Heart Ripped Out of CEQA

In a move to bolster the City’s technical position for imposing certain conditions and mitigations for the Chevron Hydrogen and Energy Renewal Project, the city manager executed his $10,000 contracting discretion to retain Ranajit Sahu, an engineer with experience in refinery operations, particularly in air quality.

By most accounts, this was a good move for the City, which has been poorly served by its previously retained consultants who delivered a flawed environmental impact report, drawing criticism from the California attorney general as well as the public.

In last Tuesday night’s meeting, the City Council was asked to approve a contract with Ranajit Sahu for an additional $50,000 -- a total of $60,000. The need for additional assistance and the contract amount, which will be reimbursed by Chevron, generated little controversy.

What got under the skin, however, of some councilmembers, was the revelation that Dr. Sahu had already executed a confidentiality agreement with Chevron. The text of the agreement remained secret, and the City Attorney’s Office revealed that they had not reviewed it.

Confidentiality agreements for CEQA reviews in general have generated controversy for some time. There was a nearly successful effort by the legislature in 2003 to ban such agreements, but it never came together. Typically, public agencies prohibit such agreements, except for extraordinary circumstances. San Diego County, for example, has in its CEQA guidelines the following:

“The CONSULTANT shall not enter into any form of confidentiality agreement with the APPLICANT or any subconsultant(s), which prohibits disclosure of information related to substantive land use or environmental issues to the COUNTY. This provision may be waived or modified at the discretion of the COUNTY, if such an agreement would reveal a trade secret a defined by Government Code Section 6254.7.”

Government Code Section 6254.7, which is copied at the end of this email, describes how trade secrets are not subject to the California Public Records Act, but exempts air pollution emission data:

   (e) Notwithstanding any other provision of law, all air pollution emission data, including those emission data which constitute trade secrets as defined in subdivision (d), are public records. Data used to calculate emission data are not emission data for the purposes of this subdivision and data which constitute trade secrets and which are used to calculate emission data are not public records.

It is not clear that the California Public Records Act even applies to CEQA reviews, and it clearly does not apply to air pollution emission data. What is particularly disturbing is that the final staff recommendations for mitigations and conditions may be based on information that no one except Dr. Sahu has access to, and no member of the public will be in a position to dispute it because the source is secret. Furthermore, the determination of what information is secret is apparently left to the discretion of Dr. Sahu and Chevron.

Disclosure and public review is at the heart of CEQA, and that heart has just been ripped out.

See the West County Times Story below:

Government Code Section 6254.7

6254.7.  (a) All information, analyses, plans, or specifications that disclose the nature, extent, quantity, or degree of air contaminants or other pollution which any article, 

machine, equipment, or other contrivance will produce, which any air pollution control district or air quality management district, or any other state or local agency or district, 

requires any applicant to provide before the applicant builds, erects, alters, replaces, operates, sells, rents, or uses the article, machine, equipment, or other contrivance, are 

public records.

   (b) All air or other pollution monitoring data, including data compiled from stationary sources, are public records.    (c) All records of notices and orders directed to the owner 

of any building of violations of housing or building codes, ordinances, statutes, or regulations which constitute violations of standards provided in Section 1941.1 of the Civil Code, 

and records of subsequent action with respect to those notices and orders, are public records. 

   (d) Except as otherwise provided in subdivision (e) and Chapter 3 (commencing with Section 99150) of Part 65 of the Education Code, trade secrets are not public records 

under this section. "Trade secrets," as  used in this section, may include, but are not limited to, any formula, plan, pattern, process, tool, mechanism, compound, procedure, 

production data, or compilation of information which is not patented, which is known only to certain individuals within a commercial concern who are using it to fabricate, produce, 

or compound an article of trade or a service having commercial value and which gives its user an opportunity to obtain a business advantage over competitors who do not know or

 use it.

   (e) Notwithstanding any other provision of law, all air pollution emission data, including those emission data which constitute trade secrets as defined in subdivision (d), are 

public records. Data used to calculate emission data are not emission data for the purposes of this subdivision and data which constitute trade secrets and which are used to 

calculate emission data are not public records.

    (f) Data used to calculate the costs of obtaining emissions offsets are not public records.  At the time that an air pollution control district or air quality management district 

issues a permit to construct to an applicant who is required to obtain offsets pursuant to district rules and regulations, data obtained from the applicant consisting of the year the 

offset transaction occurred, the amount of offsets purchased, by pollutant, and the total cost, by pollutant, of the offsets purchased is a public record.  If an application is denied, 

the data shall not be a public record.

Richmond adds another consultant to study, advise on Chevron project

By Katherine Tam
West County Times

Article Launched: 05/07/2008 04:42:33 PM PDT

Richmond has hired an outside consultant to help determine what kind of crude oil the Chevron refinery processes and whether a series of proposed upgrades would

 allow the company to process heavier crude.

Both questions are at the forefront of the public debate about whether Chevron should be allowed to replace its hydrogen plant, power plant and reformer.

Refinery representatives say their project will make the facility safer and more efficient while allowing it to produce more California-grade gasoline.

But opponents say the upgrades open the door to the processing of heavier crude, which could increase air pollution and health problems.

The city hopes to have answers by June 5, when the Planning Commission resumes its decision-making meeting, City Manager Bill Lindsay said.

This isn't the first time officials have recruited outsiders to help review Chevron's complex proposal. But Ranajit Sahu, an engineer consultant with expertise in

air quality and refineries, would be given access to information that Chevron has not disclosed before because it considers it a trade secret and proprietary.

In exchange, the city would agree to keep that information confidential.

Project opponents urged the City Council on Tuesday night to reject the confidentiality clause. The community won't understand the city's ruling on the project, they said,

if the rationale behind it is not made public. Nor will residents be able to determine themselves if the project is good for Richmond.

"No public information, no permit," resident Juan Reardon chanted from the back of the council chambers as officials deliberated.

The council voted 6-3 to approve the $50,000 contract for Sahu. Councilwoman Maria Viramontes, who proposed the motion, said the city must have expert testimony to

 fortify its case if it is sued.

"The information will be aggregated in a way that the public will have an opportunity to see and understand the judgment that will be made by this individual, and the council

will get what it needs to make a decision," Viramontes said.

Mayor Gayle McLaughlin and Councilmen Tom Butt and Tony Thurmond voted no.

"I don't think it's right for this city to be making decisions based on information that the public doesn't have," Butt said.

City officials earlier retained Sahu for some analysis under a $10,000 contract.

Sahu is an engineer with more than 17 years of environmental, mechanical and chemical engineering experience, according to his resume. His clients have included steel

mills, refineries, power generation facilities, the federal Environmental Protection Agency, federal Department of Justice and California Department of Toxic Substances Control.

He has taught air pollution at UCLA, UC Riverside and the University of Southern California.

Communities for a Better Environment, which opposes Chevron's plans, and a chemist hired by the state Attorney General's Office said the project would enable the refinery to

process heavier crude. They are seeking tighter restrictions, including a limit on the crude mix.

Chevron says it will not refine heavier crude. Spokesman Dean O'Hair has said critics are looking at one piece of the refinery's equipment, rather than the whole picture, and

drawing an incorrect conclusion.

McLaughlin said Tuesday she is disappointed the city still does not have an answer to the crude slate question, despite much city staff time and multiple consultants.

"There's a deliberate reason for that, and I think it's an inability to confront Chevron," she said. "And that has to be reversed in this city. There has to be a willingness to confront

Chevron."

Some planning commissioners told city staff April 10 to find a way to determine what kind of crude the refinery would be able to process if machinery is upgraded. They also told

city staff to revisit the possible conditions of approval.

Reach Katherine Tam at 510-262-2787 or ktam@bayareanewsgroup.com.