium, which are all considered to be toxic substances by the EPA and are regulated under the Clean Water Act.

“Petcoke from the Amports facility may have been polluting San Francisco Bay and the nearby community for years, and now thanks to tips from the public, Baykeeper was able to catch the polluter red handed,” said Baykeeper executive director Sejal Choksi-Chugh. “Baykeeper plans to make sure the Amports terminal is cleaned up and the polluter is held accountable for creating a toxic mess that could hurt people and the environment.”

Baykeeper observed and documented numerous instances of petcoke being discharged directly into the Bay during the cargo loading process between November 2020 and March 2021. Baykeeper video, taken by drone, has captured black plumes of petcoke that can be seen in the water drifting away from the ship with the currents during and after loading and cleaning.  (Video and photographs available here)

Amports’ Port of Benicia, petcoke spill in the Carquinez Strait.  Photo: SF Baykeeper

Baykeeper observed petcoke spilling off the conveyor belt system and entering the Bay. Additionally, Baykeeper observed a significant amount of petcoke deposited onto the decks of ships due to overspray, where it was then hosed off the deck directly into the Bay at the end of the loading process.

In the majority of Baykeeper’s hundreds of past industrial pollution cases, the polluting company and Baykeeper have negotiated a settlement in which the company agreed to a specific plan and timeline to clean up its operations and come into compliance with the laws. If the allegations can’t be resolved within sixty days of receiving the notice of intent to sue, Baykeeper will file and prosecute a lawsuit in federal court.

“While we prefer to resolve this quickly and amicably, either settlement negotiations or success at trial will lead to structural and procedural improvements at the Port of Benicia that would stop the polluting activities and require the company to comply with all applicable environmental laws,” said Choksi-Chugh. “Ultimately that means the Bay, its wildlife, and nearby residents will be better protected from petcoke pollution in the future.”

The Port of Benicia Terminal, owned by Amports, is located in a community historically exposed to pollution, and is near a fishing pier, a point of public access to the Bay, and an area that is home to a variety of wildlife. The heavy metals found in petcoke are known to be harmful to fish and birds.  Petcoke dust is also found to have irreversible respiratory effects in humans, and exposure to the pollutants in petcoke can cause severe health problems like asthma, lung cancer, and heart disease.

The petcoke loaded onto ships in the Port of Benicia is mostly exported to Asia, where it is burned for fuel. When burned, petcoke is a significant climate pollutant that is considered to be dirtier and more carbon-emitting than coal.

Founded in 1989, Baykeeper is the only organization that regularly patrols San Francisco Bay for polluters, by both boat and drone, and holds polluters and agencies accountable to create healthier communities and help wildlife thrive. Anyone who witnesses pollution happening on the Bay may report it to 1-800-KEEP-BAY or hotline@baykeeper.org.

###

San Francisco Baykeeper
 Keeping an eye on the Bay since 1989

Mark Westlund, Communications Director (he/him)

San Francisco Baykeeper 1736 Franklin St #800 | Oakland, CA 94612
Office: 510-735-9700 x(111) Mobile: 510-841-8329 

baykeeper.org

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Solano County Monday update: 8 COVID dead, 169 new infections


By Roger Straw, Monday, October 4, 2021

Monday, October 4: Solano County reports 8 COVID deaths and 169 new infections

Solano County COVID dashboard SUMMARY:
[Sources: see below.]

DEATHS: Solano reported 8 new COVID-related deaths today, one age 50-64 and seven over 65.  The County accounted for race/ethnicity of six of the eight: 1 Hispanic, 4 White and 1 Multirace.  Solano deaths over the course of the pandemic now total 305The County reported 32 COVID deaths over the last 30 days.

CASES: The County reported  169 new COVID cases over the weekend, 54 per day.  AGES: 33 of these 169 cases (20%) were youth and children under 18.  49% were age 18-49, 19% were age 50-64, and only 12% were 65+.

COMMUNITY TRANSMISSION RATE: Over the last 7 days, Solano has seen 639 new cases, up from 518 on Friday and decidedly in the CDC’s population-based definition of a HIGH transmission rate.

(CDC FORMULA: Based on Solano County population of 449,432, the CDC would rate us in “SUBSTANTIAL” transmission with 225 cases over the last 7 days.  Double that, or 450 cases in the last 7 days would rank us in “HIGH” transmission.  Reference: CDC’s “Level of SARS-CoV-2 Community Transmission”.]

ACTIVE CASES: Solano’s 514 ACTIVE cases is down from Friday’s 545, but still far above our summer rates.

POSITIVE TEST RATE:  Solano’s 7-day average percent positivity rate was only 6.7% today, down from Friday’s 7.8%.  COMPARE: today’s California rate is 2.0% and today’s U.S. rate is 6.4%[Source: Johns Hopkins Coronavirus Tracking Center]

HOSPITALIZATIONS:

CURRENT hospitalizations were up today from 46 to 53 persons, and still in the range we saw during the winter surge.

ICU Bed Availability is up today, from 18% to 23%, but still in the yellow danger zone.  Again, we are in the worrisome range we saw during the winter surge.

Ventilator Availability remained at 57% today, still in the range of last February’s winter surge.

TOTAL hospitalizations: Solano County’s TOTAL hospitalized over the course of the pandemic must be independently discovered in the County’s occasional update of hospitalizations by Age Group and by Race/Ethnicity.  The County did not update its Hospitalizations charts today.  See below.  The differing race/ethnicity numbers indicate a number of persons whose race/ethnicity was not given or recorded.

FACE MASKS… Required for all in Benicia and Vallejo

Benicia City Council passed a citywide indoors mask mandate that went into effect on August 24 and includes everyone 4 years old and up when indoors in public places, even those of us who are vaccinated.  Benicia was joined by Vallejo on August 31.  In the Bay Area, Solano County REMAINS the only holdout against a mask mandate for public indoors spaces.

OLD NEWS BUT SIGNIFICANT – SOLANO COUNTY BOARD OF SUPERVISORS failed to consider an agendized proposal for a countywide MASK MANDATE on Tuesday, September 14.  The Board’s agenda called for discussion of an indoors mask mandate for all and a vaccination mandate for county workers.  The Board voted 4-1 to require county-run facilities in Vallejo and Benicia to abide by local mandates.  But the Board voted down the vaccination mandate 3-2, and failed to even consider the agendized question of a county-wide mask mandate.  The Solano Board of Supervisors joined with Dr. Bela Matyas in officially showing poor leadership on the COVID-19 pandemic.

Cases by City on Monday, October 4:
  • Benicia added 8 new cases today, a total of 1,447 cases since the outbreak began.  Benicia has seen 34 new cases over the last 7 days, solidly back in the CDC’s definition of HIGH community transmission (defined as 28 or more cases, based on Benicia population).  [Note that Solano County is at a level of HIGH transmission, and Solano’s 6 other cities are likely also individually experiencing high or substantial transmission.]
  • Dixon added 14 new cases today, total of 2,487 cases.
  • Fairfield added 42 new cases today, total of 11,980 cases.
  • Rio Vista added 2 new case today, total of 571 cases.
  • Suisun City added 10 new cases today, total of 3,166 cases.
  • Vacaville added 47 new cases today, a total of 11,736 cases.
  • Vallejo added 46 new cases today, a total of 13,096 cases.
  • Unincorporated added 0 new cases today, a total of 139 cases (population figures not available).

Continue reading Solano County Monday update: 8 COVID dead, 169 new infections

Sign the Petition for our friends in Concord – Reverse the Seeno decision!

Effort launched to remove Seeno Companies’ grip on major Concord housing development plan

The Concord City Council will negotiate exclusively with the Seeno companies to develop the long-anticipated Naval Weapons Station project. (Dan Rosenstrauch/Staff Archives)

SiliconValley.com, by Shomik Mukherjee, September 29, 2021


In response to the Concord City Council’s decision last month to negotiate exclusively with the controversial Seeno Companies and its affiliated developers to oversee one of the East Bay’s biggest housing projects in recent history, Seeno’s longtime foes are launching a two-pronged effort to sway the council to reconsider.

Notorious for playing hardball with local governments and environmental groups, family-run real estate developer Seeno and its associated companies won the council’s approval for a shot at possibly becoming the master developer of the former Concord Naval Weapons Station. Discovery Builders, which was established by a Seeno family member, is listed as the group’s lead company.

The grassroots Concord Communities Alliance is circulating an online petition that so far has collected 1,300 signatures urging the council to revisit its 3-2 vote. Meanwhile, a member of the Democratic Party of Contra Costa County has written a resolution formally opposing the council’s decision and asked the party to throw its political weight behind a formal protest.

But the opposition will have to move swiftly if it’s going to sink the arrangement. Concord Economic Development Director Guy Bjerke said Tuesday his goal is to finish negotiations by late October. After that, the council could make Discovery Builders the project’s official master developer.

The stakes are high. The master developer would implement the city’s vision for 13,000 new homes and millions of square feet of office and commercial space — in essence, a new community — on the former naval weapons site.

Discovery Builders had previously sued the Navy to stop the project when it was in the hands of another developer.

Now the company, headquartered in Concord near the site of the proposed development, is poised to be in the driver’s seat to oversee that very project.

The resolution by Democratic Party secretary Kenji Yamada blasts Seeno for a “history of bad faith and unethical behavior,” suggesting the company’s negotiations with the city will either end in turmoil or lead to “poor-quality homes and environmental destruction.”

The resolution is currently being reviewed by the party’s “issues” subcommittees and could appear before its central committee for consideration in October. Yamada, who also is a member of the party’s executive committee, says he wrote the resolution as an individual.

“I was surprised that they were selected, not so much because of their atrocious record of ethical violations, but because the name of Seeno is so notorious among residents and constituents of the City Council that I didn’t think the council would dare to select them,” said Yamada, who ran unsuccessfully for the council in 2018.

The Concord City Council discusses its choice for a new master developer of the Concord Naval Weapons Station project during a meeting on Saturday, Aug. 21, 2021. (Screenshot)

The development partners, which include Lewis Planned Communities and California Capital Investment Group as well as Seeno and Discovery, released a statement saying they were “extremely honored and proud” to be selected for the project.

“We look forward to working with the City of Concord and the Concord community to design and develop a first class project that the entire region can all be proud of,” Louis Parsons of Discovery Builders said in an emailed statement.

Former council member Colleen Coll said Seeno has a reputation of running roughshod over any obstacles to its desired developments.

“They don’t disclose their financials, the rules don’t matter to them — none,” said Coll, who served on the council in the 1980s.

Though vilified by environmental groups and others, Discovery and Seeno also have their backers, including labor unions. Well before the council vote, they had secured a project labor agreement with the building and trades union, which guarantees that construction jobs will go to union members. The site’s previous master developer walked away from the project after refusing to sign such an agreement.

The three council members who voted to award the exclusive negotiating agreement last month to the Discovery/Seeno team dismiss the criticisms leveled at Seeno.

“The art of diplomacy and negotiations seems to have a very slow learning curve in a state where 20% of the country’s lawyers live,” Councilman Edi Birsan said in an email addressing Seeno’s long history of litigation.

Seeno sued the Navy in 2018 to stop it from transferring the weapons site to Concord, claiming the influx of new homes would result in traffic gridlock. Last year, Discovery Builders sued the East Bay Regional Park District to prevent it from acquiring adjacent Navy-owned land for the establishment of new parkland.

Discovery Builders claimed the park district did not do a “sufficient environmental review” of the planned park’s impacts on the surrounding environment.

But East Bay environmental groups say Seeno’s track record shows it’s no friend of the environment.

Save Mount Diablo, which advocates for conservation of open space and natural lands, lists on its website a timeline of news reports detailing past criticisms of Seeno.

“There are clear ethical and environmental violations,” said Zoe Siegel of San Francisco-based Greenbelt Alliance.

It’s unclear what impact the petition or the party resolution would have on the council’s decision-making.

Kathy Gleason, a Concord resident since 1974 and a fierce opponent of Seeno’s selection, said she doubts the opposition will succeed in changing the council’s mind but she hopes it’ll at least serve as notice.

“It seems, the way we exist today, that if the public speaks up loud enough and long enough, maybe we’ll get change,” Gleason said.

For safe and healthy communities…