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HomeMy WebLinkAboutStaff Report 5.A 03/04/2019 Attachment 12RUTAN RUTAN & TUCKER, LLP February 11, 2019 VIA E-MAIL AND FEDERAL EXPRESS Damien Breen Deputy Air Pollution Control Officer Bay Area Air Quality Management District 375 Beale Street, Suite 600 San Francisco, CA 94105 Matthew D. Francois Direct Dial: (650) 798-5669 E-mail: mfrancois@rutan.com rutan.com ATTACHMENT 12 Re: Safeway Fuel Center Project; 335 S. McDowell Boulevard, City of Petaluma Dear Mr. Breen: We write on behalf of our client, Safeway, Inc., to provide you supplemental information regarding the health risk assessment ("HRA") prepared by Illingworth & Rodkin for the proposed Safeway fuel center project ("Project") in the City of Petaluma ("City"). As you know, the Bay Area Air Quality Management District ("BAAQMD") issued an Authority to Construct permit for the Project on October 10, 2013. The District extended the permit on November 9, 2017. On September 17, 2018, the City received a comment letter from BAAQMD on the HRA, just hours before the City Council was scheduled to hear the appeal. The public hearing was subsequently continued to October 15, 2018, and then to December 3, 2018. The Project is a permitted use under the City's zoning code and requires only design review approvals. On October 5, 2018 and October 10, 2018, we wrote to BAAQMD to provide a summary of the City's extensive environmental review of the Project from 2013 to present. Such review included the preparation of three separate HRAs by Illingworth & Rodkin, an expert environmental consulting firm. The HRAs were prepared using two different BAAQMD- recommended models (ISCST3 and AERMOD). In each case, the health risk impacts of the Project were demonstrated to be less than significant to all categories of sensitive receptors, including infants, children, and residents. On November 8, 2018, you wrote to the City indicating that you had reviewed both the October 10, 2018 LIRA prepared by Illingworth & Rodkinl and the September 17, 2018 HRA 1 This document was provided to BAAQMD by our firm via email dated October 10, 2018. Rutan & Tucker, LLP I Five Palo Alto Square, 3000 EI Camino Real, Suite 200 Palo Alto, CA 94306-9814 1 650-320-1500 1 Fax 650-320-9905 2696/031700-0001 Orange County I Palo Alto I www.rutan.com 13383417.3a02/11/19 (0-1 RUTAN RU7- 6 TUC -R, LLP Damien Breen February 11, 2019 Page 2 repared by Fox & Kapahi.2 In your letter, you wrote that BAAQMD accepts the updated analysis performed by Illingworth & Rodkin and has no further comments on it. Conversely, you cited "several key concerns" with the Fox/Kapahi analysis. Specifically, in your letter, you wrote: Fox/Kapahi's use of Santa Rosa meteorological data is not appropriate for this project because the wind patterns are not consistent with the project area. The gasoline dispensing facility benzene emission factor used for the Fox/Kapahi HRA is substantially higher than the Air District's standard benzene emission factor for gasoline dispensing facilities. The residential exposure assumptions used in the Fox/Kapahi HRA are not consistent with the Air District's current HRA risk calculation procedures. Undeterred by BAAQMD's November 8, 2018 letter, Patrick Soluri of Soluri Meserve, attorneys for appellant .JoAnn McEachin and No Gas Here, emailed City Planner Heather Hines on November 19, 2018 indicating that he intended to submit additional materials, noting that his clients were "frankly hoping that BAAQMD would take its role a little more seriously, and that we could rely on some of its comments in responding to Safeway." (A copy of Mr. Soluri's email is attached hereto as Exhibit A.) Safeway found Mr. Soluri's comments regarding BAAQMD to be inappropriate and unfounded, especially given the 19 or more BAAQMD employees that had been involved in one way, shape, or form in reviewing the Project HRA. (See October 19, 2018 email from Olivia Ervin to Natalie Mattei, attached hereto as Exhibit B.) This is an extraordinary amount of oversight given that the Project is located in an existing shopping center and a permitted use under the City's zoning code. Fox/Kapahi submitted a supplemental health risk result to the City on November 30, 2018 (attached hereto as Exhibit C). That analysis relied on the same flawed emission factors and exposure assumptions previously employed in their September 17, 2018 report and used a hybrid meteorological data set, combining Petaluma wind data from one decade with Santa Rosa wind data from another decade. As explained in Illingworth & Rodkin's December 2, 2018 response (attached hereto as Exhibit C-1): There is no underlying sound scientific, meteorological, or regulatory basis for what was conducted in creating the new hybrid meteorological data. The Petaluma wind data that the commenters relied upon is not appropriate or suitable for use with the AERMOD model. There is no correlation between the 1990-1994 Petaluma wind data and the other meteorological parameters in the 2013-2017 Santa Rosa meteorological data. Not only is the data substitution method that Fox and Kapahi 2 A copy of the September 17, 2018 Fox/Kapahi HRA was attached as Exhibit H-1 to our October 5, 2018 letter to BAAQMD. 2696/031700-0001 13383417.3 a02/11/19 RUTAN RUTAR 6 TUCKER, LLP Damien Breen February 11, 2019 Page 3 employed "not the ideal," as they admit, it would not be accepted for use by any regulatory agency, including BAAQMD. In short, the hybrid meteorological data set relied on by commenters is useless for any sort of meaningful modeling analysis of the Project. .. . By applying an artificial, misleading, and erroneous hybrid meteorological data set to their previous analysis, Fox and Kapahi have compounded the numerous key concerns that we and BAAQMD have previously identified.3 The resulting analysis does not provide any meaningful or credible assessment of the Project health risk. Commenters continue to grossly overstate Project emissions, resulting in false claims of significant impacts. As such, their analysis should be given no weight. On December 3, 2018 at 11:14 a.m., Fox and Kapahi submitted a "critique" of Illingworth & Rodkins's October 10, 2018 LIRA and BAAQMD's November 10, 2018 acceptance of it, a copy of which is attached hereto as Exhibit D. Reiterating claims that had been previously considered and dismissed by both BAAQMD and Illingworth & Rodkin, Fox & Kapahi continued to assert, without any sound evidentiary or scientific basis, that the Project will result in significant health risk impacts. Fox & Kapahi further contended that the criticisms in BAAQMD's November 10, 2018 letter lack merit and do "not represent a serious effort by a regulatory agency charged with protecting human health from air emissions." Illingworth & Rodkin responded on December 3, 2018 at 5:13 p.m. (Exhibit D-1) noting that the meteorological data used in its October 10, 2018 HRA is appropriate and conforms to U.S. EPA guidance. It also explained that the use of 30 -year exposure duration with the 2015 OEHHA guidance parameters comports with BAAQMD recommendations for CEQA analyses. Further, Illingworth & Rodkin noted that the emissions factors relied on by Fox & Kapahi are overestimated "and not reflective of emissions factors currently applicable to California." After commencement of the City Council hearing on December 3, 2018, City Staff notified Safeway that it was changing its recommendation from "deny the appeal" to "uphold the appeal and order an environmental impact report" based on an erroneous interpretation of the court's decision in Protect Niles v. City of Fremont (2018) 25 Cal.App.5th 1129. The City Council subsequently voted to uphold the appeal and require an environmental impact report ("EIR") for the Project based on unsubstantiated comments regarding pedestrian safety as well as the discredited HRA prepared by Fox & Kapahi. 3 In addition to the inappropriate reliance on Santa Rosa wind data, Illingworth & Rodkin's October 10, 2018 report details other significant flaws with the Fox/Kapahi analysis, including its overstatement of diesel and benzene emissions as well as its modeling 40 years of additional exposure beyond what is recommended by BAAQMD and CARB. 2696/031700-0001 13383417.3 a02/11/19 1091-13 RUTAN quTA�I & TUCY.CP, LLP Damien Breen February 11, 2019 Page 4 On January 2, 2019, we wrote to the City to demand that it cure or correct multiple violations of the Brown Act in connection with its December 3, 2018 action, including its failure to properly notify the public that it would take action to require an EIR as well as its related failure to make public Illingworth & Rodkin's response to Fox/Kapahi. On January 9, 2019, the City Attorney advised Safeway that the City Council would cure the alleged violations by re -hearing the appeal on January 28, 2019. On January 24, 2019, we wrote to the City to (i) reiterate the lack of substantial evidence of a fair argument to require an EIR, (ii) remind the City that CEQA review of a permitted use requiring design review only is limited to design and aesthetic issues as confirmed in the recent McCorkle Eastside Neighborhood Group v. City of St. Helena (2018) 31 Cal.App.5th 80 case, and (iii) notify the City that six of the seven City Council members had demonstrated bias against the Project, including Mayor Teresa Barrett. A copy of our January 24, 2019 letter to the City is attached hereto as Exhibit E. On January 28, 2019, the City Council held another public hearing on the appeal. Prior to commencement of the meeting, two Council Members, Gabe Kearney and Kathy Miller, recused themselves (the other four council members whom had expressed bias against the Project prior to the hearing did not). After three hours of discussion, which included the City Attorney's statement to the City Council that there was no legally viable way to uphold the appeal and order an EIR, Councilmember Mike Healy asked Safeway if they would voluntarily agree to a continuance to allow the Council additional time to further review the McCorkle case. Safeway responded that given the Project's six years of review and consistent lack of substantial evidence of a fair argument, Safeway would not grant a continuance. Thereafter, Councilmember Healy stated he would be voting to uphold the appeal and order an EIR while expressing his intent to reconsider the Project at a future City Council hearing. The City Council subsequently utilized its "reconsideration" rules as a loophole to satisfying the Brown Act (which required action be taken that night). Mayor Teresa Barrett agreed that such action gave the Council a "continuance without a continuance," and on a 4-1 vote the Council upheld the appeal and ordered an EIR, and subsequently commenced its reconsideration process on February 4, 2019. Other comments on the Project HRA were submitted by Moira Sullivan on December 10, 2018 (Exhibit F) and JoAnn McEachin on February 4, 2019 (Exhibit G . Responses to those comments were provided by Safeway on January 28, 2019 and February 4, 2019, and are attached hereto as Exhibit F-1 and Exhibit G-1, respectively. On February 4, 2019, the City Council made a motion and a second to vote on February 25, 2019 whether to re -hear the appeal on March 4, 2019. We understand that various interested parties have made inquiries of BAAQMD about the Project since 2013. Safeway respects the rights of these interested parties to inquire and comment on the Project within the confines of the law. Safeway is also cognizant of its rights to Due Process 2696/031700-0001 13383417.3 a02/11/19 RUTAN R-11 6 TUCKER, LLP Damien Breen February 11, 2019 Page 5 and Equal Protection and has voiced its concerns on these matters to the City. As you may or may not know, Petaluma experiences some of the highest gas prices in the region and Safeway would be the first affordable gas operator to enter the market. Thank you for your consideration of these materials. As we noted in our October 5, 2018 letter, please copy the undersigned and Natalie Mattei of Safeway on all correspondence concerning the Project. Please do not hesitate to contact me if you have any questions or if you need any additional information. Sincerely yours, RUTAN & TUCKER, L P ,tr f {d fi Matthew D. Francois cc (via email only): Natalie Mattei Virginia Lau Jack Broadbent Kevin Oei Brian Bunger David Vintze Teresa Barrett Barry Young Shirlee Zane Elizabeth Yura Henry Hilken Luz Gomez Gregory Nudd Aneesh Rana Pamela Leong Scott Brodhun Andrea Gordon Eric Danly Phil Martien Heather Hines Duncan Campbell Olivia Ervin Yvette DiCarlo Adam Petersen 2696/031700-0001 13383417.3 a02/11/19 RUTAN PU1AN 6 TUCY.ER. LLP Damien Breen February, 11, 2019 Page 6 LIST OF EXHIBITS: Exhibit A: 11/19/18 Email from Soluri to Hines Exhibit B: 10/19/18 Email from Ervin to Mattei Exhibit C: 11/30/18 Fox/Kapahi Supplemental Health Risk Results Exhibit C-1: 12/2/18 Illingworth's Response to 11/30/18 Submittal from Fox and Kapahi Exhibit D: 12/3/18 Fox and Kapahi Responses to Comment on the MND Exhibit D-1: 12/3/18 Illingworth's Response to 12/3/18 Submittal from Fox and Kapahi Exhibit E: 1/24/19 Letter from Rutan to City (w/o exhibits) Exhibit F: 12/10/18 Email correspondence from Moira Sullivan Exhibit F-1: 1/28/19 Illingworth's Responses to Sullivan's email Exhibit G: 2/4/19 Email correspondence from JoAnn McEachin Exhibit G-1: 2/4/19 Safeway's/Illingworth's responses to McEachin's email 2696/031700-0001 13383417.3 a02/11/19 Natalie Mattei From: Heather Hines <hhines@m-group.us> Sent: Tuesday, November 27, 201818:01 PM To: Natalie Mattei; mfrancois@rutan.com; Eric Danly Subject: EXTERNAL: Fwd: Safeway Fuel Center Project - 11/8/2018 Comment Letter Sent from my iPhone Begin forwarded message: From: Patrick Soluri <patrickRsemlawyers.com> Date: November 19, 2018 at 1:21:08 PM PST To: 'Heather Hines' <hhines(d)m-group.us> Cc: 'JoAnn McEachin' <joaniunceachiii(a gmail ccom>, Mae Empleo <MacOsemlawyers.com> Subject: RE: Safeway Fuel Center Project - 11/8/2018 Comment Letter Heather, we certainly intend to provide additional materials; the timing is the question. We were frankly hoping that BAAQMD would take its role a little more seriously, and that we could rely on some if its comments in responding to Safeway. When do the packets get distributed? Regards, Pat Patrick Soluri (916) 455-7300 (office), (916) 599-0474 (mobile) From: Heather Hines [mailto:hhinesOm-group.usl Sent: Tuesday, November 13, 2018 12:21 PM To: Patrick Soluri; 'JoAnn McEachin'; Mae Empleo Subject: FW: Safeway Fuel Center Project - 11/8/2018 Comment Letter Patrick, Attached is the comment letter received from BAAQMD in response to both the Fox Report and the revised HRA from Illingworth & Rodkin. Please let me know if you have any questions. It would be great to know whether you plan to submit comments on behalf of the appellant for incorporation into the packet distribution for the December 3rd City Council meeting. Heather Heather Hines, Planning Manager M -Group Consulting Planner Serving the City of Petaluma 11 English Street, Petaluma, CA 94952 Phone: (707) 778-4316 Hours: M -Th 8am-5pm, closed Fridays OPEN COUNTER Fk �tFCt �. -1W ZONNG v PERMITS + COSTS From: Barry Young <BYoung@baagmd.gov> Sent: Tuesday, November 13, 2018 10:39 AM To: Olivia Ervin <0Ervin@m-group.us> Cc: Heather Hines <hhines@m-group.us>; Danly, Eric <edanlV@ci.petaluma.ca.us>; Carol Allen <CAllen@baagmd.gov>; Andrea Gordon <AGordon@baagmd.gov>; David Vintze <DVintze@baagmd.gov>; Henry Hilken <HHilken@baagmd.gov>; Virginia Lau <VLau@baagmd.gov>; Yvette DiCarlo <vdicarlo@baagmd.gov>; Phil Martien <PMartien@baagmd.gov>; Sanjeev Kamboj <Skamboi@baagmd.gov>; Daphne Chong <DChong@baagmd.gov>; Flora Chan <FChan@baagmd.gov>; Duncan Campbell <DCampbell@baagmd.gov>; John Foster <ifoster@baagmd.gov> Subject: Safeway Fuel Center Project -11/8/2018 Comment Letter Good Morning Olivia, Attached please find the BAAQMD's comment letter dated November 8, 2018 on the Safeway Fuel Center Project. Let me or David Vintze (dvintze@baagmd.gov or (415) 749-5179) know if you have any questions or wish to discuss. Regards, vay Barry G. Young Senior Advanced Projects Advisor I Engineering Division The Bay Area Air Quality Management District 375 Beale Street, Suite 600 1 San Francisco, CA 94105 9 Office: 415.749.4721 1 �R. Fax: 415.749.4949 byounq baagmd.gov I www,baagmd.gov Please consider the environment before printing this e-mail. i i7 Natalie Mattei From: Olivia Ervin <OErvin@m-group.us> Sent: Friday, October 19, 2018 8:27 AM To: Natalie Mattei; Francois, Matthew Cc: Heather Hines; Danly, Eric Subject: Re: EXTERNAL: Re: BAAQMD Correspondence Natalie, I did hear back from Carol. She stated that the District did not have any additional data requests and affirmed that the District was wrapping up their response letter. We will pass along the BAAQMD's letter when it is received. I've reviewed the list of BAAQMD contacts below and have the follow to tack on: Henry Hilken Flora Chan Daphne Chong' Sanjeev Kamboi Thank you, Olivia Ervin I principal environmental planner M -GROUP A NEW DESIGN ON URBAN PLANNING POLICY • DESIGN ENVIRONMENTAL • HISTORIC - ENGAGEMENT • STAFFING NAPA ICAMPBELL I SANTA ROSA I HAYWARD 1303 JEFFERSON ST. SUITE 100 B I NAPA I CA 194559 1707.259.1790 From: Natalie Mattei <Natalie.Mattei@albertsons.com> Date: Thursday, October 18, 2018 at 3:37 PM To: Olivia Ervin <oervin@m-group.us>, "Francois, Matthew" <MFrancois _ rutan.com> Cc: Heather Hines <hhines@m-group.us>, "Danly, Eric" <edanly@ci.petal uma.ca.us> Subject: RE: EXTERNAL: Re: BAAQMD Correspondence Hi Olivia, Following up on your communication with BAAQMD, which you indicated would occur yesterday. Please advise, thanks. Also, I'd appreciate if City Staff can confirm if I have all the names of BAAQMD employees working on or involved with the recent Safeway review correctly identified: 1. Jack Broadbent 2. Brian Bunger 3. Damian Breen 4. Greg Nudd 5. Michelle Whitman 6. Christine Culver i 7. Vanessa Johnson 8. Carol Allen 9. Yvette DiCarlo 10. Barry Young 11. Virginia Lau 12. David Vintze 13. Andrea Gordon 14. Duncan Campbell 15. Kevin Oei Natalie Mattel Senior Real Estate Manager Albertsons Companies 11555 Dublin Canyon Road Pleasanton, CA 94588 (925) 226-5754 Office 1 (925) 413-4455 Mobile natalie.mattei@safewaV.com I Linkedln www.aIbertsonscompanlesreaIestate.com From: Olivia Ervin <OErvin@m-group.us> Sent: Wednesday, October 17, 2018 8:32 AM To: Natalie Mattei<Natalid.Mattei@a]bertsons.com>; Francois, Matthew <MFrancois@rutan.com> Cc: Heather Hines <hhines@m-group.us>; Danly, Eric <edanly@ci.petaluma.ca.us> Subject: Re: EXTERNAL: Re: BAAQMD Correspondence Natalie, Other than stating that the engineering department was working on the letter, no other updates were provided. I did ask for confirmation that there were no outstanding data requests or questions. She had none, but circled back with engineering to confirm. I did receive a phone message yesterday afternoon from Carol Allen (engineering) following up. I hope to connect with her today and will provide an update on what I hear. I have not been corresponding with Mr. Soluri, but understand that upon receiving the Tucker & Rutan Oct. 10 letter, he requested additional time to review and respond. Thank you, Olivia From: Natalie Mattel <Natalie,Matte i@aIbertsons.com> Date: Tuesday, October 16, 2018 at 3:24 PM To: Olivia Ervin <oervin@m-group.us>, "Francois, Matthew" <MEra ncois@rutan.com> Cc: Heather Hines <hhines@m-group.us>, "Danly, Eric" <edaniy@ci.petaluma.ca.us> Subject. RE: EXTERNAL: Re: BAAQMD Correspondence Olivia, Thank you for the update. Aside from providing an update on timing, did she have any feedback, questions, and/or other status updates? And have you spoken and/or emailed with Mr. Soluri regarding his correspondence and/or communications with BAAQMD on behalf of No Gas Here? Thank you, Natalie Natalie Mattei Senior Real Estate Manager Albertsons Companies 11555 Dublin Canyon Road Pleasanton, CA 94588 (925) 226-5754 Office 1 (925) 413-4455 Mobile natalie.mattei@safeway.com I Linkedln 44!15110i 9 www.aIbertsonscompaniesreaIestate.com From: Olivia Ervin <OErvin@m-group.us> Sent: Tuesday, October 16, 2018 3:20 PM To: Natalie Mattei <Natalie.Mattei @a lbertsons.com>; Francois, Matthew <MFrancois@rutan.com> Cc: Heather Hines <hhines@m-group.us>; Danly, Eric <edanly@ci.petaluma.ca.us> Subject: EXTERNAL: Re: BAAQMD Correspondence Natalie, Quick update on correspondence with BAAQMD. I spoke with Yvette DeCarlo this afternoon. The Air District is wrapping up their review this week and expects to provide input sometime next week. We will pass along BAAQMD's forthcoming letter as soon as it is received and as requested we will continue to provide updates on correspondence. Thank you, Olivia Ervin, Environmental Planner M -Group Consulting Planner Serving the City of Petaluma 1 1 English Street, Petaluma, CA 94952 Phone: (707) 778-4556 Hours: M -Th 8am-5pm, closed Fridays f `,Y OPEN COUNTER FOR:VFf, t ZGN:NG p PERMITS * COSTS From: Olivia Ervin <oervin@m-group.us> Date: Monday, October 15, 2018 at 11:19 AM To: Natalie Mattei<Natalie.Mattel @albertsons.com>, "Francois, Matthew" <MFrancois@rutan.com> Cc: Heather Hines <hhines@m-group.us>, "Danly, Eric" <edanly@ci.petaluma.ca.us> Subject: BAAQMD Correspondence Natalie, I am providing an update regarding the City's correspondence with BAAQMD. I received a phone call from Yvette DeCarlo, who is acting as the planning manager in David Vintze's absence. She stated that the District was still reviewing the Fox HRA and that they had received the Rutan & Tucker Letter, dated October 10, 2018 with I&R's subsequent HRA. Yvette noted that the District would need additional time to review and that an update on the timing (a -13 of the District to respond would be provided this week. I will keep you and other interested parties apprised as we hear from the Air District. Thank you, Olivia Ervin, Environmental Planner M -Group Consulting Planner Serving the City of Petaluma 1 1 English Street, Petaluma, CA 94952 Phone: (707) 778-4556 Hours: M -Th 8am-5pm, closed Fridays ,Y OPEN COUNTER FORAI'D t ZCN:NG b PERMITS; ¢ COSTS Warning: All e-mail sent to this address will be received by the corporate e-mail system, and is subject to archival and review by someone other than the recipient. This e-mail may contain proprietary information and is intended only for the use of the intended recipient(s). if the reader of this message is not the intended recipient(s), you are notified that you have received this message in error and that any review, dissemination, distribution or copying of this message is strictly prohibited. If you have received this message in error, please notify the sender immediately. Warning: All e-mail sent to this address will be received by the corporate e-mail system, and is subject to archival and review by someone other than the recipient. This e-mail may contain proprietary information and is intended only for the use of the intended recipient(s). If the reader of this message is not the intended recipient(s), you are notified that you have received this message in error and that any review, dissemination, distribution or copying of this message is strictly prohibited. If you have received this message in error, please notify the sender immediately. r I o`Z --15 Supplemental Health Risk Results Using Petaluma Wind Data with AERMOD November 30, 2018 Phyllis Fox, PhD, PE M Ray Kapahi, BSC, M. Eng. The health risk assessment described in our original report for the proposed Safeway fuel station in Petaluma used the AERMOD dispersion model to determine the dispersion of toxic air contaminants in the vicinity of the proposed gas station. As noted in that report, AERMOD is the recommended dispersion model as it encapsulates the most current dispersion algorithms and environmental parameters such as local wind, land use parameters, and atmospheric stability. However, meteorological and land use data for Petaluma were unavailable in a format consistent with AERMOD, and therefore our analysis relied on data from Santa Rosa. The report discussed the implications for using meteorological data from Santa Rosa and the impact on predicted health risk in the vicinity of the proposed gas station. Specifically, the report noted that winds in Petaluma were aligned more along the East-West direction and therefore, the actual cancer risks would be higher than that predicted using data from Santa Rosa. Following completion of our original report, we have obtained wind data from Petaluma that was used by Safeways consultant, and substituted that data in the AERMOD model for the Santa Rosa data. The use of Petaluma wind data changes the risk profile in 3 ways: 1) The axis of the risk contours is shifted counter clockwise by about 45 degrees. This means a larger proportion of emissions will be transported towards the daycare centers and the school 2) The maximum residential risk increased by about 25%. 3) The number of residences affected with higher risk is increased. That is, the area within a given risk contour is increased. A side-by-side comparison of the 70 year cancer risk using Santa Rosa vs Petaluma wind data is attached. Risks to children (9 -year exposure) would also experience a higher risk. Substituting 1990 to 1994 Petaluma wind data into 2013 to 2017 Santa Rosa AERMOD input files is still not the ideal solution since we are relying on atmospheric stability data from Santa Rosa. However, this approach captures the local wind patterns that are the primary driver in transporting TACs to local homes, schools and businesses. As a result, it provides a more refined risk analysis than use of wind data from Santa Rosa. As noted in our comments, the use of Petaluma data would increase, not decrease, risks to the public. la _1-1 70 Year Cancer Risk—Santa Rosa Met Data 70 Year Cancer Risk— Petaluma Met Data l&L-19 9Yr Cancer Risk Petaluma Data t0--tq t a o2 ILLtNGwoRTH&RoDKiN 111 Acoustics - Air Quality 111 429 K Cotati Ave Cotati, California 94931 Tel, 707-794-0400 Fax: 707-794-0405 www. illingworthrodkin. coni illro@illingwortlirodkin. coni Date: December 2, 2018 To: Natalie Mattei Senior Real Estate Manager Albertson Companies 11555 Dublin Canyon Road Pleasanton, CA 94588 From: James A. Reyff Illingworth & Rodkin, Inc. 429 E. Cotati Ave Cotati, CA 94931 RE: Safeway Fuel Center CEQA document - Petaluma, CA SUBJECT: Safeway Fuel Center Health Risk Assessment - Response to Supplemental Comments made by Phyllis Fox and Ray Kapahi - .'. -hiff i 5 This memo provides our response to comments regarding the Petaluma Safeway gas station project ("Project") made by Phyllis Fox and Ray Kapahi in a supplemental report dated November 30, 2018. Note that responses provided in our memo dated October 10, 2018 apply since the supplemental analysis continues to use erroneous diesel exhaust and evaporative fuel emissions, incorrect risk exposure parameters, and, as described below, improper meteorological conditions. The supplemental analysis provided by Fox and Kapahi uses the same modeling assessment previously provided, but employs a hybrid meteorological data set, combining Petaluma wind data for the years 1990-1994 with other meteorological data from Santa Rosa for the years 2013-2017 (Le., stability and other dispersion parameters). The resulting data represent conditions that do not occur in nature (e.g., moderate to strong winds under stable atmospheric conditions or vice versa) and reflects an erroneous calculation of concentrations and portrayal of resulting health risk. In layman's terms, Fox and Kapahi created a "Frankenstein" meteorological data set that is not acceptable in practice and fails to provide an accurate assessment of the Project's health risk. There is no underlying sound scientific, meteorological, or regulatory basis for what was la -,QJ Memo to Natalie Mattei December 2, 2018 —Page 2 conducted in creating the new hybrid meteorological data. The Petaluma wind data that the commenters relied upon isnot appropriate or suitable for use with the AERMOD model. There is no correlation between the 1990-1994 Petaluma wind data and the other meteorological parameters in the 2013-2017 Santa Rosa meteorological data. Not only is the data substitution method that Fox and Kapahi employed "not the ideal," as they admit, it would not be accepted for use by any regulatory agency, including BAAQMD.1 In short, the hybrid meteorological data set relied on by commenters is useless for any sort of meaningful modeling analysis of the Project. Because the existing Petaluma wind data relied on by Fox/Kapahi is not appropriate for use with the AERMOD model, our firm contracted with Lakes Environmental Group to develop a custom meteorological data set for use with our AERMOD analysis. (Our AERMOD analysis is attached as Exhibit A to our October 10, 2018 memo.) Similar to our original analysis employing the ISCST3 model, the analysis employing the AERMOD model concludes that the Project meets all thresholds and will not result in any significant impacts related to health risk. BAAQMD reviewed and accepted our analysis. (November 8, 2018 letter from Damien Breen to Olivia Ervin.) Unlike its acceptance of our analysis, BAAQMD cited "several key concerns" with Fox/Kapahi's analysis. In addition to inappropriately relying on Santa Rosa wind data, BAAQMD pointed out that the benzene emission factor used by Fox/Kapahi was "substantially higher" than BAAQMD's standard benzene emission factor. It also noted that the residential exposure assumptions used in the Fox/Kapahi HRA were "not consistent with the Air District's current HRA risk calculation procedures." In our October 10, 2018 submittal we concurred with BAAQMD's concerns and detailed other significant flaws with the Fox/Kapahi analysis. For instance, the commenters significantly overstate diesel emissions (by a factor of ten) by overestimating the amount of Project diesel sales, vehicle idling, and emission rates. They inappropriately applied protective modeling assumptions designed for use with a 30 -year exposure period to a 70 -year exposure period, thus including 40 years of additional exposure beyond what is recommended by BAAQMD and the California Air Resources Board. In addition, the commenters inappropriately model the Project as operating 24 hours per day, which is not the'proposal. By applying an artificial, misleading, and erroneous hybrid meteorological data set to their previous analysis, Fox and Kapahi have compounded the numerous key concerns that we and BAAQMD have previously identified. The resulting analysis does not provide any meaningful or credible assessment of the Project health risk. Commenters continue to grossly overstate Project emissions, resulting in false claims of significant impacts. As such, their analysis should be given no weight. I Specifically, the methodology conflicts the with the following regulatory guidance: (1) 40 CFR Part 51 Appendix W (Guideline on Air Quality Models), and (2) User's Guide for the AERMOD Meteorological Preprocessor (AERMET) EPA -454B-18-002, U.S. EPA, April 2018. f -D_ as 1 k 10 -a3 Francois, Matthew From: Heather Hines <hhines@m-group.us> Sent: Monday, December 3, 2018 11:17 AM To: Natalie Mattel; Francois, Matthew Subject: FW: Comments re: Dec. 3, 2018 City Council Meeting, Agenda Item 5.13 (Safeway Fuel Center Project) Attachments: 18.12.03 Fox Kapahi Response.pdf This just came in from Soluri. Heather Heather Hines, Planning Manager M -Group Consulting Planner Serving the City of Petaluma 11 English Street, Petaluma, CA 94952 Phone: (707) 778-4316 Hours: M -Th 8am-5pm, closed Fridays From: Mae Empleo <Mae@semlawyers.com> Sent: Monday, December 03, 2018 11:14 AM To: Patrick Soluri <patrick@semlawyers.com>; Heather Hines <hhines@m-group,us> Cc: Olivia Ervin <0Ervin@m-group.us>; mayordavidglass@gmail.com; mthealy@sbcglobal.net; councilman.albertson@gmail.com; teresa4petaluma@comcast.net; councilmemberl<earney@me.com; davekingpcc@gmail.com; kathleencmilleroffice@gmail.com; ccooper@ci.petaluma.ca.us; attorney@ci.petaluma. ca. us; 'JoAnn McEachin' <joannmceachin@gmail.com> Subject: RE: Comments re: Dec. 3, 2018 City Council Meeting, Agenda Item 5.13 (Safeway Fuel Center Project) Dear Ms. Hines: Attached please find the Fox/l(apahi responses to comments on the IS/MND forthe Safeway Fuel Center project. Thank you for your attention to this matter. Should you have questions, please do not hesitate to contact our office. Sincerely, Mae Ryan Empleo Legal Assistant Soluri Meseive, A Law Corporation 510 8th Street Sacramento, CA 95814 W fel: 916.455.7300 . I fax: 916.244.7300 ° t mobile: 559.361.5363 ■ ® email: mae(o�semlawyers.com This email and any attachments thereto may contain private, confidential, and privileged material for the sole use of the intended recipient. ►a -ay From: Patrick Soluri [mal Ito: patrick@semlawyers.com] Sent. Friday, November 30, 2018 4:09 PM To: hhines@m-qroup.us Cc: oervin@m-group.us; mayordavidglass@gmail.com; mthealy@sbcglobal.net; council man. albertson@gmail.com; teresa4petaluma@comcast.net: councilmemberkearney me.com; davekincipcc gmail.com; kathleencmillerofFice@gmaiLcom; ccooper ci.petaluma.ca.us; attorney@ci.petaluma.ca.us; Mae Empleo; JoAnn McEachin Subject: RE: Comments re: Dec. 3, 2018 City Council Meeting, Agenda Item 5.13 (Safeway Fuel Center Project) Heather, As discussed, attached please find two documents: (1) A letter from my firm addressing the City's broad legal authority to deny the requested entitlement for the fuel station; (2) A supplement to the Fox/Kapahi HRA utilizing Petaluma meteorological data. As soon as possible we will also transmit responses to both the updated Safeway HRA and the BAAQMD November 8, 2018 letter. Regards, Pat Patrick Soluri SOLURI MESERVE 510 8`h Street Sacramento, CA 95814 (916) 455-7300 (office), (916) 599-0474 (mobile) (916) 244-7300 (fax), patricl<@semlawyers.com From: Carol Horton [mailto:carol@semlawkers.com] Sent: Monday, September 17, 2018 11:17 AM To: hhines@m-group.us Cc: oervin@m-group.us; mayordavidglass@gmail.com; mthealy sbcglobal.net; councilman, albertson@gmaiLcom; teresa4petaluma comcast.net, councilmemberkearney@me.com; davekingpcc@gmail.com; kathleencmilleroffice@gmall.com; ccooper@ci.petal uma.ca. us; attorney ci.petaluma.cam ; 'Patrick Soluri'; 'Mae Empleo'; Nick@semlawyers.com Subject: Comments re: Sept. 17, 2018 City Council Meeting, Agenda Item 6.13. (Safeway Fuel Center Project) Dear Ms. Hines: Attached please find the final Fox Report referenced in Mr. Soluri's letter dated September 14, 2018. Please note that the Fox Report includes numerous hyperlinks to various guidance materials and technical reports. CEQA requires that we transmit these documents and not merely rely on hyperlinks. Therefore, we will separately transmit PDF versions of all cited reports only to you and the City Clerk, Thank you for your attention to this matter. Should you have questions, please do not hesitate to contact our office. Sincerely, Carol Horton Soluri Meserve, A Lazo Corporation 510 8th Street Sacramento, CA 95814 W tel: 916.455,7300 ■ IN fax: 916.244.7300 0 ® email: carol(@semlawvers.com This email and any attachments thereto may contain private, confidential, and privileged material for the sole use of the intended recipient. 2 I a -a5 ��E 1 Petaluma, California December 3, 2018 Phyllis Fox, PhD, PE and Ray Kapahi, BSC, M Eng k a -aLo TABLE OF CONTENTS 1. INTRODUCTION AND SUMMARY...........................................................................................1 2. SCIENTIFIC RESEARCH CONFIRMS HEALTH IMPACTS ARE SIGNIFICANT ............... 2 3. CRITIQUE OF REVISED SAFEWAY HEALTH RISK ASSESSMENT ..................................... 3 3.1. Validity of Meteorological Data.............................................................................................3 3.2. Emission Factors...................................................................................................................... 3 3.3. Exposure Duration... ............... ................................................................................................ 4 4. CRITIQUE OF BAAOMD COMMENT LETTER DATED NOVEMBER 8, 2018 .................... 5 4.1. Reliance on Santa Rosa Meteorological Data.......................................................................5 4.2. Benzene Emission Factor........................................................................................................ 5 4.3. Residential Exposure Assumptions...................................................................................... 6 5. RECENT RESEARCH DEMONSTRATES CANCER HEALTH RISKS OF THE PROJECTARE SIGNIFICANT.............................................................................................. 7 5.1. Safeway Significantly Underestimated Benzene Emissions..............................................7 5.2.* Setbacl< Distances...................................................................................................................12 i I a --a % 1. INTRODUCTION AND SUMMARY Safeway proposes to develop a fuel station at 335 South McDowell Boulevard in Petaluma (Project) in the Washington Square Shopping Center. The fuel station will have 16 fuel positions (8 pumps with 2 fuel positions per pump) to accommodate the simultaneous fueling of SUVS, full-size pickup trucks, and passenger vehicles. The annual throughput of gasoline is asserted not to exceed 8.5 million gallons. The fuel dispensers will be served by two 20,000 -gallon underground storage tanks that will be serviced by twice-daily truck deliveries of fuel, lasting 30 to 40 minutes. The Project also includes a 697 -square foot convenience store, vehicle parking adjacent to the convenience store, landscaping, and an exit driveway.' We submitted comments on the Initial Study/ Mitigated Negative Declaration (IS/MND) on September 17, 2018 2 The Applicant/ and the BAAQMD4 have provided responses to some of those comments. Based on our review and analysis of new information presented in these responses, we have revised our health risk assessment (HRA), which has been separately submitted. Our revised HRA continues to demonstrate that the Project will result in significant cancer risks at nearby sensitive receptors, including at residences along South McDowell Boulevard, at the North Bay Children's Center (60 feet away), and in the recreational playfield. Our results are consistent with numerous scientific studies published in refereed journals that have linked residential proximity to gas stations and increased risk of adverse health outcomes, including increased risk for cancer, and specifically for leukemia in children. As we demonshate below, there's no reason to quibble over the details of complex HRAs because numerous scientific studies, published in highly regarded scientific journals, have demonstrated that proximity to gas stations results in significant increases in cancer in surrounding populations. A Negative Declaration can be prepared only when there is no substantial evidence in light of the whole record before the lead agency that the project may have a significant effect on the environment.5 We have presented substantial unrefuted evidence that the proposed Safeway gas station will result in significant cancer risks in the surrounding community. An 1 City of Petaluma, Safeway Fuel Center Initial Study/Mitigated Negative Declaration (IS/MND), 335 South McDowell Boulevard, March 29, 2018, pp. 5-6; available at http:/ /cityofpetaluma.net/cdd/mwor- projects.html. 2 Phyllis Fox and Ray Kapahi, Comments on the Initial Study/Mitigated Negative Declaration (IS/MND) for the Safeway Fuel Center, September 17, 2018 (9/17/18 Fox/Kapahi Comments). 3 Letter from Matthew D. Francois, Rutan & Tucker, LLP, to Heather Hines, City of Petaluma, Re: Safeway Fuel Center Project—Responses to Comments of Bay Area Air Quality Management District and Phyllis Fox/Ray Kapahi, October 10, 2018 (10/10/18 Rutan Letter), 4 Letter from Damian Breen, BAAQMD, to Olivia Ervin, City of Petaluma, Re: Safeway Fuel Center Project—Air District Comments on Health Risks Assessments, November 8, 2018 (11/8/18 BAAQMD Letter). 5 PRC § 21080(c)),14 C.C.R. § 15070). I ®as� environmental impact report (EIR) must be prepared when there is substantial evidence in the record that supports a fair argument that significant effects may occur.6 Our analysis below indicates that there is substantial evidence that the Project will result in significant cancer impacts, requiring that an EIR be prepared. 2. SCIENTIFIC RESEARCH CONFIRMS HEALTH IMPACTS ARE SIGNIFICANT The health risk assessments (HRAs) prepared by the various parties —the Bay Area Air Quality Management District (BAAQMD), Safeway's consultants (Illingworth & Rodkin), and the affected community (Fox/Kapahi) are highly complex analyses prepared by parties with various interests in their outcomes. However, scientific research, conducted by parties with no interests in this case, have linked residential and school proximity to gas stations to an increased risk of adverse health outcomes7—including increased risk for cancer$ and, specifically, leukemia in children.9 We previously submitted the supporting scientific papers into the record and will not resubmit them here. Living next to a gas station quadruples the risk of acute leukemia in children and increases the risk of developing acute xion-lymphoblastic childhood leukemia by 7 times, compared with children who do not live near a gas station 10 Moreover, a significant exposure - response relationship exists between the likelihood of childhood leukemia and the number of gasoline stations per square mile.11 Thus, gas stations should not be located in areas where housing or vulnerable populations and activities exist or are proposed, including settings such as those near the Project, with residences across the street and schools within 300 feet. A study by Johns Hopkins School of Public Health reports that even small spills at gas stations— "droplets of fuel"—cumulatively cause long-term environmental damage to soil and groundwater in residential areas close to the stations, resulting in significant public health 6 PRC § 21080(d). 7 J. D. Breeder et al., "Residential Proximity to Environmental Hazards and Adverse Health Outcomes," American Journal of Public Health 101, no. S1 (2011): S37 -S52. 8 E. O. Talbot, "Risk of Leukemia as a Result of Community Exposure to Gasoline Vapors: A Follow -Up Study," Environmental Research 111, no. 4 (2011): 597-602. 9 P. Brosselin et al., "Acute Childhood Leukaemia and Residence Next to Petrol Stations alid Automotive Repair Garages: The ESCALE Study (SFCE)," Occupational and Environmental Medicine 66, no. 9 (2009): 598-606; P. F. Infante, "Residential Proximity to Gasoline Stations and Risk of Childhood Leukemia," American Journal of Epidemiology 185, no. 1 (2017):1-4; C. Steffen et al., "Acute Childhood Leukemia and Environmental Exposure to Potential Sources of Benzene and Other Hydrocarbons: A Case -Control Study," Occupational and Environmental Medicine 61, no. 9 (2004): 773-778; C. Steinmaus and M. Smith, "Parental, In Utero, and Early -Life Exposure to Benzene and the Risk of Childhood Leukemia: A Meta - Analysis," American Journal of Epidemiology 183, no.1 (2016):1-14. 10 Brosselin et al., 2009; Steffen et al., 2004. 11 H. H. Weng et al., "Childhood Leukemia and Traffic Ai Pollution in Taiwan: Petrol Station Density as an Indicator," Journal of Toxicology and Environmental Health A 72, no. 2 (2009): 83-87. 2 IA 1 risks.12 Large filling stations can dispense as much as 1 million gallons fuel/month (12 nuIlion gallons/year). 3. CRITIQUE OF REVISED SAFEWAY HEALTH RISK ASSESSMENT 3.1. Validity of Meteorological Data The revised HRA asserts that "The WRF model pulls in observations and archived meteorological data from the region around the Project site.... "13 This is incorrect. The WRF meteorological data used by the Applicant's consultant was not based on observations recorded at or near the project site in Petaluma. Lakes Environmental, which prepared the WRF meteorological data used by the Applicant's consultant, confirmed to Mr. Kapahi that the WRF model is not set up to utilize direct input of any local meteorological data. See Exhibit 1, which is the email exchange with Lakes Environmental. The WRF model used in Safeway's analysis has a resolution that is regional and not site or source specific. Accordingly, it is not intended to be used, nor is it appropriate to be used, for a site-specific health risk assessment at this fine scale. The minimum resolution available with WRF model as used in the most recent HRA by I & R is in the range of 1 to 4 kilometers. Given this -resolution, it is not possible to make accurate predictions within 50 to 100 meters. 3.2. Emission Factors Diesel particulate emissions (DPM) are a major contributor to public health risks. Thus, it is critical that accurate emission factors for determining the emission rates of DPM be used. The emission factor for heavy-duty diesel delivery trucks used in Safeway's analysis is 0.03221 grams of PM2.5 per mile, based on a vehicle speed of 5 mph. The emission factor based on the EMFAC model for Sonoma County for calendar year 2019 is 0.063 grams/mile, or double what was used in the Applicant's calculation. A similar discrepancy appears for light-duty vehicles (LDA): _ ehrde, Ca#egory 'IIsed. rtlieS'afevva -HRA' {gram/mile) `[pdtPage 9] '- I ste'dx EMFAC-2-46 eY (g amf sr rle) - LDA 0.024008 0.087806 Understating the emission rates of DPM by a factor of 4 directly leads to underestimating public health risks. We used EMFAC to estimate emissions of DPM, 12 M. Hilpert and P.N. Breysse, "Infiltration and Evaporation of Small Hydrocarbon Spills at Gas Stations," Journal of Containiilant Hydrology, v. 170, (2014): 39-52. 1310/10/18 Rutan Letter, 10/10/18 I&R Memo, pdf 13. to -30 recommended by the BAAQMD's CEQA Guidelines 14 The following tables present the actual EMFAC results used in our analysis for heavy -heavy dirty and light-duty vehicles. EMFAC2014 (v1'.0.7) Emission Rates Region Type: County Regfon: Sonoma Region Type_ County.. ... ... ;.. . _ . csiendarYear 2019 _.... Season: Annual __ .. _........ ...... _... ... Reglon:5onoma j Vehicle Classification: ENIFAC2007,Categories - Urn`s; miles%day for VMT_g/miie foriiUNEX, PMB\V and PMN! i ,• - . Calendar Year: 2019. j VMT ROG RUN;TOG RUN CO_RUNENOx RUN CO2 RUNIPM10-RUIPM2 5 RUN_EX_ - - - r -- :_._ . - --- - ---- . - - Sonoma 2019 LDA ,Aggregate 5 DSL . x.13 65869 0.234867 0.324302 3,569349 0.28606 72L2901 0,091776 .0087805 Sonoma 2019 LDA `'Aggregate 10DS1 9eason:Annual Sonoma 2019 LOA Aggregate 15DSL 930.7187' 0,122355; 0.139862 1,437057 0:23592 507,2959 0,04987 0.047712 Sonoma 2019 LDA Aggregate 20 DSL 3035.5681 0.071016! 0.080847 0.693976 0.277533 417.1567 0.038615 0.036944 Vehicle Cla5siflcation: EMFAC2007 Categories Units: milles/day for Mit gfmile fDYRUNEX, PMBW and PMTW i ._SY_..._..-VehClass;—'- --':- ---- Region C3r, MdSYr .: Speed sue] VMT -R" ,... OG RUN: __. ..._..-.. TOG -R-6_,QCO RUNENOx_RUNCO2 RUNIPIA RULPM25 RUNEX Sonoma 2019 HHDT: ;Aggregate 5:DSL, ; 1269.665 0.907418; 3.252055:3.000291.20.47671'.•4589.594 0,066444 0.06357' Sonoma 2019 HMT 'Ag gregate D3L 10'3526.696_. 0,765581 2.23991'5:770483 16,6n,48j-M21 149 0.0661739 0,069025 . - Sonoma 2019 HFiDT ;Aggregate 15. DSL 3971 43.0,550222:1:02874,5_$.039707 11.40913,-.2743 792 0.053964 0.651629 Sonoma 2019�HHDT 'Aggregate 20'DSL 23607.28 `0.363347! 0.4562•+, 1,60128 7.73209' 2124:615 0.053474: 0.051161- EMFAC2014 (v16.7j`Emission Rates Region Type: County Regfon: Sonoma csiendarYear 2019 Season: Annual Vehicle Classification: ENIFAC2007,Categories Urn`s; miles%day for VMT_g/miie foriiUNEX, PMB\V and PMN! i Region CafYr VehClass Mdlyr Speed ---._. _.. Fuel - VMT ROG RUN;TOG RUN CO_RUNENOx RUN CO2 RUNIPM10-RUIPM2 5 RUN_EX_ - - - r -- :_._ . - --- - ---- . - - Sonoma 2019 LDA ,Aggregate 5 DSL . x.13 65869 0.234867 0.324302 3,569349 0.28606 72L2901 0,091776 .0087805 Sonoma 2019 LDA `'Aggregate 10DS1 214 4512; 0.207805: 0.236572 2.663858 0.28083 604,4364 0,065939 0,063087: Sonoma 2019 LOA Aggregate 15DSL 930.7187' 0,122355; 0.139862 1,437057 0:23592 507,2959 0,04987 0.047712 Sonoma 2019 LDA Aggregate 20 DSL 3035.5681 0.071016! 0.080847 0.693976 0.277533 417.1567 0.038615 0.036944 3.3. Exposure Duration There are various guidelines for an appropriate exposure duration for use in an HRA, ranging from 30 years to 70 years. The Office of Environmental Health Hazard Assessment (OEHHA) recommends a 30 -year exposure duration. This exposure duration is referenced by theApplicant and in BAAQMD's Comment letter dated November 8, 2018. However, the BAAQMD's own Guidance15 on preparing risk assessments for gas stations requires the use of a 70 -year exposure. See Exhibit 4, BAAQMD Air Toxics NSR Program Health Risk Assessment Guidelines (December 2016). These Guidelines were never revised, and therefore remain current. These Guidelines provide in relevant part: 14 BAAQMD, California Environmental Quality Act, Air Quality Guidelines, May 2017, pdf 61; available at:htta://www.baacimd.gov/—/media/files/iDlannhiv-and-research/ceaa/cecia Ruidelines mav2017- pdf.pdf?la=en. 15 BAAQMD Health Risk Assessment Guidelines, December 2016; available at: http:/ /www.baagmd.gov/—/media/files/planning-and-research/permit- modeling/hra-- guidelines 12 7 2016 clean-pdf.pdf, 4 la -31 2.2.1.3 Exposure Duration Based on OEHHA's 2003 HRA Guidelines, the Air District will estimate cancer risk to residential receptors for gasoline dispensing facilities based on a 70 -year lifetime exposure. Although 9 -year and 30 -year exposure scenarios may be presented for information purposes, risk management decisions will be made based on 70 -year exposure duration for residential receptors. For worker receptors for gasoline dispensing facilities, risk management decisions will be made based on OEHHA's 2003 recommended exposure duration of 40 years. Cancer risk estimates for children at school sites will be calculated based on a 9 - year exposure duration. These Guidelines specifically state that the Districts HRA Guidelines "...generally conform to the Health Risk Assessment Guidelines adopted by Cal/EPA's Office of Environmental Health Hazard Assessment (OEHHA) for use in the Air Toxics Hot Spots Program for all types of facilities except gasoline dispensing facilities (GDFs)."16 Contrary to this guidance, the Applicant used 30 years. When the District provides guidance for a particular industry, that guidance needs to be followed rather than other general guidance. Safeway's use of a 30 -year exposure duration understates the public risk. The 70 -year exposure used in our analysis is more appropriate and is consistent with relevant guidance. 4. CRITIQUE OF BAAQMD COMMENT LETTER DATED NOVEMBER 8, 2018 The BAAQMD's comment letter dated November 8, 2018 ("BAAQMD Letter") is less than a single page in length and does not represent a serious effort by a regulatory agency charged with protecting human health from air emissions. The comments raised in the BAAQMD letter lack specificity, much less adequate reference to current regulatory guidance or practices. Each comment from the BAAQMD Letter is addressed and dismissed below. 4.1. Reliance on Santa Rosa Meteorological Data The BAAQMD letter criticizes our earlier reliance on Santa Rosa meteorological data but offers no specific explanation as to why our methodology was inappropriate. Our prior comment letter explained why it was necessary to rely on Santa Rosa data, and further explained that the respective wind patterns for Santa Rosa and Petaluma mean that the actual health impacts would be more significant than we previously modeled. Nevertheless, we were able. to obtain AERMOD-consistent Petaluma meteorological data as described more fully above. Consistent with our earlier prediction, use of Petaluma data reveals that the health risk impact is significantly higher than previously modeled. Thus, this criticism has no merit. 4.2. Benzene Emission Factor The BAAQMD letter criticizes our benzene emission factor as "substantially higher than the Air District's standard benzene emission factor for gasoline dispensing facilities." Notably, the BAAQMD Letter does not assert that our emission factor is incorrect or inappropriate, much 16 BAAQMD September 2016 Guidelines, p. 1. to -.9 less cite any authority supporting this criticism. Contrary to this vague criticism, our benzene emission factor is consistent with CAPCOA guidance. To the extent the BAAQMD currently relies on a lower emission factor, that is a failure on the part of BAAQMD and not a deficiency in our analysis. See Table 1. As documented in Tables 1 and 2, recent research shows that actual benzene emissions from gas stations have been underestimated by CARB/CAPCOA and therefore would be substantially greater than those estimated in our analysis. 4.3. Residential Exposure Assumptions The BAAQMD letter states that our "residential exposure assumptions' are "not consistent with the Air District's current HRA risk calculation procedures" (emphasis added). Again, the BAAQMD letter is not specific as to which exposure assumptions are being addressed, what the "proper" assumption is, or any supporting reference. To the extent that the BAAQMD letter is criticizing our 70 -year residential exposure duration, that duration is expressly required in the "BAAQMD Air Toxic NSR Program Health Risk Assessment Guidelines." The Introduction to these Guidelines clearly states that OEHHA guidelines are followed "for all types of facilities except gasoline dispensing stations (GDFs)."17 Section 2.2.1.3 of that guidance further states, "Based on OEHHA's 2003 HRA Guidelines, the Air District will estimate cancer risk to residential receptors for gasoline dispensing facility based on a 70 -year lifetime exposure."18 Similarly, Section 2.2.1.2 requires exposure assumptions of "24 hours per day for 350 days per year." To the extent that BAAQMD's "current ... procedures" are now deviating from its own published guidance, that represents a failure on the part of BAAQMD to protect Bay Area residents and not a valid criticism of our analysis. Finally, it should be clarified that the BAAQMD's November 8 letter does not address the proposed gasoline stations DPM emissions, which are not regulated by BAAQMD. Further, the BAAQMD's review failed to include other carcinogens known to be present in gasoline vapors. The failure of the BAAQMD's November 8 letter to acknowledge these omissions, which we identified in our initial comments, is inexcusable given that DPM emissions represent a major source of human health risk from the Project. In summary, emissions of carcinogens from the Safeway gasoline station would be much greater than those presented in the latest submittal by the Applicant. If these deficiencies are corrected, the Applicant's current risk analysis would yield cancer risks significantly greater than the cancer significance threshold of 10 per million. 17 BAAQMD, December 2016, p. 2 (emphasis added). 18 BAAQMD, December 2016, p. 8. 5. RECENT RESEARCH DEMONSTRATES CANCER HEALTH RISKS OF THE PROJECT ARE SIGNIFICANT 5.1. Safeway Significantly Underestimated Benzene Emissions Gasoline vapors from unburned fuel are released into the atmosphere at fuel stations from five sources: (1) storage tank loading; (2) storage tank breathing (due to changes in temperature); (3) vehicle refueling; (4) spillage; and (5) hose permeation. The loading, breathing, and refueling emissions are released through the vent pipe, shown in Figure 1, and are generally called "vent" emissions. Vent emissions are the major source of unburned fuel (gasoline, diesel) and benzene, accounting for 66% to 70%19 of the total fuel vapors20 and hence benzene. The balance of the benzene comes from spillage and hose permeation, both of which are emitted directly into the air. Figure 1. Schematic of Typical Gas Station C7iiisivoS 4 The responses argue that we "overstate the amount of benzene emissions, citing higher emission factors from another air district, and then modeling even higher emissions than the cited values."21 They further assert that their benzene emission factors are correct as they were "based on the latest California Air Resources Board ("CARB") guidance... and were the same factors used by BAAQMD to compute effects for the facility's permit... "22 These assertions are unsupported and incorrect. The CARB guidance is known to underestimate VOC and benzene emissions from gas stations, as demonstrated below. The following discussion is based on 19 CARB, Revised Emission Factors for Phase 1 Gasoline Bulk Transfer at California Gasoline Dispensing Facilities, December 23, 2013, Table 1-1; available at: haps:/lwww.arb.ca.gov/vapor/gdf- emisfactor/attachment 2%20-%2020%20nov%202013.pdf. 20 Based on refueling of Phase It non ORVR vehicles. 2110/10/18 Francois Letter, p. 2. 2210/10/17 T&R Memo, p. 3. 7 ,IQ -34 VOCs because all parties assumed the same benzene content in fuel vapors, 0.003 pounds per pound of VOC (lb/Ib VOC). Table 1 summarizes various estimates of VOC emissions from gasoline station sources. This table shows that the total VOC emission factor used by BAAQMD and Safeway, 0.67 lb/ 1000 gal, is at the lower end of the range of reported VOC emission factors. Table 1. VOC Emission Factors for Gasoline Fueling Stations (lb VOC/1000 gal)23 Source SCAQrY1D kapahi{ Fox 8A ELMD Safevaay CARB Win- 0RVR CARB ORVR Tank Fining 0.15 0.08 0.15 0.1_5 Vehicle Fueiing 0.32 0.42 0A5 OAS 0.12 0.021 Breathing Lasses 0.024 0.03 0.024 0.024 Spillage 0.24 0A2 0.22 0.22 0.24 0.24 Hose Perr7eation 0.004 0 0.M_ 0.04 TOTAL 1 0343 1 0-95 1 0.67 1 0.67 1 0.84-5 1 0.4-G4 The Applicant and BAAQMD also underestimated benzene emissions by omitting emission sources. Their HRAs are based only on "refueling" and spillage emissions. These analyses do not explain what is included in "refueling." However, the VOC emission factor that was used, 0.45 pounds per thousand gallons of gasoline (lb/1000 gal),24 is too low to plausibly include tank filling (see Table 2) and appears to be based only on refueling of Phase II vehicles equipped with Onboard Refueling Vapor Recovery (ORVR) systems, assuming 100% of visiting vehicles are so equipped. However, based on CARB estimates25 for 2018,15% of the vehicles will not be equipped with ORVR. See Table 2. The Safeway and BAAQMD HRAs also omitted hose permeation emissions.26 See Table 1. An underestimate in VOC emissions means an underestimate in benzene because benzene emissions are calculated by multiplying the VOC emissions by the benzene content in the fuel vapors. In sum, we know VOC and benzene emissions are grossly underestimated by BAAQMD and Safeway for three reasons. 23 SCAQMD = SCAQMD, Proposed Amended Rule 1401—New Source Review of Toxic Air Contaminants, August 2017, Table 2; BAAQMD & Safeway =10/10 Rutan Letter, BAAQMD Evaluation Report, pdf 33; CARB ORVR & CARB Non-ORVR = CARB 2013. 2410/10/18 Rutan Letter, Exhibit A, BAAQMD Evaluation Report, pdf 32. 25 CARB, Revised Emission Factors for Phase R Vehicle Fueling at California Gasoline Dispensing Facilities, December 23,2W, Table 1-2. 2610/10/18 Rutan Letter, Exhibit A, BAAQMD Evaluation Report, pdf 32. la - 3 � Table 2: CARB 2013 Revised and SCAQMD Proposed Controlled Gasoline Dispensing Emission Factors (lbs VOC/1,000 gal)27 �SCCA4 NJD staff h connlit€ed to continue mr-king, ,Y4h i"A2B staff on the reAiehng emission factor for Phase U E T ndth ORI*R vdudes. Tjhf l then, S€z'I.QNID sta f is r€conuuendiug using the current SCA(lX emsuon bactor forref=itelinff. First, 100 % of refueling vehicles would not be equipped with Phase II ORVR, as apparently assumed by BAAQMD and the Applicant. Second, it is generally understood that CARB's 2013 revised controlled gasoline emission factor for Phase II refueling with ORVR, which the BAAQMD and Applicant apparently relied on, is a gross underestimate. The South Coast Air Quality Management District (SCAQMD) recently reviewed the CARB revised 2013 gasoline dispensing emission factors and concluded that the proposed Phase 11 ORVR refueling emissions factor of 0.021 lb/1000 gal is a gross underestimate that was not based on any measurements or other empirical evidence. SCAQMD concluded:28 CAR%'s revised emission factor for refueling of ORVR vehicles is calculated assuming that the ORVR systeni and the base II E5r'R. system stork- consecutively in series to control vapor emi4-4ons.: allowing a compounding control efficiency of 99-75 percent from both control equipment However, there is no empirical evidence supporting the assumption that all the vapors escaping from the OR.VR. system are directed to the fillpipe and can be captured by the Phase H E,VR system - Thus, the SCAQMD substituted 0.32 lb/1000 gal,29 the original CARB estimate, yielding a refueling emission factor of 0.32 lbs/1000 gal and a vent emission factor of 0.49 lb/1000 ga1.30 In comparison, we used a vent emission factor of 0.58 lb/1000 gal31 27 SCAQMD, Proposed Amended Rule 1401—New Source Review of Toxic Air Contaminants, August 2017, Table 2. Exhibit 2. 2s Ibid. 29 Ibid. =2` IM: '. 1114 1 a, �. .. .'• 0:1. .. U5 aIIie as CARE �i att>�ng x.025 0.tt24 allle as C -ARB R.eftieling—? ase 11 with ,� 0""3� 0-42 §am as C_ARB Ncm-ORVIR ,vehicles 0:32* (remain Refgteliiig—P11a eIIkits 0.021 unt uted t`0. om cut tent l CjR.VR vehicles emission factor) Spillage G.24 0.24 Same as CARB Hose l}ei eaiicn Nine 0.009 Sane as CU-B �SCCA4 NJD staff h connlit€ed to continue mr-king, ,Y4h i"A2B staff on the reAiehng emission factor for Phase U E T ndth ORI*R vdudes. Tjhf l then, S€z'I.QNID sta f is r€conuuendiug using the current SCA(lX emsuon bactor forref=itelinff. First, 100 % of refueling vehicles would not be equipped with Phase II ORVR, as apparently assumed by BAAQMD and the Applicant. Second, it is generally understood that CARB's 2013 revised controlled gasoline emission factor for Phase II refueling with ORVR, which the BAAQMD and Applicant apparently relied on, is a gross underestimate. The South Coast Air Quality Management District (SCAQMD) recently reviewed the CARB revised 2013 gasoline dispensing emission factors and concluded that the proposed Phase 11 ORVR refueling emissions factor of 0.021 lb/1000 gal is a gross underestimate that was not based on any measurements or other empirical evidence. SCAQMD concluded:28 CAR%'s revised emission factor for refueling of ORVR vehicles is calculated assuming that the ORVR systeni and the base II E5r'R. system stork- consecutively in series to control vapor emi4-4ons.: allowing a compounding control efficiency of 99-75 percent from both control equipment However, there is no empirical evidence supporting the assumption that all the vapors escaping from the OR.VR. system are directed to the fillpipe and can be captured by the Phase H E,VR system - Thus, the SCAQMD substituted 0.32 lb/1000 gal,29 the original CARB estimate, yielding a refueling emission factor of 0.32 lbs/1000 gal and a vent emission factor of 0.49 lb/1000 ga1.30 In comparison, we used a vent emission factor of 0.58 lb/1000 gal31 27 SCAQMD, Proposed Amended Rule 1401—New Source Review of Toxic Air Contaminants, August 2017, Table 2. Exhibit 2. 2s Ibid. 29 Ibid. =2` Third, all of the various estimates of gasoline station VOC emissions are based on either no actual measurements or very few measurements, but rather assume theoretical control efficiencies that have not been demonstrated in the field. Recent research published after CARB's, BAAQMD's, SCAQMD's, Safeway's, and our initial cancer risk analyses demonstrate that they all significantly underestimate VOC and benzene emissions, based on substantial actual measurements at two gas stations. This research, published in a refereed scientific journal, concludes as follows:32 �,Ve present uniqm data ori vent emissions from U- Ts at two gas sta- tions, En-iEssibris. can Le compared to vent tosses asswned by CAS-ICOA. { pL: ei�1� 3, [�11-3-as t3tFOT1 with Stage 1 an Cl ll vapor recolf_'$ f tech- notog-7y and a t`ar't valve on She-vmL pipe of the UST Scep.3eio 6B), the LA OA' studjg' assumedloadinglbsses of;J.094 and breathing losses or 0.0251b,.kga1dispemed,'lhe tot3ll toss ofgasoline through the tent pipe is thk 'scam of the tlPfo and amounts to a vent en -fission tactor EJat` j,= 10.109 lbll gal- Based o€1 ,actual nieasurernems in two f iKy fuDct€oning Us.gas stations, we obtained EF,,,,, 4,alnes of 1.4 for GS -MW and 131b/kg,;1fibr S -NW, more than ane order dfmagnitude higber than the CAI?COP, esti-mate, �&,Ih€le the difference betfoieen our measurement_ and the C4PC('-),,k esdrnates may appear F.Lirprising, it is frnportant to con- sider-that on- siderthat tlie: t AI'CC)Aesti.nates are based on relatively fe--w measure -and some unsupported. assurniptions rA{rcvironmr_est. 1994 Diff(cularl ve[ffi regArd' Lo uncontrolled emissions due to equipment fail- ure, or defects (,�ppeiiftx A75 (CiI.PCt1A; 19971�; We assumed vent VOC emissions of 0.53 lb VOC/1000 gal.33 Safeway and BAAQMD assumed vent VOC emissions of 0.45 lb VOC/1000 gala As benzene emissions are directly proportional to VOC emissions (i.e., calculated by multiplying VOC emissions by the fraction of benzene) and all parties assumed the same benzene content in gasoline, 0.0031b/lb VOC, we underestimated vent benzene emissions by about a factor of 2, and BAAQMD and Safeway underestimated vent benzene emissions by about a factor of 3, based on the Hilpert et al. study. Assuming our estimate of spillage VOC emissions is accurate, we underestimated total facility 30 Vent emission factor = loading + breathing + Phase II refueling = 0.15 + 0.024 +0.32 = 0.494 lb/1000 gal. 31 Vent emission factor = loading + breathing + Phase II refueling = 0.08 + 0.42 + 0.03 = 0.53 lb/ 1000 gal. 32 M. Hilpert, A. M. Rule, B. Adria -Mora, and T. Tiberi, "Vent Pipe Emissions from Storage Tanks at Gas Stations: Implications for Setback Distances," Science of the Total Environment, v. 650, (2019): 2239-2250 (available online September 24, 2018). Exhibit 3. 33 Vent VOC emissions assumed by appellants: tank filling + vehicle fueling + breathing loss = 0.08 + 0.42 +0.03 = 0.53 lb VOC/1000. 3410/10/18 Rutan Letter, Exhibit A, BAAQMD Evaluation Report, pdf 32. Refueling VOC emissions = [(5695 lb VOC/yr)/(8500 x103 gal/yr)]0.67 = 0.45 lb VOC/103 gal. 10 benzene emissions by a factor of 2.35 Assuming the BAAQMD's and Safeway's estimate of spillage VOC emissions is accurate, they underestimated total facility benzene emissions by a factor of 336 The underestimate in benzene emissions can be used to revise Safeway's estimated cancer risk. Safeway's revised HRA reported a total 30 -year residential cancer risk of 6.1 per million. Of this total, 32% or 1.94 per million, is due to benzene emissions from fuel evaporation.37 If we apply the most recent emission data for vent emissions from Hilpert et al., we estimate that total VOC emissions would be 2.5 times greater than current ARS/CAPCOA- recommended emission factors, This would increase the portion of the cancer risk due to benzene from 1.94 to 4.85 per million and the total 30 -year residential cancer risk from 6.1 per million to 10 per million.38 A cancer risk of 10 per million is significant. Thus, by correcting Safeway's analysis to account for its substantial underestimate in benzene emissions, the cancer risk to nearby residents is significant. The actual cancer risk would be substantially higher for four reasons. Fust, both Safeway and appellants assumed the benzene content of gasoline is 0.003 lb/1000 gallons. The current proposed benzene content is 0.0455 lb/ gal 39 This would increase Safeway's residential cancer risk to 15 per million. Second, both HRAs are based only on benzene. Gasoline vapors contain other carcinogens, including ethyl benzene, formaldehyde, naphthalene, and acetaldehyde40 Naphthalene, for example, is a more potent carcinogen than benzene, with a cancer unit risk value of 3.4 E-5 ug/m3)-t compared to 2.9 E-5 ug/m3)-1 for benzene 41 Third, this revision based only on benzene excludes the increase in cancer risk from adjusting the exposure duration to 70 years (a 19% increase) and the increase from using the correct DPM emissions from cars and heavy -heavy-duty trucks, discussed elsewhere in these comments. Fourth, the omission of benzene from hose permeation and the inclusion of much higher benzene emissions from non-ORVR vehicles would further increase risk. Fifth, none of the HRAs included the 35 Benzene underestimate based on Fox/Kapahi VOC emissions: [(1.4 + 1.7/2) + 0.42/0.95] =1.97/0.95 = 2.07. 36 Benzene underestimate based on BAAQMD/Safeway VOC emissions: [(1.4 + 1.70/2) + 0.45/0.67] = 3.0 3710/10/18 Rutan Letter, l0/10/18 Memo from James A. Reyff, Illingworth & Rodkin, Inc. to Natalie Mattei, Albertsons Companies, Re: Safeway Fuel Center Health Risk Assessment—Updated Modeling Results Using U.S. EPA's AERMOD Dispersion Model, Table 1, pdf 19. 38 Revised 30 -year residential cancer risk =1.06 + 1.66 + 1.38 + 0.03 + 3(1.94) = 9.95 per million, which rounds up to 10 per million. 39 SCAQMD, August 2017, Table 3: current speciation = 0.30%; proposed speciation = 0.455%. 40 SCAQMD, August 2017, Table 3 and BAAQMD's CEQA Guidelines (BAAQMD, California Environmental Quality Act Air Quality Guidelines, May 2017) at p. 5-14 ("TAC emissions were evaluated for only those toxic compounds found in diesel or gasoline fuel including diesel PM, benzene, ethylbenzene, acrolein, etc."); available at: http://www.baagmd.gov/—/media/files/planning-and- research/cella/cella guidelines may2017-pdf.pdf?la=en. 41 OEHHA Hot Spots Unit Risk and Cancer Potentcy Values; available at: littps://oehha.ca.gov/media/`"CPFsO42909.pdf. 11 (a -3B increase in cancer risk from increased traffic in the local area to access the gas station. These changes would increase Safeway's estimated residential cancer risk of 6.1 per million significantly above the 10 per million cancer significance threshold estimated here, based only on adjusting benzene exposures. Thus, cancer risks from the proposed gas station are highly significant. 5.2. Setback Distances We relied on CARB's 2005 Air Quality and Land Use Handbook to confirm safe setback distances between the proposed gas station and nearby sensitive receptors to confirm our HRA results. The responses to comments argue that recommendations in this handbook42 are "outdated" because they were developed using emission factors developed in 1999 and since then, advancements have occurred that would reduce emissions 43 However, Hilpert et al.'s recent study, based on actual measurements, concludes the opposite. The Hilpert et al. study concluded that "current CARB setback distances might be adequate for gas stations in California but less so for the other 49 US states." Hilpert et al's AERMOD modeling identified exceedances of the 1 -hour acute REL for benzene at a distance greater than the 300 ft setback recommended in the CARB guidance. They concluded that "modeled exceedance of the OEHHA acute REL in the winter season is already of concern, because that REL was developed for once per month or less exposure."44 42 CARB, Air Qticalihj and Land Use Handbook: A Connnunitlj Health Perspective, April 2005, p. 31; available at http://www.arb.ca.gov/ch/handbogk.pdf. 43 Responses, pp.1-2. 44 Hilpert et al. 2019, p. 2248. 12 M Froin: Lakes Support <suppoit@weblakes.com> Date: Wed, Oct 17, 2018 at 11:31 AM Subject: RE: MM5 Data Request for Quote I MET1812984 To: ra .kapahi ngi ail.com <ray.kapahi@gmail.com> Cc: Lakes Support <supporta,weblakes.com> Ray, Thank you for your email. I'm familiar with the order you're referencing, but that description did not come from us. We have a standard document provided to customers who request more information about our WRF data processing routines. While WRF is different from MM5 (which is what your order was for), neither model as we have them set up are utilizing direct input of station observations. Station data may be a component of the gridded data which serves as input to these models, but it is not a direct step. Note. The information contained in this e-mail is for clarication purposes only. Me do not assume any responsibility or liabilio) explicitly or implied, for its accuracy. Cheers, Michael T. Hammer, CCM I Senior Product Specialist sopott@,weblakes.com Lakes Environmental Software www.webLakes.com ( Twitter ( FacebookI Linkedln Sofhvare Solutions I IT Solutions I Training I Services Upcoming courses in Dubai, UAE; Mexico City, DF and more! Click here to see our training schedule. CONFIDENTIALITY NOTICE: Information contained in this communication is confidential and privileged proprietary information for business use purposes only. Unauthorized use, distribution, copying or disclosure is prohibited. If you received this communication in error; please contact the sender immediately. Thank you. From: KapahiR <ray.kapahiPgmail.com> Sent: Wednesday, October 17, 2018 11:19 AM To: Lances Software <info cr,weblakes.com> Subject: Re: MM5 Data Request for Quote I MET1812984 Julie, Thanks Julie. I am handling a case for Sonoma County where the applicant (Illingworth & Rodekin) refers to a met data set developed by Lakes. Their description differs from your description.... The Weather Research and Forecasting ("WRF") grid model was used to develop a 5 -year data set (2013 through 2017) for meteorological conditions at the Project site. The WRF model pulls in observations and archived meteorological model data from the region around the fa -ql Project site, and uses the same physical equations that are used in weather forecasting to model the historical weather conditions at the specific project location. Development of this data set was performed by Lakes Environmental using the WRF model and the MMIFprograni to process data for input to the AERMOD meteorological data preprocessor, AERMET. The above description indicates that data from stations around the project site were used to develop the met data set. So, is this an accurate description of the met data set developed by Lakes using the WRF model? Thanks Julie. Ray On Wed, Oct 17, 2018 at 5:42 AM Lakes Software <info@weblakes.com> wrote: Dear Ray, Thank you so much for your inquiry. It's always good to hear from you! Our MM5 process does not include direct input of local station data; input data to the model are based on global reanalyzed data which is a computational analysis performed on a combination of station observations, upper air soundings, and satellite data. I've gone ahead and sent your quote through. If you have any additional questions, just let us know. Have a wonderful day! Kindest regards, Julie Swatson I Senior Sales Associate office: 519.746.5995 1 fax: 519.746.0793 Lakes Environmental Software www.webLal<es.com I Twitter I Facebook I L nkedIn Software Solutions I IT Solutions I Training I Services Upcoming courses in Dubai, UAE; Orlando, FL; Mexico City and more! Click here to see our training schedule. II Please consider the environment before printing this email (a -LIQ- Kraft Staff Report Proposed Amended Rule 1401— New Source Review of Toxic Air Contaminants August 2017 Deputy Executive Officer Planning, Rule Development, and Area Sources Philip M. Fine, Ph.D. Assistant Deputy Executive Officer Planning, Rule Development, and Area Sources Susan Nakamura Planning and Rules Manager Planning, Rule Development, and Area Sources Jillian Wong, Ph.D. Authors: Kalam Cheung, Ph.D. — Air Quality Specialist Mike Morris — Program Supervisor Technical Assistance: Jack Cheng—Air Quality Specialist Danny Luong— Senior Enforcement Manager Ian MacMillan — Planning and Rules Manager Victoria Moaveni —Program Supervisor Charlene Nguyen — Air Quality Inspector Reviewed by: William Wong—Principal Deputy District Counsel Barbara Baird — Chief Deputy District Counsel to _14 q SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT GOVERNING BOARD Chairman: DR. WILLIAM A. BURKE. Speaker of the Assembly Appointee Vice Chairman: BEN BENOIT Mayor Pro Tem, Wildomar Cities of Riverside County MEMBERS: MARION ASHLEY Supervisor, Fifth District County of Riverside JOE BUSCAINO Councilmember, 15th District City of Los Angeles Representative MICHAEL A. CACCIOTTI Mayor, South Pasadena Cities of Los Angeles County/Eastern Region SHEILA KUEHL Supervisor, Third District County of Los Angeles JOSEPH K. LYOU, Ph. D. Governor's Appointee LARRY MCCALLON Mayor Pro Tem, Highland Cities of San Bernardino County JUDITH MITCHELL Councilmember, Rolling Hills Estates Cities of Los Angeles County/Western Region SHAWN NELSON Supervisor, Fourth District County of Orange DR. CLARK E. PARKER, SR. Senate Rules Committee Appointee DWIGHT ROBINSON Councilmember, Lake Forest Cities of Orange County JANICE RUTHERFORD Supervisor, Second District County of San Bernardino EXECUTIVE OFFICER: WAYNE NASTRI a -q 15 C "Mme►'I Diem BACKGROUND...........................................................................................................................1 PUBLIC PROCESS AND OUTREACH EFFORTS................................................................. 2 PROPOSED AMENDMENTS TO RULE 1401......................................................................... 2 SPRAYBOOTHS............................................................................................................................ 2 GASOLINE DISPENSING FACILITIES.............................................................................................. 8 LIST OF APPLICABLE TOXIC AIR CONTAMINANTS..................................................................... 19 AFFECTEDINDUSTRIES........................................................................................................ 22 SOCIOECONOMIC ASSESSMENT....................................................................................... 23 CALIFORNIA ENVIRONMENTAL QUALITY ACT ANALYSIS ..................................... 24 DRAFT FINDINGS UNDER CALIFORNIA HEALTH AND SAFETY CODE SECTION 40727............................................................................................................................................. 24 COMPARATIVEANALYSIS................................................................................................... 25 APPENDIX A- U.S. EPA GUIDANCE ON REMOVING STAGE H GASOLINE REFUELING VAPOR RECOVERY PROGRAMS FROM STATE IMPLEMENTATION PLAN............................................................................................................................................ 27 APPENDIX B - COMMENTS AND RESPONSES................................................................ 29 [a ^ LAto Draft Staff Report i s_ _�� ,�, 01 Rule 1401 — New Source Review of Toxic Air Contaminants (Rule 1401) was adopted in June 1990 and establishes health risk thresholds for new or modified permitted equipment or processes. Under Rule 1401, the health risk assessment conducted for new or modified permit units must not exceed a maximum individual cancer risk of one in one million, a cancer burden of 0.5, a chronic hazard index of one, and an acute hazard index of one. The methodology used to estimate health risks for SCAQMD's toxic regulatory program, including Rule 1401, is based on guidance from the Office of Environmental Human Health Assessment (OEHHA). OEHHA's Risk Assessment Guidelines are incorporated in the South Coast Air Quality Management District's (SCAQMD) Risk Assessment Procedures, which are required for implementing Rules 1401, 1401.1 and 212. The current version of the SCAQMD Risk Assessment Procedures is Version 8.0. In March 2015, OEHHA revised its Risk Assessment Guidelines' (2015 OEHHA. Guidelines) to incorporate requirements from the Children's Health Protection Act of 1999 (SB 25) which included the addition of child specific factors that increased the estimated cancer risk for long- term exposures for residential and sensitive receptors. The result is an increase in the estimated cancer risk of about 2.3 times, and higher for certain toxic air contaminants that have multiple exposure pathways such as inhalation, ingestion, and dermal. The 2015 OEHHA Guidelines do not change the toxic emission reductions already achieved by facilities in the South Coast Air Basin (Basin). The 2015 OEHHA Guidelines represent a change in the methodologies and calculations used to estimate health risk based on the most recent scientific data on exposure, childhood sensitivity, and breathing rates. At the June 5, 2015 meeting, the SCAQMD Governing Board adopted amendments to Rule 1401 and incorporated the 2015 OEHHA Guidelines into SCAQMD's Risk Assessment Procedures (Version 8.0)2. SCAQMD staff evaluated permits received between October 1, 2009 and October 1, 2014 and found that most sources would not be required to install new or additional pollution controls as a result of the 2015 OEHHA Guidelines. The SCAQMD staffhad concluded that based on an initial screening in June 2015, that some spray booths may have difficulties meeting the Rule 1401 risk thresholds using the 2015 OEHHA Guidelines so additional analysis was needed to better understand potential permitting impacts for spray booths. In addition, time was also needed to better assess and understand the impacts from gasoline dispensing facilities before use of the 2015 OEHHA Guidelines, and updates to emission factors and speciation profiles for gasoline dispensing facilities that the California Air Resources Board (CARB) was recommending. Therefore, provisions were included in the June 20J5 amendment to Rule 14013 to allow spray booths and retail gasoline transfer and dispensing facilities to continue to use the then current I Available on the internet at https://oehha.ca.gov/air/ernr/notice-adoption-air-toxics-hot-spots-program-guidance- m anual-prep aration-health-risk-0 2 SCAQMD's Risk Assessment Procedures for Rules 1401 and 212 (Version 8.0) can be found here: http://www.agmd.,gov/does/default-source/planning/risk-assessment/riskassprocjunel5.pdf and Attachment M can be found here: http://www.agmd.goV/docs/default-source/perniittin attachment-m.pdf. s SCAQMD's June 2015 Staff Report for Proposed Amended Rules 212 — Standards for Approving Permits and Issuing Public Notice, 1401—New Source Review of Toxic Air Contaminants, 1401.1—Requirements for New and Relocated Facilities Near Schools, and 1402 — Control of Toxic Air Contaminants from Existing Sources," can be found here: http://www.agmd.zWdoes/default-source/Agendas/Governing-Board/2015/2015-iunl- 028.pdf?sfvrsn=9 Proposed Amended Rule 1401 1 August 2017 I a _1T1 Draft Staff Report SCAQMD Risk Assessment Procedures (Version 7.0)4 to calculate the cancer risk until SCAQMD staff returns to the Board with specific regulations and/or procedures for these industries. Staff has since completed the review of analyzing potential permitting impacts for spray booths and gasoline dispensing facilities. The results of the analysis is presented below under the section Proposed Amendments to Rule 1401. As discussed later in this staff report, implementation of the 2015 OEHHA Guidelines are expected to have minimal impacts to new or modified spray booth or gasoline dispensing facilities. As a result, Proposed Amended Rule 1401 will require these two source categories to begin using the SCAQMD's Risk Assessment Procedures (Version 8.1) which incorporates the 2015 OEHHA Guidelines for spray booths and gasoline dispensing facilities, revised emission factors and speciation profiles for gasoline dispensing facilities, and updated meteorological data. Currently, the SCAQMD's Risk Assessment Procedures (Version 8.0) requires all other permitted sources to use the 2015 OEHHA Guidelines and no changes except for updated screening tables using updated meteorological data are proposed for those sources. PUBLIC PROCESS AND OUTREACH EFFORTS Development of Proposed Amend Rule 1401 (PAR 1401) is being conducted through a public process. SCAQMD staff held three working group meetings at SCAQMD Headquarters in Diamond Bar on June 1, 2017, July 6, 2017, and July 20, 2017. The Working Group is composed of representatives from businesses, environmental groups, public agencies, and consultants. The purpose of the working group meetings are to discuss proposed concepts and to work through the details of staff's proposal. A Public Workshop was held on July 12, 2017. PROPOSED AMENDMENTS TO RULE 1401 Currently, Rule 1401 allows the use of the previous SCAQMD Risk Assessment Procedures (Version 7.0) when detennining risk for new and modified spray booths (e)(3)(A) and gasoline dispensing facilities (e)(3)(B). PAR 1401 will remove those provisions and instead require the use of the proposed SCAQMD Risk Assessment Procedures (Version 8.1) for all new and modified permitted equipment and processes. Version 8.1 of SCAQMD's Risk Assessment Procedures will replace Version 8.0 to reflect updates to emission factors for gasoline dispensing facilities, gasoline speciation profiles and meteorological data. Additionally, PAR 1401 will update the list of toxic air contaminants subject to the rule. SPRAY BOOTHS While previously issued permits are not subject to the proposed amendments to Rule 1401, they were used to predict potential impacts. To detennine if the 2015 OEHHA Guidelines would impact future spray booth permits, the maximum individual cancer risk calculated in the previous permit evaluation was multiplied by 2.3 if the materials driving cancer risk had no multipathway factor (including most volatile organic compounds) or multiplied by six if the material driving cancer risk had a multipathway factor (including most toxic metals). The increase in the estimated cancer risk for a residential receptor is 2.3 times higher with the 2015 OEHHA Guidelines. If the receptor 4 SCAQA4]D's Risk Assessment Procedures for Rules 1401, 1401.1 and 212 (Version 7.0) can be found here: http://www.Mmd.gov/docs/default-source/plamiing/risk-assessment/rislc-assessment-procedures-v-7.pdf and Attachment L can be found here: http://www.aqmd.gov/does/default-source/Planning/risk- asses sment/attachment-l.p d£ Proposed Amended Rule 1401 2 August 2017 O' . o t Draft Staff Report is a worker there is generally no change in the estimated health risk. As a conservative approach, it is assumed that these permits had a residential receptor. If the risk remained below the Rule 1401 risk thresholds of either 1 in -one -million without Best Available Control Technology for Toxics (T-BACT), or 10 in one million with T-BACT, then there would be no additional pollution controls required, and no permitting impact. If the calculated risk was higher than Rule 1401 thresholds, then it was deemed that a similar future spray booth permit could potentially be impacted. The objectives of the analysis were to answer the questions if spray booths were permitted with estimated health risks reflecting the 2015 OEIIIIA Guidelines: (1) would future spray booths that were not required to install pollution controls, potentially need to install pollution controls; or (2) would future spray booths that were required to install pollution controls, potentially need to upgrade pollution controls. Analysis of Spray Booths Staff evaluated spray booth permits issued from October 1, 2009 through October 1, 2014. Over the five-year permitting period, SCAQMD staff processed approximately 1,400 new or modified permits for spray booths. Out of the 1,400 spray booth permits, staff conducted a detailed review of a subset of 327 permits, which were randomly chosen. This sample size was selected to provide a 95 percent confidence level and a 5 percent margin of error in the analysis. Staff reviewed permit applications to better understand: ® Industry type and applicable coating rule(s); ® Compound(s) driving the carcinogenic risk; and ® Maximum individual cancer risk Out of the 327 permits reviewed, automotive finishing accounted for almost one third of the applications. Wood coatings and other coatings each contributed to 23 percent of the applications, followed by metal coatings and aerospace coatings. Overall, the distribution of the industry type was very similar between the subset of reviewed permits and all the spray booth permits issued over the five-year period, indicating that the universe of spray booth application was well represented by the subset sample as indicated by Figure 1 below. Proposed Amended Rule 1401 3 August 2017 (.DL -L4 9 40 35 30 25 c 20 m a 15 10 5 0 Draft Staff Report `�W Aerospace Metal Coatings Wood Coatings Automotive Other Coatings Coatings Refinishing Figure 1: Industry Type Breakdown of Spray Booth Permit Applications The spray booths can be categorized into two groups: with or without T-BACT. Figure 2 provides an overview of the potential impacts of the 2015 OEHHA Guidelines on spray booths. Majority of the spray booths (277 of 327) are not equipped with T-BACT, while 50 of the 327 spray booths are equipped with T-BACT. More details about the potential impacts on the two types of spray booths are discussed below. Potential 4rnpa ('without T-�"seF_"-CT), 4 poten is in pact (evi i -B; T), )a€t (with T-BACT), 48 Figure 2: Potential Impacts of 2015 OEHIIA Guidelines on Spray Booths Proposed Amended Rule 1401 4 August 2017 19 p5 -V Draft Staff Report Impacts on Spray Booth Applications with T-BACT Of the 327 permits reviewed, 50 were permitted with T-BACT. Of those 50 permits with T-BACT, 48 spray booths would have an estimated cancer risk that remained below the threshold of 10 in one million with the application of the 2015 OEHHA Guidelines. Among these spray booths, most of them use coatings containing hexavalent chromium or other metals. Thus, if 48 similar spray booths were permitted in the future using the proposed SCAQMD Risk Assessment Procedures (Version 8.1) that incorporates the 2015 OEHHA Guidelines, no additional pollution controls are expected. Two spray booths had an estimated cancer risk above 10 in one million with the use of the 2015 OEHHA Guidelines. These two spray booths use aerospace coatings containing hexavalent chromium, and were permitted with high efficiency particulate air (NEPA) filters with an efficiency of 99.999 percent, which satisfies the T-BACT requirement. The permitted cancer risk was kept below 10 in a million with limits on the maximum allowable usage of hexavalent chromium and ethyl benzene. If these two spray booths were perinitted using the proposed SCAQMD Risk Assessment Procedures (Version 8.1) which incorporates the 2015 OEHHA Guidelines, the cancer risk would exceed the threshold of 10 in one million assuming the same throughput and emission control technology (TEPA filters) are used. Thus, a new spray booth application with the same operating conditions as these two spray booths would have to either reduce their throughput or use a more effective control technology. An ultra-low penetration air (ULPA) filter provides a removal efficiency of 99.9999 percent or better, and is commercially available with a comparable cost as the HEPA filter. With the use of an ULPA filter, throughput would not need to be reduced. Nonetheless, a filter with a higher efficiency will likely increase the pressure drop across the filter. Depending on the design of the air system, a stronger fan/blower might be needed to accommodate a more efficient filter. Impacts on Spray Booth Applications without T-BACT Of the 327 permits reviewed, 277 are permitted without T-BACT. Staff estimates that with the application of the 2015 OEHHA Guidelines the estimated cancer risk for 237 (86 percent) permitted spray booths would remain below a health risk of 1 in one million so no further action, such as the addition of pollution controls or changes to the type or amount of materials identified in the permit, would be expected. These types of.perrmit applications would not be impacted by incorporating the 2015 OEHHA Guidelines in the proposed SCAQMD Risk Assessment Procedures (Version 8.1) because the coatings applied have low or no toxics content. Of the 277 spray booths without T-BACT, 40 spray booths (14 percent) exceeded the cancer risk threshold of I in one million when the 2015 OEHHA Guidelines were applied. An in-depth analysis was conducted on the permits issued for these 40 spray booths to better understand the volume and the content of toxic air contaminants in the coatings used. Four spray booths were found to be no longer in service and are not included in the analysis below, leaving 36 permits for spray booths analyzed. Staff collected safety data sheets, usage records, contacted coating suppliers, or conducted site visits to examine the potential impact of the 2015 OEHHA Guidelines. Among the 36 spray booths that are in operation, ethyl benzene was the most prevalent toxic air contaminant used in coatings with 72 percent of the permits for spray booths use coatings with ethyl benzene. Formaldehyde is the next most common toxic air contaminant used in coatings, Proposed Amended Rule 1401 5 August 2017 f a�s i representing 8 percent of the permits for spray booths. For the other permits, the formulations had multiple toxic air contaminants, including ethyl benzene and formaldehyde (8 percent), ethyl benzene and nickel (6 percent), as well as ethyl benzene and others (6 percent). As discussed in more detail below, the 36 permits for spray booths are not expected to be impacted by the 2015 OEHHA Guidelines because the facilities are either no longer using toxic air contaminants, the actual usage of materials containing toxic air contaminants is much lower than permitted levels, or the amount of toxic air contaminants assumed in the permit is higher than the actual amount in the material used, The results of the in-depth analysis is illustrated in Figure 3 below. Permitted Spray Booths Without T-BACT— Use of Materials With Toxic Air Contaminants Based on interviews with owner or operators with permitted spray booths, staff found that for 10 of the 36 permits for spray booths, the owner or operator switched coatings and are currently using coatings that do not contain toxic air containments. In some cases, the facility had opted to utilize a new coating while in the remaining cases, the coating had been reformulated. Reformulated coatings typically replace the mineral spirits that contains trace quantities of ethyl benzene with a hydrotreated petroleum distillate that performs the same function but does not contain ethyl benzene. Thus, it is expected that a considerable fraction of owners or operators that are applying for future permits for spray booths will be selecting coatings that do not contain toxic air contaminants as coatings that do not contain toxic air contaminants are available. It is assumed that for the 10 permitted spray booths that originally were using coatings with toxic air contaminants, that in the future these permit applications would not be impacted by incorporating the 2015 OEHHA Guidelines in the proposed SCAQMD Risk Assessment Procedures (Version 8.1) because operators are already making the decision to use coatings that do not contain toxic air contaminants. Permitted Spray Booths Without T-BACT —Actual Material Usage Based on interviews and site visits with owner and operators, staff found that the permitted usage of coatings was considerably higher than the actual usage in 16 of 36 permits for spray booths reviewed (25 percent). In many cases, the facility is given a maximum allowable limit on the number of gallons for the overall use and a maximum allowable limit on the number of gallons that can be used that contain a toxic air contaminant. Because the spray booths use multiple coatings within the same booth and most coatings do not contain a toxic air contaminant, the facility may use close to their overall use limit but not approach their limit for coatings that contain toxic air contaminants. Because their actual usage is considerably lower than their maximum allowable usage limit for specific coatings with toxic air contaminants, a lower permitted usage for specific coatings with toxic air contaminants will not impact their operations. By establishing maximum usage limits for coatings with toxic air contaminants that are closer to anticipated actual usage, it is expected that for the 16 permitted spray booths that in the future these permit applications would not be impacted by incorporating the 2015 OEHHA Guidelines in the proposed SCAQMD Risk Assessment Procedures (Version 8.1) because operators can accept a lower permitted usage limit for materials with toxic air contaminants. Permitted Spray Booths Without T-BACT — Toxic Air Contaminant Content in Safety Data Sheet Proposed Amended Rule 1401 6 August 2017 ta^Sa. Draft Staff Report Based on interviews with owner or operators and coating formulators, staff found that for 10 of the spray booths, the Safety Data Sheet had overstated the quantity of toxic air contaminants in their coatings. Safety Data Sheets list the range (in percent by weight) of toxic air contaminants present in the coating formulation. In many cases the formulated coating lists the ethyl benzene content as between 0.5 and 5 percent. However, based on discussions with the coating formulator, the actual ethyl benzene content for the formulated product is actually between 0.2 and 2.5 percent. If these spray booths were to apply for new permits under the proposed SCAQMD Risk Assessment Procedures (Version 8.1), they might consider migrating to reformulated coatings / new coatings with lower or no ethyl benzene content. Alternatively, manufacturers might update the Safety Data Sheet to provide a more accurate estimate with products using ethyl benzene. By either using a more accurate percentage of toxic air contaminant in the coating formulation or using a coating with lower or no ethyl benzene, it is expected that for the 10 permitted spray booths that in the future these permit applications would not be impacted by incorporating the 2015 OEHHA Guidelines in the proposed SCAQMD Risk Assessment Procedures (Version 8.1). Summary of Spray Booth Analysis Based on the detailed review of 327 spray booth permit applications, the implementation of the 2015 OEHHA Guidelines in the proposed SCAQMD Risk Assessment Procedures (Version 8.1) will result in no impact for 99 percent of spray booth permits. Figure 3 below summarizes staff's findings for spray booths that were permitted without T-BACT. For spray booths that were permitted without T-BACT, it is expected that in the future permit applicants will either select a coating with no toxic air contaminants, use products that provide more accurate estimates of toxic air contaminants in the Safety Data Sheet, or accept a lower usage limit for coatings that contain toxic air contaminants rather than install T-BACT. Using New Product (No Longer Using Toxic Air Contaminant), 10 Safety Luta Sheet Overstated Toxic Air :ontarninant (Amount ai Toxic Air Contaminant Listed Does Not Reflect Actual Amount), 10 Acivai Emission rAuch Lower than Potential to Emit (Actual :C Peron ted), 16 Figure 3: Summary Findings for 36 Spray Booths without T-BACT Table 1 provides a summary findings for spray booths. Approximately I percent (two of the 327) of spray booth permits may need to use a high efficiency filter media such as ULPA filters, or consider reducing their throughput if the 2015 0EfH1A Guidelines are utilized. For facilities that were permitted without T-BACT, it is expected that no additional pollution controls would be needed using the 2015 OEHHA Guidelines. Therefore, with a 95 percent confidence level, it is expected that approximately 1 percent of new spray booth permit applications will require Proposed Amended Rule 1401 7 August 2017 1A I's S Draft Staff Report additional pollution control equipment if the 2015 OEHHA Guidelines are utilized. With SCAQMD receiving, on average, 280 spray booth permit applications annually, approximately two spray booth permits annually could require higher level of air pollution controls. The expected additional air pollution control would be the replacement of NEPA filters with ULPA filters. It is concluded that the impact of the 2015 OEHHA Guidelines are minimal on spray booth permits. Therefore, staff recominends removing the exemption and referencing the proposed SCAQMD Risk Assessment Procedures (Version 8.1) for spray booths. Table 1: Summary Findings for Spray Booths with T-BACT Total number of spray booths reviewed 327 Spray booths without T-BACT where the cancer risk with the 2015 OEHHA Guidelines would be: • < I in one million after initial review 237 • < I in one million after in-depth review o Use of materials with toxic air contaminants 10 No o Actual material usage 16 No o Toxic air contaminant content in Safety Data Sheet 10 No o No longer in operation 4 NIA Spray booths with T-BACT where the cancer risk with the 2015 OEHHA Guidelines would be: • < 10 in one million 48 No • >10 in one million 2 Yes Percent of spray booth permits that will need T-BACT or upgrades 0.6% to T-BACT controls out of 327 permits reviewed GASOLINE DISPENSING FACILITIES In the amendments to Rule 1401 in June 2015, SCAQMD staff recommended that retail gasoline transfer and dispensing facilities continue to use the then current SCAQMD Risk Assessment Procedures (Version 7.0) because additional time was needed to better assess the potential impacts ofthe revised speciation profile that the California Air Resources Board (CARB) had provided in March 2015 and emission data on gasoline dispensing facilities. As part of this rule development process for PAR 1401, staff evaluated the potential impacts of the revised emission factors and gasoline speciation profiles and how they could affect new gasoline dispensing facilities combined with the use of the 2015 OEHHA Guidelines in proposed SCAQMD Risk Assessment Procedures (Version 8.1). Gasoline Dispensing Emission Factors Gasoline dispensing emission factors gasoline speciation profiles for air toxics are developed by the California Air Resources Board (CARB). In December 2013, CAR13 revised emission factors Proposed Amended Rule 1401 8 August 2017 la -5q Draft for gasoline dispensing facilities and are described in CARB's "Revised Emission Factors for Gasoline Marketing Operations at California Gasoline Dispensing Facilities." (CARB's 2013 Revised Emission Factors). The emission factors were revised for the processes of loading, breathing, and refueling, and new information was added for hose permeation. The emission factor for spillage remains unchanged. Each of these emission sources is briefly described below; i) Loading - Emissions occur when a fuel tanker truck unloads gasoline to the storage tanks. The storage tank vapors, displaced during loading, are emitted through its vent pipe. A pressure/vacuum valve installed on the tank, vent pipe significantly reduces these emissions. ii) Breathing - Emissions occur through the storage tank vent pipe as a result of temperature and pressure changes in the tank vapor space. iii) Refueling - Emissions occur during motor vehicle refueling when gasoline vapors escape either through the vehicle/nozzle interface or the onboard refueling vapor recovery (ORVR) system. iv) Spillage - Emissions occur from evaporating gasoline that spills during vehicle refueling. v) Hose Permeation - Emissions caused by the migration of liquid gasoline through the outer hose material and to the atmosphere through permeation. One of the updates to the 2013 Revised Emission Factors was to add a new subcategory for refueling for Phase II fueling for vehicles equipped with ORVR. CARB's previous emission factors which were adopted in 1999 did not account for vehicles equipped with ORVR. Table 2 presents CARB's 2013 Revised Emission Factors and SCAQMD's proposed controlled gasoline emission factors for the process of loading, breathing, refueling, spillage and hose permeation. SCAQMD staff is recommending the use of CARB's Revised Controlled Gasoline Emission Factors for loading, breathing, spillage and hose permeation. SCAQMD staff, however, is recommending not to incorporate CARB's 2013 revised emission factors for refueling ORVR vehicles, but continuing the use of the current SCAQMD emission factor for refueling. Proposed Amended Rule 1401 9 August 2017 9 -SS Draft Staff Report Table 2: CARB 2013 Revised and SCAQMD Proposed Controlled Gasoline Dispensing Emission Factors (lbs/1,000 gallon) *SC,AOMD staff is committed to continue working with CARB staff on the refuelina emission factor for Phase II EVR with ORVR vehicles. Until then, SCAQMD staff is recommending using the current SCAQMD emission factor for refueling. Refueling Emission Factorfor Phase II with ORVR Vehicles The SCAQMD staff has reviewed the emission factor for refueling, and believes that CARB's 2013 revised emission factors may overestimate the emission reductions from refueling with Phase II with ORVR vehicles. CARB's approach to derive the refueling emission factor is to apply a 95 percent control efficiency for Phase II enhanced vapor recovery (EVR), and an additional 95 percent control efficiency for ORVR to provide an overall control efficiency for refueling of 99.75 percent. Based on SCAQMD staff's review of the Phase 11 EVR and ORVR technologies, these two pollution control technologies may not work in series to provide a 99.75 control efficiency. The technical basis of staffs determination is presented below. Phase Il EVR is a system designed to capture displaced vapors that emerge from inside a vehicle's fuel tank, when gasoline is dispensed into the tank. As shown in Figure 4, during refueling, vapors are pulled from the gasoline tank to the underground storage tank for a vehicle that is not equipped with ORVR that is fueled with Phase II EVR. Currently there are two systems certified for Phase lI EVR: a balance system and a vacuum -assist system. The balance system transfers vapors from the vehicle and returns them to the underground storage tank based on the pressure differential. A vacuum -assist system relies on a vacuum to draw vapors from the vehicle fuel tank into the underground storage tank. CARB requires use of ORVR-compatible Phase II EVR systems that are designed to sense when an ORVR vehicle is being refueled and reduces the air to liquid ratio to near zero to avoid compatibility emission effects in the underground storage tank. CARB has determined that Phase II EVR systems have a control efficiency of 95 percent. Proposed Amended Rule 1401 10 August 2017 �SC�Q�TD Ciure f � : � � C�RB2`b1�3 Rem Sedgy �CAQiVID Pxopose��' =� Conn-0lled �aso�me Confiolledaolme- Co�rtiolled Gasoline m�ssionSource emission »actor JGnusionaeoi _>Gimssionacto ' - R• III ,u •'C NonrORVR vehicles 1 Refueling 1iunchanged from ORVR vehicles emissionfactor) *SC,AOMD staff is committed to continue working with CARB staff on the refuelina emission factor for Phase II EVR with ORVR vehicles. Until then, SCAQMD staff is recommending using the current SCAQMD emission factor for refueling. Refueling Emission Factorfor Phase II with ORVR Vehicles The SCAQMD staff has reviewed the emission factor for refueling, and believes that CARB's 2013 revised emission factors may overestimate the emission reductions from refueling with Phase II with ORVR vehicles. CARB's approach to derive the refueling emission factor is to apply a 95 percent control efficiency for Phase II enhanced vapor recovery (EVR), and an additional 95 percent control efficiency for ORVR to provide an overall control efficiency for refueling of 99.75 percent. Based on SCAQMD staff's review of the Phase 11 EVR and ORVR technologies, these two pollution control technologies may not work in series to provide a 99.75 control efficiency. The technical basis of staffs determination is presented below. Phase Il EVR is a system designed to capture displaced vapors that emerge from inside a vehicle's fuel tank, when gasoline is dispensed into the tank. As shown in Figure 4, during refueling, vapors are pulled from the gasoline tank to the underground storage tank for a vehicle that is not equipped with ORVR that is fueled with Phase II EVR. Currently there are two systems certified for Phase lI EVR: a balance system and a vacuum -assist system. The balance system transfers vapors from the vehicle and returns them to the underground storage tank based on the pressure differential. A vacuum -assist system relies on a vacuum to draw vapors from the vehicle fuel tank into the underground storage tank. CARB requires use of ORVR-compatible Phase II EVR systems that are designed to sense when an ORVR vehicle is being refueled and reduces the air to liquid ratio to near zero to avoid compatibility emission effects in the underground storage tank. CARB has determined that Phase II EVR systems have a control efficiency of 95 percent. Proposed Amended Rule 1401 10 August 2017 Draft Staff Report Figure 4: Phase H Vapor Recovery Underground Tank Captures Displaced Vapors As shown in Figure 5, an ORVR system captures the gasoline vapors that are displaced during refueling and stores those vapors in a canister filled with activated carbon. When the vehicle engine is started, gasoline vapors stored in the canister are purged and burned in the engine. The carbon bed achieves an average control efficiency of 95% as determined by CARB. Figure 5: Onboard Refueling Vapor Recovery System Capture Displaced Vapors Figure 6 provides a more detailed view of the fuel tank and the modified frllpipe on a vehicle equipped with ORVR. As shown in Figure 6, the ORVR system has mechanisms (i.e. a narrowed Proposed Amended Rale 1401 11 August 2017 Draft Staff Report fillpipe to form a liquid barrier and a mechanical valve at the end of the fillpipe) to prevent vapor within a vehicle fuel tank from escaping via the fillpipe of the vehicle to the Phase II controls. The vapor that would have otherwise escaped through the fillpipe to the Phase II controls is instead directed to a carbon canister contained within the vehicle, which is the actual means of emission control of the ORVR system, to adsorb hydrocarbons contained in the displaced vapor. ORVR Canister Vapors directed to ORVR - carbon canister Valve in fillpipe prevents vapors from entering the fillpipe Figure 6: Detailed View of Fillpipe for Onboard Refueling Vapor Recovery System CARB's revised emission factor for refueling of ORVR vehicles is calculated assuming that the ORVR system and the Phase II EVR system work consecutively in series to control vapor emissions, allowing a compounding control efficiency of 99.75 percent from both control equipment. However, there is no empirical evidence supporting the assumption that all the vapors escaping from the ORVR system are directed to the fillpipe and can be captured by the Phase II EVR system. To further illustrate that emission reductions from the Phase II EVR system are not compounded, the United States Environmental Protection Agency (U.S. EPA) has conducted source test studies according to the Federal Test Procedure. The U.S. EPA tests were conducted using sealed housing emissions device (SHED), where emissions from both the fillpipe and the on -board canister were monitored. The U.S. EPA study tested 337 dispensing events, and the results are summarized in a report published by CARB in 2008 (Table 7)5. The fillpipe and on -board canister emissions together averaged to 0.25 pounds per 1,000 gallons, suggesting that the revised emission factor recormnended by CARB underestimates the emissions from refueling ORVR vehicles. The table further shows a standard deviation of 1.15 which indicates the control efficiency of individual vehicle tested varies significantly from the average emissions of 0.25 pounds per 1,000 gallons. Additional justifications can be found with the documents U.S. EPA issued on its rule to remove the federal Stage II program from the State Implementation Plans (SIP) requirements. On July 15, 2011, the U.S. EPA issued a proposed rule titled "Widespread Use for Onboard Refueling Vapor Recovery and Stage II Waiver." The proposed rule allowed states to consider removing Stage II vapor recovery requirements when revising their SIPS, due to the national widespread use of ORVR. Subsequently, U.S. EPA issued the "Guidance on Removing Stage II Gasoline Refueling Vapor Recovery Programs from State Implementation Plan" in 2012. The Guidance document provides both policy and technical recommendations for states seeking to remove or phase-out 5 Available on the internet at https://www.arb.ca.gov/vapor/archive/2008/oivrtestreportO72408.pdf Proposed Amended Rule 1401 12 August 2017 Draft Staff Report existing Stage Il program, based on the premise that the Stage R program would become largely - redundant due to the widespread use of ORVR. On the federal level, the control efficiency of Stage H is in the range of 60-75 percent, much lower than the California Phase II program (95 percent). In addition, in areas where certain types of vacuum -assist Stage 11 control systems are used, the limited compatibility between ORVR and some configurations of this Stage II hardware may result in an area -wide emissions disbenefit. U.S. EPA's regulation stated that with the widespread use of the ORVR-equipped vehicles, Stage II programs have become largely redundant control systems with minimal reduction benefits beyond the ORVR system. SCAQMD and CARB have commented that Phase Il EVR are still needed as discussed in more detail under their comment letters6 submitted in response to U.S. EPA's proposed rule. U.S. EPA's guidance does, however provide additional insight regarding the application of emission reductions from Stage II control systems for vehicles equipped with ORVR further demonstrating that the control efficiency of the ORVR and/or the Stage Il systems are only applied once to the respective gasoline throughput. See Appendix A for a detailed discussion. Additional Refueling Emission Reductions for Phase .II with ORVR Vehicles Although the SCAQMD staff does not believe that it is technically correct to apply an additional 95% control efficiency on the remaining refueling emissions for a vehicle equipped with ORVR, there is evidence that vehicles equipped with ORVR do have emissions at the fillpipe. A study conducted by CARB in 20087 measured the gasoline vapor emissions at the vehicle fuel fillpipe of ORVR vehicles at a gasoline dispensing facility with no Phase II EVR system. Although the study demonstrated that the majority of the vapors escaping from the ORVR canister is not routed to the fillpipe, there is a small percentage of vapors that will escape the fillpipe that can be captured by the Phase II EVR system. As discussed below, the amount of vapors escaping the fillpipe that can be captured by the Phase II EVR system is much less than the 0.42 lbs/1,000 gallons that CARB used to estimate emission reductions from Phase II EVR systems for vehicles with ORVR. The 2008 CARB study was conducted at an "ambient environment" at a gasoline dispensing facility for a rental vehicle company and based on 58 dispensing events. While the test was designed to evaluate fillpipe emissions, the study could not capture emissions from the on -board canister of the ORVR system. Therefore, it does not present total refueling emissions, which includes emissions from both the fillpipe and the on -board canister for ORVR vehicles. Results from the 2008 CARB study showed that fillpipe emissions from ORVR vehicles, which represent the vapors escaping via the fillpipe and not directed to the carbon canister, were 0.043 lb per 1,000 gallons dispensed for summer fuel and 0.094 lb per 1,000 gallons for winter fuel. The low fillpipe emissions for ORVR vehicles are consistent with the design of the ORVR system, which creates a seal in the vehicle fillpipe to route vapors to the onboard canister during dispensing. Moreover, these emissions are a very small fraction of the anticipated emissions escaping from the ORVR canister, which is approximately 0.42 lbs per 1,000 gallons (5 percent of the uncontrolled emission factor of 8.4 lbs per 1,000 gallons). 'Available on the internet at https://www.regulations.gov/doelcetBrowser?rpp=50&so=DESC&sb=postedDate&po=0&dct=P S&D=EPA- HQ-OAR-2010-1076 7 Available on the internet at https://www.arb.ca.gov/vapor/archive/2008/oivrtestreportO72408.pdf Proposed Amended Rule 1401 13 August 2017 Draft Staff Report The SCAQMD staff believes that there is a small amount of vapor that the Phase Il EVR system will control during refueling of an ORVR vehicle. SCAQMD staff has been in communication with CARB staff regarding the refueling emissions factor. Both agencies agree that additional time is needed to better understand emission reductions from Phase 11 EVR for ORVR vehicles. SCAQMD staff is recommending not to incorporate CARB's 2013 revised emission factor for Phase 11 refueling of ORVR vehicles, but to continue the use of SCAQNID's current emission factor of 0.32 lbs per 1,000 gallons for refueling. Staff is recommending the use of CARB's 2013 emission factors for all other categories (loading, breathing, spillage, and hose permeation). The SCAQMD staff is committed to continue working with CARB staff to refine the refueling emission estimates for Phase 11 controls with ORVR vehicles and will return to the Board with future revisions to refueling emission factors. Need for Phase H Enhanced Vapor Recovery with ORVR Although U.S. EPA has determined that the federal Stage II program had become largely - redundant due to the widespread use of ORVR, the Phase 11 requirements are still needed in California. In 2011, CARB prepared a comment letter$ in response to U.S. EPA's proposed rule regarding gasoline vapor recovery control of ozone -precursor emissions titled 4ir Quality: Widespread Use for Onboard Refueling Vapor Recovery and Stage II Waiver. Included in the comment letter is an analysis that supports the need for California's Phase II EVR requirements even with the widespread use of ORVR. It highlights that Phase I1 EVR is needed for non-ORVR vehicles to achieve the additional VOC reductions of 14.7 tons per day in the year of 2020, and 8.8 tons per day in the year 2028 and beyond. Also, California's Phase 11 program includes other emission control features, such as in -station diagnostics and standards for nozzle liquid retention, dripless nozzle and spillage, in addition to the control of the vapors displaced during vehicle refueling. Thus, it achieves greater emission reductions than the federal Stage H program requirements and the improvement it provides is essential to meeting mandated federal ambient air quality standards. Furthermore, the impacts of removing California's Phase II program could be magnified in disadvantaged communities. Due to the lower socioeconomic status in disadvantaged communities, the turnover of the fleet is usually lower. Since vehicles manufactured before year 1998 are not equipped with ORVR, disadvantaged communities could have a higher fraction of non-ORVR vehicles than non -disadvantaged communities, and removal of the Phase 11 EVR system would put much of the emission disbenefit in the disadvantaged communities. In addition to emission factors, CARB has also developed speciation profiles of various toxic air contaminants. Out of the toxic compounds emitted from gasoline facilities, benzene, ethylbenzene, and naphthalene have cancer toxicity values. The speciation profiles are different for vapor and liquid phases of gasoline for benzene, ethyl benzene, and naphthalene. Table 3 presents the current and proposed speciation profile in weight percent for the three toxic air contaminants. SCAQMD staff recommends using CARB's proposed gasoline speciation profile. $ Available on the internet at https://www.arb.ca. gov/vapor/carb%20response%20useap%20orvr%20widespread%20use%20nprni.pdf. Proposed Amended Rule 1401 14 August 2017 la ^Cod Draft Staff Repo Table 3: Current and Proposed Weight Percent (lbs/1,000 gallon) Analysis of Permitting Impacts for Gasoline Dispensing Facilities Using SCAQMD Risk Assessment Procedures Version 8.1 The proposed SCAQMD Risk Assessment Procedures (Version 8.1) has been revised using the following updated items for gasoline: (1) 2015 OEHHA Guidelines for spray booths and gasoline dispensing facilities, (2) emission factors for gasoline dispensing.facilities and gasoline speciation profiles (as discussed earlier), and (3) dispersion model and meteorological data. To assess the impacts of these updates on future gasoline dispensing facilities, staff evaluated gasoline dispensing facilities that applied for a new permit (i.e. permit to construct or permit to operate) from October 1, 2009 through December 31, 2016. If the recalculated risk of a previously issued permit using the proposed SCAQMD Risk Assessment Procedures (Version 8.1) would be higher than Rule 1401 thresholds, then it was deemed that a similar future gasoline dispensing facility permit would potentially be impacted. Under SCAQMD's Risk Assessment Procedures (Version 7.0), the U.S. EPA's dispersion model ISCST3 (Industrial Source Complex — Short Term, Version 3) was incorporated in the Hotspots Analysis and Reporting Program (AARP) software for the health risk assessment. In the most recent version of HARP (HARP 2), the U.S. EPA dispersion model AERMOD is used to estimate the concentration of pollutants in place of the previously used ISCST3 model. In addition to the new dispersion model, the meteorological data used to estimate cancer risk has been updated. It is SCAQMD's policy to update the meteorological data used for dispersion modeling every three years. In previous years, the use of SCAQMD collected meteorological data was used exclusively. However, in the most recent update of meteorological data, it was discovered that the meteorological data at some SCAQMD sites did not meet the QA/QC criteria for dispersion modeling. Therefore, the SCAQMD meteorological sites were supplemented with Automated Surface Observing System (ASOS) sites. Designedto serve meteorological and aviation observing needs, ASOS sites are located at various airports in the Basin. ASOS data was retrieved from the National Centers for Environmental Information (https://www.ncei.noaa.go)n. Finally, the use of meteorological correction factors for gasoline dispensing facilities have been removed in favor of more precise dispersion factors provided for each meteorological station. Additional information about the updates of the meteorological modeling are included in Appendix VI of SCAQMD's Risk Assessment Procedures (Version 8.1). Impacts on New Gasoline Dispensing Facilities Over the seven-year period, 140 new permits of gasoline dispensing facilities were processed. To identify gasoline dispensing facilities that would exceed the maximum individual cancer risk of ten in one million as they are equipped with T-BACT, staff gathered the following data from the permit applications: Proposed Amended Rule 1401 15 August 2017 Benzene (vapor) 0.30% 0.455% Ethyl benzene (vapor) 0.118% 0.107% Naphthalene (vapor) 0% 0.0004% Benzene (liquid) 1.00% 0.707% Ethyl benzene (liquid) 1.64% 1.29% Naphthalene (liquid) 0.14% 0.174% Analysis of Permitting Impacts for Gasoline Dispensing Facilities Using SCAQMD Risk Assessment Procedures Version 8.1 The proposed SCAQMD Risk Assessment Procedures (Version 8.1) has been revised using the following updated items for gasoline: (1) 2015 OEHHA Guidelines for spray booths and gasoline dispensing facilities, (2) emission factors for gasoline dispensing.facilities and gasoline speciation profiles (as discussed earlier), and (3) dispersion model and meteorological data. To assess the impacts of these updates on future gasoline dispensing facilities, staff evaluated gasoline dispensing facilities that applied for a new permit (i.e. permit to construct or permit to operate) from October 1, 2009 through December 31, 2016. If the recalculated risk of a previously issued permit using the proposed SCAQMD Risk Assessment Procedures (Version 8.1) would be higher than Rule 1401 thresholds, then it was deemed that a similar future gasoline dispensing facility permit would potentially be impacted. Under SCAQMD's Risk Assessment Procedures (Version 7.0), the U.S. EPA's dispersion model ISCST3 (Industrial Source Complex — Short Term, Version 3) was incorporated in the Hotspots Analysis and Reporting Program (AARP) software for the health risk assessment. In the most recent version of HARP (HARP 2), the U.S. EPA dispersion model AERMOD is used to estimate the concentration of pollutants in place of the previously used ISCST3 model. In addition to the new dispersion model, the meteorological data used to estimate cancer risk has been updated. It is SCAQMD's policy to update the meteorological data used for dispersion modeling every three years. In previous years, the use of SCAQMD collected meteorological data was used exclusively. However, in the most recent update of meteorological data, it was discovered that the meteorological data at some SCAQMD sites did not meet the QA/QC criteria for dispersion modeling. Therefore, the SCAQMD meteorological sites were supplemented with Automated Surface Observing System (ASOS) sites. Designedto serve meteorological and aviation observing needs, ASOS sites are located at various airports in the Basin. ASOS data was retrieved from the National Centers for Environmental Information (https://www.ncei.noaa.go)n. Finally, the use of meteorological correction factors for gasoline dispensing facilities have been removed in favor of more precise dispersion factors provided for each meteorological station. Additional information about the updates of the meteorological modeling are included in Appendix VI of SCAQMD's Risk Assessment Procedures (Version 8.1). Impacts on New Gasoline Dispensing Facilities Over the seven-year period, 140 new permits of gasoline dispensing facilities were processed. To identify gasoline dispensing facilities that would exceed the maximum individual cancer risk of ten in one million as they are equipped with T-BACT, staff gathered the following data from the permit applications: Proposed Amended Rule 1401 15 August 2017 Draft Staff Report ® Industry type and application type (new, modified, relocated); ® Permitted throughput, usually expressed as million gallons per year; ® Distance to the nearest residential and commercial receptor; ® Location of the gasoline dispensing facilities; and ® Maximum individual cancer risk Table 4 provides a summary of the permitted annual throughput for the gasoline dispensing facilities reviewed. Of the 140 new permits, the majority of the applications (64 percent) are permitted at less than one million gallons per year. They include aboveground storage tanks, mobile fuclers, as well as underground storage tanks serving commercial (non -retail) operations. Fifty gasoline dispensing facilities were pennitted at an annual throughput above one million gallons per year. Most of these higher throughput facilities are retail service stations. Table 4: Annual Throughput of Gasoline Dispensing Facilities Permitted between 2009 and 2016 <1 90 Aboveground storage tanks, mobile fuelers, and others 1-3 9 Aboveground storage tanks and retail gas stations >3 41 Retail gas stations Impacts on New Gasoline Dispensing Facilities Permitted Using a Tier 4 Analysis Over the seven-year period from October 2009 to December 2016, three of the 140 new gasoline dispensing facilities had a maximum individual cancer risk above ten in one million based on Tier 2 screening and therefore, the applicant submitted a more refined site specific Tier 4 analysis (Detailed Risk Assessment) in order to demonstrate compliance with Rule 1401 at the requested throughput. To estimate the potential impacts on those applications, a percentage change, based on a comparison between the Tier 2 screening tables of SCAQMD Risk Assessment Procedures in Version 7.0 and Version 8. 1, was applied. The percentage change is site-specific, depending on the facility location and distance to receptor. After applying the percentage change, the estimated health risk for the three gasoline dispensing facilities is expected to decrease and remained below the threshold of ten in one million. Therefore, it is expected that for new gasoline dispensing facilities permitted using Tier 4 analysis that in the firture these permit applications would not be impacted by the proposed SCAQMD Risk Assessment Procedures (Version 8.1). Proposed Amended Rule 1401 16 August 2017 i Staff Impacts on New Gasoline Dispensing Facilities Permitted Using Tier 2 Analysis The cancer risks for the rest of the permit applications (137 of 140) from 2009 to 2016 were determined using Tier 2 Screening Risk Assessment. In order to analyze the impacts to these permits from the use of the 2015 OEHHA Guidelines, staff used the screening tables (Tier 2) in the proposed SCAQMD Risk Assessment Procedures (Version 8.1) to estimate the cancer risk for the permits. Using the proposed SCAQMD Risk Assessment Procedures (Version 8.1), 132 of the 137 gasoline dispensing facilities had estimated cancer risks that remained below the Rule 1401 thresholds. Therefore, no impact is expected for 96 percent of the new permit applications, if these permits were to be processed with the proposed SCAQMD Risk Assessment Procedures (Version 8.1). Five of the 137 facilities had cancer risks that would exceed the threshold. The five facilities are retail service stations equipped with CARB certified Phase I and Phase II EVR systems, which are considered to be T-BACT. The five facilities are located in Whitter (Facility A), Burbank (Facility B), Riverside (Facility C), Perris (Facility D), and Perris (Facility E), respectively. Table 5 summarizes the potential impacts of the proposed SCAQMD Risk Assessment Procedures (Version 8.1). Note that for these five facilities, the permitted allowable throughput was based on Tier 2 Screening Risk Assessment as part of the permitting process. The permit applicants did not need to proceed to a higher tier (Tier 3: Screening Dispersion Modeling or Tier 4: Detailed Risk Assessment) for a more refined risk assessment. However, if Facility A, B9, C, 'D and E were to apply for a new permit under the proposed SCAQMD Risk Assessment Procedures (Version 8. 1), their allowable throughput would have decreased by 13%,16%,40%,28% and 22%, respectively. Table 5: Potential Impacts of the Proposed SCAQMD Risk Assessment Procedures (Version 8.1) 9 Note that this facility is located within 500 feet of a school and permitted prior to the adoption of Rule 1401.1 - Requirements for New and Relocated Facilities near Schools. Under SCAQMM Rule 1401.1, the maximum individual cancer risk shall not exceed one in one million at any school within 500 feet of the toxic -emitting permit unit at the facility. Therefore, if a facility was to apply for a new or modified SCAQMD permit where Facility B is located, it would be subject to Rule 1401.1. The maximum individual cancer risk will be limited to less than one in one million at the school, and the permitted throughput will be substantially lower. Proposed Amended Rule 1401 17 August 2017 t 2- ^ (OS Draft Staff Report All retail service stations within SCAQMD's jurisdiction are already equipped with CARD certified Phase I and Phase II vapor recovery systems to control gasoline emissions. Phase I vapor recovery refers to the collection of gasoline vapors displaced from storage tanks when cargo tank trucks make gasoline deliveries. Phase H EVR systems control the vapors displaced from the vehicle fuel tanks during refueling. In addition, all gasoline is stored underground with valves installed on the tank vent pipes to further control gasoline emissions. Installation of additional emission control technology is not economical and very unlikely. On the other hand, cancer risks decrease substantially with distance. Estimated cancer risks are higher when the facility is close to the receptor. For one million gallons of gasoline, the residential maximum individual cancer risk ranges from 2.6 to 5.2 in one million at 25 meters from receptor, and decreases considerably to a range of 0.31 to 0.76 in one million at 100 meters from the receptor. Among the five facilities listed in Table 5, the highest cancer risk is observed at Facility C. Using Facility C as the worst case scenario, the cancer risk calculated using the proposed SCAQMD Risk Assessment Procedures (Version 8.1) would remain below the threshold for the same throughput as previously permitted, if the distance between the emission source and the nearest downwind receptor was 54 meters instead of 41 meters. Thus, retail gasoline dispensing facilities that would like to be permitted with a relatively high throughput might need to give more consideration to its site design by positioning the emission source further away from the sensitive receptor. Furthermore, while the use of Tier 1 and Tier 2 screening tables are useful to allow most facilities to demonstrate compliance with Rule 1401 without complicated dispersion modeling, there are other more refined modeling options available to applicants such as the use of Tier 3 and Tier 4 analyses. As previously discussed, three of the 140 new applicants demonstrated compliance through Tier 4 modeling. If the Tier 2 screening risk assessment results in a risk estimate that exceeds the risk limits or the permit applicant feels that a more detailed evaluation would result in a lower risk estimate, the applicant has the option of conducting a more detailed analysis using Tier 3 or 4. Impacts on Modified Gasoline Dispensing Facilities Staff also evaluated applications submitted for modifications from existing gasoline dispensing facilities to analyze the potential impact on fature modified permits. Over the five-year permitting period from October 1, 2009 through October 1, 2014, SCAQMD staff processed approximately 1,200 modified permits for gasoline dispensing facilities. Out of the 1,200 modified permits, staff conducted a detailed review of a subset of 300 permits, which were randomly chosen. This sample size was selected to provide a 95 percent confidence level and a 5 percent margin of error in the analysis. Of the 300 permits for existing gasoline dispensing facilities filing for a permit for modifications between 2009 and 2014, 267 (-89 percent) modifications were associated with no emission increase and were exempt from Rule 1401. The rest of the permit modifications (33 of 300) were associated with an emission increase and triggered Rule 1401. Of the 33 permit modifications that triggered Rule 1401, 28 gasoline dispensing facilities used Tier 2 analysis and 5 gasoline dispensing facilities used Tier 4 analysis. The approach used to analyze potential impacts to modified permits was the same for new permitted gasoline dispensing facilities. Proposed Amended Rule 1401 18 August 2017 �a_^ Oq Draft Staff Report For the 28 modified permits that used Tier 2 screening analysis, the estimated cancer risks for all 28 gasoline dispensing facilities remained below the Rule 1401 thresholds when using the proposed SCAQMD Risk Assessment Procedures (Version 8.1). For the 5 modified permits that used Tier 4 dispersion modeling, two gasoline dispensing facilities would have an increase in the estimated health risk, but estimated health risk is < 10 in a million. Estimated health risk for the remaining three gasoline dispensing facilities is expected to decrease. Therefore, based on the evaluation of 300 modified permits, no impact to future modified gasoline dispensing facilities is expected with the proposed SCAQMD Risk Assessment Procedures (Version 8.1). Summary of Analysis on Gasoline Dispensing Facilities Based on the detailed review of 173 new or modified gasoline dispensing facilities triggering Rule 1401 requirements from October 2009 to December 2016, the implementation of the proposed SCAQMD Risk Assessment Procedures (Version 8.1) will result in no impact for 97 percent of permit applications. Note that these impacts were estimated assuming the emission factor of 0.42 lbs per 1,000 gallons for Phase II refueling of ORVR-equipped vehicles, as a conservative estimate of cancer risk. If the current emission factor of 0.32 lbs per 1,000 gallons are used, the emissions and the associated cancer risk would be lower, resulting in fewer impacts than those presented above. With a 95 percent confidence level, approximately three percent of permit applicants may need to proceed to a higher tier analysis (Tier 3: Screening Dispersion Modeling or Tier 4: Detailed Risk Assessment), consider reducing their throughput, or new gasoline dispensing facilities could increase the distance between emission sources and the nearest receptor. With SCAQMD receiving, on average, about 27 permit applications annually, approximately one permit could be affected by the proposed SCAQMD Risk Assessment Procedures (Version 8.1) per year. Therefore, the impact of the proposed amendments on gasoline dispensing facilities is minimal. Therefore, staff recommends removing the exemption and referencing the proposed SCAQMD Risk Assessment Procedures (Version 8.1) for gasoline dispensing facilities. LIST OF APPLICABLE TOXIC AIR CONTAMINANTS Table I of Rule 1401 lists the toxic air contaminants that are subject to the rule and used to estimate health risks. The list consists of the compounds that OEHHA has provided acute, chronic, or carcinogenic health values. Periodically, OEHHA publishes new or updated health values and subsequently SCAQMD amends Table 1 to incorporate the new or updated information. Table 1 was last updated in' 2010; in the interim, a number of health values have been published by OEHHA. Additionally, several compounds will be included on the list for clarity and consistency with California Air Resources Board's Consolidated Table of OEHHA/ARB Approved Risk Assessment Health Values which was last updated on February 23, 201710 New Compounds Caprolactum (Chemical Abstracts Service Number 105-60-2) — In 2013, OEHHA developed acute and chronic Reference Exposure Levels of 50 µg/m3 and 2.2 µg/m3 respectively. OEHHA states that exposure to caprolactum has been found to cause upper respiratory and eye irritation in both animals and Humans; inflammation of the nasal and laryngeal epithelium in rodents; and reduced 10 Available on the internet at: littps://Nvww.arb.ca.gov/toxics/healthval/contable.pdf Proposed Amended Rule 1401 19 August 2017 la^(0s weight of offspring for pregnant rats administered high doses orally. According to OEHHA1 1, the increased eye blink frequency with eye irritation are manifestations of the same underlying event of ocular trigeminal nerve activation. Thus, the acute reference exposure limit is based on eye blink frequency. The acute reference exposure limit of 50 µg/m3 was established by applying a species uncertainty factor of 10 to the No Observed Adverse Effect Level (NOAEL) of 500 µg/m3. The chronic value of 2.2 µg/1 -n3 was derived by the 95 percent lower confidence limit of the dose producing a 5 percent response rate for the nasal respiratory and olfactory changes and the non - keratinized laryngeal tissue changes found at terminal sacrifice. An uncertainty factor of 60 was applied because of interspecies and study length uncertainties. The main use of caprolactum is in the polymerization process during the manufacture of Nylon -6. Nylon -6 is a widely used type of nylon and is found in textiles, engineered plastics, and films used in packaging and medical applications. Exposure to caprolactum may occur during the production and recycling of Nylon -6, and offgassing from carpeting and other textiles containing Nylon -6. Permitted use of caprolactum will occur nearly exclusively in resin manufacturing facilities. As a Volatile Organic Compound, caprolactum emissions are already regulated in resin manufacturing facilities by SCAQMD Rule 1141— Control of Volatile Organic Compound Emissions from Resin Manufacturing. The provisions in that rule require that volatile organic compound emissions, including caprolactum emissions, be reduced by 95 percent or more from blending, reaction, and processing operations. Therefore, the addition of acute and chronic health risk values are not expected to have any additional impacts on resin manufacturing operations as they already are required to control caprolactum emissions. Carbonyl sulfide (Chemical Abstracts Service Number 463-58-1) — In 2017, OEHHA developed acute and chronic Reference Exposure Levels of 660 µg/m3 and 10 µg/m3 respectively12. OEHHA found that inhalation of carbonyl sulfide results in adverse health effects in the central nervous system. The NOAEL for carbonyl sulfide is 1,500,000 µg/m3. The time -adjusted one hour NOAEL is 1,300,000 [tg/m3. The acute reference exposure limit was deterinined by applying an. uncertainty factor of 2,000 to the time -adjusted one hour NOAEL resulting in an acute reference exposure limit of 660 pg/m3. The uncertainty factor was based on limited information on acute toxicity and there were no pharmacokinetic modeling data available. For chronic exposures, the time -adjusted NOAEL was determined to be 130,000 µg/m3. An uncertainty factor of 6,000 was applied resulting in a chronic reference exposure limit of 22 µg/m3. The uncertainty factor was based on default factors for interspecies and intraspecies toxicokinetic and toxicodynamic differences. For industrial uses, carbonyl sulfide is emitted from some refineries as an end product of sulfur combustion. It is also a potential grain fumigant replacing methyl bromide. In 2012, reported emissions of carbonyl sulfide in SCAQMD was just over 15,000 pounds annually with the largest facility reporting 7,706 pounds of annual emissions. Refinery sources and potential fumigant sources of carbonyl sulfide are already closely controlled. Refineries reporting carbonyl sulfide emissions already determine health risks by accounting for it Available on the internet at: https://oehha.ca.gov/media/downloads/crnr/caprolactam20l3.pdf 12 Available on the internet at: https://ochha.ca.gov/media/downloads/crnr/cosrc]022117.pdf Proposed Amended Rule 1401 20 August 2017 off- ®rry f'O Draft Staff Report contributions from carbonyl sulfide in the Air Toxics Hot Spots Program. Additionally, sulfur emissions are regulated as criteria pollutants necessitating the use of control equipment. The inclusion of acute and chronic non -cancer health values for carbonyl sulfide are not expected to require additional pollution controls as the sources of those emissions already are expected to have pollution control. Compounds with Added Health Risk Values Butadiene, 1,3- (Chemical Abstracts Service Number 106-99-0) — In 2013, OEHHA developed an acute reference exposure level of 660 µg/m3 13 At the same time, OEHHA also updated the chronic inhalation health value to 2.0 pg/m3. In 1992, OEHHA established a cancer inhalation unit risk value of 1.7x10-4 (µg/m3)-1. For permitted units, the cancer risk is generally orders of magnitude greater than the acute risk. Therefore the inclusion of an acute reference exposure level for 1,3- butadiene is not expected to have any additional impacts on permitted sources. Methylene diphenyl diisocyanate — (Chemical Abstracts Service Number 101-68-8) — In 2016, OEHHA developed an acute reference exposure level of 12 ug/m3 " and updated the chronic reference exposure level to 8.OxI O' ug/m3. The chronic reference exposure level is more than two magnitudes lower than the acute reference exposure level and thus the inclusion of an acute reference exposure level is not expected to have any additional impacts on permitted sources. In addition, a typographical error was corrected for this compound. Toluene diisocyanates (Chemical Abstracts Service Number 26471-62-5), including toluene-2,4- diisocyante (Chemical Abstracts Service Number 584-84-9) and toluene-2,6-diisocyantate (Chemical Abstracts Service Number 91-08-7) — In 2016, OEHHA developed an acute reference exposure level of 2.0 µg/m3 for the parent compound of toluene diisocyante and related compounds toluene-2,4-diisocyante and toluene-2,6-diisocyantate". The chronic reference exposure level was also updated at the same time to 8x10-3 µg/m3. However, the cancer inhalation unit risk, established in 1999, is 1.1x10-5 (µg/m3)-1 resulting in a cancer risk that is generally orders of magnitude greater than the acute risk. For permitted units, the inclusion of an acute reference exposure level for toluene diisocyantes is not expected to have any additional impacts. Compounds Added for Clarification and Consistency In two cases, a parent compound is listed in Table 1 of Rule 1401 while some associated compounds are not. To clarify the applicability of the compounds and to mance Table I more consistent with CARB's Consolidated Table of OEHHA/ARB Approved Risk Assessment Health Values (February 23, 2017), the following related compounds in Table 6 below will be added to Table 1 of Rule 1401: 13 Available on the internet at: https://oehha.ca.govimedia/downloads/emir/072613benterel.pdf 14 Available on the internet at: https://ochha.ca goy/media/downloads/air/report-hot-spots/finalmdirelmarch2O16.pdf 11 Available on the internet at: https://oehha.ca.gov/media/downloads/air/report-hot-spots/finaltdirelmarch2O16.pdf Proposed Amended Rule 1401 21 August 2017 k a- " Col Draft Staff Report Table 6: Related Compounds Added for Clarification and Consistency Barium chromate 10294-40-3 Chromium (hexavalent) Calcium chromate 13765-19-0 Chromium (hexavalent) Chromic trioxide 1333-82-0 Chromium (hexavalent) Sodium dichromate 10588-01-9 Chromium (hexavalent) Strontium chromate 7789-06-2 Chromium (hexavalent) Zinc chromate 13530-65-9 Chromium (hexavalent) Hexachlorocyclohexane, alpha 319-85-6 Hexachlorocyclohexanes (mixed or technical grade) Hexachlorocyclohexane, beta 319-85-7I Hexachlorocyclohexanes (mixed or technical grade) Similarly, in two other cases, a related compound is listed in Table 1 while the parent compound is not. The following parent compounds will be added to Table 1 of Rule 1401 as shown in Table 7 below. Table 7: Parent Compounds Added for Clarification and Consistency For both the newly added parent and related compounds, the effective date of rule applicability will be the same as the already listed compound. Finally, a typographical error was corrected as the same compound, vinylidene chloride and dichloroethylene, 1,1- (Chemical Abstracts Service Number 75-35-4), is listed twice. To avoid confusion, the compound will remain listed twice but the dichloroethylene, 1,1- will refer back to vinylidene chloride. AFFECTED INDUSTRIES Implementation of PAR 1401 is expected to potentially increase the estimated cancer risks for spray booths and gasoline dispensing facilities. SCAQMD staff conducted an analysis to better understand the number of sources that%could be potential affected by the proposal. Staff estimates two spray booth permits annually could require higher level of air pollution controls. The expected additional air pollution control would be the replacement of HEPA filters with ULPA filters. For gasoline dispensing facilities, one permit applications annually will have a lower permitted throughput, consider increasing their distance of emission sources to the nearest residential receptor, or proceed to a Tier 3 or Tier 4 analysis requiring dispersion modeling. Finally, five refineries will see a negligible increase in cancer risk because of the addition of carbonyl sulfide to the Rule 1401 Toxic Air Contaminant list. Proposed Amended Rule 1401 22 August 2017 M Draft Staff Report SOCIOECONOMIC ASSESSMENT PAR 1401 would require the use of the proposed SCAQNM Risk Assessment Procedures (Version 8.1), also referred to as Procedures, when determining health risks for all new and modified permitted equipment and processes at spray booths and gasoline dispensing facilities. The updates to the Procedures could potentially increase the calculated cancer risk for emission sources at the affected facilities. Based on staff's analysis of SCAQNM permits issued from October 1, 2009 through October 1, 2014, two spray booths and one gasoline dispensing facility per year could potentially incur costs to comply with PAR 140116. Spray booths belong to various sectors of the economy such as manufacturing, wholesale, retail, services, and the affected gasoline dispensing facilities belong to the sector of retail services. As spray booths and gasoline dispensing facilities tend to be small businesses, the potentially affected facilities by the proposed amendments are also likely to be small businesses. For the potentially affected spray booths with new or modified permits, an average of two facilities per year are expected to need to install ULPA filters in lieu of NEPA filters to comply with PAR 1401. The unit cost of ULPA filters is expected to be very similar to the unit cost of NEPA filters. However, ULPA filters require the use of higher horsepower blowers. For a typical size of spray booth, a 15 HP blower will be needed for ULPA filters as opposed to a 10 HP blower for HEPA filters. A 15 HP blower is more expensive than a 10 HP blower, and it also uses more electricity which would result in a higher operation cost. The incremental cost of a 15 HP blower over a 10 HP blower is estimated at $750 ($4,250 for a 15 HP blower vs $3,500 for a 10 HP blower). The incremental operating cost related to additional electrical usage is estimated at $595 annually ($0.13/kWh x 2.2 kW x 8 hours/day x 5 days/week x 52 weeks/year). 17 Based on a typical equipment life of five years, the present value of the total incremental costs of purchasing and operating a 15 HP blower is estimated to be up to $3,725 per facility [$750 + $595 x 5], or $7,450 for a total of two potentially affected spray booths.18 For the potentially affected gasoline dispensing facilities with new or modified permits, an average of one facility per year is expected to proceed to the more complicated Tier 3 or Tier 4 HRA unless the facility can lower its permitted throughput or increase the distance between the emission sources to the nearest receptor. For the purpose of the socioeconomic impact assessment, it is assumed that the affected facility would proceed to a Tier 4 HRA, which would require dispersion modeling to predict the atmospheric concentrations of gaseous and particulate pollutants using site-specific input parameters. Based on a vendor's price quote, the annual cost of dispersion modeling is estimated at $15,000 per gasoline dispensing facility. Therefore, the overall compliance cost is estimated at $22,450 ($7,450+$15,000) per year based on the assumption that, each year after PAR 1401 adoption, there will be two spray booths and one gasoline dispensing facility applying for new or modified permits that will need to fulfill additional 16 For new gasoline dispensing facilities, staff analyzed permits up to December 2016. 17 $0.13/kWh represents the average commercial electricity rate in the City of Los Angeles (see http•//www clecti-igitylocal com/states/califomia/los-angeles/). Additionally, the blower is assumed to be operated at the 50 -percent ca acp ity to reach the typical five-year equipment life " The present value of $3,725 per spray booth is derived by assuming a zero discount rate. The amount would decrease if a greater discount rate is used. Notice this cost may recur every five years if ULPA filters would continue to be required for these facilities and the differences in the capital and operation costs would continue to remain the same between a 15 HP and a 10 IF blower. Proposed Amended Rule 1401 23 August 2017 Draft Staff Report requirements to comply with PAR 1401. It has been a standard socioeconomic practice that, when the annual compliance cost is less than one million current U.S. dollars, the Regional Economic Models Ino. (REMI)'s Policy Insight Plus Model is not used to simulate jobs and macroeconomic impacts. This is because the resultant impacts would be diminutive relative to the baseline regional economy. CALIFORNIA ENVIRONMENTAL QUALITY ACT ANALYSIS Pursuant to the California Environmental Quality Act (CEQA) and SCAQMD Rule 110, the SCAQMD, as lead agency for the proposed project, has reviewed the proposed amendments to Rule 1401 pursuant to: 1) CEQA Guidelines § 15002(k) — General Concepts, the three-step process for deciding which document to prepare for a project subject to CEQA; and 2) CEQA Guidelines § 15061 — Review for Exemption, procedures for determining if a project is exempt from CEQA. SCAQMD staff has determined that it can be seen with certainty that there is no possibility that the proposed amendments to Rule 1401 may have a significant adverse effect on the environment. Therefore, PAR 1401 is considered to be exempt from CEQA pursuant to CEQA Guidelines § 15061(b)(3) — Activities Covered by General Rule. A Notice of Exemption will be prepared pursuant to CEQA Guidelines § 15062 - Notice of Exemption. If the project is approved, the Notice of Exemption will be filed with the county clerks of Los Angeles, Orange, Riverside and San Bernardino counties. DRAFT FINDINGS UNDER CALIFORNIA HEALTH AND SAFETY CODE SECTION 40727 Requirements to Make Findings California Health and Safety Code Section 40727 requires that prior to adopting, amending or repealing a rule or regulation, the SCAQMD Governing Board shall make findings of necessity, authority, clarity, consistency, non -duplication, and reference based on relevant information presented at the public hearing and in the staff report. Necessity PAR 1401 is needed to update rule language relating to risk assessment calculations such that they are consistent with those specified in the state OEHHA Risk Assessment Guidelines adopted on March 6, 2015. Authority The SCAQMD Governing Board has authority to adopt amendments to Rule 1401 pursuant to the California Health and Safety Code Sections 39002, 39650 et. Seq., 40000, 40001, 40440, 40441, 40702, 40725 through 40728, 41508, 41700, 41706, 44360 through 44366, and 44390 through 44394. Clarity PAR 1401 is written or displayed so that its meaning can be easily understood by the persons directly affected by it. Consistency PAR 1401 is in harmony with and not in conflict with or contradictory to, existing statutes, court decisions or state or federal regulations. Proposed Amended Rule 1401 24 August 2017 (a --7 D Draft Staff Report Non -Duplication PAR 1401 will not impose the same requirements as any existing state or federal regulations. The proposed amended rule is necessary and proper to execute the powers and duties granted to, and imposed upon, the SCAQMD. Reference By adopting PAR 1401, the SCAQMD Governing Board will be implementing, interpreting or making specific the provisions of the California Health and Safety Code Sections 39666 (District new source review rules for toxics), 41700 (prohibited discharges), and 44360 through 44366 (Risk Assessment). Rule Adoption Relative to Cost-effectiveness On October 14, 1994, the Governing Board adopted a resolution that requires staff to address whether rules being proposed for adoption are considered in the order of cost-effectiveness. The 2016 Air Quality Management Plan (AQMP) ranked, in the order of cost-effectiveness, all of the control measures for which costs were quantified. It is generally recommended that the most cost- effective actions be taken first. However, PAR 1401 is not a control measure that was included in the 2016 AQMP and was not ranked relative to other criteria pollutant control measures in the 2016 AQMP. Incremental Cost-effectiveness Health and Safety Code Section 40920.6 requires an incremental cost effectiveness analysis for Best Available Retrofit Control Technology (BARCT) rules or emission reduction strategies when there is more than one control option which would achieve the emission reduction objective of the proposed amendments, relative to ozone, CO, SOx, Nox, and their precursors. Since PAR 1401 applies to toxic air contaminants, the incremental cost effectiveness analysis requirement does not apply. COMPARATIVE ANALYSIS Health and Safety Code section 40727.2 requires a comparative analysis of the proposed amended rule with any Federal or District rules and regulations applicable to the same source. See Table 8 below. Proposed Amended Rule 1401 25 August 2017 Draft Staff Repo Table 8: Comparative Analysis of PAR 1401 with Rules 212, 1401.1, 1402, and Federal Regulations Rule EIement PAR 1401 Rule 212 Rule 1401.1 Rule 1402 Equivalent Federal Regulation Applicability New, New or New or Existing None relocated or modified relocated facilities modified permit unit permit unit subject to Air permit unit Toxics "Hot Spots" Information and Assessment Act of 1987 and facilities with total facility emissions exceeding any significant or action risk level Requirements Limits Provide Limits cancer Submittal of None maximum public risk and health risk individual notice to all chronic and assessment for cancer risk, nearby acute hazards total facility cancer burden addresses near schools emissions when and chronic projects that notified. and acute are located Implement risk hazards within 1,000 reduction feet of a measures if school, facility -wide increase risk risk is greater or nuisance, than or equal to or increase action risk criteria level pollutants above specified thresholds Reporting None Verification None Progress None that public reports and notice has updates to risk been reduction plans distributed Monitoring None None None None None Recordkeeping None I None None None Proposed Amended Rule 1401 26 August 2017 I a _-I P.- Draft Staff Report Appendix A — U.S. EPA Guidance on Removing Stage II Gasoline Refueling Vapor Recovery Programs from State Implementation Plan On a federal level, the control efficiency of Stage II is in the range of 60- 75 percent, much lower than the California Phase II program (95 percent). In addition, in areas where certain types of vacuum -assist Stage II control systems are used, the limited compatibility between ORVR and some configurations of this Stage II hardware may result in an area -wide emissions disbenefit. U.S. EPA's regulation stated that with the widespread use of the ORVR-equipped vehicles, Stage II programs have become largely redundant control systems with minimal reduction benefits beyond the ORVR system. SCAQMD and CARB have commented that Phase 11 EVR is still needed as discussed in more detail under their comment letters 19 submitted in response to U.S. EPA's proposed rule titled "Widespread Use for Onboard Refueling Vapor Recovery and Stage II Waiver," U.S. EPA's guidance does, however provide additional insight regarding the application of emission reductions from Stage 11 control systems for vehicles equipped with ORVR further demonstrating that the control efficiency of the ORVR and/or the Stage 11 systems are only applied once to the respective gasoline throughput (the same control efficiency was applied to both the throughput of Stage II and non-ORVR vehicles. The U.S. EPA Guidance document provides two equations to calculate impacts on the refueling emission inventory whereas the results could be used by States to support SIP actions (Section 3.3). Equation 1 determines the overall stage Il-ORVR increment, which identifies the annual area - wide emission control gain from Stage II installations as ORVR technology phases in, assuming both have the same efficiency. It also indicates the emission reduction potential loss (in year i) from removing Stage Il. Equation 1 is shown below: Equation -1 hicrewentj = (Qs�)(1-QoxzRf)bll,,sfr) - (Qsn"-)(CPj) The first part of the equation identifies the overall Stage II-ORVR increment. The second part of the equation accounts the for vacuum -assist compatibility factor, which is not applicable in California because California's Phase 11 EVR system requires compatibility with ORVR. Equation 1 estimates the incremental emission control gain with the widespread use of ORVR vehicles by accounting for (1) fraction of gasoline throughput covered by Stage II vapor recovery system (Qsu), the fraction of gasoline dispensed to non-ORVR vehicles (1-Qoxvxi) and the in -use control efficiency of the stage 1I vapor recovery system (rli„sa) Equation 2 determines the delta between the Stage H efficiency and the ORVR efficiency with both technologies in place. It considers the greater efficiency of ORVR relative to non-ORVR vehicles refueling at Stage 1I -equipped gasoline dispensing facilities. Equation 2 is shown below: i9 Available on the internet at https ://www.regulations. gov/doolcetBrowser?rpp=50 &so=DES C&sb=postedDate&po=0 &dct=P S &D=EPA- HQ-OAR-2010-1076 Proposed Amended Rule 1401 27 August 2017 Draft Staff Report Equation 2 deir'ri1= (Qsa)(rhu-sni) - (Qsn,,0(CF7) - (Qom.qu)0Io1<vr,) As demonstration in the two equations above, the control efficiency of the ORVR and / or the Stage II systems are only applied once to the respective gasoline throughput (the same control efficiency was applied to both the throughput of Stage II and non-ORVR vehicles in equation 1). If the two control equipment were to work in series, the control efficiency of the two would have been multiplied together, as the way it was detennined by CARB: ORVR, Phase It EVR = (non-ORVR UEF)*(1 - ORVR CE)" (1 - Ph It EVR CE) = (8.4 lbs/kgalr(1 - 0.95)*(1 - 0.95) = 0.021 lbs/kgal Thus, SCAQIM staff's interpretation that the ORVR and Phase II vapor recovery system may not work in series is consistent with the methodology used by U.S. EPA to determine the impacts of removing the Stage 11 program. Proposed Amended Rule 1401 28 August 2017 I a -74 Draft Staff Report Appendilx B — Comments and Responses California Independent Oft Marketer,Associatlon 8835 North Freeway Blvd, Suite 240 _0 WINCW-11"et r Sacramento, CA 95834 1955 916-646-5999 July 19, 2017 Susan Nakamura Via email at: snakamurai_Lagmd-gov Assistant Dep uty Execuf'rre Officer South Gast AirQuality Management District 21865 CopleyDrive Diamond Bari CA 917,55 Re: Proposed Amended Rule 1401- New Source Review of Toxic Air Contaminants Dear klls. i+lakamura: These comments are presented on behalf of CfOMA, apart of the California Small Business Alliance, members that own and operate facilities that are affected by Proposed Amended Rule 1401- New -Source Review of Toxic A irContaminants- The California Independent Oil Marketers Association [rIGMA) represents about 30members, including nearly 90DA of all the independent petroleum marketers in the state and aboutone quarter of the state's 10,400 service stations. Our members provide services to local governments, law enforcementr cfty and county fare departments, ambulanceslemergency vehicles, school district bus fleets, construction firms, marinas, public andprfvatetransit companies, hospital emergency generators, trucking fleets, independent fuel retailem(small chains and mom-and-pop gas ;dations) and California agriculture, amongothers_ The District is proposing to make several changes to its evaluation pr endures for new and modified gasoline dispensing facilities (GD:Fs) and has not disclosed key detailscritical to the rule development, which is proceeding on a severely compressed schedule with limited public input. GlOMA s major concerns regarding Proposed Amended Rule 1401 are as follows: The Proposed Amended Rule 1401 rule development schedule itas been aggressively compressed, with technical documents not being provided to stakeholders prior to the set hearing date. 1 The first working group meeting for Proposed Amended Rule 1401 was held on June 1, 2017; draft rule language and the Draft Staff Report was released on June 16,2G17. Stakeholders s were also notified on June 16 of the dates ofthe second working group meating and public i workshop, scheduled fortune 29 and July 12 respectively. Technical documents were i Proposed Amended Rule 1401 29 August 2017 f' -I S Draft Staff Report req.uested.by stakeholders atthe first working group meeting and promised by Staff to be available at the second worldng group meeting - The second working group meeting was rescheduled for July 0, one day prior to the set hearing scheduled for.luly 7. No technical documentation was provided by Staff at the second working group fneeting; Staff stated that the gasoline station appendix ,.vould be available by avid -Julys and the Proposers Risk Assessment Procedures Version 8.1 would be available hyAugust 2. A third working group meeting was scheduled forJuly 20 at the request of stakeholders due to the lack of available technical document?tion to evaluate the proposed changes to Rule 1401. The gasoline station appendix (Attachment N) was available via hard copy at the public 1 1-1 workshop onrn luly1.AttachmentNanditsetbodologyJAppendixX)wereernailedtothe ,r, Proposed Amended Rule 1401 working group list on the night of Jul 15- Neither document has been posted online to the Proposed Rules page of the SCAQM[) website. Tile Proposed Risk Assessment Procedures (Version 8.1) will not be released until August, when many rnembersof j Staff will be unavailable for questions or comment. i Staff is presentingthe proposed rule one day after the third working group on July 21. The public hearingfor Proposed Amended Rule 1401 is scheduled for September 1, 2017_ With mucic of the technical documentation supportirrgtbe proposed changes in the rulebeing released within the last week, or notyet released, such a short timetable has not allowed for a robust public rulemaking process with proper stake hold erinput- SCAC 01) plans to increase the emission factorfor refueling activities at GDFs to the level identified bythe California Air Resources Board (GARB) for vehicles not equipped with onboard refueling vapor recovery (ORVR) systems. Staff is. planning on increasing its emission factor for refueling activities at GDFs, and differing from GARB and the emissions factor SCAQMD used to develop its own emissions inventoryfor the AQMP'. The majority of vehicles are equipped with ORVR, and for ORVR vehiclesCARB identified an emission factor twenty times lower than non-ORVR vehicles. The District needsto provide more technical information forits own proposed emission factor, and identifywhyit appears to be disregarding ORVR entirely. Stakeholders are notable to determine the analysis behind' Staffs increase in the emissions factor and divergence from CARB's determination for ORVR vehicles without access to the Proposed Risk Assessment Procedures tVersion 8.1), vihicb will not be available until August. The Governing Board adoption hearing for Proposed Adopted Rule 1401 should be delayed I rom the September 1, 2017 date - Conclusion Due to the lack of availability of technical documents to takeholders, the constricted rulemaking schedule pushed up against the S AQMD August summer recess, and the need for Proposed Amended Rule 1401 30 1-J August 2017 t2L--)(o Draft Staff Report continued technical analysis due to the implications Df, the proposed changes, the date of the Governing Board adoption hearing for Proposed Adopted Rule 1401 should bedelayed_ Stakeholders have not had the proper opporunity to have accessto key tech n[cal documents critical to proposed changes to the emission factor for refueling activities at GDFs, and telt not i have the opporunityto make comments in a timely fashion due to the rulemaking and staff schedule_ The hearing should be delayed to ensure the praiser public rulemaking process takes place and all analysis is completed in a thoughtful, transparent manner. Please contact Samuel Bayless at bay]ess@eiornia_coni or (918) 848-5944 vinh anyquestiom. Sincerely, Samuel Bayless Regufatoyy IssuesSpeciarist California independent Oil Marketers Association cc Wayne: Nastri, SCAQMD Executive Clf iter Philip Fine, )sn-D.rSCA©MD Deputy ExecutiveClfficer Ben Benoit, Mayor Pro Tem, City DfWildomar Joseph Lyou, Ph.D, Governor's Appointee ISCAOLNID Governing Board Judith Mitchell, Councilmember, City of Rolling Hills Estates Shawn Nelson, SupeRdsor, Fourth DfstrictICountV of Orange Janice Rutherford Supervisor, Second District/County of San Bernardino Sheila Kuehl, Supervisor, Third District/County of LDsAngeles Ruthanne Taylor Berger, Board Assistant to Ben Benoit Mark Abramowitz, Board Assisfantto Dr- Joseph Lyou Marisa Perez, BoardA,,sistantto JudithMitcheli Denis B lodeau, Board Assistant to Shawn Nelson Mark Taylor, Gtiief of Staff to Janice Rutherford Andrew Silva, Board Assistant to Janice Rutherford Diane Nloss, Board Assistant to Sheila Kuehl Proposed Amended Rule 1401 31 August 2017 I a. rl Draft Staff Report Response to Comment I -I In the first working group meeting, staff presented the proposed emission factors for gasoline dispensing facilities, and agreed to invite a subject matter expert from Engineering & Permitting to the next working group to provide a technical explanation. Draft Proposed Amended Rule 1401 and the Preliminary Draft Staff Report were released on June 16, more than 75 days before the public hearing. In the second working group meeting, staff presented more background information and the technical basis of the proposed emission factors (link), and provided clarification and justification for the proposal. To address the concerns on the potential impacts on gasoline dispensing facilities, both the Preliminary Draft of Appendix X - Methodology Used to Develop Tier 2 Screening Tables for Gasoline Transfer and Dispensing Facilities and the corresponding Attachment N screening tables from proposed SCAQMD Risk Assessment Procedures (Version 8.1) were released on July 15. A third working group meeting was held to walls the stakeholders through and answer any questions on these two documents. On July 21, the proposed amendments to Rule 1401 and the associated impacts were presented to the Stationary Source Committee. Staff highlighted the key issues on the proposed emission factors of gasoline dispensing facilities and the rule development schedule. Both issues were thoroughly discussed among Committee members, staff, and stakeholders. A Draft Staff Report, including additional information on the technologies of the ORVR and Phase II vapor recovery system, as well as the rationale behind using the current SCAQMD emission factor for refueling (0.32 lbs per 1,000 gallons) has been released on August 2. Staff is available to hold another working group meeting in August to address any questions or concerns that may arise. In brief, the proposed rule language, the Preliminary Draft Staff Report, Draft Staff Report (which also includes the Socioeconomic Analysis) have been released following the rule development schedule, and additional technical justification has been provided to stakeholders in a timely manner upon request. Response to Comment 1-2 As discussed in Response to Comment 1-1, additional background information and technical justification was provided in the second working group meeting on July 6. The sections relevant to gasoline dispensing facilities from Proposed Risk Assessment Procedures Version 8.1 were released on July 15 and a working group meeting was held on July 20 to address questions and concerns on the documents. As discussed at the Working Group meetings, based on the available test data from CARB and EPA, SCAQMD staff concluded that the Phase H vapor recovery system and ORVR systems would each achieve a 95% control efficiency. However, there is no empirical evidence to support the assumption that all the vapors escaping from the ORVR system are directed to the fillpipe and can be captured by the Phase II EVR system. For more information, please refer to Response to Comment 2-2. Proposed Amended Rule 1401 32 August 2017 Ca --]02�/ On the emission factor used for the refueling in gasoline dispensing facilities in the 2016 AQMP, please refer to Comment 2-6. Response to Comment 1-3 PAR 1401 has followed a typical rule development schedule and has met the requirements of SCAQMD's public process for rulemaking. Upon request, additional technical justification has also been provided to stakeholders in a timely manner. Staff is available for follow up meetings to answer questions or provide clarifications before the Public Hearing. Proposed Amended Rule 1401 33 August 2017 I a. -1J pi Is � w -q PBIsb,ey1hi"� thn pShaw P,'-ttrnar LLP 725 8o«ih figii--m3 Stet, 9Wle 2800 i Los Angeles, Ci 90017-W`. 3 I W213.4 -513-710D I fax. 213.629_11333 Michael s_ McDanouch til: 213.485•_755:1 tuieh,l.medGnntcghPill 1}wyla.cum July 25, 2017 Ms. Ialam Cheung Planning, Rule Development and Area Sources South Coast Air Quality ]`Management District 21865 CopleyDrive Diamond Bar. CA 91765 Entail. kcheurig4annid.go , Re: ostro lei liolesriloGoxpo►atiors Comments on SCAQTAED Proposed Amended Rule 1.401 Dear Ms. Clieung; Costco )X,'hclesale Corporation appreciates this opportitnity to provide comments on the youth Ce��# Air Chralit�r�riar�ag€rrrent DiL�hic#'s Proposed Amended Rule (I'.�.R) l 1401—Net, Source: Review of Toxic. Air Contaminants. As you know. for years Costco has stood at the forefront of emissions control efforts concerning California gasoline dispensing facilities (GDFs). Costco has worked closely with the District and the California Air Resourcea Board (ARB) overman ears to de-vTlop and teat cutting edge in -station diagnostic (ISD) technologies designed to automatically detect vapor reco-wry system failures and avoid volatile organic- compound (VOC-) emissions through early detection and repair. In nimy cases, VOC emissions reduction technologies tested and adopted by Costco have goneittell beyond i�,Iat the regulations require. This is because Costco has made a connmitment to conduct all Of its Operations in an environmentally responsible and sustainable manner, recognizing ,� r - - that in orderfor Costco to thrive, our x orld and shared environment must also thrive:. We Believe that sotuid environmental policy recgtires use: of the latest and best .scientific &ta available. Accordingly, we commend the District forproposing amendments to District Rule 1401 that strive to incorporate the most up-to-date information available regarding the emissions perf€7rniance of today's GDFs_ As you knot,, ads=anew in enhanced vapor recovery (EVI�) technology in the past fey, decades bade literally changed the face of GDF regulation_ Onboard refueling vapor recovery (ORVR)• technology_ 13hich results in capture of greater than 951 of all organic vapors from a passenger car gas tank during refueling. is regpifed to be •www.Pill_ yla.v-_Orn 4SL-349=465:r1 Proposed Amended Rule 1401 34 August 2017 Em- Draft Staff Repo Ms.1Lalam Cheung July 25.2017 Page 2 installed on new passenger cars and is nolo present on the vast majority of cars on California's roads. In addition,. Phase 1 and; II EVR technologies installed ingasoline underground storage finks and gasoline pump nozzles, respectively, provide additional control of gasoline vapors di -placed from LSTs and vehicle gas tanks during refilling, further ensuring an extremely low VOC emissions profile at today's GDFs. Market penetration of these technologies has risen dramatically injust the last decade alone, meaning that estituates of GDF emissions today are now, thankfully_ far lower than estimates from ten years ago - Thus., Costco was very pleased to -v ork with the District and ARB over thatpast decade not only to implement EVR at its California GDFs, but also to gather thedata necessary to update the statevdde 1.700 and toxics emissions factors applicable to - GDFs. Prior GDF emission factors were adopted in 1999 and did not account for technological advances in Phase L Phase 11 and ORNIR technologies implemented over the next 15 years_ For that reason, ARB invited several air districts and other stakeholders to collaborate in a multi-year study of GDF emissions using current technologies_ As you knout. on December 23, 2013 ARB released its "Revised Emission Factors far Gasoline Nfarketing Operations at California Gasoline Dispensing Facilities- (ARB 201:3 GDF Factors)' updating emissions fact orsfor Phase 1 transfers and Phase H refuelin& and adding nein missions: sub -categories for Phase II refueling of OKVR-erluippedvelticles and gasoline dispens nLThase permeation_ We understand the. District participated closely in this process. Th relevant part, PAR 1101 seeks to update the District's new source review rule For task emissions -sources by requiring theme of proposed LSCA QNiD RiskAssessanent � Procedures N ersion 9.1 in risk assessments for all nein and modified spray Moths and GDFs. This Version 8.1 also proposes to incorporate all ofARB's updates to GDS' speciationprofrles and emissions factors exceptfor one: the factor for refueling of € OR�a-egiipped vehicles by Phase H -eq ipped pumps_ :AM has determined that rel heliug of non-GRVR-equipped vehicles bye Phase. 11 nozzles results in VGC emissions of 0,42 poundfl,000 gallons of gasoline throughput, and that refueling of -'-= ORVR-equipped vehicles by Phase H nozzles re.,sults in a lov, er emissions profile of H2.1 pound+l.000 galleins gasoline throughput. dere, the District's Version S.1 of the Risk Assessment Procedures proposes an emission factor of 0.42, poundil,000 ] galiovs gasoline throughput for refueling of JRNIR .vehicles Egon-ORt'R vehicles { at a Phase II nozzle. This v ould ass€ime that addition of t RNTR control provite�, nG emissions benefit whatsoe-ver- in reducing refileling emissions at a Phase -It pump. ] The ARB'' U GDF Factar3 docinu=_nt audit-, athachnients are ave able on ARB -3 website at hr �:•ih7�„-.0 Irb. a wrrtr.pay.oam 4sl2-34? 7052.r] Proposed Amended Rule 1401 35 August 2017 la -<iI Draft Staff Report Ms. k.alam Cheung July 2 , 2017 Pave 3 This would flatly contradict ARB. s studied finding in the 2013 :LRS GDF Factory document. As a result of its multi year analysis and study of GDF VOC emissions, ARB concluded that, while ORNTR -systems average p5% capture efficiency of gas 1 tank emissions during refueling (Le., capture of vapors in the onboard carbon canister fbr routing to the engine), the additional use of Phase II nozzle (v hich has its own 95°fe control ei�icienrt) will pre :tent escape ofmost of these remaininguncaptured I vapors into the atmosphere, See ARB 2013 GDF Factors, Attachment 1, p. 7 (95% ` control efficiency of Phase Hpro%vide s additional benefit to 95° ¢ control of ORVR)- Empirical evidence of the significant compound effect of multiple vapor controls taus established in a 2008 ARS e tpirical study, of emissions from ORIM equipped vehicle~ during refueling. ARB's. statdy found that the addition of Phase H cantrols to C>Ry R control provided cosi ly an order ofmag itude improvement in emission reduction. versus ORTTR control without Phase IL See California Air Resources Board; Ifeirun-ement of Gaso�ine t crvor Emissions Froin T"Micles Elptipped I All On Board P-gpor eczwer va p. 15, Table 7 (July2.4. 2009).' The table reproduced belay.r from ARB's 2008 atudy summarized the data comparing the two emissions scenario;: (see lm tpnge--) The NOSS AYJ3 _fumy can be found or ARH'a w4baite at fm: ine,:#_ ate] ee.;�o l iu'o unvad�'im --e :'i10000liCelial Ui rnz#a=.t epcntl''?�liS.ndf 4912-1492-71352.0 Proposed Amended Rule 1401 36 August 2017 Draft Staff Report ..ls. Kalam Cheung July 25' 2017 PaSe 4 - Table .1 Emissions data far.QFILVk tlehlcles h'o.'n ARBtests at gasoline- dispensing Fdr-0111e5 and hKMI EPAthlr tiuta(--tiu,r SHED test- As ARB's data shou<, t'OC ftllpipe emissions dudngreffieling ofOaUG UTinterFuel at a non -Phase ii equipped nozzle were estimated to be roughly.0.1 pound -1,000 . gallons gasoline thioughput (data line.1 ), while VOC fillpipe euussions during refi3eling; of CaRFG tTuit3ter Fuel at a Phase 1I-etluipped nozzle M=ere estisikated at4-01 poundt1,000gallons gasoline throughput (data line 3): Thus;. according to ARB, the additioi, pf Phase H control -,vhen refueling an ORZ R -equipped vehicle improved the overall V10C capture efficiency.bs 10 tines overuse of ORNR alone. This squarer contradicts the District's u_ -e: ofthe same. Omissions factor (0-42) for ORSiR � Phase H and for ORES. alone_ Itz Septeuiber 201 L ARB again concludedin a White Paper responding to EPA's proposed",vid,�,:pread use`` finding and Stage U t4 w er that.the use ofORVR iovether with Phase H control sigziiftcantly reduced ref telinE enissiqus versus use of C iVT- alohe_ ARB noted that emissions of hydrocarbons OC,'s *hen refiieliug a non-ORVR: vehicle froth a Phase H pump werenearr:40 times liner (0_38 pound?i,000 gallons gasoline dispensed) than when ORVIk control is added(0.01 rlvr�_put;�. y'1ay.cfm aS11244__7Q;_.tQ Proposed Amended Rule 1401 37 August 2017 c, � 3 E!IiA�fanss 16S P4 iono S}af3 m cd?W.0S@d t`a�ta3 „airrm-Fr Ei�t E F� � Tr Froce��Ct: Fu r;����; ss�s Ert�c,�on &��astgenrcnt� .; 9R.P ARS test Proc£'dme 2131:2 at jW. Wim, tfiWe0sing f ldfl eS- l ;ra �-t�fi,nw-_ o,�3±.0r, UCsi±e:t3 mam,d c sarsAt%s «,A '-'U'JI m:gJti:''ui f Fdp , wM Phav, it E`4R otZWO his t . ` �T is4 is h3. omm velqe,�-mr) E3�A�6tat=ut��� ��Yt2 vet�ct= ertr:`siotts'n�ar�it2ttEi:ic�dnsa.t� tt�� �r+cif<r�1.Te5t tar-a� ¢has N +s Tea9f"4 inJ�c 9.2,5 i.15 33,?t1=5fx7Ev4; x� 1C�s d�bt� € a�SX�'f_�=4itiEf €ii�'Ys t,4jn of veIIC1,� S ra4i qj:n 0 ?ati.'i% <_mdirc - 7,l. 0r 5 Hifi 4 s LS As ARB's data shou<, t'OC ftllpipe emissions dudngreffieling ofOaUG UTinterFuel at a non -Phase ii equipped nozzle were estimated to be roughly.0.1 pound -1,000 . gallons gasoline thioughput (data line.1 ), while VOC fillpipe euussions during refi3eling; of CaRFG tTuit3ter Fuel at a Phase 1I-etluipped nozzle M=ere estisikated at4-01 poundt1,000gallons gasoline throughput (data line 3): Thus;. according to ARB, the additioi, pf Phase H control -,vhen refueling an ORZ R -equipped vehicle improved the overall V10C capture efficiency.bs 10 tines overuse of ORNR alone. This squarer contradicts the District's u_ -e: ofthe same. Omissions factor (0-42) for ORSiR � Phase H and for ORES. alone_ Itz Septeuiber 201 L ARB again concludedin a White Paper responding to EPA's proposed",vid,�,:pread use`` finding and Stage U t4 w er that.the use ofORVR iovether with Phase H control sigziiftcantly reduced ref telinE enissiqus versus use of C iVT- alohe_ ARB noted that emissions of hydrocarbons OC,'s *hen refiieliug a non-ORVR: vehicle froth a Phase H pump werenearr:40 times liner (0_38 pound?i,000 gallons gasoline dispensed) than when ORVIk control is added(0.01 rlvr�_put;�. y'1ay.cfm aS11244__7Q;_.tQ Proposed Amended Rule 1401 37 August 2017 c, � 3 Draft Staff Report hls. I�alanz Chez;ug Tult 2S -?Oi7 Page S pound4,000 gallons gasoline dispensed), a3 shown in the below, excerpt from the White Paper: Tabid 2 . See. ARB S4'lrite Paper, P1•eltlitnta%3�:-lita&is of La S. ERI 's Prqposed Ryle. oft Drii ornzi R� aleiftt I{aPot' Recoi 2t } Mid Lim Det.w7nmation and C �t£ifo��Jirr's Er hmiro—d Vo orReroven,Requirewtents, p. 6 (Sept. 8_''011}.' -Iii its letter to EPA { accompanying the NXUte Paper; ARB argued againsst the removal of Phase IIECIR requirements in California despite EF X's finding of QRVR " , 4vid�—spread use," noting that `(flR� R) and :Stage JI (Phase II) are kotlt designed.to control the s°ehicle re_Fueliirg emissions and boil, are effective °' .See letter from 3ame-s G.oldstene to EPA Airaind R.adiatiou Docket.,.hd Trrfomation Venter.p. I (Sept. 8.201114 To date_ District staffhwe_ provided no empirical data or evidence to substantiate their rejection rfthe ARE 2013 GDF enussion factor for OR'.aRPhase H reftieling, nor has the District prov rind evidence or data to refute ARB's empirical anal sos. In the pubiic.:woricshotps. ou this rule District staff have repeatedly asserted that -they are "confidene that the ARB emissions factor is based on "double counting 11of emissions controls_ Staff fur ther;assert that their conclusion is based on in "engineering dMgreemeftf' with But District staff have. notpretented any empirical ;5 emissions data to s.wport these assertions, nor has ARB provided any public response to date as to the validity of District staffs claims. IVe believe it is prrbleruatic from a policy perspective for the District to adopt an eiuissiori factor in direct contravention of an emissions factor set.by ARB basked on empirical,evidence and years of analysis, particularly where the District is unable to 3 The lAite Paper A2,B letar to ER= can be found on RB.*s website s[. 2— See lick above for coag of NRB lacer to EPA. ww.v.p�lsw ylax' COM Proposed Amended Rule 1401 38 August 2017 Li; - spit .# lo F „,a _:'� t t�. �m-s icy; Fr in i'•y° r'f+ EV ' ;40Z -EVP �: fi it fir DRO 0.01 G.3� 0 o ,s f- 24 0,4 � � ni�> �.� See. ARB S4'lrite Paper, P1•eltlitnta%3�:-lita&is of La S. ERI 's Prqposed Ryle. oft Drii ornzi R� aleiftt I{aPot' Recoi 2t } Mid Lim Det.w7nmation and C �t£ifo��Jirr's Er hmiro—d Vo orReroven,Requirewtents, p. 6 (Sept. 8_''011}.' -Iii its letter to EPA { accompanying the NXUte Paper; ARB argued againsst the removal of Phase IIECIR requirements in California despite EF X's finding of QRVR " , 4vid�—spread use," noting that `(flR� R) and :Stage JI (Phase II) are kotlt designed.to control the s°ehicle re_Fueliirg emissions and boil, are effective °' .See letter from 3ame-s G.oldstene to EPA Airaind R.adiatiou Docket.,.hd Trrfomation Venter.p. I (Sept. 8.201114 To date_ District staffhwe_ provided no empirical data or evidence to substantiate their rejection rfthe ARE 2013 GDF enussion factor for OR'.aRPhase H reftieling, nor has the District prov rind evidence or data to refute ARB's empirical anal sos. In the pubiic.:woricshotps. ou this rule District staff have repeatedly asserted that -they are "confidene that the ARB emissions factor is based on "double counting 11of emissions controls_ Staff fur ther;assert that their conclusion is based on in "engineering dMgreemeftf' with But District staff have. notpretented any empirical ;5 emissions data to s.wport these assertions, nor has ARB provided any public response to date as to the validity of District staffs claims. IVe believe it is prrbleruatic from a policy perspective for the District to adopt an eiuissiori factor in direct contravention of an emissions factor set.by ARB basked on empirical,evidence and years of analysis, particularly where the District is unable to 3 The lAite Paper A2,B letar to ER= can be found on RB.*s website s[. 2— See lick above for coag of NRB lacer to EPA. ww.v.p�lsw ylax' COM Proposed Amended Rule 1401 38 August 2017 Draft Staff Report Ma. Kalun Cheung July 2017 Page d produce data or e -hence of its ottn to justify the rejection of ARB's hndings_ When the District disagree with ARB over eng[oexring conclusions that ar ammib le to emphical determination—especially as to enusstons factors that should have 1111ifonn statewide applicibilitg —use believe it is incumbent on District staff to work out their 1' t differences with ARB and ultimately defer to evidence and data_ We also believe that it is potentially dangerous ground for District staff to take a position suggesting- that Phase II controls have zero Benefit to controlling reftleling emissions versus use of ORXTR alone._ This position would have farther -reaching J � consequences for the District than just in this ru emak-mg. Ass the District knows, California opposed EPA's " vMespreaduse" &termination Indeed, in the' -10 16 Air Quality Management Plan, the District has ahead.- taken Basinwide credit for emissions reductions from CfDFs by applying the suite of -ARB 2013 GDFFactors see 2016 A 141P, Appendix III, pp- to 'putting the District in the position of potentially contradicting its otter AO �-Mp by only, selectively adopting come but not all ofthe ARB 2013 GDFFactors. As tae hate explained in the public t>F ork_3iops and working groups un P R 1401, Costco wholeheartedly agrees with the District's adoption of the ARB 2013 GDF Factors, but simply believes that the a.,ail able data from ARB supports adoption of au of the ARB factor, including the OMTRIPhase II factor. Costco agrees with District Staff s pasitioa that the GDF emissions factors themselves do not reclu ire actual rulemang, so we believe this one remaining oversight can and should be remedied by District Staff— if not in conjunction v.ith this rulernaldna then immediately following it. Everyone—the District, regulated entities, and the public—has a strong interest in = ensuring accurate emission inventories from the t!i=sajtds of GDFs acus t California. We all have a shared interest in ensuring evidence- andscience-based rulemaking. Udike mane of the policy debates tluat can sometimes emerge from ruleivaking, empirical issues like this can and should be resolved definitively and coDperatitelY, m order to avoid imnecessary administrative work- fixing those issues later- As al.tralr, Costco remains committed to worldng with the District to address these issues quickly and efridentty, so that bath the public and the regulated community have an accurate picture of the significant emissions reduction progress at gasoline pumps throughout the District. 5 heDi5hitt'sAQ?Y#F,:'.aa�ndis19is z• lab?eathtu::%r u�.:gam .earl <c;r � ,elf-_carte#L1=an- air--;) h---fW-C,-20 3016- - a'� i�?131eT3RPIl�y':-lL1.s'�.3L�3f TSA=�}. tiYVeNJ.� I��S: �S}'��h',CY3Tli 4912-349 2- 05 xl Proposed Amended Rule 1401 39 August 2017 � 12'�r O� Ms; Kalarn Ch-,ukg July 2-5.2017 Page. 7 Thank fou a g a in fbf the opporhmit=,, to wcwk- togg ther with the District on this inaportmt Ri& revision Ver -v tally }ours: *Michael S. McDonough w-IM.P111st-UO2ro-com 4412-94?_- 052cx I Draft Staff Report Proposed Amended Rule 1401 40 August 2017 1 a Draft Staff Report Response to Comment 2-1 As noted, staff from several districts including SCAQMD participated as part of the California Air Pollution Control Officer Association (CAPCOA) Vapor Recovery Subcommittee in the review of CARB's revised emission factors. At the time of release, CARB is also committed to continue its efforts to revise the newly released emission factors. Response to Comment 2-2 SCAQMD staff agrees that the ORVR system averages a 95% control efficiency of gas tank emissions during refueling, but disagrees that the use of a Phase lI nozzle could further control all emissions escaping from the ORVR system. The ORVR system has mechanisms to prevent vapor within a vehicle fuel tank from escaping via the fillpipe of the vehicle (i.e. a narrowed fillpipe to form a liquid barrier and a mechanical valve at the end of the fillpipe). The vapor that would have otherwise escaped through the fillpipe is directed to a carbon canister, which is the actual means of emission control of the ORVR system, to adsorb hydrocarbons contained in the displaced vapor. SCAQMD staff carefully reviewed the 2008 ARB study referenced by the commenter. The 2008 CARB study was conducted at an "ambient environment" (i.e. at a gasoline dispensing facility for a rental vehicle company). While the test was designed to evaluate fillpipe emissions, the study could not capture emissions from the on -board canister of the ORVR system. As the commenter correctly pointed out, the top pari of Table 7 lists the fillpipe emissions of refueling ORVR vehicles. SCAQMD agrees that for emissions that pass through the fillpipe, they would be controlled by the Phase II -equipped nozzle. The key to the different interpretations of the 2008 ARB study between the commenter and SCAQMD staff is that the study focuses on fillpipe emissions. As discussed above, the 2008 emission tests were conducted at the fillpipe exhaust where exhaust from the ORVR canister is not detected. Therefore, the 2008 study does not present total refueling emissions, which include emissions from both the fillpipe and the on -board canister for ORVR vehicles. Indeed, the bottom part of Table 7 lists the source test results from EPA/manufactures ORVR vehicle emissions measurement according to the Federal Test Procedure. Unlike the 2008 CARD, study, which was conducted in ambient conditions, the EPA tests were conducted using a sealed housing emissions device (SHED), where emissions from both the fillpipe and the on -board canister were monitored. The EPA study tested for 337 dispensing events. The fillpipe and on -board canister emissions together averaged to 0.25 lbs per 1,000 gallons. The table further shows a standard deviation of 1.15 which indicates the control efficiency of individual vehicle tested varies significantly from the average emissions of 0.25 lbs. per 1,000 gallons. The SCAQNM staff believes that there is a small amount of vapor that the Phase II EVR system will control during refueling of an ORVR vehicle. SCAQMD staff has been in communication with CARB staff regarding the refueling emissions factor. Both agencies agree that additional time is needed to better understand emission reductions from Phase II EVR for ORVR vehicles. SCAQMD staff is recommending not to incorporate CARB's 2013 revised emission factor for Phase 11 refueling of ORVR vehicles, but to continue the use of SCAQMD's current emission factor of 0,32 lbs per 1,000 gallons for refueling. Staff is recommending the use of CARB's 2013 emission factors for all other categories (loading, breathing, spillage, and hose permeation). Proposed Amended Rule 1401 41 August 2017 ` ^ 4 Draft Staff Report SCAQMD staff is committed to continue working with CARB staff to refine the emission estimates for Phase II refueling with ORVR vehicles and will return to the Board with future revisions to refueling emission factors. Response to Comment 2-3 SCAQMD staff agrees that "(ORVR) and Stage II (Phase II) are both designed to control the vehicle refueling emissions and both are effective." As discussed in the staff report, Phase 11 EVR is needed for non-ORVR vehicles to achieve the additional VOC reductions of 14.7 tons per day in the year of 2020, and 8.8 tons per day in the year 2028 and beyond. Also, California's Phase II program includes other emission control features, such as in -station diagnostics (ISD) and standards for nozzle liquid retention, dripless nozzle and spillage, in addition to the control of the vapors displaced during vehicle refueling. Thus, it achieves greater emission reductions than the federal Stage II program requirements, and the improvement it provides is essential to meet mandated federal ambient air quality standards. While both the ORVR and Phase II vapor recovery systems are effective, they target different fleets (ORVR vehicles vs. non-ORVR vehicles respectively) and different processes (ORVR controls refueling and evaporative emissions as compared to Phase lI EVR, which controls emissions at the fillpipe as well as nozzle operations such as spillage, drips, and liquid retention, and provides early diagnostic information via ISD). Response to Comment 2-4 Staff released the proposed emission factors for gasoline dispensing facilities in the first working group meeting, and provided the technical justification in the second working group. Furthermore, as discussed in Response to Comment 2-3, the 2008 CARB study only measured fillpipe emissions, while the EPA SHED study captured both fillpipe and on -board canister (from the ORVR vehicles) emissions. It is also important to point out that CARB's Phase II emission factor includes pressure driven losses from the storage tanks at a GDF. Whereas, the EPA SHED study does not include such emissions. As discussed in Comment 2-2, SCAQMD staff is committed to working with CARB staff on the refueling emission factor. Until then, S CAQMD staff is recommending not to incorporate CARB's 2013 revised emission factor for Phase 11 refueling of ORVR vehicles, but to continue the use of SCAQMD's current refueling emission factor of 0.32 lbs per 1,000 gallons. Response to Comment 2-5 See Response to Comment 2-3. Response to Comment 2-6 An emission inventory is a live document that gets updated when new information is available. For each AQMP, the emission inventory is developed using the best available information at the time of the development. For the 2016 AQMP, the emission inventory was "frozen" in late 2015 to allow time for conducting the modeling analyses. At that time, SCAQMD staff was having Proposed Amended Rule 1401 42 August 2017 (0a—S-42, Draft Staff Report ongoing discussions with CARB staff on the concerns regarding the emission factors for refueling and spillage. Information necessary to produce the emission inventory for the South Coast Air Basin is obtained from the SCAQMD and other governmental agencies, including CARB, the California Department of Transportation (Caltrans), and the Southern California Association of Governments (SCAG). While SCAQMD is responsible for developing the emission inventory for stationary sources, CARB is the agency responsible for developing the emissions inventory for gasoline dispensing facilities. In addition, the attain hent of the 2008 ozone standard mainly relies on NOx reductions. Even if the VOC emission reductions from Phase 11 refueling were overestimated, the change in VOC would not have resulted in significant impacts on the ozone concentrations in the design sites in the attainment year. More details about the ozone modeling approach and the ozone isopleths can be found in in the 2016 AQMP (Appendix V - Modeling and Attainment Demonstration, Attachment 4 8 -hour Ozone Isopleths for 2031). Response to Comment 2-7 S CAQMD staff agrees with the comment that this rulemaking should move forward and that once CARB and SCAQMD staff agree on an emission factor for refueling, the emission factor in the Risk Assessment Procedures can be updated at a later time. SCAQMD staff is committed to continue working with GARB staff to refine the emission factor for Phase II refueling. Proposed Amended Rule 1401 43 August 2017 t 0a 0 �- t r Science of the Total Enviromnent 650 (-1019)2239-2250 �g Contents lists available at SclonceDirect r Science of the Total. Environment J. s journal homepage: www.elsevier.com/locatelscitotenv ; Vent pipe emissions from storage tanks at gas stations: Implications for setback distances Markus Hilp-erta,`, Ana Maria Rule b, Pernat Adria -Mora', Tedmund Tiberi Deparonent of Environmental Health Sciences, Mailman School ofRiblicHealdt Columbia University, New York, NY 10032, United States ofAmerica Depamnent of Environmental Health and Engineering. Jolun Hopkins Bloomberg Sdhool of Public Health BaldInDrO. MD 21205, United States of America ARID Technologies, Inc., Wheaton, IL 601S7, United Stares of America H I G H L I G H T S At gas stations, fuel vapors are released from storage tanks through vent pipes. We measured vent pipe flow rates and tank pressure at high temporal resolu- tion, Vent emission factors were :>10 times higher than previous estimates. Modeling was used to examine exceed- ance of benzene short-term exposure limits. GRAI' HICAL ABSTRACT nrFr. miirU , i A R T I C L E I N P O A B S T R A C T Attide history; At gas stations, fuel vapors are released into the atmosphere from storage tames through vent pipes. Little is Received 3 July 2018 known about when releases occur, their magnitude, and their potential health consequences. Our goals were Received in revised form 11 September 2018 to quantify vent pipe releases and examine exceedance ofshort-terni exposure limits to benzene around gas sra- Accepted 23 September 2018 Available online 24 September 2018 tions. At two US gas sta dons, we measured volumetric vent pipe flow rates and pressure in the storage tank head - space at high temporal resolution for approximately three weeks, Eased on the measured vent emission and Editor: Pavtos Kassomenos meteorological data, we performed air dispersion modeling to obtain hourly atmospheric benzene levels. For the two gas stations, average vent emission factors were 0.17 and 0.21 kg of gasoline per 1000 L dispensed. KE34vords: Modeling suggests that at one gas station, a 1 -hour Reference Exposure Level (REL) for benzene for the general Gas stations population (8 ppb) was exceeded only closer than 50 m from the stations center. At the other gas station, the Benzeneemissions REL was exceeded on two different days and up to 160 m from the center, likely due to non-compliant bulk Setback distances fuel deliveries. A minimum risk level for intermediate duration (=14-361 days) benzene exposure (6 ppb) was Air oollution modeling exceeded at the elevation of the vent pipe opening up to 7 and 8 ni from the two gas stations. Recorded vent Itleasurements emission factors were -10 times higher than estimates used to derive setback distances for gas stations. Setback distances should be revisited to address temporal variability and pollution controls in vent emissions. �> 2018 Elsevier B.V. All rights reserved. Corresponding author at: Department of Environmental Health Sciences. Mailman School of Public Health, Columbia University;722 bVest 168th St.. New York, NY 10032, United States of America. C mall address: m13632@columbia.edu (M.Hilpert). hops:11doi.o g; 10.10 t 6;jscitorem� 3Un 8.09303 0048-9697,13 2018 Elsevier B.V. All rights reserved. 2240 1. introduction M. Hilpert et a). f Science of the Tura! Entlironment 650 (2019) 2239-2750 In the US, approximately 143 billion gal (541 billion L) ofgasoline were dispensed in 2016 at gas stations (EIA, 2017) resulting in release of unburned fuel to the environment in the form of vapor or liquid (Hilpert et al., 2015). This is a public health concern, as unburned fuel chemicals such as benzene, toluene, ethyl -benzene, and xylenes (BTEX) are harmful to humans (ATSDR, 2004). Benzene is of special concern because it is causally associated with different types of cancer (IARC, 2012). Truck drivers delivering gasoline and workers dispensing fuel have among the highest exposures to fuel releases (IARC, 2012). However, people living near or working in retail at gas stations, and chil- dren in schools and on playgrounds can also be exposed, with distance to the gas stations significantly affecting exposure levels (Terres et al., 2010; Jo 9? Oh, 2001; Jo S Moon, 1999: Hajizadeh et al., 2013). A meta- analysis (Infante, 2017) of three case -control studies (Steffen et al., 2004; Brosselin et al., 2009; Harrison et a1., 1999) suggests that child- hood leukemia is associated with residential proximity to gas stations. Sources ofunbumed fuel releases at gas stations include leaks from storage tanks, accidental spills from the nozzles of gas dispensers (Hilpert & Breysse, 2014; Adria -Mora & Hilpert, 2017; Morgester et al., 1992), fugitive vapor emissions through lealry pipes and fittings, vehicle tank vapor releases when refueling, and leaky hoses; all of which can contribute to subsurface and air pollution (H11pertetal.,2015). Routine fuel releases also occur through vent pipes of fuel storage tanks butare less noticeable because the pipes are typically tall, e.g., 4 m. These vent pipes are put in place to equilibrate pressures in the tanks and can be lo= cared as close as a few meters from residential buildings in dense urban settings (Fig, 1). Unburned fuel can be released from storage tanks into the environ- ment through "working' and "breathing' losses (Yerushalmi & Rastan, 2014). A working loss occurs when liquid is pumped into or out of a tank. For a storage tank, this can happen when itis refilled from a tanker truck or when fuel is dispensed to refuel vehicles (Statistics Canada, 2009) if the pressure in the storage tank exceeds the relief pressure of the pressure/vacuum (P/V) valve (EPA, 2005). P/Vvalve threshold pres- sures are typically set to around +3 and —8 in. of water column (iwc) (7.5 and —20 hPa), However, P/V valves are not always used, particu- larly in cold climates, as valves may fail under cold weather conditions (Statistics Canada, 2009). Breathing losses occur when no liquid is pumped into or out of a tank because of vapor expansion and contraction due to temperature and barometric pressure changes or because pressure in the storage Fig. 1. The three vent pipes (enclosed by the red ellipse) on the right side of the convenience store of a gas sration are <10 in away from the residential building. (Par interpretation of the references to color in this figure legend, the reader is referred to the web version of this article,) tank may increase when fiiei in the tank evaporates (Yef-ushalmi S Rastan, 2014; EPA, 2003). Although delayed or redirected by the P/V valve, breathing emissions can be significant and represent an environ- mental and health concern (Yerushalini & Rastan, 2014). Stage I vapor recovery systems, put in place to prevent working losses while delivering fuel to a station, collect the vapors displaced while loading a storage tank; redirecting them into the delivery truck. Stage 11 vapor recovery systems minimize working losses while deliver- inggas from the storage tank to the customer's car, Duringstage II vapor recovery, gasoline vapors can be released through the vent pipe, if the sum of the flow rates of the returned volume and ofthe fuel evaporating within the storage tank is greater than the volume of liquid gasoline dis- pensed (Statistics Canada, 2009). We refer to this scenario as pressure while dispensing (PWD). In theory, a properly designed Stage Il vapor recovery system should not have working losses, although in practice this is not typically the case (McEntire, 2000). Regulations on setback distances for gas stations are based on life- time cancer risk estimates. Several studies have assessed benzene can- cer risk near gas stations (Atabi & h4irzahosseini, 2013; Correa et al., 2012; Cruz eta1.,.2007; Edokpolo et al., 2015; Edokpolo et al., 2014; harakitslos et al., 2007). Based on cancer risk estimations, the California Air Resources Board (CARE) recommended thatschools, day cares, and othersensitive land uses should not be located within 300 ft. (91 m) of a large gas station (defined as a facility with an annual sales volume of 3.6 million gal = 13.6 million L or greater) (CalEPA/CARE, 2005). This CARR recommendation has not been adopted by all US states, and within states setback distances can depend on local government. Nota- bly, CARBregulationsdo not account for short term exposure limits and health effects. An important limitation of existing regulations is the use ofaverage gasolineemission rates estimated in the 90sthat do not con- sider excursions (CAPCOA, 1997), The main objective of this study is to evaluate fuel vapor releases through vent pipes of storage tanks at gas stations based on vent emis- sion measurements conducted attwo gas stations in the US in 2009 and 2015, including the characterization of excursions at a high temporal resolution (-minutes) and meteorological conditions at an hourly tem- poral resolution. in addition, we performed hourly simulations of atmo- spheric transport of emitted fuel vapors to inform regulations on setback distances between gas stations and adjacent sensitive land uses by comparing modeled benzene concentrations to four 60 -min benzene exposure limits; an acute Reference Exposure Level (REL) for infrequent (once per month or less) exposure (WHO, 2010) and Emergency Response Planning Guidelines ERPG-1, ERPG-2 and ERPG- 3 (A1HA, 2016). Finallywe compared simulated benzene levels to a Min- imal Risk Level (MRL) for benzene for intermediate exposure duration (14 to 364 days) (ATSDR, 2013) because thatduration window includes our duration of data collection. See Table i for the various benzene ex- posure limits and issuing agencies. 2. Methods Although we provide Sl unitconversions, we reportsome measures in English engineering units (ft, gal, and lb) as regulatory agencies such as CARR use these units, 2.1. Sites Data for this study were obtained from vent release measurements conducted at two gas stations as part of technical assistance to the gas stations to quantify fuel vapor losses through the vent pipes of their storage tanks. A motivation for conducting the measurements was to perform a cost -benefit analysis to compare the economic losses due to the lost fuel versus the cost of technologies that reduce the emissions. The exact location of the two gas stations is not revealed for confidenti- ality reasons. The gas station managers and staff who authorized the `D ® 1,Z Al. Hilpert er al. / Science of the Total rntdronment650 (2019) 2239-150 2241 Table 1 Benzene exposure limits, to which we compared simulation results. For unit conversion, the assumed a temperature of2.5'C, Le, I ppm = 3194 g/ma (CAPCOA, 1997 ,agency P1ame Value (ppb) Value ( gfm') Exposure duration California office of Environmental Health Hazard Assessment (OEHHA) REL B 26 111 American Industrial Hygiene Association (AiHA) ERPG-1 50 159.700 1 h AIHA ERPG-2 150 479,100 1 h AIHA ERPG 3 1000 3,194,000 1 h Agency forToxic Substances and Disease Registry (ATSDR) MRL 6 19 14 to 364 days ERPG = Emergency Response Planning Guidelines. The primary focus orERPGs is to provide guidelines fot'short-tern exposures to airborne concentradons of acutely toxic, high-priority chemicals. collection and analysis of these data have not been involved in the cur- rent manuscript. The first gas station, "GS -MW;' was located in the US Midwest and is a 24-hour operation, The study was conducted from December 2014 to January 2015 for20 full days, and fuel sales Vsn1a were about450,000ga] (1.7 million L) per month. Fuel deliveries to the gas station usually took place during the nighttime. The second gas station, "GS -NW;' was ki- cated on the US Noi thwestcoast and closed at night. Hours of operation were between 6:00 am and 9:30 pnn on weekdays and between 7 am and 7 pm on weekends. That study was conducted in October 2009 for 18 full days, and fuel sales were Vsol,,; -700,000 gal (2.6 million Q per month. Both gas stations are considered to be high-volume, because they dispense >3.6 million gal of gasoline (both regular and premium) per year (CaIEPA/GARB, 2005), and fuel was stored in underground storage tanks (USTs), which is typical in the US. Both gas stations had Stage ii vapor recovery installed using the vacuum -assist method, in that method, gasoline vapors, which would be ejected into the atmosphere as a working loss during refueling of customer vehicle tanks, are col- lected atthe vehicle/nozzle interface by a vacuum pump. The recovered vapors are then directed via a coaxial hoseback into the combined stor- age tank ullage (head space) of the gas station. Stage 1 vapor recovery was also used at both gas stations during fuel deliveries. Both sites had a 3 -inch diameter (7.5 cm) single above -grade vent pipe with below - grade manifold that connected the vent lines from several USfs; the cracking pressures of the P/V valves were set to +3 and —8 iwc (+7.5 and —20 hPa). 2.2. Ventemissionmeasurements To quantify evaporative fuel releases through the vent pipe of a stor- age tank, the volumetric flow of the mixture of gasoline vapor and air was measured in the vent pipe, A dry gas diaphragm flow meter (American Meter Company, Model AC -250) was used. For each cubic foot (28 L) of gas flowing through the meter, a digital pulse was gener- ated. Every minute, the number of pulses was read out and stored to- gether with date and time ona data logger, Gas flow meters were obtained from a distributor calibrated and equipped with temperature compensation and a pulse meter, To determine the time -dependent volumetric flow rate Q(t) of the gasoline vapor/air mixture through the vent pipe, the time series of measured flow volumes were integrated over an averaging period (15 or 60 min) and divided by the duration of that period, Le., Q(t) is given by the number of pulses registered by the gas flow meter in a time window multiplied by t cubic foot and divided by the averaging time. The 15 -minute averaging time was chosen to visualize time - dependent data, while the 60 -minute averaging time was chosen be- cause air pollution simulations were performed at that resolution. Gas pressure p in the ul lage of the storage tank was measured to as- sess vent emission patterns. For instance, releases can occur when the pressure exceeds the cracking pressure of the P/V valve in the vent pipe (the dry gas flow meter was fitted with a P/V valve on the outlet). Pressure was measured with a differential pressure sensor (Cerabar PMC 41, Endress + Hauser) every 4 s, and 2 -minute average values were stored. The sensor range was scaled from —15 to +15 iwc (-37 to +37 hPa), with a full scale accuracy of 0.20%. We also obtained 15 - and 60 -minute averaged tank pressure datap(t) where averages repre- sent the means of the 2 -minute average pressure measurements taken during each'time window. 2.3. Descriptive analysis For the 60 -minute flow rate, we calculated medians and inter quar- tile ranges (IQRs).To illustrate diurnal fluctuations in vapor emissions, we created box plots for the 60 -minute flow rate distribution thatoc- curred during each hour of the day. Spearman correlation coefficients between the time series for pressure and flow rate were calculated to evaluate whether pressure can be used to infer vent emissions. To estimate the mass flow rate of gasoline mY, that is released through the vent pipe in the form of a mixture of gasoline vapors and fresh air, we assumed, following the protocol of a study by the California Air Pollution Control Officers Association (CAPCOA) that assessed risks from fuel emissions from gas station (Appendix D-2 (CAPCOA, 1997)), that the density of gasoline vapors in this mixture is given by s (") = 0.3 x 6516 / 379 f13 = 0.824 kg/m3, Le,, the molar percentages of gaso- line and air were 30% and 70%, respectively. Then the volumetric flow rate Q can be converted into a mass flow rate of the vaporized gasoline: rl7gaa u Q To arrive at ventemission factors, we flrstcalculated the mean volu- metric flow rate Q, and then the mean mass flow rate rnga gas Q. From Che latter, one can calculate the vent emission factor EFFtnt Ingas Vsa1s For EFs,etC, GARB uses units of pounds of emitted gasoline vapors (also called total organic gases (TOG)) per 1000 gal dispensed, or more briefly Ib/legal where kgai stands for kilogallons. As we were not able to measure benzene levels in the tank ul lage, we assumed tike the CAPCOA study (Section C) that the density of the mix- ture of gasoline vapors and fresh air was mr,;v] =1.05 lb/ft3 = 1.682 kg/m3 and that the emitted gasolinevapor/air mixture contained 03% of benzene by weight (CAPCOA, 1997). Therefore, the mass flow rate ofbenzene through the vent pipe was estimated as follows: Inkm 0 003 inie Q 2.4. Air pollution modeling We used the AERMOD Modeling System developed by the US Envi- ronmental Protection Agency (EPA) to model the dispersion of benzene vapors released into Che environment through ventpipes of fuel storage tanks and from other sources (Cimorelli et aL, 2005). AERMOD simu- lates atmospheric pollutant transport at a 1 -hour temporal resolution. 3D polargrids were createdwitli the gas station in the origin and poten- tial receptors at different radial distances (up to 170 m) and angles (10° 2242 M. Hilperr ead. I Science of the Toral Environment G50 (2019) 2239-2250 increments). The grids were placed at the ground level (z =0 m), in the breathingzone (z = 2 m), and at the 2nd floor level (z = 4 m) where the vent pipe emissions were assumed to occur. The topography was simplified for modeling purposes consistent with the CAPCOA study (CAPCOA,1997), i.e., the terrain was assumed to be flat with no build- ings present. Vent pipe emissions were modeled as a capped point source. Chemical reactions of benzene were not modeled, as residence times of atmospheric benzene are on the order of hours or even days (ATSDR, 2007), i.e. much longer than the travel time of benzene vapors across the 340-m diameter model domain. For the period of time when vent emission measurements were made, we obtained meteorological data ata 1 -hour temporal resolution that are representative for the geographic locations of the two gas sta- tions. Table SI -1 provides descriptive statistics of Chat data. The time se- ries were used in AERMOD to model the transport of benzene in the temporally varying turbulent atmosphere. We also used the 1 -hour av- erage time series of benzene emission rates (Eq. (3)) as an input into AERIVIM To evaluate ateach grid pointwhetherOEHHA'sacute RELorA1HA`s ERPG levels were exceeded at least once, we determined maximum ]- hour average benzene concentrations that were simulated for a bout three weeks. To evaluate how often the OEHHA REL was exceeded at each grid point in the breathing zone, we created plots indicating the number of exceedances and the day when the maximum benzene level was observed. To facilitate comparison to published benzene measurements around gas stations, we determined for each simulated radial distance from a gas station the mean of the average concentrations simulated for each ten degree increment on the radius around the gas station. 3. Results: vent releases 3.1. Times series of tonk pr ensure and ow rate Fig.2 shows the time -series data for the volumetricflow rate Qof the gasoline vapor/air mixture through the vent pipe and tank pressure p that we collected at the two gas stations. At GS -MW, little vapor was typically released in the late night and in the very early moving, while releases were generally much higher during the daytime and eve- nings, presumably when more fuel was dispensed (Fig. 2a). Occasion- ally, no vapor releases occurred for several hours. While we do not have access to time of fuel delivery records, field visits indicate that time periods with no releases coincide with fuel deliveries. Forinstance, fuel delivery likelyoccurred on January 6 at7 pm (see Fig 3a: an ampli- fication ofdata shown in Fig. 2a). As a result, the UST pressure dropped by about 10 hPa, far below the cracking pressure of the P/V valve, The decreased gas pressure in the ullage increased until the cracking pres- sure of the P/V valve was reached. A very small vapor release (-2 L/min) was observed briefly on the next day at 2 am. The vapor flow rate becomes relatively large again, -12 L/min, only after 6 air, i.e., 11 h after fuel delivery. Fig. 3b amplifies a major vapor release at GS -MW. The UST pressure significantly exceeded the cracking pressure of the P/V valve and rose rapidly up to 37 hPa, which coincides with vapors being released at a high flow rate (15 -min average) of about 470 L/min. AtGS-NW, vapor releases followed a quite differentpattern (Fig. 2b), Contrary to GS -MW, vapor releases occurred in a cyclical pattern, and tended to be higher in the late night and in the very early morning when the gas station was closed. 3.2. Statistics of vapor emissions The average volumetric flow rate Q through the vent pipe forthe en- tire period of time during which measurements were taken was Q = 7.9 L/min for GS -MW and i7 = 15.4 L/min for GS -NW, which is consistent with the higher sales volume of GS -NW. These emis- sions consist of a mixture of gasoline vapors and air, Using Eq. (1), the volumetric flow rates were converted into average mass flow rates of gasoline: Tn. = 0.39 kg/h for GS -MW and mgr = 0.76 kg/h. for GS - NW. Using Eq, (2); we determined a vent emission factor EF„e„r= 0.17 kg per 1000 L = 1.4 lb/kgal for GS -MW and EF,.F,,,= 0.21 kg per 1000 L = 1.7 lb/I<gal for GS -NW. The medians (IQRs) for the 60 -minute averaged flow rate Q (L/min) were 6.1 (1.9,10.9) for GS -MW and 16.0 (12.7,18.4) for GS -NW. For GS - MW, the mean is larger than the median, indicating a more skewed dis- tribution of flow rates when compared to GS -NW. Also the first quartile is much lower than the median for GS -MW, indicatingthat there arepe- riods of time during which little emissions occurred. Conversely, GS - NW was releasingemissions more consistently. Fig. 4a shows boxplots illustrating the distribution of flow rate Q for each hour of the day at GS -MW. Less vaporwas released between 10 pm and 4 am; even though the gas station was in operation, albeit at lower activity levels. The flow rate Q at GS -NW (Hg, 4b) had fewer outliers, and the highest outlier was an order of magnitude lower than the highest one at GS -MW. Emissions were highest between 1 and 3 am, when the gas station was closed, The Spearman correlation coefficients between tank pressure p and vent flow rate Qwere r = 0.58 for GS -MW and r = 0.85 for GS -NW. Thus, vent releases are moderately and strongly correlated with tank pressure, respectively. Table 2 summarizes statistical properties of vent emissions at the two gas stations. 4. Results: air pollution modeling 4.1. Emission sources and rates Vent pipe emissions of benzene were modeled at a 1 -hour temporal resolution as described in Section 2.4. However, they are not the sole source of gasoline emissions at gas stations. Accidental spills from noz- zles regularly occur near the dispensers, "refueling losses can occur when gasoline vapors are released from the vehicle tank during refueling due to the rising liquid levels in the tanks, fuel vapors are re- leased from permeable dispensing hoses, and "fugitive” or leakage emissions occur with driving force derived from storage tank press -are, In Section A of Supporting material, we detail how these other emission sources were modeled. Table 3 summarizes estimated mean emission rates. Note that the vent pipe losses are mach greater than other tosses. 4.2. Predicted benzene levels Fig. 5 shows for both gas stations and at each grid point the maxi- mum 1 -hour average benzene concentration observed during the simu- lated periods in time. Benzene levels depend significantly on elevation within a 50 -meter radius around the centers ofthe gas stations. Close to the centers of the gas stations, benzene levels are higher at the 4-m elevation and at ground level due to vent pipe emissions, which repre- sent the largest emission source (Table 3). Further than 50 m away Brom the center, the vertical concentration differences become less obvi- ous due to dispersion causing vertical mixing of benzene vapors. At GS -MW, the 1 -hour- acute REL of 26 9/0 was exceeded 160 m away from the center of the gas station, at the location (x = 158 m, y = 28 m) both at ground level and in the breathing zone. At grid points with a distance >50 in from the center of the gas station, the REL was exceeded at most once (Fig. SI -1 a). How- ever, the exceedance at different grid points did not occur on the same day (Fig. Si -1b). Within the 20 days during the measure- ment campaign, exceedances occurred on the 4th and 13th of January. At GS -NW, the furthest REL exceedance occurred at 50 in from the center of the gas station at the grid point (x = —38 m, y = 32 in) as A Hilperr eral./ Science of the Total Ent jrajjn7ejjt650 (2019)2 -?392250 2243 SMENEIP-Q; 600? -r -0-6e f3OO?-],')O-)-e stow-uef 13 6 -Ino 0oz -9a 6003-po-s? 4- E 600L7 -130-E2 E 60OB-po-iTE Ei 5103 utlr Zt -= 6003-Ino-te 940-Usr- 6003-WO-03 600-po-a qio�;-usrEo 4-: 9 l03-UBr-L() 9, 600? -Po - !3 Lo-e-unr-90 600Z-IDO-sL 6009 -Po -?L co0Z-En0 EG gto-;-u-er-zO swEi-uurto �j 0 0 P (8dLI) d d ev 2244 8 s ILL f a� 0 .2 C c (a) 40 ISO N M20 n l0 n �C M. Hilpert et al. f Science of the Totat EnOronment G50 (2019) 2239-2250 E v c D. 0 (b) Fig. 3. Amplifications of time series data(] 5 -minute averages) for GS -MW. (a) Tank pressurep hecame negative after fuel delivery. Asa result, ventemission ceased for several hours. (b) A major vapor release ( burst) likely occurred when Che cracking pressure of the PN valve was significantly exceeded at around 9 pm during a non-compliant bulk fuel delivery. 200 ,o q fill , tt 5. a c x � too so x . x o r N M n to r ,-- - N _ N N N N N m O N 4 T T m G7 O N m N N N Hour of the Day 30 25 I 1 20 o r _ f l t 1 t) t N O of M m O N O] N N N N Hour of the Day Fig. 4. Distribution ofvent emissions Q observed foreach hour of the day at (a) GS -R4 W linsertshows theiQRs of Q) and (b) GS-NWgasstations. In (a), outliers make it difficult to recognize variations in median hourly emissions. We therefore plotted in the insetonly the IQRs. Boxes indicate median and IQR, whislters values within 1.5 the IQR, and asterisks outliers. M. Hilpertcr at. / Science of thcTotnl Environment 650 (2019)2239,2250 Table 2 Summaryof gas station characteristics and vent emissions. GS -MW — nnnr 2245 ---- Volumeaic flow rates vau,vuu 700,000 gal/month (ofgasoline vapory'air mixture) Meane Median OQR) of60-min averageL/min 7,9 65 (1.9, t D.9) 15.4 Maximum of 60 -min average 254 16.0 (12-7, 18.4) L/min vent emission factor EF,.,,, 7,4 33.1 L/min Mass Flow rates of gasoline (w,ro air) 1'7 Ib/legal Mean r t 0.39 0.76 Maximum of60-min average 12.3 kg/h Correlation coefficient 1.6 gg/h Between Qand p 0.55 O.SS shown in Fig. S1 -2a. At a distance of 40 in, the REL was exceeded three times at one grid point (260' angle), and at 35 in four times at two grid points (250' and 260° angles) (Fig. SI -2h). At a distance of 20 in, the RELwas exceeded at30 (outof36) grid points, and on nine different days. Average benzene levels are shown in Fig. 6 for both gas stations. The MRL is exceeded at the elevation of the vent pipe opening z = 4 in, up to 7 in away from fol' GS -MW and up to 8 in from GS -NW. Fig. 7 shows the average benzene concentration as a function of distance at an eleva- tion of 2 in. Close to the center, benzene levels first increase and then decrease, 5. Discussion S.T. i/enteinission factors We present unique data on vent emissions from USTs at two gas sta- tions, Emissions can be compared to vent losses assumed by CAPCOA (CAPCOA, 1997). For a gas station with Stage I andll vapor recovery rech- nology and a P/V valve on the vent pipe of the UST (Scenario 6B), the CAPCOA study assumed loading losses of 0.084 and breathing losses of 0.025 lb/l(gal dispensed. The total loss of gasoline through the vent pipe is tite sum of the two and amounts to a vent emission factor EF. „ r 0.109 lb/legal. Based on actual measurements in two fully functioning US gas stations, we obtained EF;'„[ values of 1.41b/((gal for GS -NRA/ and 1.7 Ib/legal for GS -NW, more than one order of magnitude higher than the CAPCOA estimate, While the difference between our measurements and the CAPCOA estimates may appear surprising, it is important to con- sider that the CAPCOA estimates are based on relatively few measure- ments and some unsupported assumptions (Aerovironment, 1994), pardcularlywith regard to uncontrolled emissions due to eq uipm ent fail- ures or defects (AppendixA-5(CAPCOA, 1997)), 5.2. Pressure nleasurentetrts Tank ullage pressurep was moderately to strongly positively cor- related with ventflow rate Q likely because exceedance ofthe crack- ing pressure of the P/V valve causes a vent release. Thus pressure Table Mean benzene emission ratesmt_ forthe two gas stations. Emission source Benzene emissions (ntg/s) Gas station GS -MW GS -NW vent pipe 0.80 Spillage 0.39 0.65 Refueling 0.41 0.69 Hose permeation 0.06 0,70 1 o[at 1.667 2.90 measurements can be used to infer vent releases. Real-time detec- tion of equipment failures and leaks via so-called in -station diagnos- tics systems is based on our observed correlations between p and Q, 53. Diuriral uctuatiotuin velltemissions Diurnal vent emissions were quite different-atthe two gas stations. At GS -MW, a 24-hour operation; vent emissions were high during the daytime, presumably due to PWD. Emissions ceased at night, likely be- cause less gasoline was dispensed and fuel deliveries with relatively cool product were frequent, Evaporative losses could also have been lower at nightbecause the cooler delivered fuel would cause slight con- traction of the liquid phase with correspondinggrowth in the ullagevol- ume while at the same time lowering the vapor pressure ofgasoline in the UST At GS -NW, vent pipe releases occurred most of the time, during the daytime when fuel was dispensed (PWD) and at nightwhen the gas sta- tion was closed. Vent releases wefe higher when the gas station was closed, suggesting that during the day -time Stage 11 vapor recovery re- sulted in the injection of vapors into the storage tank that were not completely equilibrated with the liquid gasoline. During night-time, the gradual equilibration of unsaturated air in the ullage of the UST with gasoline vapors could then have caused exceedance of the cracking pressure of the P/V valve and consequently vapor release. It seems counterintuitive that less nighttime emissions occurred at the gas sta- tion where fuel was dispensed, However, while fuel is being dispensed, the outgoing liquid creates additional ullage volume, and depending on excess air ingestion rate, a negative pressure could result that lowers vent pipe emissions. Dispensing fuel to customer vehicles and the associated Stage 11 vapor recovery system interact with vent emissions and can even cause vent emission during PWD, because the vacuum -assist method can negatively interfere with Onboard Refueling Vapor Recovery (ORVR) installed in customer vehicles (EPA, 2004). However, Stage Il vapor recovery is not obsolete. it can be used in conjunction with ORVR to minimize exposure of gas station customers and workers to benzene due to working losses (Cruz -Nunez et al., 2003), particularly when customer vehicles are not equipped with ORVR (e.g., older vehi- cles, boats, motorcycles) m• small volume gasoline containers are refueled. Enhanced Stage 11 vapor recovery technology cansignificantly reduce vapor emissions both at the nozzle and from UST vent pipes (CARR, 2013), 5.4. Fuel deliveries and accidental vent releases Based on observations and interpretation of time series of the tante pressure data, it is likely that the peal(vent emissions (e.g., Fig. 3b) were partly due to non-compliant bulk fuel drops where the Stage i vapor recovery system either was not correctly hooked up by the deliv- ery driver or to hardware problems with piping and/or valves. This 2246 Al. HiipertetaL sclencenfrheT'otaIEuvirunment650(2019)2239-1250 GS -MW GS -NW lcnYA Ito j t 10: 1rn - 7 00 --_.'14C, I. ga4 za "o FA zo too sc -u:r• i ,y .15C ;n I _150 ; -i66 .f�ti0 .r� n oq 10.3 tEC' -150 .100 r.0 n.._.,. __.—..._. Su ]Gotf _.— u 0 Iso au X1:5 Im I ! 0j t00 i Ir CV JO 0 25 -5a , n -QUO 1 5 40 -ion I60 10 1 60 i I -- - - - •160 -IOC •50 a -- i�0 100 1b0 •'S[1 -100 -00 p .-. 100 ''-il0 53 j - 1 19 'Go �M;b IG'} 1 Jn,-:: ii Ia0 5D I id3 I ;i85 ! 7 ltra $u �n E 20 t 00 ca I 15 -IC0 I IJ i`.Q h} -150 -:00 -50 0 55 100 156 -i E9 -100 -50 0 to 100 160 Fig S- Modeled maximum benzene concentrations for GS -MW benzene levels In unit, of 910, Left column: time series ofbenzene and GS -NW a t Lhree dl fiereut elevations emission rates z*tile x- and y-axes indicate horizontal coordinates in meters. Tile color indicates indicates 0[HHA's act¢e REW26 g/m3 — 8 ppb. were used. Ri;htcolullm: average benzene emissionratewasusediuthemodeling.Thev✓htteiso(ine conjecture is consistentwith typical us storage tank volumes (-•10,000 to 30,000 gal). Assumingthat Phase I vapor recovery did not work at all and that 10,000 gal (-38,000L) of fuel were delivered, the workingloss (volume of gasoline vapor/air mixture released to the atmosphere through the vent pipe) is 38,000 L. It is also reasonable to assume that delivery tasted less than 111. AccordingtoTable 2, the maximum hourly flow rate through the vent pipe was 250 L/min at GS -MW, which would result in a maximum cumulative vapor release of 15,000 L within this houT.The measured maximum cumulative release underestimates the assumed working loss of 38,000 L. This could be due to a fuel delivery, which involved dropping fuel from multiple compartments of a tanker truck, with the vapor return hose not being correctly hooked up for only some of the emptied compartments. AtGS-M W, UST pressure decreased after fuel delivery (causing vent emissions to cease For several hours) during the climatic conditions prevalent during the observation period, behavior notobserved at GS - NW, in practice, it is possible to observe both positive and negative pres- sure excursions, even during the same fuel delivery (when multiple fuel ka®1 A Hil perret al. I Science of the 7 otal [nvironmenr 650 (2019)2-739-2250 GS—MW GS—NW 2247 compartments of tanker trucks are unloaded), when Stage I vapor re- covery is in place (personal observation by TT). 5.. Exceedance of l-hourexposure limits AERMOD air pollution modeling suggests that at GS -MW the 1 - hour acute REL was exceeded at one grid point 160 m (525 ft) from the center of the gas station once in 20 days (Fig. 5), ']'his distance is larger than the 300 -ft (91 m) setback distance recommended by CARR for a large gasoline dispensing Facility (CalEPA/GARB, 2005). Assuming the gas station's fence line is <225 ft. (69 m) from its cen- ter (where the vent pipe was assumed to be located), our study shows that sensitive land uses at a distance further than 300 ft from the Fence Iine of the gas station would represent a health con- cern despite compliance with the CARR guidelines because of non- compliance with die acute REL. � r' Yqa, c� �4-� ia I=s Ill I � - OS '' -50 .40 .A -21) -10 0 10 20 30 •10 la -60 •80 < -20 -10 0 10 20 30 40 5b W__—_ ____— _..-_�.__. a ..5 -''� I �.---'— 3.6 N I 0+ !( 3 10Ih�' 1 3 '10 i - 2 i -30 IIMF i -40 0.5 -40 �. 05 -50 .4 30 @0 1D 0 IG 20 3o SO 50 -50 .40 -30 -20 •io n 10 20 30 =10 50 40 I l e.y 40 t �C t fi '.4 30 r I ` cD_ it 3 I' - II to I o tG 27 20 I i i 1� •2: � ( 15 .30 1 I -40 ? � ' J 5 -40 i t7.n - a -Gtr - - �- - _-- - ---- —•-- - ----- o •50 -40 .30 -20 -10 0 ID 20 30 40 $0 - ? -X10 -30 •20 •10 0 10 20 30 '!0 50 Fig. G. Madel ed average benzene concentrations for GS -A•1 W and GS -NW a t three different elevations z. The x- and y-axes Indicate horizon taI coordinates in meters. The color indicates benzene levels in g/m' and rlle white isoline the MRL of 79 g(mi = G ppb. compartments of tanker trucks are unloaded), when Stage I vapor re- covery is in place (personal observation by TT). 5.. Exceedance of l-hourexposure limits AERMOD air pollution modeling suggests that at GS -MW the 1 - hour acute REL was exceeded at one grid point 160 m (525 ft) from the center of the gas station once in 20 days (Fig. 5), ']'his distance is larger than the 300 -ft (91 m) setback distance recommended by CARR for a large gasoline dispensing Facility (CalEPA/GARB, 2005). Assuming the gas station's fence line is <225 ft. (69 m) from its cen- ter (where the vent pipe was assumed to be located), our study shows that sensitive land uses at a distance further than 300 ft from the Fence Iine of the gas station would represent a health con- cern despite compliance with the CARR guidelines because of non- compliance with die acute REL. � r' 2248 E M. Hilperr et al. / Science of the Total Enviromnent G50 (2019) 2239-2250 — GS -tow 1 20 40 60 80 100 120 140 160 Distance frorn center of gas station (m) Fig. 7. Mean benzene concentrations as a function of distance from the center of tlhe gas stations. At any location further than 50 in from the gas Station's center, the REL was exceeded at most once during the 20 -day measurement cam- paign (Fig. SI -la). However, exceedance occurred atseveral locations, and on two differentdays (Fig. SI -1b). E.g., ata distance of 120 m firoin the center, the REL was exceeded at three grid points, and the number of grid points increased with closer proximity to the gas station. This suggests that it was not just a single worst-case scenario ora single ac- cidental vapor release that led to REL exceedance; rather exceedance may occur more frequently than is anticipated. Prevalent wind direc- tions during the measurement campaign explained the directional pat- tems of exceedances (see the wind rose in Fig. Sl -3a). At GS -NW, despite its higher sales volume, the REL was exceeded only closer than 50 m from the gas station's center. However, exceed- ance occurred much more frequently (Fig. SI -2), likely because of the higher sales volume of GS -NW. Again, the wind rose for GS -NW (Fig. Sl -3b) explains spatial patterns of REL exceedance. None ofAIHA's three ERPG levels were exceeded, meaning that indi- viduals, except perhaps sensitive members of the public, would not have experienced more than mild, transient adverse health effects. 5.6 Average benzene levels The initial increase in average benzene levels when moving away from the gas stations' centers (Fig: 7) is likely due to the vent emissions (at 4 m) which representthe largest benzene source, and which require a certain transport distance until they reach the 2-m level through dis- persion. Furthera way from the gas station, benzene levels are Higher for GS -NW than for GS -MW likely because of the higher sales volume ofGS- NW. However, close to the center, benzene levels are hfglher at GS -MW. This can be attributed to the higher wind speeds at GS -NW (Table Sl -1), which result in greater initial dilution of emitted pollutants in the in- coming airstream and also in greater subsequent pollutant dispersion_ Modeled average benzene concentrations are generally lower (-10 g/0 or less) than those measured in the surroundings of gas stations, likely because our simulations do not account for traffic -related air pol- lution (TRAP). For Instance, a study published by the Canadian petro- leum industry found average benzene concentrations of 146 and 461 ppb (466 and 1473 g/m2) at the gas station property boundary in summer and winter, respectively (Akland, 1993), values orders of magnitudes higher than ours, A South Korean study examined outdoor and indoor benzene concentrations at numerous residences within 30 in and between 60 and 100 in of gas stations and found median out- door benzene concentrations of 9.9 and 6.0 g/m3, respectively (lo & Moon, 1999), while we simulated benzene levels on the order of 7 g/ m3 (Fig. 7). In a study on atmospheric BTEX levels in an urban area in Iran, the three highest BTEX levels were measured near gas stations (-150 m away); the measured benzene levels (64 ± 36, 31 i 28, 52 ±26 g/m) were again much higher than ours simulated at that dis- tance, likely due to TRAP, Our modeled average benzene levels at a dis- tance ofabout 50 in are on thesame order as background benzene levels of 1.0 g/m'' that were measured in 2010 in the National Air Toxics Trend Sites (NATTS) network of 27 stations located in most major urban areas in the US (Strum & Scheffe, 2016). However, our modeled levels at a distance of 170 in were 0,07 at GS -MW and 0.12 at GS -NW, a non -negligible addition to urban background levels. At both gas stations, the MRL was exceeded at the level of the vent pipe opening in the vicinity of the gas stations, up to 7 in away from the vent pipe at GS -MW and 8 m at GS -NW. Therefore there might be an appreciable risk of adverse noncancer health effects for individuals living at the 2nd -floor level relatively close to high-volume gas stations such as GS -MW and GS -NW. 5.Z Limitations A limitation of our study is that data were collected only in fall and winter. Results cannot be easily extrapolated to other seasons, because vent pipe emissions are seasonally dependent, e.g., due to seasonally de- pendent gasoline formulations and meteorological conditions. How- ever, modeled exceedance of the OEHHA acute REL in the winter season is already of concern, because that REL was developed for once per month or less exposures. Another limitation is that we did not directly measure benzene levels in the vent pipe, and instead made assumptions about vapor com- position that were also made in the CAPCOA study (CAPCOA, 1997) of gas station emissions. In practice it may be difficult to obtain permission from gas station owners to measure benzene levels directly - In part because we did not want to reveal the locations of the gas stations, we did not use site-specific topography information in the air dispersion modelingand instead assumed flat terrain. While this simpli- fication resultsin less accurate air pollution predictions for the two sites, using a "generic" gas station is perhaps more representative of other gas station sites, and isconsistentwith an approach used in a previous study (CAPCOA, 1997). Finally, our study did not predict benzene levels in indoorenviron- merits, Even though indoor air polludon levels maysubstandally differ from outdoor levels due to indoor sources (e,g., smoking, photocopying) (El-Hashemy S Ali, 2018), ourstudy can still inform exposure levels In indoor environments as outdoor sources maybe the main contributors to indoor air pollution, e.g., in buildings situated in urban areas and close to industrial zones or streets with heavy traffic Qones,1999).This is rel- evant to workers and customers in C -stores or other fast-Food/gasoline station combination facilities. 6, Conclusions Ourstudy is to the best of our knowledge the first one to (1) report hourly vent emission data for gasoline storage tanks in the peer- reviewed literature and (2) use these data in hourly simulations of at- mospheric benzene vapor transport This allowed us to examine poten- tial exceedance of short-term exposure limits for benzene. Priorstudies including CAPCOA's (CAPCOA, 1997) could not do so as average emis- sion rates were used (only meteorological data was used at an hourly resolution). Ourfindings support the need to revisitsetback distances forgas sta- tions, which are based on 52 -decade old estimates of vent emissions (Aerovfronment,1994). Also, CARB setback distances are based on a bi- nary decision, related to whether the gasoline sales volume Vsohs is %3.6 million gal per year. Our data support, however, that setback M, Hilpenreral. I science of the Total E•nvirormenr650(2019) 2239-2250 distances should be a continuous function oFsales volumeVsai, and also include the type of controls installed at the facility. Setback distances should also address health outcomes other than cancer. OEHHA's acute REL forbenzene could be used to inform setback distances as it ac- counts for non -cancer adverse health effects of benzene and its metab- olites (Budroe, 2014). ATSDR's MRL could also be considered since it is a health -based limit. We note that CARB recommended their setback distances in 2005, presumably assunlingpollution prevention technology yielding a 90% reduction in benzene emissions (CaIEPA/GARB, 2005). Since then, CARR further promoted use of second -generation vapor recovery tech- nology (Enhanced Vapor Recovery, EVR) to reduce emissions further. EVR includes technology that is supposed to prevent fuel vapors in overpressurized tanks from being expelled into the atmosphere (CARB, 2017). To that end, "bladder tanks" have been proposed, into which the gasoline vapor/air mixture is directed as the pressure in the combined ullage space of the storage tank increases, and from which the mixture is redirected into the fuel storage tanks if the ullage pres- sure becomes negative (when fuel is dispensed), The challenge with such a system is to ensure that the bladder tank capacity is not exceeded by the fuel evaporation rate. Alternatively, fuel vapor release can be re- duced by processing the fuel/air mixture through either a semi- permeable membrane which selectively exhausts clean air and returns enriched fuel vapor (Semenova, 2004) or an activated carbon filter which adsorbs hydrocarbons (and water vapor) and exhausts air into the atmosphere, or by combusting the fuel/air mixture which would otherwise be released through the P/V valve. Therefore, current CARB setback distances might be adequate for gas stations in California but less so for the other 49 US states, and other countries -depending on pollution prevention technology requirements. The larger areal extentof modeled REL exceedance at GS -MW is due to "accidental' releases of gasoline vapors. Even though regulations ap- pear generally not to be driven by accidental releases, at GS -NW such releases likely led on two different days to RELexceedances at distances beyond CARB's recommended setback( distances. Policies should ad- dress accidental fuel vapor releases that depending on pollution preven- tion technology (here Stage l vapor recovery) and its proper functioning can occur on a frequent basis (twice at GS -MW within about three weeks). In future work, potential exceed ance of other shorter -term exposure limits should be examined, e.g., the 15 -minute short-term exposure limits (STELs) and the 8 -hour time -weighted averages (TWAs) used for occupational exposures. Aclmowledgements This work was supported by NIH grant P30 ES009089 and the Envi- ronment, Energy; Sustainability and Health Institute at johns Hopkins University. Competing nancial interest declaration TT directs a company (ARID), which develops technologies for re- ducing fuel emissions from gasoline -handling operations. AMR, BAN and MH have no conflicts of interests to declare. Appendix A. 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WHO, 2010. WHO Guidelines for Indoor Air Quality: Selected Pollutants, World Health Organization, Geneva. Yerushalmi, L, Rastan, S., 2014. Evaporative losses from retail gasoline outlets and their potential impact on ambient and indoor air quality. In: Li, A., Zhu, Y. Li, Y. (Eds.), Pro- ceedings of tine 8th International Symposium on Hearing, Ventilation and AirCoidi- tioning. Indoor and Outdoor Environment Vol. 1. Springer Berlin Heidelberg, Berlin, Heidelberg, pp. 13-21. Q—Lo3 1.a-L®q DAY AREA AIR QUALITY MANAGEMENT DISTRICT 375 BEALE STREET, SUITE 600 SAN FRANCISCO, CA 94105 This document describes the Bay Area Air Quality Management District's guidelines for conducting health risk assessments. Any health risk assessment (HRA) that is required pursuant to Regulation 2 Permits, Rule 1 General Requirements or Rule 5 New Source Review of Toxic Air Contaminants shall be conducted in accordance with these Air District HRA Guidelines. In accordance with Regulation 2-5-402, the Air District HRA Guidelines generally conform to the Health Risk Assessment Guidelines adopted by Cal/EPA's Office of Environmental Health Hazard Assessment (OEHHA) for use in the Air Toxics Hot Spots Program for all types of facilities except gasoline dispensing facilities (GDFs). In addition, these guidelines are in accordance with State "Risk Management Guidance for Stationary Sources of Air Toxics" developed by the California Air Resources Board (ARB) and the California Air Pollution Control Officers Association (CAPCOA). The Air District is delaying implementation of OEHHA's 2015 HRA Guidelines for gasoline dispensing facilities while further research is conducted on the potential impacts of OEHHA's 2015 HRA Guidelines on gasoline dispensing facilities. The Air District HRA Guidelines for gasoline dispensing facilities are described in Section 2.2. The Air District will periodically update these Air District HRA Guidelines to clarify procedures or incorporate other revisions to regulatory guidelines. 2. PROCEDURES The procedures described below constitute the Regulation 2-5-603 Health Risk Assessment Procedures. Ia-co57 BAAQMD Air Toxics NSR Program HRA Guidelines December 2016 2.1 Procedures for All Facilities Other Than Gasoline Dispensing Facilities All HRAs for facilities other than gasoline dispensing facilities shall be completed by following the procedures described in the OEHHA Health Risk Assessment Guidelines for the Air Toxics Hot Spots Program adopted by OEHHA on March 6, 2015 and using the recommended breathing rates described in the ARB/CAPCOA Risk Management Guidance for Stationary Sources of Air Toxics adopted by ARB on July 23, 2015. The OEHHA HRA Guidelines contain several sections which identify (a) the overall methodology, (b) the exposure assessment assumptions and procedures, and (c) the health effects data (cancer potency factors and reference exposure levels). A summary of OEHHA's HRA Guidelines and an index of the relevant documents are located at: hftp://www.oehha.ca.govlair/hot—spots/index.htmi OEHHA's risk assessment methodology (February 2015) is located at: http://www.oehha.ca.gov/air/risk—assess/index.htmi The exposure assessment and stochastic technical support document (August 2012) is located at: http:l/www.oehha.ca.gov/air/exposure—assess/index.htmi The Technical Support Document for Cancer Potency Factors: Methodologies for Derivation, Listing of Available Values, and Adjustments to Allow for Early Life Stage Exposures (May 2009) is located at: http://www.oehha.ca.gov/air/hot_spots/tsd052909.htmi The Technical Support Document for the Derivation of Noncancer Reference Exposure Levels (June 2008) is located at: http:l/www.oehha.ca.gov/air/hot—spots/rels—dec2008.html The ARB/CAPCOA Risk Management Guidance for Stationary Sources of Air Toxics (July 23, 2015) provides guidance on managing potential health risks from sources subject to California air toxics programs and updates the Risk Management Policy for Inhalation Risk Assessments. It is located at: http:/Iwww.arb.ca.gov/toxics/rma/rmaguidellne.htm Sections 2.1.1 through 2.1.6 below clarify and highlight some of the exposure assessment procedures including exposure assumptions (e.g., breathing rate and 2 (A ®1®io BAAQMD Air Toxics NSR Program HRA Guidelines December 2016 exposure duration), health effect values, and calculation procedures to be used for conducting Air District HRAs. 2.1.1 Clarifications of Exposure Assessment Procedures This section clarifies and highlights some of the exposure assessment procedures that should be followed when conducting an Air District HRA. 2.1.1.1 Breathing Rate On July 23, 2015, ARB adopted "Risk Management Guidance for Stationary Sources of Air Toxics", which includes an updated Risk Management Policy for Inhalation Risk Assessments. For the HRA methodology used in the Air Toxics NSR Program, the Air District has conformed with these State guidelines and adopted the exposure assessment recommendations made by ARB and CAPCOA. The policy considers the new science while providing a reasonable estimate of potential cancer risk for use in risk assessments for risk management decisions. This policy recommends using a combination of the 95th percentile and 80th percentile daily breathing rates as the minimum exposure inputs for risk management decisions. Specifically, the policy recommends using the 951h percentile rate for age groups less than 2 years old and the 80th percentile rate for age groups that are greater than or equal to 2 years old. To assess potential inhalation exposure to offsite workers, OEHHA recommends assuming a breathing rate of 230 L/kg-8 hours. This value represents the 95th percentile 8 -hour breathing rate based on moderate activity of 16-70 years -old age range. To assess exposure to children at schools and daycare facilities, OEHHA recommends using the 95th percentile moderate intensity breathing rates from Table 5.8 of OEHHA's HRA Guidelines. As a default, the Air District recommends using the breathing rate for 2<16 years (520 L/kg-8 hours) for children at schools. For a more refined analysis, the Air District will allow the use of breathing rates for other age ranges that are tailored to the ages of the children in the specific school under evaluation. 2.1.1.2 Exposure Frequency Based on OEHHA recommendations, the Air District will estimate cancer risk to residential receptors assuming exposure occurs 24 hours per day for 350 days per year. For a worker receptor, exposure is assumed to occur 250 days per year. However, for some professions (e.g., teachers) a different schedule may be more appropriate. For children at school sites, exposure is assumed to occur 180 days (or 36 weeks) per year. 2.1.1.3 Exposure Duration Based on OEHHA recommendations, the Air District will estimate cancer risk to residential receptors based on a 30 -year exposure duration. Although 9 -year and 70- (D- -to `1 BAAQMD Air Toxics NSR Program HRA Guidelines December 2016 year exposure scenarios may be presented for information purposes, risk management decisions will be made based on 30 -year exposure duration for residential receptors. For worker receptors, risk management decisions will be made based on OEHHA's recommended exposure duration of 25 years. As a default, cancer risk estimates for children at school sites will be calculated based on a 9 -year exposure duration, such as for a K-8 school. However, this exposure duration may be refined based on the specific school under evaluation (i.e. 6 years for a K-5 elementary school, 4 years for a 9-12 high school, or 3 years for a 6-8 middle school). For any analyses using an alternative to the 9 -year default duration for school children, the breathing rate assumptions must also be adjusted in accordance with the ages of the children in the school. 2.1.2 Health Effects Values Chemical -specific health effects values have been consolidated and are presented in Regulation 2, Rule 5,' Table 2-5-1 Toxic Air Contaminant Trigger Levels for use in conducting HRAs. The Air District has added the 8 -hour reference exposure levels (RELs) adopted by OEHHA to this table. The Air District will periodically update this table to include OEHHA's revisions to health effects values. 2.1.3 Cancer Risk Calculations In accordance with OEHHA's 2015 HRA Guidelines, cancer risk estimates should incorporate age sensitivity factors (ASFs) and fraction of time at home (FAH) adjustment factors. Air District HRAs should follow OEHHA's recommended cancer risk calculation procedures as presented in Section 8.2 of OEHHA's 2015 HRA Guidelines. For residential exposures, the cancer risk calculations should include the most sensitive age groups: from third trimester of pregnancy to 30 years of age for a 30 -year exposure duration. For worker receptors, assume working begins at age 16 years. 2.1.3.1 Fraction of Time at Home (FAH) For the initial cancer risk estimate, assume the fraction of time at home factors are equal to one (FAH = 1.0) for the following age groups: 31 trimester to < 2 years and 2 to < 16 years. Use this initial analysis to assess if there are any schools within cancer risk isopleths of one in a million or greater. If there are no schools within one in a million or greater cancer risk isopleths, the cancer risk analysis may be refined by using the appropriate age-specific FAH factors as identified in Table 8.4 of the 2015 OEHHA Guidelines: ® FAH = 0.85 for age group: 3rd trimester to < 2 years; ® FAH = 0.72 for age group: 2 to < 16 years; fa - 1 0 <'d' BAAQMD Air Toxics NSR Program HRA Guidelines December 2016 • FAH = 0.73 for age group: 16 to 70 years. 2.1.3.2 Short Term Projects In the 2015 HRA Guidelines, OEHHA recommends using actual project duration for short term projects, but cautions that the risk manager should consider a lower cancer risk threshold for very short term projects, because a higher exposure over a short period of time may pose a greater risk than the same total exposure spread over a much longer period of time. To ensure that short-term projects do not result in unanticipated higher cancer impacts due to short -duration high -exposure rates, the Air District recommends that the cancer risk be evaluated assuming that the average daily dose for short-term exposure lasts a minimum of three years for projects lasting three years or less. For residential exposures, the cancer risk calculations should include the most sensitive age groups (beginning with the third trimester of pregnancy) and should use the 95th percentile breathing rates. The Air District recommends following OEHHA guidelines for other aspects of short term projects. In summary, the Air District recommends: • use of actual emission rates over a minimum 3 -year duration for cancer risk assessments involving projects lasting 3 years or less, and • use of actual project duration for cancer risk assessments on projects lasting longer than 3 years. 2.1.4 Noncancer Health Impacts In accordance with OEHHA's 2015 HRA Guidelines, noncancer health impacts should be calculated using the hazard index approach. Air District HRAs should follow OEHHA's recommended calculation procedures for noncancer health impacts, as presented in Section 8.3 of OEHHA's 2015 HRA Guidelines. Regarding Section 8.3.5 of OEHHA's 2015 HRA Guidelines, the Air District does not require inclusion of the contribution of background criteria pollutants to respiratory health effects for Air District HRAs. 2.1.5 Spatial Averaging Typically, HRA results for an individual receptor have been based on air dispersion modeling results at a single point or location. In the 2015 OEHHA Guidelines (Section 4.7.3), OEHHA provides a refinement option that takes into account that people move around within their property or workplace and do not normally remain at a single fixed point for the entire exposure duration. This spatial averaging refinement may be used for any chronic analysis in an Air District HRA. Spatial averaging is not appropriate for an acute analysis. ori. "tc)I BAAQMD Air Toxics NSR Program HRA Guidelines December 2016 After the points of interest have been identified by the air dispersion modeling analysis, the ground level air concentration for each maximum impact point may be refined by using the arithmetic mean of the receptor concentrations identified within a spatial average and instead of the single maximum impact point concentration. The modeler shall generally center the spatial average grid around the maximum impact point, but the modeler shall also consider facility boundaries, possible receptor locations, and predominant wind direction. This grid shall be of an appropriate shape, shall be no larger than 400 square meters, and shall have a receptor spacing within the grid of no less than 5 meters. Grid shape, size, and location are subject to Air District approval. 2.1.6 Stochastic Risk Assessment For a stochastic, multipathway risk assessment, the potential cancer risk should be reported for the full distribution of exposure from all exposure pathways included in the risk assessment. For risk management decisions, the potential cancer risk from a stochastic, multipathway risk assessment should be based on the 95th percentile cancer risk. 2.2 Procedures for Gasoline Dispensing Facilities Any HRA for a gasoline dispensing facility shall be completed by following the procedures described in the OEHHA Health Risk Assessment Guidelines for the Air Toxics Hot Spots Program that were adopted by OEHHA on October 3, 2003 and any State risk assessment and risk management policies and guidelines in effect as of June 1, 2009. The 2003 OEHHA Health Risk Assessment Guidelines contain several sections which identify (a) the overall methodology, (b) the exposure assessment assumptions and procedures, and (c) the health effects data (cancer potency factors, chronic reference exposure levels, and acute reference exposure levels). A summary of OEHHA's 2003 Health Risk Assessment Guidelines and an index of the relevant documents are located at: http://oehha.ca.gov/air/crnr/notice-adoption-air-toxics-hot-spots-program- guidance-manual-preparation-health-risk OEHHA's 2003 risk assessment methodology is located at: http://oehha.Ga.gov/media/downloads/ernrlhraguidefinal.pdf to -<10 BAAQMD Air Toxics NSR Program HRA Guidelines December 2016 The exposure assessment and stochastic technical support document (Part IV of OEHHA's Risk Assessment Guidelines) is located at: http://oehha.ca.gov/media/downloads/crnrlstoch4f.pdf The Technical Support Document for Cancer Potency Factors: Methodologies for Derivation, Listing of Available Values, and Adjustments to Allow for Early Life Stage Exposures (June 2009) is located at: http://oehha.ca.gov/media/downloads/crnr/tsdcancerpotency.pdf The Technical Support Document for the Derivation of Noncancer Reference Exposure Levels (June 2008) is located at: http://oehha.ca.gov/media/downloads/crnr/noncancertsdfinal.pdf Sections 2.2.1 through 2.2.4 below clarify and highlight some of the exposure assessment procedures including exposure assumptions (e.g., breathing rate and exposure duration) and health_ effect values to be used for conducting HRAs for gasoline dispensing facilities. 2.2.1 Clarifications of Exposure Assessment Procedures This section clarifies and highlights some of the exposure assessment procedures that should be followed when conducting an HRA for a gasoline dispensing facility. 2.2.1.1 Breathing Rate On October 9, 2003, a statewide interim Risk Management Policy for inhalation -based residential cancer risk was adopted by the California Air Resources Board (ARB) and Cal/EPA's OEHHA (http://www.arb.ca.gov/toxics/rmpoIicy.pd0. For the HRA methodology used in the Air Toxics NSR Program for gasoline dispensing facilities, the Air District has conformed with these State guidelines and adopted the interim exposure assessment recommendations made by ARB and OEHHA. The Air District will continue to use this interim recommendation for gasoline dispensing facilities even though newer guidance has been adopted by ARB and OEHHA. The interim policy recommended, where a single cancer risk value for a residential receptor is needed or prudent for risk management decision-making, the potential cancer risk estimate for the inhalation exposure pathway be based on the breathing rate representing the 80th percentile value of the breathing rate range of values (302 L/kg-day). To assess potential inhalation exposure to offsite workers, OEHHA recommended assuming a breathing rate of 149 L/kg-day. This value corresponds to a 70 kg worker breathing 1.3 m3/hour (breathing rate recommended by USEPA as an hourly average for outdoor workers) for an eight-hour day. [a_(([ BAAQMD Air Toxics NSR Program HRA Guidelines December 2016 For children, OEHHA recommended assuming a breathing rate of 581 L/kg-day to assess potential risk via the inhalation exposure pathway. This value represents the upper 95% percentile of daily breathing rates for children. 2.2.1.2 Exposure Time and Frequency Based on OEHHA's 2003 HRA Guidelines, the Air District will estimate cancer risk to residential receptors for gasoline dispensing facilities assuming exposure occurs 24 hours per day for 350 days per year. For a worker receptor, exposure is assumed to occur 8 hours per day for 245 days per year. However, for some professions (e.g., teachers) a different schedule may be more appropriate. For children at school sites, exposure is assumed to occur 10 hours per day for 180 days (or 36 weeks) per year. 2.2.1.3 Exposure Duration Based on OEHHA's 2003 HRA Guidelines, the Air District will estimate cancer risk to residential receptors for gasoline dispensing facilities based on a 70 -year lifetime exposure. Although 9 -year and 30 -year exposure scenarios may be presented for information purposes, risk management decisions will be made based on 70 -year exposure duration for residential receptors. For worker receptors for gasoline dispensing facilities, risk management decisions will be made based on OEHHA's 2003 recommended exposure duration of 40 years. Cancer risk estimates for children at school sites will be calculated based on a 9 -year exposure duration. 2.2.2 Health Effects Values Chemical -specific health effects values have been consolidated and are presented in Regulation 2, Rule 5, Table 2-5-1 Toxic Air Contaminant Trigger Levels for use in conducting HRAs. Toxicity criteria summarized in Table 2-5-1 represent health effects values that were adopted by OEHHA/ARB as of March 31, 2016. 2.2.3 Cancer Risk Calculations In accordance with OEHHA's revised health risk assessment guidelines (specifically, OEHHA's Technical Support Document (TSD) for Cancer Potency Factors, adopted June 1, 2009), calculation of cancer risk estimates for gasoline dispensing facilities should incorporate age sensitivity factors (ASFs). The revised TSD for Cancer Potency Factors provides updated calculation procedures used to consider the increased susceptibility of infants and children to carcinogens, as compared to adults. The calculation procedure below includes the use of age-specific weighting factors in calculating cancer risks from exposures of infants, children and adolescents, to reflect their anticipated special sensitivity to carcinogens. OEHHA recommended weighting cancer risk by a factor of 10 for exposures that occur from the third trimester of pregnancy to 2 years of age, and by a factor of 3 for exposures that occur from 2 years through 15 years of age. These weighting factors should be applied to all carcinogens emitted from gasoline dispensing facilities. For estimating cancer risk I;1--1 BAAQMD Air Toxics NSR Program HRA Guidelines December 2016 for residential receptors, the incorporation of the ASFs results in a cancer risk adjustment factor of 1.7. For estimating cancer risk for student receptors, an ASF of 3 should be applied. For estimating cancer risk for worker receptors, an ASF of 1 should be applied. The cancer risk adjustment factors for gasoline dispensing facilities were developed based on the following: Receptor Age Groups ASF Duration Cancer Risk Adjustment Factor Resident Third trimester to age 2 ears 10 2.25/70 0.32 Age 2 to age 16 years 3 14/70 0.6 Age 16 to 70 years 1 54/70 0.77 9.7 Student Age 2 to age 16 years 3 9 years 3 Worker Age 16 to 70 years 1 40 years 1 Since the exposure duration for a student receptor (9 years), and worker receptor (40 years), falls within a single age group, the student cancer risk adjustment factor is 3 and the worker cancer risk adjustment factor is 1. Cancer risk adjustment factors should be used to calculate all cancer risk estimates for gasoline dispensing facilities. Below is the equation for calculating cancer risk estimates for gasoline dispensing facilities: Cancer Risk = Dose * Cancer Risk Adjustment Factor * Cancer Potency Factor 2.2.4 Noncancer Health Impacts In accordance with OEHHA's 2003 HRA Guidelines, noncancer health impacts should be calculated using the hazard index approach. Air District HRAs should follow OEHHA's recommended calculation procedures for noncancer health impacts, as presented in Section 8.3 of OEHHA's 2003 HRA Guidelines, using the RELs identified in Table 2-5-1. Regarding Section 8.3.A of OEHHA's 2003 HRA Guidelines, the Air District does not require inclusion of the contribution of background criteria pollutants to respiratory health effects for Air District HRAs. 9 12-t`3 BAAQMD Air Toxics NSR Program HRA Guidelines December 2016 3. Assessment of Acrolein Emissions CARB has issued advisories regarding acrolein emissions data determined using CARB Method 430 (M430): http://www.arb.ca.gov/ei/acrolein.htm. The CARB advisories state that acrolein emissions data determined using CARB Method 430 are suspect and should be flagged as non -quantitative. Although acrolein emission factor data is available for several types of stationary combustion sources, this data was developed based on source tests that utilized CARB Method 430 or equally inaccurate test methods; therefore, the validity of this acrolein emission factor data is suspect. In addition, the tools the Air District needs to implement and enforce acrolein emission limits are not available due to the lack of an ARB approved acrolein test method for stationary sources. In consideration of this information, the Air District has determined that acrolein emissions may be included in Air District HRAs for screening or informational purposes, but the Air District will exclude acrolein emissions from the final HRA results on which risk management decisions will be based. 10 BAAQMD Air Toxics NSR Program HRA Guidelines December 2016 References 1 "Air Toxics "Hot Spots" Program Risk Assessment Guidelines, The Air Toxics Hot Spots Program Guidance Manual for Preparation of Health Risk Assessments, " OEHHA, August, 2003 2 "Air Toxics "Hot Spots" Program Risk Assessment Guidelines, Part IV Technical Support Document for Exposure Assessment and Stochastic Analysis ", OEHHA, September, 2000 3 "Air Toxics Hot Spots Program Risk Assessment Guideline; Technical Support Documentfor Cancer Potency Factors: Methodologies for derivation, listing of available values, and adjustments to allow for early life stage exposures", OEHHA, May, 2009 4 "Air Toxics Hot Spots Program Risk Assessment Guidelines; Technical Support Document for the Derivation ofNoncancer Reference Exposure Levels", OEHHA, June, 2008 S "Consolidated Table of OEHHAIARB Approved Risk Assessment Health Values ", California Air Resources Board, updated March 28, 2016 6 "Air Toxics Hot Spots Program Risk Assessment Guidelines; Guidance Manual for Preparation of Health Risk Assessments", OEHHA, February, 2015 7 "Air Toxics Hot Spots Program Risk Assessment Guidelines; Technical Support Document for Exposure Assessment and Stochastic Analysis", OEHHA, August, 2012 8 "Risk Management Guidance for Stationary Sources of Air Toxics", Air Resources Board and California Air Pollution Control Officers Association, July 23, 2015 11 Francois, Matthew From: James Reyff <jreyff@illingworthrodkin.com> Sent: Monday, December 3, 2018 5:13 PM To: hhines@m-group.us; OErvin @m-group,us; attorney@ci.petaIuma.ca.us Cc: Natalie Mattei; Francois, Matthew Subject: Response to Fox Kapahi 12/03/18 comments Attachments: Responses to Fox-Kapahi-BAAQMD 120318.pdf Hi Heather, et al., Attached is a memo with our responses to additional comments regarding the health risk assessment that Illingworth & Rodkin prepared. -James James A. Reyff Illingworth & Rodkin, Inc. (T) 707.794.0400 x106 D_ -1 f` j Ut Acoustics - Air Quality 111 429 K Cotati Ave Cotati, California 9493.1 Tel: 707-794-0400 Fax: 707-794-0405 www.illingwortlirodkin.com illro@illingwoi�throdkin.com Date: December 3, 2018 To: Natalie Mattei Senior Real Estate Manager Albertsons Companies 11555 Dublin Canyon Road Pleasanton, CA 94588 From: James A. Reyff Illingworth & Rodkin, Inc. 429 E. Cotati Ave Cotati, CA 94931 RE: Safeway Fuel Center CEQA document - Petaluma, CA SUBJECT: Safeway Fuel Center Health Risk Assessment - Response to 12/03/2018 Submittal from Phyllis Fox and Ray Kapahi - This memo provides our response to comments regarding the Petaluma Safeway gas station project ("Project") made by Phyllis Fox and Ray Kapahi in a supplemental report dated December 3, 2018. Given the short time provided to respond, we developed these responses to the primary issues brought up: Use of WRF Model The Commenters claim that the WRF model is not intended to be used nor appropriate for use for a site specific HRA at this fine level. The BRA AERMOD modeling utilized meteorological data prepared using the recent EPA -accepted methods. New U.S. EPA modeling guidelines (40 CFR Part 51, Appendix W, effective February 16, 2017) allows the use of prognostic meteorological data using the U.S. EPA's Mesoscale Model Interface Program ("MMIF") pre-processor to generate inputs for regulatory modeling applications using the meteorological preprocessor model ("AERMET") and AERMOD. The EPA developed the MMIF to process MM5 (Mesoscale Model 5) or WRF (Weather Research and Forecasting) model data for input to various models including AERMOD. The WRF model uses objective analysis to process archived observations of upper data from sites in the region to analyze the observed data and outputting them into a regular grid. These gridded data are then used with the MMIF model. Memo to Natalie Maffei December 2, 2018 —Page 2 Regulatory modeling applications are as, or more, stringent than health risk modeling requirements. As such, the data used for the HRA modeling is appropriate for use. The AERMOD data prepared with a the MMIF model used WRF model data and EPA -approved procedures as part of the process in producing the AERMOD meteorological data. The commenters state that "The minimum resolution available with WRF model as used in the most recent HRA is in the range of 1 to 4 kilometers. Given this resolution, it -is not possible to make accurate predictions within 50 to 100 meters." The grid resolution of the data produced by the WRF model that is used by the MMIF model for use in developing local meteorological parameters needed by AERMOD, including wind speed and direction data. As stated above, data produced from the MMIF model using WRF data is accepted by the EPA for regulatory modeling purposes. It is improper to draw these correlations between the resolution of the meteorological data and the prediction accuracy of the dispersion model. Additionally, it should be noted that the MMIF-based meteorological data used for the HRA are the only meteorological data available for use in AERMOD. There are no adequate local sources of meteorological data for use in preparing AERMOD data, which is the reason why the EPA - approved method using MMIF was used to produce modeling data. Understated DPM by a factor of 4 The LIRA used aggregated 5 mph emission factors to model idle emissions and then used the composite speed from EMFAC2014 that represents vehicle travel in Sonoma County for the weighted mix of vehicle expected at the project. The Commenters are comparing 5 -mph travel emission factors used to compute idling emissions to the travel emission factors, which is not an appropriate comparison. Note that the aggregate emission rates include other vehicle classes that would be using the station (e.g., light-duty trucks). Heavy-duty trucks would only visit the project site to make deliveries. Exposure Duration for Cancer Risk The Commenters continue to claim that use of 30 -year exposure duration is inconsistent with BAAQMD guidance and understates public risk. Please see our response to this original comment in our October 10, 2018 response (p5 under `Exposure Duration"). The 70 -year exposure duration with older CAPCOA guidance applies to only the facility that BAAQMD is permitting. As BAAQMD pointed out in their September 17, 2018 comment, use of the 30 -year exposure with the 2015 OEHHA guidance yields more conservative results. The 30 -year exposure duration with recommended 2015 OEHHA guidance parameters is what BAAQMD recommends for CEQA analyses. BAAQMD concurred with the HRA in their November. 8, 2018 letter. Note that the previous 2014 assessment followed the guidance that is currently recommended in BAAQMD's New Source Review guidelines (i.e., 70 -year exposure with less protective parameters such as child and infant breathing rates). Underestimated Benzene Emissions !a -I (CI Memo to Natalie Mattei December 2, 2018 —Page 3 The Commenters claims that benzene emissions were significantly underestimated, by inappropriately citing SCAQMD guidance. The emission factor used by the Commenter's in their analysis is higher than those emissions factors. One reason is that the Commenter's are not considering that over 85 -percent of the vehicles using the project will be equipped with on -board vapor recovery systems. This rate will increase to nearly 100 percent during the early years of the project. While the Commenters refer to a study for fueling stations in the Midwest and Northwest that reports higher vent emissions from fueling stations (Hilpert study), they fail to recognize that California stations are required to utilize enhanced vapor recovery that controls vent pipe emissions. The emission factors reported by the Commenters are overestimated and not reflective of emissions factors currently applicable to California. The BAAQMD concurred with the emission factors utilized in the Project study. Other TACs The Project assessment addressed impacts from construction activity (emissions of diesel particulate matter) vehicles using the station, including diesel particulate matter from diesel vehicles, and benzene from evaporative emissions. Gasoline evaporation includes other toxic air contaminants but those that occur at higher rates than benzene have much lower toxicity levels and those that have higher toxicity levels have much lower emissions rates. That is why BAAQMD uses benzene to compute health risks from gasoline evaporation. 10,1 -ra.n Da "(Rt RU T , AN RUTAN & TUCKER, LLP January 24, 2019 VIA E-MAIL AND FEDERAL EXPRESS Honorable Teresa Barrett, Mayor and Members of the Petaluma City Council CITY OF PETALUMA 11 English Court Petaluma; CA 94952 Re: Safeway Fuel Center Project; January 28, 2019 City Council Agenda, Item 5.A Dear Mayor Barrett and Members of the City Council: Mattliew D. Francois Direct Dial: (650) 798-5669 E-mail: mfrancois@rutan.com We write on behalf of our client, Safeway, Inc., regarding the City Council's proposed reconsideration ofthe long -planned Safeway Fuel Center Project (the "Project") at 335 S. Mc Dowell Boulevard (the "Property") in the City of Petaluma (the "City"). The Project has already been reviewed by the City for more than six years and has been the subject of numerous studies prepared by expert consultants as well as a detailed mitigated negative declaration ("MND") prepared by M - Group, the City's contract Planning Staff. Yet, on December 3, 2018, the City Council adopted Resolution No. 2018-80 (the "Resolution") purporting to uphold the appeal of the Project (the "Appeal") filed by JoAnn McEachin and others ("Appellants") and ordering the preparation of an environment impact report ("EIR"). On January 2, 2019, we wrote to demand that the City Council vacate the Resolution and conduct a new hearing to cure and correct specified violations of the Brown Act. The City noticed a new hearing on the Appeal for January 28, 2019. At that hearing, we strongly urge you to deny the Appeal and uphold the Planning Commission's approvals for the Project. This is the only lawful action that the City Council can tape on the Prcject.1 I. Executive Summary The Project is a principally permitted use and requires design -related approvals only from the City. The City Council cannot lawfully uphold the Appeal for numerous reasons. First, in a recently decided case, the First District Court of Appeal ruled that the scope of CEQA review for a design review permit such as that sought here does not extend to issues other than aesthetics. Were the City to persist in claiming that CEQA requires preparation of an EIR based 1 Unless otherwise noted, emphasis in quotations is supplied and citations are omitted. Rutan & Tucker, LLP I Five Palo Alto Square, 3000 El Camino Real, Suite 200 Palo Alto, CA 94306-9814 1650-320-1500 I Fax 650-320-9905 2696/031700-0001 Orange County I Palo Alto I www.rUtan.coln 13286337.3 -01/24/19 E RUTAN RVTAt!LTII ;R. Lt Honorable Teresa Barrett, Mayor and Members of the Petaluma City Council January 23, 2019 Page 2 on grounds other than aesthetics, the City would be acting in direct contravention of this highly relevant and binding legal precedent. Second, the Planning Commission's adoption of the MND was not timely appealed to the City Council and is now final and no longer subject to challenge. Third, upholding the Appeal in the manner recommended by Staff is not requested by Appellants and'is not authorized by and is contrary to the City Code. Fourth, as there is no substantial evidence of a fair argument of significant environmental impacts, the City cannot lawfully require preparation of an EIR. Any reliance on a so-called "battle of the experts" would be flawed and not supported by the facts or the law. Fifth, since a majority of the City Council members are biased, they cannot lawfully act to uphold the Appeal. The only lawful action that the City Council can take is to either deny the Appeal or abstain and allow the Planning Commission to stand. Sixth, if the City Council were to uphold the Appeal, its action would be arbitrary and capricious and thus deprive Safeway of its constitutionally protected right to due process. Seventh, subjecting Safeway to different or more burdensome requirements than imposed on similarly situated property owners (namely the requirement for an EIR when every other recent gas station project was processed with an exemption or negative declaration) would deprive Safeway of its constitutionally protected right to equal protection. . Eighth, if the City upholds the Appeal, it will have to compensate the Property owner and/or Safeway for an unconstitutional taking of its property. Ninth, if the City upholds the Appeal, it would result in an unlawful interference with contractual relations. Finally, based on the parties' substantial and detrimental reliance on the Property's zoning, the City would be estopped from upholding the Appeal. In light of the serious legal impediments associated with upholding the Appeal, any one of which would be sufficient to overturn the City Council's action, and several of which would also 26961031700-0001 13286337.3 a01/24/19 RUTAN Furan s TUCKM — Honorable Teresa Barrett, Mayor and Members of the Petaluma City Council January 23, 2019 Page 3 ` expose the City to an award of damages and attorneys' fees, we trust that the City Council will deny the Appeal in whole and reaffirm the Planning Commission's approval of the Project.' II. Protect Background A. The Property has long been planned and zoned for gas station uses. The Property is zoned Commercial 2 ("C2"). Gas stations are permitted uses in the C2 zone. (Implementing Zoning Ordinance ["IZO"], Table 4.4.) A new commercial use, like the Project requires only site plan and architectural review ("SPAR") approval from the City. (IZO § 24.010.A.) The purpose of SPAR is to "secure compliance with the Zoning Ordinance and to promote the orderly and harmonious development" of the City. (Id. ) In taking action to approve a SPAR application, the reviewing body must consider the following: (1) satisfactory quality of design and harmony with surroundings, (2) landscaping and circulation conform to approved City standards, (3) participation by a recognized professional designer. As correctly noted by Staff and adjudged by the Planning Commission, the Project conforms with all of these considerations. The SPAR "considerations" are in stark contrast to the "findings" required for a conditional use permit. For a conditional use permit, the Planning Commission (or City Council on appeal) can approve (or disapprove) such a permit if it finds that the proposed structure or use "will [or will not] conform to the requirements of the [IZO] and the Petaluma General Plan" and that such use "will not [or will], under the circumstances of the case, constitute a nuisance or be detrimental to the public welfare of the community." (IZO § 24.030.H.) As a principally permitted use, the Project does not require a conditional use permit. It only requires design review (or SPAR) approval from the City. B. The City has considered the Project, a permitted use, for more than six years. The Project will be located in the Washington Square Shopping Center (the "Shopping Center") on S. McDowell Boulevard between E. Washington Street and Maria Drive. The Shopping Center, which includes a newly remodeled Safeway grocery, has provided commercial uses for ' Such an action would be consistent with the Staff recommendation prior to the December 3, 2018 City Council meeting. 2696/031700-0001 13286337.3 a01/24/19 RUTAN P11TT1� z iu^_H[P. LLP Honorable Teresa Barrett, Mayor and Members of the Petaluma City Council January 23, 2019 Page 4 Petaluma residents since 1961.' Historically, the Shopping Center had three gas stations. Today, there is only operating gas station—Chevron—located on the far north end of the center. The Project includes eight fuel dispensers (16 total fueling positions), two underground storage tanks, a 697 square foot convenience store, landscaping, and parking. Offsite improvements consist of reconstruction of the adjacent Eastside Transit Center to increase the width of the bus turnout area to allow for buses to queue outside of the Maria Drive travel lane and to allow for unproved egress from the Shopping Center. The Transit Center will also be enhanced to include new shelters, benches, landscaping, and a solar -powered arrival sign. Additional improvements to the intersection of S. McDowell and Maria Drive include a new handicap -accessible pedestrian ramp. In accordance with the allowed land uses for the Property, and after having met with City Staff in 2012 and 2013 and received assurances that the Project was a permitted land use, Safeway applied for the Project on July 25, 2013. Almost immediately after the Project application was submitted, multiple independent gas station owners spoke in opposition to the Project. They testified at the August 19, 2013 City Council hearing during the public comment portion of the agenda. Councilmember Mike Healy and then- Councilmember Teresa Barrett both responded indicating they would take action to address the Project. Ms. Barrett, who sits on the Board of Directors of the Bay Area Air Quality Management District ("BAAQMD"), indicated that she was in touch with her colleagues at BAAQMD. Mr. Healy referred to the Project as a "serious issue" and encouraged City Staff to "think outside the box" and "proactively" about legislative changes to address what he called a "dangerous precedent." Mr. Healy also referred to the gas station owners having retained legal counsel and noted that the issue was "not going away lightly." On January 27, 2014, during the City Council's discussion of a completely unrelated project—Maria Drive Apartments—Councilmember Healy mentioned the Safeway Project by name and then asked whether there was support on the Council to consider adopting a moratorium on the processing of gas stations in the community. Mr. Healy noted that the purpose of the moratorium would be allow the City Council to "consider adopting legislation that would give this Council the ability, at a minimum, to provide discretionary approval on that application and give Safeway the opportunity to convince us that it is a good thing for the community ... which might be a difficult thing for them to do." The Council agreed to place the issue of a temporary moratorium on the agenda of a future City Council meeting. 3 The Shopping Center is owned by Washington Square Associates, LLC ("Owners") and managed by Fulcrum Property ("Fulcrum"). 2696/031700-0001 13286337.3 a0124/19 RUTAN RATAN G T_.�--m LL Honorable Teresa Barrett, Mayor and Members of the Petaluma City Council January 23, 2019 Page 5 On March 3, 2014, the moratorium on new gas stations came before the City Council. At the hearing, it was made clear that the proposed moratorium was aimed squarely at the Project and virtually all of the discussion centered on the Project. Ultimately, the moratorium was supported only by Councilmembers Healy, Miller, and Kearney and thus failed to receive enough votes to pass. In response to a request from a developer to adjust the fee schedule so as to significantly increase the credit from a former gas station use on his proposed hotel site, the City Council voted to adjust the traffic impact fees applicable to gas station uses on July 1, 2014. As a result, the traffic fees for the Project increased from approximately $12,000 to over $1.7 million. No notice or outreach was provided to Safeway or the Owners prior to the enactment of the fee increase. While the moratorium and traffic fees were pending, the City Staff sent three incompleteness letters to Safeway's architect concerning the Project application, requesting new information each time. Safeway and its expert consultants responded in full, providing a traffic study, noise study, air quality study, and a comprehensive health risk assessment. The Project application was finally deemed complete on September 13, 2014. In November 2014, Safeway wrote to the City Attorney outlining the myriad legal flaws associated with the new traffic fees. Specifically, Safeway pointed out that the new fees did not have the requisite nexus to the impacts of the Project and resulted in new gas station owners being forced to bear an unfair and unlawful portion of the cost of public facilities. On December 7, 2015, the City Council corrected the significant errors in its traffic fee schedule. In 2016, Safeway representatives met with City Staff to review the application status. In 2017, Staff requested additional data and information. Safeway responded by providing updating technical studies. After extensive review, Staff finally accepted these studies as adequate and prepared the MND. The MND was duly noticed and circulated for public review from April 5, 2018 to May 7, 2018, and the Project was scheduled for hearing before the Planning Commission on May 8, 2018, On May 7, 2018 at 5:05 p.m., Planning Staff emailed Safeway a letter and peer review of air quality by Environmental Science Associates on behalf of Petaluma City Schools. Safeway and its expert consultants provided Staff with written responses to these comments prior to the commencement of the Planning Commission hearing. Notwithstanding Safeway's immediate reply to the School District's comments, the Planning Commission opened the public hearing on May 8, 2018, but continued it to a date certain of June 26, 2018. After duly considering additional public comments as well as supplemental materials (including additional technical studies) provided by Safeway at the Planning Commission's request, the Planning Commission approved the Project on June 26, 2018, On July 9, 2018, the Appeal of 2696/031700-0001 13286337.3 a01/24/19 RUTAN Rl)rnti 5 TUEM.ER. �lP Honorable Teresa Barrett, Mayor and Members of the Petaluma City Council January 23, 2019 Page 6 the Planning Commission's action was filed by Appellants. Nowhere in the appeal form or attached letter do the Appellants criticize the MND nor claim that an ETR is needed. The City duly filed a Notice of Determination ("NOD") on June 29, 2018, which was posted until July 30, 2018. No legal challenge to the MND was filed within that timeframe. City Staff initially considered scheduling the Appeal for City Council consideration on September 10, 2018. Appellant JoAnn McEacbin informed Staff that she would be traveling in Europe on that date and requested a September 17, 2018 hearing date instead. Staff accommodated Ms. McEachin's request and scheduled the Appeal for Monday, September 17, 2018. On Friday, September 14, 2018 at 5:24 p.m., Patrick Soluri, on behalf of Joann McEachin and No Gas Here, submitted a letter contesting various aspects of the Project (including a peer review of traffic by Larry Wymer & Associates) and raising for the first time the argument that an EIR was needed. On Monday, September 17, 2018 at 11:17 a.m., Mr. Soluri submitted a report by Fox/Kapahi contesting the Project health risk assessment ("HRA"). Also on Monday, September 17, 2018, at 2:57 p.m., BAAQMD submitted a letter regarding the HRA. As a result, the Mayor and City Council continued the Appeal hearing to October 15, 2018, and subsequently to December 3, 2018. Safeway and its consultants responded in full to the above comment letters and peer reviews. On Monday, September 17, 2018 at 1:17 p.m., Safeway responded to Mr. Soluri's comments and the traffic review by Larry Wymer & Associates. Safeway submitted a supplemental analysis for the HRA, including an updated HRA using the American Meteorological Society (AMS)/EPA Regulatory Model ("AERMOD") on October 10, 2018. As with the original analysis, the supplemental analysis prepared by Illingworth & Rodkin similarly concludes that the Project meets all thresholds and will not result in any significant impacts related to health risk. The supplemental analysis was promptly provided to BAAQMD and Mr. Soluri by City Staff. In a November 8, 2018 letter, Daniel Breen, Deputy Air Pollution Control Officer with BAAQMD, accepted the updated analysis and stated that BAAQMD has no further comments on the Project's HRA. Conversely, Mr. Breen cited "several key concerns" with the Fox/Kapahi study, including its inappropriate use of Santa Rosa meteorological data and inaccurate application of emission factors and exposure assumptions. On November 30, 2018 at 6:05 p.m., City Staff provided Safeway with a document entitled "Supplemental Health Risk Results" prepared by Fox/Kapahi. At 11:17 a.m. on December 3, 2018, the day of the City Council hearing, Safeway received a 90 page Response to Comments on the MND from Fox/Kapahi. Illingworth & Rodkin provided written responses to these last minute submittals on December 2, 2018 and December 3, 2018, respectively. 2696/031700-0001 13286337.3 a01/24/19 RUTAN ,6,a,,c -­ER- Teresa Barrett, Mayor and Members of the Petaluma City Council January 23, 2019 Page 7 On December 3, 2018, the City Council held a hearing on the Appeal. The various agendas posted by the City for the City Council hearing on the Appeal failed to inform the public that the City Council was poised to take any potential CEQA action. The public notices provided by the City for the Appeal hearing likewise failed to indicate that the City was poised to take any potential CEQA action. A heavily redlined version of the Resolution was provided to Safeway representatives only after the public hearing was underway. It and other documents do. not appear to have been made available for public inspection as required by the Brown Act. Further, the City failed to disclose existing facts and circumstances giving rise to a threat of litigation as needed to conduct a closed session meeting. At the conclusion of the December 3rd hearing, with minimal questions or deliberation, the City Council voted to uphold the Appeal and ordered preparation of an EIR. On January 2, 2019, we wrote to the City Clerk demanding that the City Council vacate its decision and conduct another hearing to cure and correct the above -referenced violations of the Appeal. On January 9, 2019, City Attorney Danly telephoned to inform me that the City would conduct a new hearing on the Appeal on January 28, 2019. He subsequently confirmed that the hearing would be a de novo hearing wherein the City Council would act to rescind the Resolution and replace it with one either denying or upholding the Appeal. We write now to respond to the Staff Report published on January 22, 2019 (the "Staff Report") after the close of business recommending that the City Council rescind the Resolution and adopt a replacement resolution upholding the Appeal and ordering preparation of an EIR. As set forth below, that recommendation does not comport with the law. We urge the City Council to deny the Appeal and/or abstain from action on the Appeal thereby allowing the Planning Commission to stand.4 4 In addition to all planning and permitting files for the Project, including, but not limited to PLSR No. 13-0012 and PLAP No. 18-0001, we hereby incorporate into the record of proceedings for this item, the Agendas, Staff Reports, Video Recordings, and Minutes as well as any proposed or adopted Resolutions or Ordinances of (1) the Planning Commission meetings of May 8, 2018 and June 26, 2018 and (2) the following City Council meetings: August 19, 2013, September 9, 2013, October 21, 2013, January 27, 2014, February 24, 2014, March 3, 2014, July 7, 2014, December 7, 2015, November 29, 2016, September 17, 2018, October 15, 2018, December 3, 2018, and January 28, 2019. We also hereby incorporate into the record of proceedings all "documents" as that term is defined by the Public Records Act related to the above meetings. 2696/031700-0001 13286337.3 x01/24/19 (�,P `n RUTAN R-14 t Tu[YM - Honorable Teresa Barrett, Mayor and Members of the Petaluma City Council January 23, 2019 Page 8 M. The City cannot lawfully uphold the Appeal as recommended by Staff. A. The requirement of an EIR is directly at odds with the recent ruling of the First District Court of Appeal in McCorlde Eastside Neighborhood Group v. City of St. Helena. In McCorkle Eastside Neighborhood Group v. City of St. Helena, the First District Court of Appeal upheld the City of St. Helena's approval of an eight -unit multifamily residential development based on the Class 32 (infill) exemption.5 The project was a permitted land use under the site's zoning, requiring discretionary approval only of a design review permit. Project opponents argued that the project should not be approved citing various issues completely unrelated to the project's design (e.g., parking, traffic, safety, and soil remediation) and claiming that an EIR was needed. The St. Helena City Council approved the project, finding that the city's discretion, and thus scope of its CEQA review, was limited to. design issues since it had not authority or ability to meaningfully address non -design related issues or impacts by imposing conditions of approval or mitigation measures. The St. Helena City Council further found that even if the project were not exempt from CEQA under the infill exemption, and some level of CEQA review were required, the city would nevertheless be allowed to undertake only limited review based on design -related environmental issues; not the use -related issues asserted by the project opponents. . The project opponents sued alleging violations of CEQA and local zoning laws. The trial court denied the petition. The First District Court of Appeal affirmed, holding that the city did not err in limiting its scope of CEQA review to aesthetic considerations consistent with the design review approval needed for the project. The court reasoned that where only limited discretionary approvals are needed, only limited CEQA review is required. In other words, since the city could not deny the project for non -design matters, it could not impose mitigation measures for non - design related issues either. The court cited extensively to the St. Helena design review ordinance, which contains factors that are substantially similar, if not identical, to Petaluma's SPAR ordinance. It noted that the city found that the project was consistent with all its design considerations and concluded that CEQA review "was limited to design issues such as scale, orientation, bulk, mass, materials, and colors, and the proposed project would not result in design -related impacts." (Opinion, p. 12.) Citing the city's lack of discretion to address enviromnental effects unrelated to design matters, the court concluded that the city appropriately found "that the issues raised during design review did not require the separate invocation of CEQA." (Id. at p. 13.) 5 A copy of the court's published opinion [the "Opinion"] is attached hereto as Exhibit A, 2696/031700-0001 13286337.3 a01/24/19 aPla-� RUTAN RUTANS iLCH .LLP Honorable Teresa Barrett, Mayor and Members of the Petaluma City Council January 23, 2019 Page 9 The McCorkle opinion correctly reflects the law in that if the scope of an agency's discretionary powers is limited to design issues, CEQA review is likewise limited to design -related matters. (Opinion, p. 13 [CEQA "applies only when the discretionary component of the project gives the agency the authority to mitigate environmental impacts."].) The case builds on the well- established principle that the "touchstone" for determining whether an agency is required to prepare an EIR is "whether the approval process involved allow[s] the [agency] to shape the project in any way which could respond to any of the concerns which might be identified in an [EIR]." (Friends of Westwood, Inc, v. City of Los Angeles (1987) 191 Cal.App.3d 259, 266-267.)6 Both the CEQA statute and guidelines acknowledge that an agency's discretion derives from laws other than CEQA and CEQA does not expand the scope of an agency's discretion. (See, e.g., Public Resources Code § 21004 ["In mitigating or avoiding a significant effect of a project on the environment, a public agency may exercise only those express or implied powers provided by law other than [CEQA]."]; CEQA Guidelines § 15040 ["CEQA is intended to be used in conjunction with discretionary powers granted to public agencies by other laws. CEQA does not grant an agency new powers independent of the powers granted to the agency by other laws .... The exercise of discretionary powers for environmental protection shall be consistent with express or implied limitations provided by other laws."].) The McCorkle court cites to and relies on Friends of Davis v. City of Davis (2000) 83 Cal.App.4th 1004, 1013, wherein the court of appeal held that a city's design review authority did not encompass the ability to "exclude a retail merchant that it, or some of its residents, do not like." In that case, the court specifically noted that "the application of CEQA to a local ordinance is dependent upon the scope and interpretation of the ordinance rather than vice versa," and stated that "CEQA does not enlarge an agency's authority beyond the scope of a particular ordinance." (83 Cal.AppAth at 1015.) The McCorkle case also cites to and relies on San Diego Navy Broadway Complex Coalition v. City of San Diego (2010) 185 Cal.AppAth 924. In San Diego Navy Broadway Complex, the court rejected a CEQA challenge to a design review approval for a large mixed-use development project for allegedly failing to consider the impacts of the project on global climate change. The court reasoned that since the agency had no authority to impose mitigation for climate change within the confines of discretionary design review, CEQA review of that topic "would be a meaningless exercise." (185 Cal.AppAth at 940.)7 6 (Accord, Leach v. City of San Diego (1990) 220 Cal.App.3d 389, 395. ["The exercise of some discretion does not automatically qualify an agency action as aproject subject to CEQA. To trigger CEQA compliance, the discretion must be of a certain kind; it must provide the agency with the ability and authority to mitigate environmental damage to some degree."].) 7 Citing San Diego Navy Broadway Complex, the court in Sierra Club v. County of Sonoma (2017) 11 Cal.App.5th 11, 28 stated that "the existence of discretion is irrelevant if it does not confer the ability to mitigate any potential environmental impacts in a meaningful way." 2696/031700-0001 13286337.3 a01/24/19 RUTAN ^nuTFN c TUCY.CH. llP Honorable Teresa Barrett, Mayor and Members of the Petaluma City Council January 23, 2019 Page 10 When we previously cited the above authorities to Staff as precluding expansive CEQA review, Staff claimed that these authorities were distinguishable. But as McCorlde and the other cases plainly illustrate, Staff is incorrect. The McCorkle court specifically rejected the rationale previously advanced by Staff that the City can lawfully consider environmental topics other than aesthetics. Staff claimed that "CEQA requires an analysis of the whole of the project, including potential environmental impacts to all environmental categories that may result from construction and operation of the project." (Staff Report, June 26, 2018, p. 5; see also Staff Report, December 3, 2018, p. 13 ["the City insisted on its authority and obligation to consider all potential environmental impacts of the project, not merely those related to aesthetics, as the project applicant had argued."].) Project opponents in McCorkle made the same argument. (Opinion, pp. 6, 13.) The court of appeal rejected it, noting that an agency only has discretion over the whole of the project "when the discretionary component of the project gives the agency the authority to mitigate environmental impacts" and stating that the city "properly found that its discretion was limited to design review, given that no use permit was required for [the project]." (Opinion, p. 10.) Staff also claimed that because this is the first instance in which CEQA is being applied to the Project, the City must consider all environmental impact categories, not just aesthetics. (Staff Report, June 26, 2018, p. 5 [reasoning that because "there are no other environmental documents that have been prepared for the Safeway Fuel Center project, [a CEQA document] that analyzes the whole of the project is required."].) Yet, in McCorkle, CEQA review was being applied for the first time to the project approval at issue there. Moreover, in San Diego Navy Broadway Complex Coalition, supra, 185 Cal.AppAth at 938, the court expressly noted that it was applying well-settled law applicable to an initial E1R in the subsequent review context. The City's lack of discretion here has been acknowledged by City decision -makers and Staff.8 In proposing the moratorium, Councilmember Healy pushed for legislative changes to provide the City "discretionary approval" authority over the Project application. (See also February 21, 2014 email from Mr. Healy to Malcolm Johnson, acknowledging that the SPAR process "will lead to an automatic approval for the [Project] without any discretionary approval required by the planning commission or the city council.")9 In a January 27, 2014 news article, then -Mayor David Glass is quoted as saying that the City does not have discretionary authority over projects "that are permitted by the zoning ordinance." Staff has acknowledged that construing 8 True and correct copies of the documents cited in this paragraph are attached hereto as Exhibit B. 9 (Accord July 9, 2018 email from Mike Healy to Robert & Linda Hartrich, acknowledging that "[t]he City doesn't always have the discretion to reject proposals we don't like," and referring to the Project as "one of those situations" and further stating that it was a "foregone conclusion that the Safeway gas station would eventually be approved.") 2696/031700-0001 13286337.3 a01/24l19 RUTAN R.Tm c iLern. ut Honorable Teresa Barrett, Mayor and Members of the Petaluma City Council January 23, 2019 Page 11 the IZO as to reject a permitted use like the Project would "undermine the stability and reliability of the permitted land uses" specified in the City's Zoning Ordinance. (Staff Report, December 3, 2018, p. 14.) At the December 3, 2018 City Council hearing, Councilmember Dave King likewise admonished the audience comprised largely of Project opponents that "we have far less discretion than a lot of you think we have here." Project traffic, air quality, and associated operational issues are NOT design -related issues covered by the City's SPAR ordinance. While the City is allowed under its SPAR review to consider the design of certain circulation features (e.g., ingress, egress, internal circulation, auto & bike parking, and pedestrian ways), it is NOT authorized to regulate non -design related matters. Pedestrian safety due to Project traffic and health risk are NOT design -related issues.10 Indeed, these topics are addressed in the Traffic and Air Quality sections of the MND, not the Aesthetics section. Moreover, Petaluma's SPAR ordinance is indistinguishable from the design review ordinance cited in McCorlde, wherein the court ruled that CEQA review did not extend to traffic, air quality, noise and other operational impacts. For instance, under the Petaluma Code: "Ingress, egress, internal circulation for bicycles and automobiles, off-street automobiles and bicycle parking facilities and pedestrian ways shall be so designed as to promote safety and convenience, and shall conform to approved City standards." (IZO § 24.010.G.) St. Helena's code similarly asks decision -makers to consider: "[W]hether access to the property and circulation systems are safe and convenient for pedestrians, cyclists and vehicles." (Opinion, p. 11.) Further, the Petaluma Code consideration of the "[t]hc siting of the structure on the property, as compared to the siting of other structures in the immediate neighborhood" is indistinguishable from the St. Helena Code provisions calling for consideration of "Compatibility of design with the immediate environment of the site" and "Relationship of the design to the site." (IZO § 24.010.G; Opinion, p. 11.) In another recent case, the court granted writ relief on behalf of a property owner where an agency exceeded its authority in requiring an EIR under CEQA. In Bottini v. City of San Diego (2018) 27 Cal.App.5th 281, the court of appeal determined that the city abused its discretion in requiring an EIR for aproposal to construct a single-family home on a vacant lot. The court determined that the city "abused its discretion" in requiring an EIR based on impacts to an alleged historic structure that was no longer on the property. As with the design review approval at issue in McCorkle, the Project here should have been deemed statutorily and/or categorically exempt from CEQA. (See, Public Resources Code 10 (See May 9, 2018 email from Heather Hines to John Brown attached hereto as Exhibit C [in recapping the May 8, 2018 Planning Commission meeting Ms. Hines observes: "No comments on the actual SPAR itself. Room of people from the school and neighborhood with concerns about health risk and traffic."].) 2696/031700-0001 13256337.3 a01124/19 (A -12 �L R U TAdel RUTAlI L TUCY.CR, ClP Honorable Teresa Barrett, Mayor and Members of the Petaluma City Council January 23, 2019 Page 12 §§ 21080(b)(1) [ministerial], 21083.3 [consistency with general plan EIR]; CEQA Guidelines §§ 15301 [existing facilities], 15302 [replacement or reconstruction], 15303 [new construction or conversion of small structures, 15304 [minor alterations to land], and 15332 [in -fill development projects].) As Bottini indicates, it is an abuse of discretion for an agency to not rely on an exemption when it applies, as is the base here. The only significant aesthetic impact identified in the MND related to light and glare associated with headlights form Project vehicles. The proposed "mitigation" for this "impact" was to install vertical landscaping to provide screening of glare from headlights towards S. McDowell and Maria Drive. Such screening is already depicted in the proposed Project landscaping plan (see Sheet LI) and thus is not required to be imposed to mitigate any impact, as Staff acknowledges. (See February 21, 2018 email from Olivia Ervin to Adam Petersen, attached hereto as Exhibit D, acknowledging that while final landscaping and air quality are provided as mitigation measures, "these sometimes show up as [conditions of approval]."].) Even if this lone "impact" justified a MND, there is no substantial evidence of a fait• argument that the Project may result in other significant aesthetic impacts, such that the City Council could lawfully require an EIR here.11 The Safeway Project, like the 8 -unit project at issue in McCorkle, needs only design review approval from the City. In stark contrast, the 95 -unit project at issue in Protect Niles v. City of Fremont (2018) 25 Cal.App.5th 1129 cited in the Staff -recommended resolution upholding the Appeal, required approval of a general plan amendment, rezoning, and a subdivision map. (Niles Gateway Mixed -Use Project Final Environmental Impact Report, September 2018, excerpt of which is attached hereto as Exhibit E.) Based on the approvals needed and the wide level of discretion associated with them, the City of Fremont was authorized to consider and mitigate issues related to traffic and other non -aesthetic topics. As explained above, no such authority exists here. In light of the very recent and controlling McCorkle decision, the City would be exposed to liability were it to persist in requiring an EIR where none is legally allowed or required. If the City requires an EIR, it would be advancing the same arguments that were soundly rejected by the court in McCorkle. Moreover, the City would be responsible for the costs of defending this untenable legal position. Conversely, if the City Council denies the Appeal and No Gas Here, the Appellants, or any other Project opponent decides to challenge the Council's action, they would be advancing the same losing arguments advanced by the project opponents in McCorkle. And per condition 9 imposed by the Planning Commission on the Project, Safeway would be responsible for indemnifying the City and its residents for the cost of such litigation. 11 The fact that Safeway has agreed to other mitigation that the City is not legally able to impose under CEQA, does not expand the scope of the City's discretion and render those topics subject to CEQA. (See Sierra Club, supra, 11 Cal.App.Sth at 31 ["We decline to hold that the issuance of a permit, otherwise ministerial, is rendered discretionary and therefore subject to further CEQA review because the applicant offers to mitigate potential impacts in ways that are not required."].) 2696/031700-0001 13286337.3 a01/24/19 RUTAN -TAII5 T.CHER. LLP Honorable Teresa Barrett, Mayor and Members of the Petaluma City Council January 23, 2019 Page 13 B. The Planning Commission's adoption of the MND was not appealed to the City Council and is now final and no longer subject to challenge. Appellants never contested the Planning Commission's adoption of the MND, nor did they contend that an EIR was required in their Appeal form or letter. Their failure to do so is fatal. On June 26, 2018, the Planning Commission adopted separate resolutions adopting the MND and approving the SPAR application for the Project. (See Planning Commission Resolution No. 2018-21A and Resolution No. 2018-21B, respectively.) On July 9, 2018, Appellants filed its Appeal of the Planning Commission's decision "to approve a building permit for a Safeway gas station on the corner of Maria Dr. and S. McDowell Blvd." (See Exhibit F.) The Appeal cites objections to the location, need, and public notice provided for the Project. (Id.) In the Appeal, Appellants did not raise any CEQA issue nor make any claim that the Planning Commission had erred by approving the MND. Instead, they asked that the Planning Commission's approval of the Project be reversed. The City's Zoning Code states that "[i]f no appeal is Bled within the time limits, the decision shall be final." (IZO § 24.070.D.) No appeal of the Planning Commission's adoption of the MND was filed within the requisite time limits. As such, it is now final and immune from further consideration or review. (Tahoe Vista Concerned Citizens v. County of Placer (2000) 81 Cal.App.4th 577 [by failing to appeal planning commission's adoption of MND to board of supervisors, opponents failed to exhaust their administrative remedies and waived any right to further challenge the MND]; accord, Clews Land & Livestock, LLC v. City of San Diego (2017) 19 Cal.App.5th 161, 187; see also ParkArea Neighbors v. Town of Fairfax (1994) 29 Cal.App.4th 1442, 1452 [lack of legal representation does not excuse appellant's duty to exhaust administrative remedies].) Because the Planning Cominission's adoption of the MND was not appealed to the City Council, that approval became final and the City Council has no authority to reconsider or revisit it, except to readopt it. (Tahoe Vista Concerned Citizens, supra.) Appellants' claim that the City Council has jurisdiction over the MND because its review on appeal is de novo was considered and rejected by the court in Tahoe Vista Concerned Citizens: Because the Board of Supervisors heard the permit application anew, it was required to adopt all findings necessary to implement its approval of the project. However, it could exercise de novo review solely on the matters raised by plaintiffs. Since plaintiffs did not challenge the Planning Coninaission's approval of the negative declaration, the Board of Supervisors had no jurisdiction over the negative declaration except to readopt it. (81 Cal.App.4th at 593.) Appellants further claim that the Tahoe Vista case is distinguishable because the agency code at issue there limited the appeal to only those issues that were the subject 2696/031700-0001 13286337.3 a01/24/19 RUT_AN RLIT;.tt E TIICY.EF. �iP Honorable Teresa Barrett, Mayor and Members of the Petaluma City Council January 23, 2019 Page 14 of the appeal. The very next sentence of the opinion, however, clarifies that the code language is intended to distinguish between a challenge to a permit generally as opposed to a challenge to a permit condition. (81 Cal.App.4th at 592.) The entire case stands for the principle that an appellant is NOT excused from challenging an agency's distinct action to approve a CEQA document, especially when such a right is afforded by local codes or policies, as is the case here. Public Resources Code section 21151(c) requires that an agency provide for a right to appeal a MND to an agency's elected decision-making body. In accordance with the CEQA statute, Section 9.9.0 of the City's Environmental Review Guidelines provides: Determinations made by the Planning Commission [on a negative declaration] ... may be appealed to the City Council. Appeals must be filed in writing within fourteen (14) calendar days of the decision in accordance with appeal procedures as specified in the Zoning Ordinance. If the determination is appealed within this period, the body hearing the appeal shall consider the ... Negative Declaration and any comments received to determine if the findings are supported by the evidence in the record... . If the body hearing the appeal [of a negative declaration] finds there is substantial evidence to support a fair argument that a potential for significant impact exists, they may require that either additional mitigation measures be added as conditions of approval or that an Expanded Initial Study or EIR be prepared to address potential impacts which were the subject of the appeal and/or are otherwise deemed appropriate by the body hearing the appeal. (See also Environmental Review Guidelines, Chart 2 [flow chart clearly shows 14 day appeal period on Planning Commission action on negative declaration and states "to appeal, written notice of appeal, must be filed with City Cleric."].) The simple and inescapable fact is that the Appellants did not appeal the MND to the City Council. This stands to reason because in their Appeal letter Appellants ask the City Council to reverse the Planning Cominission's approval of the Project. (See Exhibit F.) Nowhere do they ask that the City prepare an EIR and then reconsider the Project. (Tahoe Vista Concerns Citizens, supra, 81 Cal.AppAth at 891 ["it is the grounds as stated by [an appellant in their appeal], not the title given by [agency] staff, that define the scope and nature of the administrative appeal."].) Appellants' failure to appeal the MND within 14 days from the Planning Commission's action bars them from doing so now. 12 12 The fact that Mr. Soluri may have requested an EIR in his September 14, 2018 letter, three days prior to the City Council hearing and more than two months after the appeal period expired, is irrelevant. 2696/031700-0001 13286337.3 a01/24/19 RUTAN aurae: s TUCKER. LLP Honorable Teresa Barrett, Mayor and Members of the Petaluma City Council January 23, 2019 Page 15 In addition, since the time limits for challenging the Planning Commission's adoption of the MND have expired, compliance with CEQA is conclusively presumed. (Public Resources Code §§ 21167, 21167.2; Citizens for Megaplex-Free Alameda v. Cit)) of Alameda (2007) 149 Cal.AppAth 91, 111 [challenge to MND was untimely since not filed within 30 days from filing of NOD].) By law, CEQA review cannot be re -opened unless circumstances requiring subsequent environmental review are present. (Public Resources Code § 21166; CEQA Guidelines § 15162.)13 In general, subsequent review is permitted only if substantial changes are proposed in a project or circumstances in which a project will be undertaken which will require major revisions of a previously adopted CEQA due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects. Whether subsequent review is required is governed by the substantial evidence standard and not the fair argument standard. (Friends of College of San Mateo Gardens v. San Mateo County Community College District (2016) 1 Cal.5th 937, 944 [court applies substantial evidence standard to a subsequent review case involving a negative declaration].) There are no changes in the Project or circumstances under which will be undertaken since the Planning Commission's adoption of the MND in June 2018. Since there is no substantial evidence of any such changes, CEQA precludes the City from lawfully ordering further environmental review here in the form of an EIR. (Moss v. County of Humboldt (2008) 162 Cal.AppAth 1041, 1060; Security Environmental Sys. v. South Coast Air Quality Management District (1991) 229 Ca1.App.3d 110, 132.) C. Upholding the Appeal in the manner recommended by Staff is not requested by Appellants and is not authorized by the City Code. Even assuming that Appellants appealed the Planning Commission's adoption of the MND such that the City Council had jurisdiction over it, the City Council still cannot lawfully adopt the resolution recommended by Staff to uphold the Appeal and order preparation of an EIR. In the July 8, 2018 letter accompanying the Appeal, the Appellants simply ask that the Planning Commission's approval of the Project be reversed. (July 8, 2018 letter from JoAnn McEachin to Petaluma City Council: "We ask you to reverse the Planning Commission's conditional approval, despite (or perhaps in defiance of) the threat of a lawsuit by Safeway."] 13 (See also Friends of Davis, supra, 83 Cal.AppAth at 1017-1018 [in a case challenging a design review approval for a commercial project, court states "agencies are prohibited from requiring further environmental review unless the stated conditions are met," reasoning that "the interests of finality are favored over the policy of favoring public comment ... even if the initial review is discovered to have been inaccurate and misleading in the description of a significant effect or the severity of its consequences."].) 2696/031700-0001 13286337.3 a01/24/19 (01-- ( 3 to RUT_AN -1 1 -C R. LL Honorable Teresa Barrett, Mayor and Members of the Petaluma City Council January 23, 2019 Page 16 On an appeal, the City Council may "[a]ffiim, affirm in part, or reverse the action, determination, or decision that is the subject of the appeal." (IZO § 24.070.G.) The Code does not authorize the City Council to "stay" a decision of the Planning Commission pending further review. Nor is there an option to deny the Planning Cominission approval in part, as wrongly stated by Staff in the notice for this matter. The City Council may reverse the decision of the Planning Commission to adopt the MND and approve the SPAR application. In order to do so, it would have to find that the Project design does not meet the considerations specified in IZO § 24.010.G. This would be very difficult to do (at least in any credible fashion) given that the Staff and Planning Commission both uniformly found that the Project was consistent with all such considerations. (Staff Report, Mays, 2018, pp. 16-19; Planning Commission Resolution No, 2018-218; Staff Report, December 3, 2018, p. 14 ["The City has not interpreted its discretion under SPAR so broadly as to permit rejecting outright uses specified as permitted in a zoning district based on SPAR considerations. Doing so would undermine the stability and reliability of the permitted land uses specified in the use tables in Chapter 4 of the IZO."]; see also September 12, 2018 email from former Councilmember Chris Albertson to Alicia Wolff ["For the Council to reject this proposal, they need a legitimate reason, based on documented fact not opinions that the proposal is unsuited for this location. To say `no' just because could invite law suits from the developer that would be hard to defend."].) In short, the Staff -recommended action on the Appeal was not requested by the Appellants and is not authorized by the City Code. D. There is no substantial evidence of a fair argument of significant environmental impacts. Even assuming that the City were not legally precluded from considering issues other than aesthetics (contrary to McCor•kle and other cases) and had lawful jurisdiction over an appeal of the MND (despite the contrary ruling in Tahoe Vista Concerned Citizens and other cases), the Project opponent's request for an EIR still must be rejected. We summarize below the lack of substantial evidence supporting a fair argument of potentially significant impacts to pedestrian safety and health risk. As such, the City mast adopt the MND and is legally precluded from requiring an EIR. (Public Resources Code § 21080(c)(1); CEQA Guidelines §§ 15063(b)(2), 15064(f)(2), 15064(f)(3).) An EIR can only legally be required if there is substantial evidence of a fair argument that the Project may result in a significant effect on the enviromnent. (Citizens Comm. to Save Our Village v. Claremont (1995) 37 Cal.AppAth 1157, 1171; League for Protection of Oakland's Historic Resources v. City of Oakland (1997) 52 Cal.AppAth 896, 904.) There is no such evidence here. Substantial evidence is defined as evidence of ponderable legal significance, reasonable in nature, credible, and of solid value. (Lucas Valley Homeor4)ner°s Assn. v. County of Marin (1991) 2696/031700-0001 13286337.3 a01/24/19 19-63-7 RUTAN RUTPN E TUCKER. LL? Honorable Teresa Barrett, Mayor and Members of the Petaluma City Council January 23, 2019 Page 17 233 Cal.App.3d 130,142.) It includes fact, a reasonable assumption predicated upon fact, or expert opinion supported by fact. (Public Resources Code § 21080(e)(1).) It does not include argument, speculation, unsubstantiated opinion or narrative, generalized concerns and fears, and evidence that is clearly inaccurate or erroneous. (Public Resources Code § 21080(e)(2); Lucas Valley Homeoivners, supra, 233 Cal.App.3d at 163; Leonoff v. Monterey County Board of Supervisors (1990) 222 Cal.App.3d 1352; see also Porterville Citizens for Responsible Hillside Development v. City of Porterville (2007) 157 Cal.App.4th 885, 906 [court observes that "dire predictions by non -experts regarding the consequences of a project do not constitute substantial evidence."). Under CEQA, an agency can only require an EIR when there is "substantial evidence in the record that the project may have a significant effect on the environment." (CEQA Guidelines § 15064(f)(1).) As such, like a judge in a court case, the City Council here MUST evaluate the evidence submitted by the opponents and determine whether it is credible enough to justify an EIR. (Friends of "B" Street v City of Hayward (1980) 106 Cal.App.3d 988, 1002 [court observes that "[c]onflicting assertions do not ipso facto give rise to substantial fair argument evidence."]; Citizen Action to Serve All Students v. Thornley (1990) 222 Cal.App.3d 748, 755 [court upheld agency's rejection of contrary expert testimony of traffic impacts finding that it did not qualify as substantial evidence].)" The City Council cannot evade its mandatory legal duty simply by citing to the fact that information was submitted by a competing expert. 1. Pedestrian safety In a single paragraph of the draft resolution purporting to uphold the Appeal, Staff claims that City residents, neighbors, teachers and others have provided written and oral comments `'expressing concern regarding safety of the McDowell Boulevard and Maria Drive intersection due to traffic volumes and speeds, conflicts with pedestrians, and increased activity resulting from the [Project]...." The resolution refers to two commenters who "observed pedestrian/vehicle collisions and near -collisions in the Project area," refers to another commenter who stated that "school -aged children walk home by themselves, and the crosswalk is already a danger," cites a commenter "expressing concern about heavy traffic and foul balls getting hit next to a busy street" and another commenter "observing cars run stop signs while working at the snack shack at Murphy Field, and noting Maria Drive is heavily traveled and one of the main streets in the area." Such comments do not constitute substantial evidence of impacts for numerous reasons. 14 (See also Jensen, supra [upholding MND for transitional housing project because claims of significant noise impacts were not supported by substantial evidence]; Par -key Shattuck Neighbors v. Berkeley City Council (2013) 222 Ca1.App.4th 768, 786 [rejecting challenge to MND where challenging expert's data lacked foundation and was based on clearly erroneous assumptions]; and Schenck v. County of Sonoma (2011) 198 Cal.AppAth 949, 958 [upholding MND for distribution facility because there was no substantial evidence in the record that impacts to water quality, riparian habitat, and traffic conditions were not adequately mitigated].) 2696/031700-0001 13286337.3 x01/24/19 RUTARN ^nuT,1N t TIICY-f F. LL? Honorable Teresa Barrett, Mayor and Members of the Petaluma City Council January 23, 2019 Page 18 First, the comments refer exclusively to existing conditions and provide no evidence whatsoever that the Project may result in a significant effect on the environment. A "significant effect on the environment" means "a substantial, or potentially substantial, adverse change in any of the physical conditions within the area affected by the project including land, air, water, minerals, flora, fauna, ambient noise, and objects of historic or aesthetic significance." (CEQA Guidelines § 15382.) The S. McDowell Boulevard/Maria Drive intersection is signalized and contains sidewalks on all sides as well as a striped pedestrian crosswalk, pedestrian signals, and curb ramps. Section 3.16(f) of the MND notes that the Project "does not make any substantial changes to pedestrian facilities and is not expected to pose a hazard to pedestrian safety." (MND, p. 57; see also Staff Report, pp. 17-19 and Attachment 8, pp. I1-13.) Nevertheless, the Project was conditioned to implement improvements to enhance the pedestrian facilities onsite, at the intersection of S. McDowell Boulevard/Maria Drive and along Maria Drive.15 As such, the MND appropriately concludes that "impacts associated with pedestrian safety will be less than significant." (Id) The MND's conclusions in this regard were validated by City Staff, embraced by the City Planning Commission, and are fully supported by substantial evidence in the record, including multiple reports prepared by expert traffic consultants, including multi -day video taken of the intersection while school was in session and Little League playoffs were underway. Second, the generalized claims raising dire predictions by non -experts are refuted by expert analysis based on empirical data. (See, e.g., Traffic Impact Study Update (CHS Consulting Group, March 2018) [under existing plus project, background plus project, and cumulative plus project conditions, the intersection of Maria Drive and McDowell Boulevard will operate at level of service ("LOS") B or better conditions]16 and Supplemental Pedestrian Safety Analysis, CHS Consulting Group, June 2018 [based on actual surveys showing a low level of pedestrian crossings at the Maria/McDowell intersection coupled with five years of statistics showing a low level of vehicle -pedestrian collisions at that intersection, the Project traffic consultant reasonably concluded that any potential impacts to pedestrian safety were less than significant and thus required no mitigation].) This is unlike the situation in Protect Niles where the project degraded traffic operations at a nearby intersection to LOS F (gridlock) conditions and the project traffic consultant recommended a specific traffic safety mitigation measure that the decision -makers 15 For instance, fuel delivery trucks will be barred from entering and exiting on Maria Drive; Project traffic will be prohibited from entering in the two westerly driveways on Maria Drive; damaged sidewalks, driveways, and curb ramps must be replaced adjacent to the Property; a new, accessible and directional pedestrian ramp must be installed at the northeast coiner of S. McDowell Boulevard/Maria Drive; and a pedestrian crossing warning sign must be installed at the proposed driveway entrances. 16 Even this level of service, reflecting stable traffic flows with minor delays, maybe overstated given that the Planning Commission conditioned the Project to prohibit Project traffic from entering the Project site from two of the three driveways on Maria Drive. 2696/031700-0001 13286337.3 a01/24119 Cal(31 . RUTAN R Tm s TUCYtfl. LLP Honorable Teresa Barrett, Mayor and Members of the Petaluma City Council January 23, 2019 Page 19 failed to impose on the project. Moreover, a generic claim that the Project will increase traffic and thereby impact pedestrian safety could be leveled against any project. And, as noted by the expert traffic consultant, the majority of Project traffic is already on the relevant street network. Thud, several of the comments relate to an entirely different intersection (e.g., Maria Drive/Park Lane) located to the east of the Shopping Center. Obviously comments about a different intersection are not relevant to conditions at the S. McDowell Boulevard/Maria Drive intersection. (Jensen v, City of Santa Rosa (2018) 23 Cal.App.5th 877 [reliance on noise impacts for a different project in a different location did not constitute substantial evidence of a fair argument of significant noise impacts]; Leonoff, supra [evidence of traffic impacts at other intersections did not constitute substantial evidence of a fair argument of traffic impacts at project intersection]; and Citizens for Responsible Development v. City of West Hollywood (1995) 39 Cal.AppAth 490, 502 [letters from state historic preservation officer relating to different site were not relevant to project before agency].) Fourth, comments referring to "near misses" are likewise subjective, speculative, and unsubstantiated. Maria Drive, a two-lane connector road, is not identified by any plan or study as "one of the main streets" in the area. Moreover, as the photos attached hereto as Exhibit G plainly show, a foul ball net and chain link fence separate the Little League field fi•om Maria Drive. As such, claims of children running into the street to chase foul balls are gross distortions of reality and seemingly raised simply to incite fear. Fifth, in response to the comment that there are school -aged children that walk home alone, it is worth noting that the school entrances and drop-off/pick-up points to McDowell Elementary School are accessed by the opposite side of the school property on McGregor Avenue, i.e., furthest from the Project site. Children walking to the school from the east would cross at the dedicated crosswalks at Maria Drive/Park, Lane and continue down Park Lane. (Id.) Children walking to the school from the west were observed using the southern leg of the crosswalk to cross South McDowell. Finally, to the extent that there may have been previous issues at the S. McDowell Boulevard/Maria Drive intersection, City Staff investigated them and found that they had no merit. In June 2015, Maureen Rudder, then -Principal of McDowell Elementary wrote to the City Council complaining that signal modifications made by the City resulted in the intersection becoming less safe for pedestrians. (See Exhibit H.) She noted that after helping to safely cross large groups of students on a field trip, certain vehicles had little time to turn left onto southbound McDowell. (Id.) Then -City Engineer Curtis Bates responded to then -City Manager John Brown that the City "absolutely looked at pedestrian safety and crossing timing" when adding flashing yellow arrows to alert drivers making left turns onto Maria Drive to yield to opposing through traffic 2696/031700-0001 13286337.3 a01/24/19 (O_PfLit) RuTAN rura�i c n'crea. uP Honorable Teresa Barrett, Mayor and Members of the Petaluma City Council January 23, 2019 Page 20 (vehicles/pedestrians/bicycles).17 (Id.) Mr. Brown directed an employee to observe the operations and reported that "everything is operating as designed." (Id.) In connection with his review of the Project, Mr. Brown confirmed the "existing signal timing is adequate for pedestrians." (Id.) Senior Civil Engineer Jeff Stutsman concurred noting that the changes were made based on a professional traffic report prepared by W -Trans given that "there were too few potential conflicts to justify protective operation or protected only operation." (Id.) In sum, the generalized comments regarding pedestrian safety are speculative, unsubstantiated, and/or directly contradicted by expert, factual analysis. As such, they do not constitute substantial evidence of a fair argument of significant environmental impacts and cannot lawfully be relied on as the basis to order preparation of an EIR. 2. Health risk Citing correspondence submitted by Fox and Kapahi on November 30, 2018 and December 3, 2018 criticizing the Project HRA prepared by Illingworth & Rodkin and the acceptance of the .HRA. by BAAQMD, the resolution purporting to uphold the Appeal claims that there is a "disagreement among experts" such that an EIR must be prepared. As explained below, such claims were found to NOT be credible by BAAQMD, City Staff, and Illingworth & Rodkin. As such, they do not constitute substantial evidence of a potentially significant impact and cannot legally be relied upon to require an EIR. BAAQMD has opined that the Fox/Kapahi materials are not substantial evidence. (See Staff Report, Attachment 14.)18 City Staff has stated that the Fox/Kapahi materials and related claims made by others do not constitute substantial evidence. (Staff Report, pp. 24, 25, 28; see also Staff Report, Attachment 6-8, pp. 3-11 and Staff, Report, Attachment 7, pp. 19-21.) And, Illingworth & Rodkin, an expert air quality consulting Finn, has concluded that such materials are not substantial evidence. 19 (Staff Report, Attachments 13, 22, and 25.) " The Project's expert traffic engineer notes that the City's modifications to the signal in this regard are in accordance with uniform traffic control device standards. 18 (See, e.g., San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1996) 42 Cal.AppAth 608, 625 [lead agency properly relied on comments from responsible agency in determining that significant impacts would not occur].) 19 Illingworth & RodIdn is respected and reputable firm. It was located in Petaluma until September 2018 and is now located in neighboring Cotati. Its consultants have performed air quality, noise, and other environmental reports for agencies and projects throughout the Bay Area and State, including many in Petaluma. 2696/031700-0001 13286337.3 a01/24/19 I �L-(Lff RUN -TA,j & TUGYm LLP Honorable Teresa Barrett, Mayor and Members of the Petaluma City Council January 23, 2019 Page 21 The Project's potential health risks have been the subject of at least three different HRAs prepared by Illingworth & Rodkin and extensively reviewed by City Staff. The BRAS were prepared in accordance with best industry standards and comport with all applicable regulatory guidance. The Project's health risk were even evaluated under two separate methodologies— ISCST3 and AERMOD. The Project's health risk was consistently found to be lower than established regulatory standards for all categories of sensitive receptors; infants, students, teachers, and residents. On the day of the first scheduled City Council hearing on the Appeal, Fox/Kapahi submitted a health risk assessment claiming that the Project would result in significant health risks. In their October 10, 2018 report (Staff Report, Attachment 13), Illingworth & Rodkin note that Fox/Kapahi wrongly based their "analysis" on Santa Rosa wind data as opposed to Petaluma data even though analysis of health risk is heavily dependent on the use of correct meteorological information. Fox/Kapahi also overstate diesel emissions by an approximate factor of ten by overestimating the amount of diesel sales and the number of vehicles as well as by incorrectly averaging the emission rate for all vehicle types. Fox/Kapahi likewise overstate the amount of benzene emissions, citing higher emission factors from another air district, and then modeling even higher emissions than the cited values. In a November 8, 2018 letter to the City, Damien Breen, Deputy Air Pollution Control Officer with BAAQMD concurred with Illingworth & Rodkin's responses, citing "several key concerns" with the Fox/Kapahi analysis, (See Staff Report, Attachment 14.) Conversely, Mr. Breen accepts the updated analysis performed by Illingworth & Rodkin using the AERMOD model and states that BAAQMD has no further comments on the Project's HRA. City Staff acknowledges that "[t]he expert input received from BAAQMD supports the less than significant finding of the IS/MND regarding health risk impact from the proposed Safeway Fuel Center. The Safeway Fuel Center would result in Iess than significant impacts to health risk due to construction and operation of the proposed Safeway Fuel Center because emissions levels and exposure risk to adjacent sensitive receptors fall below levels of significance." (Staff Report, p. 25.) In a November 30, 2018 supplemental "analysis," Fox/Kapahi used the same flawed modeling assessment originally provided, but then employed a hybrid meteorological data set, combining Petaluma wind data with Santa Rosa meteorological data. As explained in the December 2, 2018 response from James Reyff of Illingworth & Rodkin (Staff Report, Attachment 22), "[b]y applying an artificial, misleading, and erroneous hybrid meteorological data set to their previous analysis, Fox and Kapahi have compounded the numerous key concerns that we and BAAQMD have previously identified." Mr. Reyff went on to observe that Fox/Kapahi created a "Frankenstein meteorological data set that is not acceptable in practice and fails to provide an accurate assessment of the Project's health risk." 2696/031700.0001 13286337.3 a01/24/19 RUTAN i�T:.tl L'U[NEN. LL? Honorable Teresa Barrett, Mayor and Members of the Petaluma City Council January 23, 2019 Page 22 In a December 3, 2018 comment letter, Fox/Kapahi further criticized the Project HRA and BAAQMD's acceptance of it, citing generalized concerns about the health risk associated with gas stations. Illingworth & Rodkin responded on December 3, 2018 (Staff Report, Attachment 25) indicating that the Project LIRA comports with accepted regulatory guidance and procedures. Specifically, Illingworth & Rodkin correctly note that the meteorological data used "is accepted by the [U.S.] EPA for regulatory modeling purposes." It also pointed out that use of the 30 -year exposure duration "yields more conservative results" and is consistent with BAAQMD recommendations and guidance. It further noted that BAAQMD concurred in the benzene emissions factors used in the Project HRA whereas the emissions factors relied on by Fox/Kapahi are greatly overstated due to, among others, failure to account for California fueling station vapor recovery standards. In short, the City Council cannot lawfully rely on Fox/Kapahi materials in ordering an EIR and must instead adopt the MND the Project. E. If the City Council were to uphold the Appeal in whole or in part, it would deprive Safeway of its constitutionally protected rights to due process, The Due Process Clause of the Fourteenth Amendment to the United States Constitution prohibits a state from depriving a person of life, liberty, or property without due process of law. (See also Cal. Con., art. I, sec. 7.) The Due Process Clause has both procedural and substantive elements. And a violation of either subjects a public agency to liability for damages and attorneys' fees. (42 U.S.C. §§ 1983, 1988.) As set forth below, were the City to uphold the Appeal, in whole or in part, it would be liable for violating Safeway's procedural and due, process rights. 1. Procedural Due Process In accordance with principles of procedural due process, the applicant in a quasi-judicial proceeding is entitled to reasonable notice and opportunity to be heard. (Horn v. County of Ventura (1979) 24 Cal.3d 605, 612.) This right includes a fair hearing before unbiased and disinterested decision -makers. (Nasha L.L.C. v. City of Los Angeles (2004) 125 Cal.App.4th 470, 483). A decision -maker who has preconceived views of the outcome of the proceeding without regard for the evidence is not an impartial and unbiased decision -maker. (Cohan. v. City of Thousand Oaks (1994) 30 Cal.App.4th 547; Nightlife Partners, Ltd. v. City of Beverly Hills (2003) 108 Ca1.AppAth 81, 90 ["Just as in a judicial proceeding, due process in an administrative hearing also demands an appearance of fairness and the absence of even a probability of outside influence on the adjudication."] (emphasis in the original).) "An individual member ordinarily cannot vote on a matter in which that member is interested. ff the member does, the action taken by the body of which he or she is a member is invalidated." (Clark v. City of Hermosa Beach (1996) 48 Cal.AppAth 1152, 1170, 1173 [court 2696/031700-0001 13286337.3 a01/24/19 iol--6g3 RUTAN Rt1TAt! 5 TtICM.:JE. LLP Honorable Teresa Barrett, Mayor and Members of the Petaluma City Council January 23, 2019 Page 23 overturns project denial based on involvement of decision -maker who expressed his opposition to the project prior to the public hearing].) Such a decision -maker must be disqualified from further participation in the matter. (Mennig v. City Council (1978) 86 Ca1.App.3d 341, 351.) If a majority of members of a decision-making body are disqualified from acting, it is appropriate to allow the action of an inferior decision maker to stand as the final decision. (Id. at 351-352]; accord, Sabey v. City ofPofnona (2013) 215 Cal.App.4th 489, 498.) Based on certain documents received from the City only recently in response to Safeway's May 24, 2018 and November 19, 2018 Public Records Act requests, it is plain that at least six members of the City Council—Mayor Teresa Barrett, Vice Mayor Kevin McDonnell, and Councilmembers Mike Healy, Kathy Miller, Gabe Kearney, and D'Lynda Fischer— are not impartial and unbiased when it comes to the Project. (The emails and other documents obtained to date indicating bias of these members are provided in Exhibit 1, Exhibit J, Exhibit K, Exhibit L, Exhibit M, and Exhibit N, respectively.) As such, these members must recuse themselves from any action to uphold the Appeal. Any bias exhibited by these members against the Project would not preclude them from denying the Appeal. Alternatively, these members as well as the one apparently unbiased member could recuse themselves, thereby resulting in an abstention on the Appeal, which would have the effect of allowing the Planning Commission decision to stand. (Petaluma City Council Rules, Policies, and Procedures, Section VI.D ["If there is no action by an affirmative vote, the result is [no] action. If the matter involves an appeal, and an affirmative vote does not occur, the result is that the decision appealed stands as decided by the decision-making person or body from which the appeal is taken."].) a. Mayor Teresa Barrett Mayor Barrett has expressed her opposition to the Project since 2013 and has used her position on the BAAQMD board to lobby against it. ("Gas station ignites public controversy," Argus -Courier, August 29, 2013 [Ms. Barrett is quoted as opposing the Project, noting "It's really not what we've intended for our city."].) At the August 19, 2013 City Council hearing, then-Councilmember Barrett noted she serve as liaison to BAAQMD and had traded information with the "head person" there regarding the Project. At the March 3, 2014 hearing to consider a moratorium, Ms. Barrett stated: "I don't like this project. I don't like that it's right next to these sensitive receptors." She also directed Staff to investigate whether the Project would qualify as a "drive-thru" so as to be disallowed under the City Code. (See also "Temporary ban on Petaluma gas station fails," March 4, 2014, Argus - Courier.) 26961031700-0001 132863373 a01/24/19 ra--(uq RUTAIL! :Ui?N s TUCkEP. 4lP Honorable Teresa Barrett, Mayor and Members of the Petaluma City Council January 23, 2019 Page 24 In a June 25, 2018 email to Linda Hartrich, an Appellant, Ms. Barrett, a BAAQMD board member, indicated she intended to "follow up" with BAAQMD regarding the Project's throughput of gasoline because she "did not know how the threshold of 25.7 million gallons was determined," and noted that it "seemed like an awfully high number to me." Ms. Hartrich thanked her for her efforts. 20 During the June 26, 2018 Planning Commission, then-Councilmember Barrett emailed City Staff and then -Mayor Glass: "I am watching the planning commission meeting and I am stunned that Safeway employees and consultants are speaking as part of public comment. They should be stopped from speaking once they are identified as Safeway shills and allowed to speak when Safeway has a summation or reminded that they could have spoken before public comment period."21 Mayor Barrett previously used profanity in referring to Safeway and emailed a Planning Commissioner that Safeway was "unbelievable aggressive" and in a "league of their own" in seeking Project approval from the Planning Commission. Ms. Barrett was also in frequent email contact with at least one of the Appellants. On July 8, 2018, she emailed then -Mayor David Glass that Bernie Album was working with a group to appeal the Project and that she was forwarding emails from others "who ask what they can do."22 On July 9, 2018, she emailed Mr. Album to thank him for his work on the Appeal. She also cautioned Mr. Album about creating a public paper trail of her correspondence with him, emailing him on July 7, 2018: `Bernie, better not to include me in these emails," and in regard to the draft appeal letter writes: "I couldn't open it, but it is probably best I not see it." Although Ms. Barrett received a copy of the filed Appeal on July 12, 2018, she emailed Annette Bock on August 20, 2018 that she had not seen the Appeal. In a July 25, 2018 email to Ms. Hartrich, including a Staff analysis confirming the recommended distances between a new school and certain uses do not apply to the Project, she wrote: "I'm afraid the standards are not as high as either you or I would want." (See also July 8, 2018 email from David Glass to Ms. Hartrich ["The property zoning permits such a use, and it appears the regulations that are in place under the law for such use in proximity to schools do not meet the threshold to withhold approval of a project such as.this. This project will comply with 20 Ms. Barrett's statements in this regard are in conflict with her comment during the March 3, 2014 City Council hearing regarding the proposed moratorium, wherein she confirms that she spoke to BAAQMD and was informed that the figure was derived from BAAQMD's screening - level analysis and understood that it was well over the amount of gasoline that Safeway would sell. 2r Emailing decision -makers during a public meeting violates the intent if not the letter of the City Council Policy Governing the Use of Electronic Communications During Public Meetings. (City Council Resolution No. 2012-026.) 22 When Mr. Album previously expressed that he could not garner sufficient support for the Appeal and was "giving up," Mayor Barrett replied that "this is NOT a win for Petaluma." 2696/031700-0001 13286337.3 a01/24/19 R UTA° Honorable Teresa Barrett, Mayor and Members of the Petaluma City Council January 23, 2019 Page 25 all California laws regarding such issues as pollution."].) She nonetheless voted in favor of the Resolution, which, like the Staff -recommended resolution, includes a provision clauning that "CARB recommended setbacks for gas stations may be inadequate." In an August 20, 2018 email to Annette Bock, Mayor Barrett wrote: "Ido not support the idea of putting this project in this place ...." On September 1, 2018, Mayor Barrett wrote to Angelo Sacerdote to express her "concern[s]" with the Project, stating she was "very aware of the issues." On September 12, 2018, Mayor Barrett referred to the upcoming hearing on the Project as "one of a handful that I feel absolutely terrible about." In response, to an October 5, 2018 email from Ellen Webster, a Board Member of the Petaluma City Schools District, urging her to vote yes on the Appeal and the EIR, Mayor Barrett wrote: "Keeping my fingers crossed until I see the staff report!" and signed off "Ever hopeful, Teresa Barrett." Project opponent Jason Davies emailed Mayor Barrett on October 8, 2018 to state that it "just pains me to see us going backwards like this when we already have existing [gas] stations and we need to be getting ourselves off our addiction to fossil fuels." Ms. Barrett responded, "I'm totally on the same page and I'm cautiously hopeful." Finally, during her successful race for Mayor in 2018, Ms. Barrett emailed her campaign manager that she was making her opposition to the Project known personally to constituents as she walked door-to-door, but refused to provide a formal written response on Facebook out of fear she would have to recuse herself from voting on the Project. (October 21, 2018 email from Teresa Barrett to Chris Samson.) b. Vice Mayor Kevin McDonnell In his campaign for City Council, Vice Mayor Kevin McDonnell stated that he was opposed to the Safeway gas station Project. (`Ballot set in Petaluma election races," August 23, 2018, Argus -Courier.) He also participated in a candidate forum on October 13, 2018 in which he expressed -his opposition to the Project. He also posted his opposition to the Project on his campaign website, noting his ownership of an electric car and questioning whether gas stations were a "business model we want to encourage." In Facebook posts by No Gas Here and others, Mr. McDonnell is listed as being opposed to the Project. And, in response to a questionnaire from Bike Petaluma, then -City Council candidate McDonnell wrote: "When developments come through the Planning process, we must create incentives to move away from cars. They only create pollution and traffic." 2696/031700-0001 13286337.3 a01/24/19 RUTAN RUT 1 L rU[_O. LL- Honorable L Honorable Teresa Barrett, Mayor and Members of the Petaluma City Council January 23, 2019 Page 26 C. Councilmember Mike Healy Before the Project application was even complete, Councilmember Healy registered his strong opposition to it. At the August 19, 2013 City Council hearing, in response to testimony from independent gas station owners, Mr. Healy questioned where there were legislative changes that could be made in advance of the Project coming through, claiming it would set a "dangerous precedent," noted his understanding that the gas station owners had retained local counsel and that the issue was "not going away lightly." He authored an op-ed article against the Project. ("Bennett misses the point on moratorium," a copy of which along with the original editorial entitled "City Council is fighting the wrong battle," is attached hereto.) This alone would disqualify him from taking any action concerning the Project. (Nasha L.L.C., supra, 125 Cal.AppAth at 483-484 [article opposing project written by planning commission member gave rise to an unacceptable probability of actual bias and was sufficient to preclude the commissioner from serving as a "reasonably impartial, noninvolved reviewer."] Y3 As noted previously, Councilmember Healy was the driving force hehind hoth the proposed moratorium against gas stations and the proposed fee increase oil gas stations. (See Minutes of January 27, 2014, February 24, 2014, March 3, 2014, and July 7, 2014 City Council meetings; see also "Temporary ban on Petaluma gas station fails," March 4, 2014, Argus -Courier and May 2014 email exchange with Ross Jones.) He appears to have taken these actions at the behest of competing gas station owners and a local developer. (Id.; see also February 28, 2014 email exchange between Mike Healy and Ai ash Salkhi;24 see also March 3, 2014 letter from James Dombrowski, a local anti-trust attorney that has sued Safeway on behalf of other gas station operators; March 4, 2014 Argus -Courier article, "Temporary ban on Petaluma gas station fails, noting Healy proposed a moratorium on gas stations because of what he characterized as unfair " (See also hgps://patch.com/califomia/-etaluma/to-recuse-or-not-recuse-that-is-the- ueq stion [August 21, 2012 Petaluma Patch article "To Recuse or Not Recuse That Is the Question," refers to a recusal by Planning Commissioner Bill Wolpert of participation in the hearing on the Deer Creek shopping center project based on his authorship of a letter to the City Council critical of that project].) 24 In that email exchange, Mr. Salldli wrongly informs Mr. Healy that Safeway applied to BAAQMD for a larger amount of gasoline throughput. As made clear by City Staff, that throughput was a value entered by BAAQMD based on their screening -level analysis. Moreover, Franklin Dickey of BAAQMD provided information on the Project to Mr. Salkhi via email whereas Safeway was informed that it had to submit a formal Public Records Act request to receive information on its own project. (See December 13, 2018 email from Fred Tanaka to Natalie Mattei.) 2696/031700-0001 13286337.3 a01/24/19 JL -(L4 `1. RUTAN RUTRt15 TUGYER. LLP Honorable Teresa Barrett, Mayor and Members of the Petaluma City Council January 23, 2019 Page 27 competition ....' ; and August 29, 2017 email from Mike Healy to Argus -Courier reporter Hanna Beausang providing an update on Dombrowski's lawsuits against Safeway.].) On January 27, 2014, Mr. Healy proposed an urgency ordinance that would bar the processing of any gas station application pending adoption of legislation to provide discretionary approval on that application and give Safeway an opportunity to convince us that it would be good thing for a community, noting that may be a "difficult thing for them to do." At the March 3, 2014 hearing on the moratorium, Mr. Healy cross-examined Safeway's then -Real Estate Manager Mary Davi regarding estimated sale tax figures and its fuel pricing practices, referring to Safeway as "enormously aggressive" in regard to pricing. He also asked Staff detailed questions regarding the Project's traffic impacts even though the traffic study was not then complete and the Project was not before the City Council. Without any evidence of impacts, he suggested reducing the number of fuel pumps in half. Healy concluded by stating that the Project is on "auto pilot" and that he was not `particularly happy" about it. In an August 19, 2018 email not produced by Councilmember Healy in response to Safeway's Public Records Act request, but attached to a January 15, 2019 letter from Janice Cader Thompson to the City, Mr. Healy wrote to Stephen Gale of the Sonoma County Democratic Parry Central Committee ("SCDPCC") regarding the opening of its headquarters elsewhere in the Washington Square Shopping Center. In that email, Mr. Healy expresses his dislike for Safeway, Fulcrum, and the Project: I don't get the impression that the SCDPCC has any idea of the steaming pile of horse poop of a local political mess it has stepped into with the choice of this HQ. The building you will be using is scheduled to be torn down soon for a Safeway fueling center 100 feet from an elementary school serving a 90%+ Hispanic population. The parents, the school district & the neighborhood are all outraged. Yet Safeway & the landlord persist. I will not be attending the grand opening or having anything to do with the HQ while it is in operation. Many in Petaluma will regard this choice of HQ as a slap in the face. As noted by Ms. Thompson, Mr. Healy wrongly believed that the building to be used for the SCDPCC headquarters was located on the Project site. Despite his mistaken belief, his bias against the Project, Safeway, and Fulcrum are evident. d. Councilmember Kathy Miller Councilmember Miller supported the proposed moratorium on gas stations proposed by Councilmember Healy. At that March 3, 2014 City Council hearing on the moratorium, she said this about the Project: "This is a project that when I first heard about it, my very first reaction to 2696/031700-0001 13286337.3 A1/24/19 fa- NI R U TA`s AUTaIt � TUCHM LLP Honorable Teresa Barrett, Mayor and Members of the Petaluma City Council January 23, 2019 Page 28 it was that's a terrible location for this fueling station. And there has been nothing that I've heard that's changed my mind." In a January 27, 2015 email, before the MND and associated studies were provided to her, Councilmember Miller wrote to Ernie Barrera of the Petaluma Argus -Courier that she was "opposed to the gas station location as I think it will have a terrible impact on traffic, safety and the environment." On June 24, 2018, Ms. Miller emailed Project opponent Linda Hartrich, "I absolutely agree with you that it is a terrible location for a gas station. ... I will do everything in my power to stop it." She forwarded this message to then -City Manager John Brown asking, "Is there anything we can do to stop this project from going in at this location? It's going to be disastrous for the neighborhood." The next day she emailed Mr. Brown, "I've made no secret of my desire to block this project at this location from the very beginning." In a July 7, 2018 to a Project opponent, Councilmember Miller expressed her "concerns regarding the [Project] location." By comparison, then -Mayor Glass responded to a similar email from the same Project opponent, noting "under the law as a decision maker, I am required to keep an open mind, review all evidence in the record, and only then am I able to make an informed decision on the matter." In an August 3, 2018 email declining attendance to a Petaluma Chamber of Commerce meeting to discuss the Project, Ms. Miller wrote: "For the record, I think it's a terrible project because of the location so the Safeway people probably don't want me there anyway." Notwithstanding her email, she did attend the August 3, 2018 Chamber meeting and expressed her opposition to the Project. In a September 17, 2018 email to Vice Mayor Healy, Councilmember Miller wrote: "With respect to the gas station tonight, should we push the hearing to allow staff to look at the contenti6ns being raised about the need to do a full EIR. If we're going to get sued either way, I'd rattier vote no on the project In an October 9, 2018 email to City Manager John Brown, Councilmember Miller expressed her dismay with the staff recommendation that the City Council deny the Appeal and the delay in the preparation of the associated staff report, noting "Staff has had plenty of time to address this. I'm not sure what the reason for the delay is but I don't like it or appreciate it." At the December 3, 2018 City Council hearing, Councilmember Miller admitted that she had concerns about the Project "since the beginning" and that if she had her "druthers" she would "deny it outright " 2696/031700-0001 13286337.3 a01/24/19 (a- l(,161 R U TALI Ru -n c TUGHCF. LLP Honorable Teresa Barrett, Mayor and Members of the Petaluma City Council January 23, 2019 Page 29 e. Councilmember Gabe Kearney Councilmember Kearney supported the proposed moratorium on gas stations proposed by Councilmember Healy in early 2014. In a July 9, 2018 email to Linda Hartrich, Mr. Kearney stated: "I am well aware of the location of the gas station and it's inappropriateness. X have been opposed to it since day one." f. Councilmember D'Lynda Fischer In Facebook posts by No Gas Here and others, Councilwoman Fischer is listed as being opposed to the Project. Appellants Adriann Saslow and Glenn Rubenstein claim that Ms. Fischer informed them directly that she was opposed to the Project. On her campaign website, she likewise states: "I oppose the future development of fossil fuel gas stations and will work to change our zoning code to reflect this position." g. Bias by Staff The bias by the City Council has also been exhibited by Staff." In an August 25, 2014 email regarding resubmittal of the SPAR application, then -City Manager John Brown asks the Safeway representative for sales tax revenues "adjusted for cannibalization." Planning Manager Heather Hines sent a similar request to then -Real Estate Manager Mary Davi and notified Mr. Brown of her actions. In a May 9, 2018 email exchange with Planner Tiffany Robbe, Environmental Planner Olivia Ervin wrote that the Project was "tricky because [the City) does not have to consider use (it's allowed by right)." Ms. Robbe responded that "Yes, that the use question is not really on the table does make it tricky!" In a May 18, 2018 email to Planner Lisa Davison, Ms. Ervin advocates that Ms. Davison explore potential significant impacts not identified in the MND prepared by Ms. Ervin and Planning Staff. In a November 24, 2018 email to Ms. Ervin, Ms. Davison quotes from a summary prepared by a law firm of the Protect Niles v. City of Fremont decision, suggesting it could be helpful in justifying an EIR for the Project. This case was cited by City Staff in the Resolution purporting to uphold the Appeal. We explained how it was distinguishable in our December 1, 2018 letter to the City Council. While Ms. Barrett appears to have read our letter and voted in favor of the as Documents cited in this paragraph are attached hereto as Exhibit O. 2696/031700-0001 13286337.3 a0124/19 f A—(S7D RuTAN PLIiH�u n TIIGMEP, L1P Honorable Teresa Barrett, Mayor and Members of the Petaluma City Council January 23, 2019 Page 30 Resolution, she later emailed Ms. Thompson after the December 3rd hearing, disavowing any knowledge of the Protect Niles case. Responding to the Project architect's correction of his reporting on the number of gas dispensers, Argus -Courier reporter Yousef Baig emails then -City Manager John Brown on July 2, 2018: "That's not why [the Project] struggled to get approval ...." In a September 18, 2018 email, Mr. Brown wrote to Mr. Breen of BAAQMD indicating he had called the day before to "discuss our strategy going into last night's meeting, and the revised recommendation for a meeting continuance." Although City officials and/or Project opponents had voiced their concerns with the Project to BAAQMD as early as August 2013 and then again in early August 2018, BAAQMD's letter questioning air quality was submitted at 2:57 p.m. on September 17, 2018. Given the late submittal, the hearing had to be continued causing both delay and additional expense for Safeway and Fulcrum. Ms. Barrett then wrote to Mr. Breen, Mr. Jack Broadbent, and Mr. Brian Bunger of BAAQMD at 3:47 p.m. on September 17, 2018 saying, "Thank you for the letter. I do not have any comments." In the Staff Report, Staff claims that the "vast majority" of comment letters express opposition to the Project. (Staff Report, p. 12.) Staff does not cite to any quantitative analysis to support this statistic. Moreover, it is contradicted by the evidence in the record. Numerous supporters sent emails, letters and/or testified during the City's six plus year review of the Project. In a poll conducted in June 2018, the results of which were provided to the Planning Commission and are attached hereto as Exhibit P, a clear majority of respondents support the Project. Specifically, fifty-five percent indicated that they support the new Safeway gas station project. Only thirty percent of respondents indicated they were opposed to the Project and fifteen percent were undecided. In addition, more than 2,500 people have signed petitions in support of the Project. 2. Substantive Due Process The touchstone of substantive due process is the protection of the individual against arbitrary government action; the due process clause was intended to prevent government officials from abusing their power or employing it as an instrument of oppression. (Wolff v. McDonnell, (1974) 418 U.S. 539,558; Collins v. City of Harker Heights (1992) 503 U.S. 115, 126.) A violation of substantive due process rights occurs if a government agency's actions are (1) irrational or arbitrary or (2) not rationally related to a legitimate government interest. (Village of Euclid v. Ambler Realty Co. (1926) 272 U.S. 365; Lingle v. Chevron (2005) 544 U.S. 528.) The test is disjunctive. Thus, a property owner need only demonstrate facts to support one of the two bases in order to state a viable due process claim. 2696/031700-0001 13286337.3 a01/24/19 (a- ['�-( RUTAN RUTAN L TUCY.Cfl. LLP Honorable Teresa Barrett, Mayor and Members of the Petaluma City Council January 23, 2019 Page 31 InArnelDevelopmentCo. v. City of Costa Mesa (1981) 126 Ca1.App.3d 330, 337, the court of appeal ruled that enactment of a zoning ordinance downzoning certain property was arbitrary and discriminatory where enacted without considering appropriate planning criteria and for sole and specific purpose of defeating a single development. (See also Del Monte Dunes, Ltd. v. City of Monterey (9th Cir. 1990) 920 F.2d 1496, 1508 [court finds local agency's land use decision, motivated by "political pressure from neighbors" instead of legitimate regulatory concerns, supported a substantive due process claim] and Herrington v. County of Sonoma (9th Cir. 1987) 834 F.2d 1488 [denial of subdivision and subsequent downzoning of property violated property owner's due process rights given evidence that county's general plan/subdivision inconsistency detennination was irrational and arbitrary and aimed at defeating particular development project].) In Sunset Drive Corp. v. City of Redlands (1999) 73 Cal.AppAth 215, 225, the court found that a complaint filed by a project applicant, alleging the malicious and arbitrary failure of a lead agency to complete and certify an EIR on a project within a 1 -year period specified in Public Resources Code section 21151.5(a) stated an action for damages for violation of the applicant's constitutional due process and equal protection rights. If the City were to uphold the Appeal, its actions would be arbitrary and irrational, and would constitute an abuse of power, subjecting it to liability also under the substantive process clause. Here, if the City Council were to uphold the Appeal based on documented personal animus towards the Project and/or political pressure from Appellants and others, it would be engaging in precisely the same conduct at issue in Arnel, Del Monte Dunes, and Herrington. In addition, the Project application was deemed complete in September 2014. The City was supposed to complete CEQA review by September 2015 at the latest. As made clear by the Sunset Drive case, the City is liable for damages for continuing to delay the Project and not completing CEQA review in a timely manner. F. If the City Council were to uphold the Appeal in whole or in part, it would deprive Safeway of its constitutionally protected rights to equal protection. The Fourteenth Amendment to the United States Constitution provides that no state shall deny to any person within its jurisdiction the equal protection of the laws. (See also Cal. Con., art. I, sec. 7.) The concept of equal protection has been defined to mean that no person or class of persons may be denied the same protection of law that is enjoyed by other persons or other classes in like circumstances. (Haien v, County of Ventura (1977) 73 Cal.App.3d 1009, 1018.) A claimant must show that the state "has adopted a classification that affects two or more similarly situated groups in an unequal manner." (Walgreen Co. v. City & County of San Francisco (2010) 185 Cal.AppAth 424, 434 [emphasis in the original].) An equal protection challenge to a regulation that does not involve a suspect class or fundamental right must nevertheless bear a reasonable relationship to a legitimate state interest. (Young v. American Mini Theaters (1976) 427 U.S. 50. "[A] deliberate, irrational discrimination, even if it is against one person (or other entity) rather 2696/031700-0001 13286337.3 a01/24/19 RUTAN Honorable Teresa Barrett, Mayor and Members of the Petaluma City Council January 23, 2019 Page 32 than a group, is actionable under the equal protection clause." (World Outreach Conference Center v. City of Chicago (7th Cir. 2009) 591 F.3d 531, 538.) In Village ofWillowbrookv. Olech (2000) 528 U.S. 562, the U.S. Supreme Courtruledthat a plaintiff stated a viable equal protection cause of action based on claims that a municipality required a 33 foot easement from her as a condition of connecting her property to the municipal water supply when it had only required a 15 foot easement from other similarly situated property owners. The Ninth Circuit has likewise upheld equal protection claims brought by property owners that were discriminated against or treated unfairly by local agencies as part of the land use approval process. (See, e.g., Herrington, supra [denial of proposed subdivision and subsequent downzoning violated property owner's equal protection rights where there was evidence that county had approved sizable residential development projects on three other agricultural properties shortly after it rejected the owner's proposal] and Del Monte Dunes, Ltd., supra [allegation that city arbitrarily and unreasonably limited use and development of property and set aside open space for public use, whereas owners of comparable properties were not subject to these conditions and restrictions states viable equal protection claim].) No other gas station has been subjected to a 6 plus year entitlement process or been required to produce 16 plus technical studies to justify approval of a SPAR application. We have found no cases in Petaluma (or elsewhere for that matter) where a stand-alone gas station on commercially zoned land similar to the Project was required to prepare an EIR. We are also unaware of any published opinion where a court has upheld an agency's requirement that an EIR be prepared for such aproject. In our September 6, 2018 letter to Heather Hines, we incorporated by reference into this record of proceedings, the City's recent action on other gas station projects. For most of these projects, the City only required building permits and conducted no CEQA review whatsoever. (See City Permit Files Nos. BLDG -17-1089 [Chevron -1440 E. Washington]; BLDG -18-0641 [Chevron -4999N. Petaluma Boulevard]; and BLDG -18-0215 [Valero -910 Baywood].) For the two projects that were subjected to CEQA review, the City approved one of them based on a MND. (See PLSR-15-0013 [Unocal 76- 4998 N. Petaluma Blvd.].) No traffic or air quality studies were required. The MND stated that "gas stations are not typically large traffic generators given that the majority of traffic trips associated with the use of gas stations are the result of pass -by trips." The other gas station proposed by Project opponent Arash Sall, -hi was approved on July 10, 2018 based on the Class 1 (existing facilities) exemption. (See PLMA-18-0001 [Valero -532 E. Washington].) Mr. Salkhi's project was found exempt even though it was located adjacent to residential uses and involved the relocation and expansion of underground tanks, a project 2696/031700-0001 13286337.3 a01/24/19 RUTAN Ruing: c LUGKGq, tLP Honorable Teresa Barrett, Mayor and Members of the Petaluma City Council January 23, 2019 Page 33 component that was shown on the site plan but not specifically disclosed by Staff in its report on the item. In terms of other locations, in April 2018, the City of Fremont approved a new Chevron gas station, convenience store, and car wash in very close proximity to the housing site at issue in the Protect Niles case. That project was also located close to residential uses and congested roadways. Fremont nonetheless found the project to be exempt from CEQA because it was consistent with the development intensity analyzed in the EIR for Fremont's General Plan. (True and correct copies of the staff report and resolution approving that project are attached hereto as Exhibit .) In January 2018, the Gridley City Council (Butte County) denied an appeal filed by competing gas station owners of design review approval of a proposed new ARCO gas station, convenience store, and car wash. The city found the project to be exempt from CEQA pursuant to the Class 32 (infill) exemption. (True and correct copies of the staff report and resolution approving that project are attached hereto as Exhibit R.) In Alliance of Concerned Citizens Organized for Responsible Development v. City of San Juan Bautista (2018) 29 Cal.App.Sth 424, the Sixth Appellate District upheld a MND for an ARCO fuel station, convenience store, and quick serve restaurant to be located on a heavily - traveled state highway. That project consisted of 12 fuel dispensing stations, a 2,980 square foot convenience store, and a 3,342 square foot fast food restaurant. The court rejected claims that an ETR was needed due to alleged unmitigated traffic and noise impacts.26 In light of the foregoing, upholding the Appeal and subjecting Safeway to different or more burdensome requirements than imposed on similarly situated property owners would deprive Safeway of its constitutionally protected right to equal protection under the law. G. If it upholds the Appeal, the City would have to compensate Safeway and the Owners for an unconstitutional taping of the Property. The Takings Clause of the 5th Amendment to the United States Constitution, made applicable to the states through the 14th Amendment,27 guarantees that private property shall not "be taken for public use, without just compensation." Article I, section 19 of the California Constitution also provides that "[p]rivate property may be taken or damaged for public use only when just compensation ..: has fust been paid to , .. the owner." A land use regulation effects an impermissible taking of property if it deprives an owner of all economically beneficial or productive uses of his land (Lucas v. South Carolina Coastal Council (1992) 505 U.S. 1003) or 26 That project required a conditional use permit in addition to a design review permit. 27 (,See Chicago B&Q R. Co. v. Chicago (1897) 166 U.S. 226.) 2696/031700-0001 13286337.3 a01/24/19 RUTAN kuru! = TUCXER, LLP Honorable Teresa Barrett, Mayor and Members of the Petaluma City Council January 23, 2019 Page 34 conflicts with an owner's distinct investment -backed expectations (Penn Central Transp. Co.. v. New York City (1978) 438 U.S. 104); causes the owner to suffer a permanent physical invasion of his property (Loretto v. Teleprompter Manhattan CATV Corp. (1982) 458 U.S. 419); or imposes an exaction.in violation of the "essential nexus" and "rough proportionality" standards respectively set forth in Nollan v. California Coastal Commission (1987) 483 U.S. 825 and Dolan v. City of Tigard (1994) 512 U.S. 374. A land use regulation that deprives the owner of substantially all economically beneficial or productive use of his land constitutes a taking. (Lucas v. South Carolina Coastal Council, supra [property owner entitled to compensation for regulations precluding development of two beachfront lots, thereby depriving owner of all economic use of his property]; see also First English Evangelical Lutheran Church of Glendale v. County of Los Angeles (19 87) 482 U.S. 304 [property owners are entitled to compensation for temporary taking of their land] and Monks v. City of Rancho Palos Verdes Estates (2008) 167. Cal.AppAth 263 [ordinance imposing a moratorium on construction in landslide area deprived landowner of all economically beneficial use and thus constituted a taking].) Courts have recognized that land use regulations that take all economically viable use of only a portion of private property can constitute a taking. (See, e.g., Twain Harte Associates, Ltd v. County of Tuoluinne (1990) 217 Cal.App.3d 71 and Jefferson Street Ventures, LLC v. City of Indio (2015) 236 Ca1.App.4th 1175.) A regulation may affect a taking even though it leaves the property owner some economically beneficial use of his property. (Kavanau v. Santa Monica Rent Control Board (1997) 16 CalAth 761, 774.) In order to determine whether a taking has occurred when the economic impact is less than total, a reviewing court looks to three factors in particular: (i) the economic impact of the regulation on the owner; (ii) the extent to which the regulation interferes with the property owner's distinct investment -backed expectations as to the use of its property; and (iii) the character of the governmental action? (Penn Central Transportation Co. v. New York City (197 8) 438 U.S. 104, 124.) Based on understandings and assurances from City Staff that the Project was an allowed use, Fulcrum relocated tenants and allowed leases to expire in anticipation of the Project development. Safeway also incurred substantial expenditures in submitting an application and requisite technical studies for the Project. Based on pressure from certain vocal Project opponents, including competing gas station owners, it is clear that the City is now attempting to delay the Project through an EIR in the hopes of malting it go away.29 Such an "about face," subjects the " This criterion requires a reviewing court to "consider the purpose and importance of the public interest reflected in the regulatory imposition." (Loveladies Harbor, Inc. v. United States (Fed. Cir. 2003) 28 F.3d 1171, 1176.) " (County of Orange v. Superior Court (2003) 113 Cal.AppAth 1, 6 [in referring to delay tactics by project opponents under CEQA, court observes that in CEQA cases "time is money" and delays 2696/031700-0001 13286337.3 a01/24/19 RUTAN -Ar TUCK ,u= Honorable Teresa Barrett, Mayor and Members of the Petaluma City Council January 23, 2019 Page 35 City to damages for a taking. (Lockai4wy Storage v. County of Alameda (2013) 216 Cal.AppAth 161 [court upholds award of damages and fees for a regulatory taking against a county based on its inconsistent statements regarding the permitted use of certain land].) The Owners have not been able to make an economically viable use of the Property for 6 plus years. This is NOT a normal delay in the land use entitlement process and thus subjects the City for liability for at least a temporary taking of the Property. (Ali v. City of Los Angeles (1999) 77 Cal.App.4th 246, 254 [upheld award of damages against city for its arbitrary and unreasonable refusal to issue a demolition permit to a hotel owner, finding delay in the regulatory process due to city's position was "so unreasonable fonn a legal standpoint as to be arbitrary."].) In sum, were the City Council to uphold the Appeal, it would subject the City to liability for a taking. H. If the City were to uphold the Appeal, it would be liable for an unlawful interference with contractual relations. Article I, section 10 of the U.S. Constitution provides that, `No State shall ... pass any ... Law impairing the Obligation of Contracts." In order to determine whether an impairment of contact has occurred, courts determine "whether the change in state law has operated as a substantial impairment of a contractual relationship." (Allied Structural Steel Co. v. Spannaus (1978) 438 U.S. 234, 244.) This inquiry is usually divided into three components: (1) whether there is a contractual relationship; (2) whether a change in law impairs that contractual relationship; and (3) whether the impairment is substantial." (General Motors Corp. v. Romein (1992) 503 U.S. 181, 186.) The Owners and Safeway have entered into a Lease Agreement of the Property for the Project. Thus, there plainly is a contractual relationship between Owners and Safeway. Moreover, were the City to uphold the Appeal, this would substantially impair that contractual relationship by precluding the use of the Property for which it is proposed to be leased. As noted by the United States Supreme Court in Allied Structural Steel Co., supra, 438 U.S. at 245: Contracts enable individuals to order their personal and business affairs according to their particular needs and interests. Once arranged, those rights and obligations are binding under the law, and the parties are entitled to rely on them. When examining the substantial impairment, courts often look to the economic harm resulting from the impairment of a contract. (See Allied Structural Steel Co. v. Spannaus and increased cost can make a project less commercially desirable, "perhaps to the point where a developer will abandon it or drastically scale it down."].) 2696/031700-0001 13286337.3 a01/24/19 RUTAN RUTFN s YULHEq, ��d Honorable Teresa Barrett, Mayor and Members of the Petaluma City Council January 23, 2019 Page 36 (1978) 438 U.S. 2345 247,) Safeway would not be able to proceed with the Project until the EIR were completed and the Property would lose all value for Safeway's intended use. Thus, the impairment in this case is substantial. (See, e.g., Club Props. v. City of Sherwood, 2007 U.S. Dist. LEXIS 95080 [property owner stated viable claim that moratorium which precluded the issuance of zoning permits constituted substantial impairment of contract].) If the City were to uphold the Appeal and subject the Project to an unprecedented EIR and further delays, it would be liable to Safeway and the Owners for an impairment of contract claim. The City would also be exposed to related liability for negligent and/or intentional interference with contract or other economic relationship. I. Based on the parties' detrimental reliance on the Property's land use regulations, the City would be estopped from upholding the Appeal. Safeway and the Owners properly and foreseeably relied on the Property's planning and zoning, as well as City Staff's assurances that the Project was a principally permitted use and would be processed in a typical timeframe and in a normal fashion. To date, Safeway and the Owners have made substantial expenditures in reliance on the approved land use designations and planned infrastructure for the Shopping Center and its environs. These funds were used to enter into the lease of the Property to Safeway, prepare Project plans and environmental studies, and pay other direct and indirect expenses related to operation and maintenance of the Shopping Center. As a result of the Owners' and Safeway's reliance on the City's plans and policies, the City would be estopped from upholding the Appeal. (See, e.g., Hocklnvestnlent Co. v. City and County of San. Francisco (1989) 215 Cal.App.3d 438, 448-449 [if property owner reasonably and detrimentally relies upon agency's administrative rule, agency would be estopped from taking subsequent action in contravention of rule]. The court in Kieffer v, Spencer (1984)153 Cal.App.3d 954, 964 observed that estoppel was proper when a city "chose to pursue a course of conduct (for reasons not entirely clear) not only detrimental to petitioners but to public trust in local government." (Accord, Woody's Group, Inc. v. City of Newport Beach (2015) 233 Ca1.App.4th 1012, 1028 [when a local agency "chang[es] the rules in the middle of the game," this "does not accord with [a] fundamentally fair process."].) Were the City to uphold the Appeal, it would run afoul of these guiding principles. The City's plans and assurances that Safeway and the Owners relied upon—even more than the simple administrative rule at issue in Hock—provide a substantial basis for estoppel against the City here. K KY�CXKK.E'KK�f Y>CKX'XKh"i: In closing, we respectfully urge you to deny the Appeal or abstain from acting on it. These are the only lawful actions that the City Council can take with respect to the Appeal. Any other action would expose the City to litigation and liability for damages and attorneys' fees. 2696/031700-0001 13286337.3 a01/24/19 'p® 1,5--7 RUTAN RUT?n's NCitCP. 4� Honorable Teresa Barrett, Mayor and Members of the Petaluma City Council January 23, 2019 Page 37 Thank you for your consideration of Safeway's views on this 'matter. Representatives of Safeway, including the undersigned, will be in attendance at your January 28, 2019 hearing on the Appeal. In the meantime, please do not hesitate to contact me with any questions regarding this correspondence. Very truly yours, RaUTAAy& TUCKER, LL -P _' Matthew D. Francois MDF:mtr cc: Eric Danly, City Attorney, City of Petaluma Scott Brodbun, Interim City Manager, City of Petaluma Heather Hines, Planning Manager, City of Petaluma Olivia Ervin, Principal Environmental Planner, City of Petaluma Claire Cooper, City Clerk, City of Petaluma Natalie Maffei, Senior Real Estate Manager, Safeway, Inc. Mark Friedman, President, Fulcrum Property 2696/031700-0001 13286337.3 a0M4/19 }f1446 �3 -- - (�-Is2 r Natalie Mattei From: Heather Hines <hhines@m-group.us> Sent: Tuesday, December 11, 2018 7:59 AM To: Natalie Mattei; Francois, Matthew Subject: EXTERNAL: FW: Petaluma Safeway Gas Station Attachments: T Barrett letter.docx From: Moira Sullivan <msullivan64@hotmail.com> Sent: Monday, December 10, 2018 3:10 PM To: teresa4petaluma@comcast.net Cc: MayorDavidGlass@gmail.com; mthealy@sbcglobal.net; counc!Imemberalbertson@gmail.com; councilmemberkearney@me.com; davekingpcc@gmail.com; kathleencmilleroffice@gmail.com; cityclerk@ci.petaluma.c.agov; richard@rsachen.net; Chris Thomas <cthomas@petl<12.org>; Heather Hines <hhines@m-group.us> Subject: Fw: Petaluma Safeway Gas Station Please see: 1) attached letter and, 2) correspondence (below) between myself and the Bay Area Air Quality Management District (BAAQMD) last August. Thank you From: Moira Sullivan <msullivan64@hotmaiLcom> Sent: Thursday, August 23, 2018 10:09 AM To: Aneesh Rana Subject: Re: Petaluma Safeway Gas Station Many thanks Aneesh! Cheers, Moira From: Aneesh Rana <arana@baagmd.gov> Sent: Thursday, August 23, 2018 10:09 AM To: Moira Sullivan Subject: RE: Petaluma Safeway Gas Station Hi Moira, Thank you for sharing. I will share this information with the team we have set up to review this case. Bernie has shared with me the date of the City Council meeting and we are working to prepare our response. I will share their findings with you all as soon as they have concluded their review. Aneesh Rana Public Information Officer Community Health Protection Office R-ay Area Air awdity Management Diishic 375 Beale Street I San Francisco, CA 94105 Office 415.749.4914 I Mobile: 510.599766£3 ( arana@baagmd.aov i www.baagmd.gov From: Moira Sullivan <msullivan64@hotmail.com> Sent: Thursday, August 23, 2018 9:48 AM To: Aneesh Rana <arana baaclmd.gov> Subject: Re: Petaluma Safeway Gas Station Hi Aneesh, I checked with colleagues of mine at the Office of Environmental Health Hazard Assessment (OEHHA) who have backgrounds in industry (Cardno/Chemrisk) and developed modeling software for HRAs. Safeway did not adequately characterize exposure to the the sensitive receptors (i.e., Safeway used sensitive points as opposed to a cartesian grid - which much more accurately weights exposures). A cartesian grid approach should he used. Safeway's Health Risk Assessment (HRA) did not properly characterize wind (direction, calm, etc). In their HRA, Safeway just said wind was "variable" and/or 2.2. Please ask Safeway to do a wind rose (this software is free) Also of note, when the cars turn on Maria Drive (a residential street and class III bike lane) to access the primary route of ingress to the fuel station (and Safeway's grocery store), those cars will be right next to the preschools -far less than 60 feet in distance. Safeway has said there will be 216 peak hour am trips and 276 peak hour pm trips on week -days, and 376 peak hour trips on week -ends. These are just the peak hour trips. The station will be open for 17 hrs (6 am - 11 pm) and all these vehicles - accessing the main ingress/egress on Maria Dr - will be RIGHT next to the preschools. These represents a massive tailpipe emissions exposure for these tiny (babies to age 4) children. The exposure will he right in their breathing zone. The children at these 2 preschools 60 feet away, the children at the playing fields at a 60 foot distance, and the numerous residents at 80 feet, not to mention the elementary school at ISO feet, deserve much better consideration than this. Thank you kindly for asking that the HRA be reevaluated doing a much more in-depth evaluation - and accurately characterizing the real risk to these sensitive receptors. Sincerely, Moira Sullivan, M.S. D- - I (of Dec 10, 2018 Dear Councilwoman Barrett - I am writing in regards to the proposed Safeway Gas Station. I was the sole scientist who spoke at the appeal hearing on December 3rd and I did not have enough time to conclude my remarks. I am, as I said, a longtime Petaluma resident, and regulatory toxicologist with 20+ years experience who conducts risk assessments for the State of CA. Much reference was made by City staffers to there being competing scientific experts on the two sides, and the dilemma this poses for Council decision-making. The "expertise" is not, alas, equally competent, nor equitable. Firstly, one side (the Applicant) has a fiscal interest in the outcome and secondly, the HRA's submitted by Safeway's consultant, Illingworth and Rodkin, Inc (IRI) have been shown, repeatedly, to be fraught with errors. Critically, IRI did not use the correct air model in their initial calculations. Use of the correct air model, AERMOD, much more accurately characterizes risk to sensitive receptors, and the model IRI used underestimates risk. The Safeway consultants did not use the correct meteorological data (Le,, data specific for Petaluma) and did not properly characterize wind/weather (e.g., predominant wind direction, percent calms, etc). Meteorological conditions are a major driver in air toxics risk calculations. Safeway's consultants are not known to be air modeling experts; their expertise is largely in noise abatement In August of this year, I brought these and other errors to the attention of Aneesh Rana, at the Bay Area Air Quality Management District (BAAQMD). (See enclosed correspondences). Subsequently, BAAQMD followed up and required the Safeway consultants to use the correct air model, AERMOD, in their revised analysis. Despite the revision, IRI's submission to the City was again shoddily executed (numerous deficiencies/omissions, and including the absence of Petaluma -specific met data). The fact that BAAQMD and City planners accepted this incomplete and flawed report is profoundly disconcerting. Petaluma -specific meteorological data clearly show that the predominant winds blow from the fuel station in the direction of the schools/playground, considerably elevating the cancer risk. Unhappily, both BAAQMD and Petaluma City Planners appear to have a history of not erring on the side of public health protection, and this is a clear illustration of that. What the Fox/Kapahi HRA shows, using the correct air model/air model inputs, and including Petaluma -specific meteorological data, is harrowing: egregiously high cancer risk numbers. 260 cancer cases/million for the daycare center, and 15.5 for the McDowell Elementary Schoolchildren and teachers, etc. To put that in perspective, both of these values exceed BAAQMD's significance threshold of 10 in a million excess cancer cases (and in fact are dangerously elevated because BAAQMD's 10/million significance threshold is based on a 70 -year exposure whilst rA-1c19z Fox/Kapahi's risk numbers are based on a 9 -year exposure - because they relate to children's exposure risk). At OEHHA, our threshold for de minimis cancer risk is 1 in . a million (sometimes even less than that, at 1 in 100,000), again over a 70 -year lifespan. Thusly the risk to the youngest, most vulnerable receptors at the childcare center and school are exponentially higher than what we would find to be health protective/acceptable. There is no way to mitigate a situation of this exposure magnitude, short of not allowing the station to be built. The proposed Safeway gas station is more than 2 times bigger than USEPA's definition of a large gas station and, as such, there should be a minimum 1,000 foot setback (likely even greater given the 8.5 MGY fuel throughput). The proposed station, as you know, does not meet any regulatory agency setback recommendations (USEPA or CARB). The scientific literature I previously submitted to you - written by experts at John Hopkins, Harvard, Colombia, and UC Berkeley universities, as well as Lawrence Berkeley Labs and MDs at our agency - shows that proximity to gas stations carry enormous adverse health risks. It is precisely these types of health findings that form the basis of USEPA's and CARB's setback recommendations. Thus, the scientific weight of evidence compels you not to allow this station to be built in the midst of a densely populated residential area and within yards of preschools, an elementary: school, and children's playgrounds. The safety of the children and nearby residents is at risk as well from traffic and noise. The noise generated by the fuel station, during construction and at build -out, would exceed Petaluma's General Plan ambient level of 60 decibels (dBA). 70 dBA is what is considered normally acceptable for schools. According to the City, an increase in the noise level of 4 dBA or more would constitute a significant impact. The City document states that, "demolition and construction activity levels typically range between 80-90 dBA and it's estimated the project construction would take 1 year." At completion, the project would contribute to vehicle trips on local roadways and result in a permanent unacceptable elevation in noise (McDowell Blvd is already not in compliance with the General Plan). The children's ability to nap, play, and learn would be significantly impacted. The primary route of ingress/egress to the station would be via Maria Drive; a small, 2 -lane collector road right next to the school fence line. The IS/MND states the East Transit Center, located on Maria drive, will constitute, "constant activity". With the additional massive increase in vehicular traffic from the fuel station (210 am/276 pin peak hour trips on schooldays alone), children on foot/bikes and parents pushing strollers and dropping their kids off at school, would be at great risk of being hit, and killed or injured. "Loss of service" is expected at all McDowell Blvd intersections. This would compromise the time it takes to reach the only Emergency Room in Petaluma, which is all of 4/10ths of a mile from the most heavily utilized intersection in Petaluma; Washington/McDowell. 1A -!(vv Safeway expressed outrage that, largely until now, no group came forward in opposition to this proposed station. While I know that to be untrue, the responsibility to protect Petaluma's citizens rests with City officials. The burden to protect the public health from bad ideas/implementation cannot be the purview of ordinary (non -scientifically trained) citizens to assemble a cast of experts (risk assessors, environmental lawyers) to protect themselves from what should be the province of state and local agencies (Le., BAAQMD and Petaluma's own Planning Division). To that end, I hope two things going forward: that experts with demonstrated excellence in the field of air modeling and a strong public health -protective track record are chosen to conduct the EIR and, that the City of Petaluma consider having a toxicologist and/or risk assessor on their books, to properly inform the Planning Commission, City Council, and other City officials about environmental risks - well prior to their implementation. Finally, know that if this gas station is allowed to be built - eschewing federal and state regulatory agency recommendations - residents, and including the most vulnerable, infants, young children, and pregnant women, will be overexposed and Petaluma citizens whose homes are located within the Fox/Kapahi isopleth boundaries, are likely see a decline in property values. The risk of injury/accident from the massive increase in cars in close proximity to the schools will undoubtedly result in adverse outcomes. I live on the west side, nowhere near the station but, were it me, I would sue. Whatever revenues/other benefits the City stands to realize from the implementation of this fueling station, will never offset the considerable health & safety risks to the residents and the loss of property values. Petaluma taxpayers will be left picking up the costs this station will result in, in terms of adverse cognitive and respiratory effects on the children in the near term and cancer burden in the longer term. And yet, all that is nothing compared with the loss to the individual in terms of their health and safety and educational trajectories. Permitting the Safeway fuel station - in any guise - is simply not an intelligent or health protective course of action on the part of the City of Petaluma. Thank you for your time and attention to this critical matter. Sincerely, Moira Sullivan, M.S. Cc: Mayor David Glass and councilmembers Chris Albertson, Mike Healy, Gabe Kearny, Dave King and Kathy Miller; Heather Hines, Petaluma Planning Mgr; Chris Thomas, Petaluma City Schools; Richard Sachen, Sierra Club; Claire Cooper, Petaluma City Clerk I a -- f ��" 11Acoustics • Air Quality 07,911i 429 E. Cotati Ave Cotati, California 94931 Tel: 707-794-0400 Fax: 707-794-0405 1vtiviv. illingworthrodkin, coin illro@illingworthrodkin. corn Date: January 28, 2019 To: Natalie Maffei Senior Real Estate Manager Albertsons Companies 11555 Dublin Canyon Road Pleasanton, CA 94588 From: James A. Reyff Illingworth & Rodkin, Inc. 429 E. Cotati Ave Cotati, CA 94931 RE: Safeway Fuel Center CEQA document - Petaluma, CA SUBJECT: Safeway Fuel Center Health Risk Assessment - Response to 12/10/2018 Submittal from Moira Sullivan, M.S. - Job#13-205 This memo is Illingworth & Rodkin, Inc.'s (I&R) response to a letter from Moira Sullivan, M.S., dated December 10, 2018. Ms. Sullivan is an associate toxicologist that works with the California Office of Environmental Health Hazards Assessment (OEHHA), however her communication is made as a resident of Petaluma and not in her professional capacity. Our responses pertain to the air quality health risk assessment. 1, In terms of experience, I&R has been conducting air quality studies since 1995, which is longer than Ms. Sullivan's 20+ -year career. This is James Reyff's 31 st year working in this field and William Popenuck has almost 40 years' experience. I&R conducts approximately 50 to 100 air quality assessments each year. In Petaluma, I&R has conducted the air quality assessments for the Brody Ranch residential project, the Riverfront development, Marina apartments, Deer Park, and several others. The City's Planning Staff is quite familiar with I&R's experience conducting air quality studies and health risk assessments. Major projects recently in the Bay Area include the redevelopment of the Vallco Shopping Center Redevelopment in Cupertino, San Francisco Giants Mission Rock Redevelopment in San Francisco, and Forest City's Pier 70 Development in San Francisco. I&R's clients include private entities, Cities, Counties (including Sonoma County), and Caltrans. It appears Ms. Sullivan is unfamiliar with I&R's extensive experience in conducting air quality assessments. I&R is considered an expert in this field. fa -iuy� Memo to Natalie Maffei January 28, 2019 — Page 2 2. As a preliminary matter, Ms. Sullivan's claims that the proposed station does not meet any regulatory agency setback recommendations in inaccurate because there are no regulatory agency setback regulations. Further, her assertion that the gas station avoids federal and state regulatory agency recommendations is flatly incorrect. The HRA was prepared in accordance with all regulatory guidance and recommendations and has been accepted as adequate by BAAQMD, the regulatory agency with primary jurisdiction over the matter. Moreover, the gas station will operate in accordance with all local, state, and federal laws and standards. 3. As an associate toxicologist with OEHHA and 20+ years of experience, we believe Ms. Sullivan should be aware that OEHHA develops guidance for risk assessments that air districts use to develop their risk policy. After reviewing these data, BAAQMD uses a threshold of 10 chances per million based on 9 -year exposures for school children and 30 years for residential exposures. This is also their recommendation for evaluating community risk assessments, per their CEQA Air Quality Guidelines. The District's New Source Review Rules makes the exception for the use of a 70 -year risk assessment for gasoline dispensing facilities only, but that with the use of less protective exposure parameters that include lower breathing rates and results in a lower overall predicted cancer risk for lifetime exposures of 70 years, as compared with 30 -year exposures that use the newer, more restrictive, exposure parameters. 4. I&R's response to the use of meteorological data and the ISCST3 model vs. the AERMOD model is documented in our responses dated October 10, 2018 and December 3, 2018. In summary, I&R followed BAAQMD's guidance and used meteorological data measured at Petaluma Airport and provided by BAAQMD along with the ISCST3 model. This was the method recommended by BAAQMD for use in Petaluma and used by BAAQMD in 2018 for permitting of other facilities in Petaluma, including the Valero Gas Station at 910 Baywood Drive in Petaluma.. The City's planning staff also accepted this type of analysis on several other projects. Subsequent to the project analysis, U.S. EPA approved methods that use numerical weather models to develop meteorological datasets that use forensic analysis to develop meteorological data sets for use with the AERMOD dispersion model. Both results were provided. Citing the Fox/Kapahi HRA, Ms. Sullivan claims that "using the correct air model/air model inputs," results in "harrowing" and "egregiously high cancer risk results." As shown by I&R's October 10, 2018 Fox/Kapahi did not use the correct air model/air model inputs. Instead they improperly rely on Santa Rosa wind data and use artificially inflated and overblown assumptions regarding Project diesel and benzene emissions. In a November 8, 2018 letter, BAAQMD concurred citing "several key concerns" with the Fox/Kapahi study. Her assertions that the Fox/Kapahi results are somehow valid and show "harrowing" and "egregiously high cancer risks" are incorrect as well as unscientific and hyperbolic. 5. Further, by substituting wind data designed to be used with the ISCST3 model into the completely distinct AERMOD model, such as that done by Fox and Kapahi in their November 30, 2018 supplemental health risk report, yields modeling conditions that do not occur in nature and could not even be imagined for science fiction. Atmospheric stability, which is related to vertical dispersion, is a key meteorological variable in dispersion of contaminants. By combining wind data for one station with another for Memo to Natalie Mattei January 28, 2019 —Page 3 completely different time periods, one creates artificial, inaccurate, and unreliable meteorological data, such as high winds under very stable conditions, or vice versa. 6. There are other faulty assumptions that Fox & Kapahi used in their assessment that result in much higher impacts. For example, they overestimated diesel exhaust emissions considerably, used erroneous residential risk exposure parameters (pointed out by BAAQMD) and used erroneous benzene emission factors that they developed (also pointed out as erroneous by BAAQMD). 7. Ms. Sullivan references studies conducted outside of California and the U.S. that do not reflect the design of fueling stations in California that meet new stringent standards to control all aspects of emissions from gasoline fueling stations, including the control of vent pipe emissions. The guidelines that Ms. Sullivan points out with respect to California and U.S. EPA are with respect to siting new sensitive receptors near EXISTING fueling stations and not new fueling stations that meet the latest Statewide standards, As noted in our September 4, 2018 response to Ms. Sullivan, California Iikely has the most extensive control requirements for gasoline emissions in the world. These requirements are developed and enforced by the California Air Resources Board (CARE) and BAAQMD permitting requirements. The evaporative emissions from volatile organic compounds from gasoline, which include benzene, have been greatly reduced over the past two decades. CARB has adopted a number of significant advancements as part of the Enhanced Vapor Recovery (EVR) program to reduce these emissions. Phase I EVR, which addresses transfer of bulk fuel from delivery trucks to the underground storage tanks, requires more durable and leak -tight components, along with an increased collection efficiency of vapors to be 98 percent. Phase 1I EVR, which addresses fueling of vehicles that purchase gasoline and the transfer of vapors back into the underground storage tanks, includes three major advancements: (1) dispensing nozzles with less spillage and required compatibility with onboard refueling vapor recovery (ORVR) vehicles, (2) a processor to control the static pressure of the ullage, or vapor space, in the underground storage tank, and (3) an in -station diagnostic system that provides warning alarms to alert the facility operators of potential vapor recovery system malfunctions. Phase I EVR was fully implemented in 2005. Phase I1 EVR was fully implemented between 2009 and 2011. Attachment 1 includes a summary of the mandatory emission controls implemented at gas stations in California. Note that new fueling stations, including this project, include Vacuum, Pressure, and Hydrostatic (VPH) monitoring that were not required for existing gas stations. VHP is a continuous monitoring of the secondary containment of the tanks, piping and sumps using either vacuum, pressure or hydrostatic methods. Tanks installed before July 1, 2004 are exempt from VPH monitoring. Safeway would have continuous VPH monitoring, whereas it is believed not all Petaluma gas stations have upgraded since 2004. As a result of new stringent regulations and fueling station design, emissions of hydrocarbons, which contain toxic air contaminants, have been reduced by about 99 percent, compared to dispensing facilities with Standard Vapor Recovery and non-ORVR vehicles. Memo to Natalie Mattei January 28, 2019 — Page 4 10. As also noted in our September 4, 2018 response to Ms. Sullivan, as a result of the improvements described above in addition to the reformulation of gasoline that occurred in the late 1990s, emissions of benzene and other TACs from gasoline have decreased substantially in the last 10 to 20 years. A report recently released by OEHHA in 2018' describes the trend in exposure and health risk to TACs from gasoline (the press release for this study is included as Attachment 2). In this report, emissions of benzene statewide are described as being reduced by 70 percent since 1996 as reflected in ambient statewide benzene concentrations that decreased at or greater than that rate. The report describes the primary source of benzene emissions as from on -road mobile sources, where gasoline production and distribution make up a small fraction of the overall emissions. Benzene concentrations in the air are primarily the result of emissions from traffic. While the report addresses California as a whole, monitoring data in the Bay Area support these conclusions.2 I OEHHA. 2018, Gasoline -Related Air Pollutants in California - Trends in Exposure and Health Risk 1996 to 2014. January aMeasured benzene levels in San Francisco are reported at this CARB website. Within the Bay Area, benzene is only monitored in San Francisco. Note that levels in Petaluma are expected to be lower due to the less intensive urban environment, https://ww-w.arb.ca.gov/adam/toxies/sitgpagesibc-,nzsfo,ht . Accessed August 28, 2018. 12--( (JOq Stantec Attachment 1 Vapor Recovery Summary Phase I and Phase II vapor recovery were implemented in California 1987 in an effort to reduce fugitive VOC emissions from fueling facilities. The majority of the US states implemented the requirement in 1990. Before Vapor recovery was introduced fugitive emissions from a fuel dispensing facility were 8.4 lbs. of hydrocarbons per 1,000 gallons dispensed, Phase I vapor recovery is the reclaim of vapors from a storage tank back into the truck that is delivering fuel. As the tank is filled, a second hose is connected to the tank. As the tanks fill, the vapors are pushed through the hose back into the delivery truck. Phase II vapor recovery occurs at the fuel dispenser. When a vehicle is adding fuel to the tank, the vapors are pushed back through the nozzle and hose, through the dispenser and back into the fuel storage tank(s). Some systems use a vacuum pump to pull the vapors from the vehicles tank and push them back into the fuel storage tank. The recovery of vapors can pressurize the storage tank. When this happens, the pressure is released through the tank vents. This releases fugitive emissions. A fuel dispensing facility with Standard Vapor Recovery and non- ORVR vehicles produces 2.4 lbs. of hydrocarbons per 1,000 gallons dispensed. rOCATIVE EMISSION S la -rIV Stantec ORVR is the acronym for Onboard Refueling Vapor Recovery. This process is handled inside the vehicle. Newer vehicles are equipped with a canister system that collects fuel vapors as the vehicle is refueling. In 1998, the first vehicles with ORVR were produced. Since 2006, all vehicles produced are required to have ORVR. A fuel dispensing facility with Standard Vapor Recovery and ORVR vehicles produces 0,12 lbs. of hydrocarbons per 1,000 gallons dispensed. IM Enhanced Vapor Recovery occurs at the vent riser. EVR requires introducing a means to capture the fugitive emissions from the vent riser. There are 3 approved methods available. A Veeder Root carbon canister captures vapors in a carbon filter. The carbon is refreshed as the storage tank returns to normal pressure and clean air is pulled through the carbon canister. The Healy system is a large bladder tank that captures vapors in a bladder tank and returns them to the storage tanks when the pressure returns to normal. The Hirt system is a furnace that burns the vapors as they are released. With all 3 systems, the vapors are now captured instead of being released through the vents. Stantec The combination of Enhanced Vapor Recovery and ORVR have significantly reduced fugitive emissions to nearly zero percent. A fuel dispensing facility with Enhanced Vapor Recovery and ORVR vehicles produces 0.021 lbs. of hydrocarbons per 1,000 gallons dispensed. NFARLYZERo fes- 11o?— Attachment 2 0 E H H A Press Release SCIENCE FOR A HEALTHY CALIFORNIA California Environmental Protection Agency Office of Environmental Health Hazard Assessment Lauren Zeise, PhD, Director For Immediate Release: Contact: January 24, 2018 Sam Delson (916) 324-0955 (0) (916) 764-0955 (C) State's Cleaner Gasoline is Significantly Reducing Air Pollution, OEHHA Study Shows Gasoline -related pollutants associated with health concerns steadily declining SACRAMENTO — A new analysis released today by state environmental health researchers shows that California's cleaner gasoline and vehicle controls have significantly reduced emissions of toxic pollutants and lowered cancer risks. Since 1996, estimated total emissions of volatile air pollutants from gasoline -related sources declined nearly 70% statewide, including significant declines for toxic chemicals such as benzene and toluene. "These reductions in toxic gasoline -related chemicals demonstrate the substantial progress California has made in reducing air pollution," said Dr. Lauren Zeise, Director of the Office of Environmental Health Hazard Assessment (OEHHA). "When we reduce air pollution, important. public health benefits follow." Using emissions data and ambient air-quality measurements from the California Air Resources Board (GARB) and other sources, OEHHA researchers estimated average gasoline -related exposures and associated health risks statewide and for five major air basins. OEHHA's analysis covers the years 1996 to 2014. Significant findings include: Estimated emissions of total volatile air pollutants from gasoline -related sources declined nearly 70% statewide between 1996 and 2012. Pollutants with the most substantial declines include harmful carcinogens like benzene and reproductive toxicants like toluene. Emissions of gasoline - related pollutants declined even while gasoline sales remained steady and California's population grew. By 2012, total emissions from on -road gasoline -powered vehicles had decreased so _ 2,500 iF a c c 2,000 1,500 0 d 1,000 0 N g 500 E ry F° 0 18 Gasollne-related on -road mobile source emissions i=iGasollne-related off-road source emissions (e.g., recreational boats, lawn and garden equipment, off-road vehicles) —All gasoline -related source emissions ,—California net taxable gasoline gallons Oora from tAFe Fmisston lnventaryand Srofe Boardof Equat¢ot'ron. lvlobile source emission: esrlmotes notovaifable jar2D09. la - (`l 3 substantially that they were not much higher than the total emissions from off-road sources like lawn and garden equipment, recreational boats, and off-road vehicles. (See chart) ® Cancer risks associated with average gasoline -related exposures to the most highly emitted carcinogens declined by more than 80% between 1996 and 2014. Since 1996, CARB has worked to adjust the state's gasoline formula in an effort to reduce gasoline -related pollutants. To maximize those benefits, the Board has also promoted cleaner vehicle technologies. "California's fuel standards are clearly working, but clean gasoline is only part of the solution," said CARB Executive Officer Richard W. Corey. "Californians will see progressively cleaner air—and savings in fuel costs—as the number of electric and hydrogen powered vehicles increase." Researchers recommend a future study focused specifically on exposures in high traffic areas, especially in disadvantaged communities. Recently enacted legislation, AB 617 (C. Garcia, Chapter 136, Statutes of 2017), aims to reduce air pollution exposure in California's most burdened communities. CARB will consult with OEHHA on this new effort. The analysis—Gasoline Reiated Air Pollutants in California: Trends in Exposure and Health Risk 1996 to 2014—can be found at http://oehha.ca.gov. OEHHA is the primary state entity for the assessment of risks posed by chemical contaminants in the environment. its mission is to protect and enhance public health and the environment by scientific evaluation of risks posed by hazardous substances. 2 i f � -17S Natalie Mattei From: Heather Hines <hhines@m-group.us> Sent: Monday, February 04, 2019 3:06 PM To: Natalie Mattei; Francois, Matthew (MFrancois@rutan.com) Subject: EXTERNAL EMAIL: FW: Vote No to Safeway gas station - late document Attachments: Petaluma vs Santa Rosa 70 yr Cancer Risk Comparison.pdf Comment letter from the appellant. Heather From: Crump, Katie <KCRUMP@ci.petaluma.ca.us> Sent: Monday, February 04, 2019 2:40 PM To: Heather Hines <hhines@m-group.us> Subject: FW: Vote No to Safeway gas station - late document FYI From: Pascoe, Samantha Sent: Monday, February 04, 2019 2:36 PM To: Crump, Katie <KCRUMP@ci.petaluma.ca.us> Subject: FW: Vote No to Safeway gas station - late document Samantha Pascoe, CMC Deputy City Clerk Main 707.778.4360 Direct 707.778.4575 www.cityofpetaluma.net Hours: Mon —Thurs Sam to 5pm, Closed Fridays From: JoAnn McEachin <loannmceachin@gmail.com> Sent: Monday, February 4, 2019 2:09 PM To: Teresa Barrett <teresa4petaluma@comcast.net>; -- City Clerk <CityClerk@ci.petal uma.ca.us> Cc: Danly, Eric <edanly@ci.petaluma.ca.us> Subject: Vote No to Safeway gas station ---Warning: Use caution before clicking any attachments. THIS EMAIL IS FROM OUTSIDE OUR EMAIL SYSTEM. --- Madam Mayor and City Council Members, Please take a moment to review the two isopleths below, produced by Dr. Phyllis Fox and Ray Kapahi fortheir Response to the IS/MND. D'Lynda Fischer and Kevin McDonnell may not have seen it yet. In summer 2018, when No Gas Here sought the meteorological data that Safeway's experts used in the IS/MND and were refused, No Gas Here was forced to use the only met data available at that time, which was that out of Santa Rosa. The isopleth on the left side of the page shows the I a -M40 projected number of cancers per million that would be caused by the installation and operation of the Safeway gas station at the corner of S. McDowell and Maria Dr. The wind patterns out of Santa Rosa blow differently from those in Petaluma, though. So later, when No Gas Here's experts were able to get meteorological data from Petaluma (isopleth on the right side ofthe page), the number of cancers per million was shown to spread farther and wider, affecting even more residents. I urge you to keep in mind that all of these projected cancers, caused by the toxins from the Safeway gas station, are preventable. Countless residents have said that we neither need nor want a gas station in this location. If Safeway's ever-present threat of a lawsuit is a factor that you are considering while making your decision to require a full EIR or to reject the project altogether, I ask you to also consider the lawsuits that are sure to come when neighborhood cancers are diagnosed. And, if we Petaluma residents have to face a Safeway lawsuit, I think the judge would rule in our favor because you will only have done your duty to protect the health of the community. JoAnn McEachin ion! — (7 1 i Ia-G�g Natalie Mattei From: Natalie Mattei Sent: Monday, February 04, 2019 4:22 PM To: teresa4petaluma@comcast.net; mthealy@sbcglobal.net; davekingpcc@gmail.com; dlynda@fischerforcouncil.com; mcdonnell4council@gmail.com Cc: Francois, Matthew (MFrancois@rutan.com);'Danly, Eric'; 'cityclerk@ci.petaluma.ca.us'; Heather Hines; 'Olivia Ervin; citymgr@ci.petal uma.ca.us; Natalie Mattei Subject: Response to McEachin email: Vote No to Safeway gas station - late document Attachments: 2018 1202 Letter to Petaluma City Council.PDF; Petaluma vs Santa Rosa 70 yr Cancer Risk Comparison.pdf Madam Mayor and City Council Members, in response to Ms. McEachin's email below from today at 2:09 PM, please note that Appellant had previously submitted this same commentary to the City on Friday, 11/30/18 at 4:08 PM. Safeway's expert consultant, Illingworth & Rodkin, responded in full on Sunday, 12/2/18 at 4:05 PM (see attached, Exhibit A). This subject matter is what we referred to in our 1/28/19 City Council presentation as the "Frankenstein" approach. Ms. McEachin states below "So later, when No Gas Here's experts were able to get meteorological data from Petaluma (isopleth on the right side of the page)...," This statement is false. The data that Fox/Kapahi used in their 11/30/18 is not valid data for Petaluma. It is composite data from Santa Rosa and Petaluma (combining portions of data from two different cities and two different time periods, hence the "Frankenstein" reference) and that is not acceptable for use in modeling. Thank you, Natalie Natalie Mattei Senior Real Estate Manager Albertsons Companies 11555 Dublin Canyon Road Pleasanton, CA 94588 (925) 226-5754 Office 1 (925) 413-4455 Mobile natalie mattei safeway.com I Linkedln www.aIbertsonscompanie,srealestate.com From: Heather Hines <hhines@m-group.us> Sent: Monday, February 04, 2019 3:06 PM To: Natalie Mattei<Natalie.Mattei@albertsons.com>; Francois, Matthew (MFrancois@rutan.com) <MFrancois@rutan.com> Subject: EXTERNAL EMAIL: FW: Vote No to Safeway gas station - late document Comment letter from the appellant. —7q Heather From: Crump, Katie <KCRUMP@ci.petaluma.ca.us> Sent: Monday, February 04, 2019 2:40 PM To: Heather Hines <hhines@m-group.us> Subject: FW: Vote No to Safeway gas station - late document FYI From: Pascoe, Samantha Sent: Monday, February 04, 2019 2:36 PM To: Crump, Katie <I<CRUMP@ci.petaluma.ca.us> Subject: FW: Vote No to Safeway gas station - late document Samantha Pascoe, CMC Deputy City Clerk Main 707.778.4360 Direct 707.778.4575 www.cityofpetaluma.net Hours: Mon —Thurs Sam to 5pm, Closed Fridays From: JoAnn McEachin <ioannmceachin2gmail.com> Sent: Monday, February 4, 2019 2:09 PM To: Teresa Barrett <teresa4petaluma@comcast.net>; -- City Clerk <CityClerlc@ci.petal uma.ca.us> Cc: Danly, Eric <edanly@ci.petaluma.ca.us> Subject: Vote No to Safeway gas station ---Warning: Use caution before clicking any attachments. THIS EMAIL IS FROM OUTSIDE OUR EMAIL SYSTEM. --- Madam Mayor and City Council Members, Please take a moment to review the two isopleths below, produced by Dr. Phyllis Fox and Ray Kapahi for their Response to the IS/MND. D'Lynda Fischer and Kevin McDonnell may not have seen it yet. In summer 2018, when No Gas Here sought the meteorological data that Safeways experts used in the IS/MND and were refused, No Gas Here was forced to use the only met data available at that time, which was that out of Santa Rosa. The Isopleth on the left, side of the page shows the projected number of cancers per million that would be caused by the installation and operation of the Safeway gas station at the corner of S. McDowell and Maria Dr. The wind patterns out of Santa Rosa blow differently from those in Petaluma, though. So later, when No Gas Here's experts were able to get meteorological data from Petaluma (isopleth on the right side of the page), the number of cancers per million was shown to spread farther and wider, affecting even more residents. I urge you to keep in mind that all of these projected cancers, caused by the toxins from the Safeway gas station, are preventable. Countless residents have said that we neither need nor want a gas station in this location. If Safeway's ever-present threat of a lawsuit is a factor that you are considering while making your decision to require a full EIR or to reject the project altogether, I ask you to also consider the lawsuits that are sure to come when neighborhood cancers are diagnosed. i o p And, if we Petaluma residents have to face a Safeway lawsuit, I think the judge would rule in our favor because you will only have done your duty to protect the health of the community. JoAnn McEachin kuNGwoRTm&RovKtN I( Acoustics a Air Quality V/ 429 E. Cotati Ave Cotati, California 94931 Tel: 707-794-0400 Fax: 707-794-0405 wwvv. illingworthrodkin. coin illro@illingworthrodldn. coin Date: December 2, 2018 To: Natalie Mattei Senior Real Estate Manager Albertsons Companies 11555 Dublin Canyon Road Pleasanton, CA 94588 From: James A. Reyff Illingworth & Rodkin, Inc. 429 E. Cotati Ave Cotati, CA 94931 RE: Safeway Fuel Center CEQA document - Petaluma, CA SUBJECT: Safeway Fuel Center Health Risk Assessment - Response to Supplemental Comments made by Phyllis Fox and Ray Kapahi "In =t i s .`.�-(: j This memo provides our response to comments regarding the Petaluma Safeway gas station project ("Project") made by Phyllis Fox and Ray Kapahi in a supplemental report dated November 30, 2018. Note that responses provided in our memo dated October 10, 2018 apply since the supplemental analysis continues to use erroneous diesel exhaust and evaporative fuel emissions, incorrect risk exposure parameters, and, as described below, improper meteorological conditions. The supplemental analysis provided by Fox and Kapahi uses the same modeling assessment previously provided, but employs a hybrid meteorological data set, combining Petaluma wind data for the years 1990-1994 with other meteorological data from Santa Rosa for the years 2013-2017 (i.e., stability and other dispersion parameters). The resulting data represent conditions that do not occur in nature (e.g., moderate to strong winds under stable atmospheric conditions or vice versa) and reflects an erroneous calculation of concentrations and portrayal of resulting health risk. In layman's terms, Fox and Kapahi created a "Frankenstein" meteorological data set that is not acceptable in practice and fails to provide an accurate assessment of the Project's health risk. There is no underlying sound scientific, meteorological, or regulatory basis for what was M Memo to Natalie Maffei December 2, 2018 — Page 2 conducted in creating the new hybrid meteorological data. The Petaluma wind data that the commenters relied upon is not appropriate or suitable for use with the AERMOD model. There is no correlation between the 1990-1994 Petaluma wind data and the other meteorological parameters in the 2013-2017 Santa Rosa meteorological data. Not only is the data substitution method that Fox and Kapahi employed "not the ideal," as they admit, it would not be accepted for use by any regulatory agency, including BAAQMD.1 In short, the hybrid meteorological data set relied on by commenters is useless for any sort of meaningful modeling analysis of the Project. Because the existing Petaluma wind data relied on by Fox/Kapahi is not appropriate for use with the AERMOD model, our firm contracted with Lakes Enviromnental Group to develop a custom meteorological data set for use with our AERMOD analysis. (Our AERMOD analysis is attached as Exhibit A to our October 10, 2018 memo.) Similar to our original analysis employing the ISCST3 model, the analysis employing the AERMOD model concludes that the Project meets all thresholds and will not result in any significant impacts related to health risk. BAAQMD reviewed and accepted our analysis. (November 8, 2018 letter from Damien Breen to Olivia Ervin.) Unlike its acceptance of our analysis, BAAQMD cited "several key concerns" with Fox/Kapahi's analysis. In addition to inappropriately relying on Santa Rosa wind data, BAAQMD pointed out that the benzene emission factor used by Fox/Kapahi was "substantially higher" than BAAQMD's standard benzene emission factor. It also noted that the residential exposure assumptions used in the Fox/Kapahi HRA were "not consistent with the Air District's current HRA risk calculation procedures." In our October 10, 2018 submittal we concurred with BAAQMD's concerns and detailed other significant flaws with the Fox/Kapahi analysis. For instance, the commenters significantly overstate diesel emissions (by a factor of ten) by overestimating the amount of Project diesel sales, vehicle idling, and emission rates. They inappropriately applied protective modeling assumptions designed for use with a 30 -year exposure period to a 70 -year exposure period, thus including 40 years of additional exposure beyond what is recommended by BAAQMD and the California Air Resources Board. In addition, the cormnenters inappropriately model the Project as operating 24 hours per day, which is not the proposal. By applying an artificial, misleading, and erroneous hybrid meteorological data set to their previous analysis, Fox and Kapahi have compounded the numerous key concerns that we and BAAQMD have previously identified. The resulting analysis does not provide any meaningful or credible assessment of the Project health risk. Commenters continue to grossly overstate Project emissions, resulting in false claims of significant impacts. As such, their analysis should be given no weight. I Specifically, the methodology conflicts the with the following regulatory guidance: (1) 40 CFR Part 51 Appendix W (Guideline on Air Quality Models), and (2) User's Guide for the AERMOD Meteorological Preprocessor (AERMET) EPA -454B-18-002, U.S. EPA, April 2018. 70 Year Cancer Risk—Santa Rosa Met Data 70 Year Cancer Risk— Petaluma Met Data I a - IqS