THIS SECTION TO BE COMPLETED BY THE CITY CLERK'S OFFICE STAMP OF RECEIPT:
RECEIVED
CITY CLERKS OFFICE
Rich CITY OF RICHMOND
2022 DEC 19 AM 4: 02
FEE PAID: $|5000 CUK#434
DATE: 1216/2077 54
TO THE RICHMOND CITY COUNCIL:
The undersigned hereby appeals decision: By the Historic Preservation Commission By the Planning Commission
Denial of: Approval_ of:
Variance (V) Tent Subd. Or Parcel Map (TM)
V Conditional Use Permit (CUP) Rezoning (RZ)
Design Review Permit (DRP) EIR Decision (EIR)
-
Other
DESCRIBE ITEM AS PRINTED ON THE PLANNING COMMISSION or
HISTORIC PRESERVATION AGENDA:
—Raven Bioenergy Project (PLN21-282) -
Public hearing to consider adoption of the initial study/mitigated negative declaration (IS/ - MND) and mitigation monitoring and reporting program (MMRP) and design review and conditional use permit to construct and operate a bioenergy facility that converts food and —green waste into transportation-grade hydrogen for various renewable energy products. - STATE REASONS FOR APPEAL:
_On behalf of Communities for a Better Environment ("CBE") and National Resources Defense Council ("NRDC"), there is substantial evidence of a fair argument that the Raven - SR Bioenergy Project (PLN21-282) would have significant adverse environmental impacts —and a full, environmental impact report ("EIR") is necessary. The current IS/MND are _inadequate informational documents with an insufficient project description, flawed or omitted environmental impact assessments, and subsequently, inadequate mitigation measures.
DELIVER OR MAIL TO: NAME Tessa Wardle
City Clerk ADDRESS 360 Marina Way, Richmond CA 94804
450 Civic Center Plaza, 3rd Floor
Richmond, CA 94804 TELEPHONE (HOME) (415) 250-4181
(WORK) (510) 302-0430
NRDC
COMMUNITIES
FOR A BETTER
ENVIRONMENT SIERRA
established 1978 CLUB
December 19, 2022
Richmond City Council
450 Civic Center Plaza
Richmond, CA 94804
510-620-6581
Re: Appeal of the City Planning Commission Decision to Adopt Initial Study/Mitigated Negative Declaration (IS/MND) for Raven SR Bioenergy Project (PLN21-282) To the Richmond City Council:
Communities for a Better Environment ('CBE") and National Resources Defense Council ('NRDC") thank you for the opportunity to submit this letter regarding the Initial Study and Mitigated Negative Declaration ("IS/MND) (State Clearinghouse #2022100145) and Final Mitigated Monitoring and Reporting Program ("MMRP"') prepared for the Raven SR Bioenergy Project, Project No. PLN21-282 ("Project"), including all actions related to the construction, operation, and maintenance of a bioenergy system composed of the Raven SR multi-patented Steam/CO2 Reformation process for transportation-grade hydrogen for various renewable energy products at the project site. The project site' occupies approximately 2.5 acres within the West Contra Costa Sanitary Landfill ("WCCSL") property in the northwest area of the City of Richmond and is located approximately 0.25 miles west of Parr Boulevard CBE and NRDC have no position on the merits of the project substantively. However, we believe the environmental review conducted thus far has been inadequate to inform the public of the project's impacts. After reviewing the IS/MND and MMRP, we conclude they are insufficient informational documents due to the insufficient project description, flawed or omitted environmental impact assessments, and subsequently, inadequate mitigation measures. 1 The project site is currently served by utility infrastructure provided by East Bay Municipal Utilities District (EBMUD), West County Wastewater District, PG&E, and City of Richmond police and fire services. The owner of the property is West Contra Costa Sanitary Landfill, Inc., a subsidiary of Republic Services, Inc.; Despite being within the WCCSL, the project site is located wholly within the City of Richmond and the northern boundary of the project site is the City of Richmond / Contra Costa County jurisdiction line.
There is a fair argument that the Project may have adverse environmental impacts, particularly given the absence of permit conditions to limit those impacts. Therefore, we urge the City of Richmond ("City") to prepare an environmental impact report ("EIR") for the Project, pursuant to the California Environmental Quality Act ("CEQA"), Public Resources Code section 21000, et seq., so that the Project's impacts are disclosed, understood, and mitigated to the maximum extent feasible.
CBE and NRDC's previous comments are attached as Exhibit A hereto and are incorporated herein by reference in their entirety.
I. DECISION FOR APPEAL
Decision by the City Planning Commission for the Approval of a Conditional Use Permit and Design Review Permit?
Project No: PLN21-282
Project Name: Raven Bioenergy Project
Project Address: 1 Parr Boulevard
Site Apn: 408-140-009
Description: Public hearing to consider adoption of the initial study/mitigated negative declaration (IS/MND) and mitigation monitoring and reporting program (MMRP) and design review and conditional use permit to construct and operate a bioenergy facility that converts food and green waste into transportation-grade hydrogen for various renewable energy products.
II. LEGAL STANDARD
As the California Supreme Court has held, "lilf no EIR has been prepared for a nonexempt project, but substantial evidence in the record supports a fair argument that the project may result in significant adverse impacts, the proper remedy is to order preparation of an EIR." Communities for a Better Env't v. South Coast Air Quality Mgmt. Dist. (2010) 48 Cal.4th 310, 319-320 (CBE v. SCAQMD) (citing No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 75, 88; Brentwood Assn. for No Drilling, Inc. v. City of Los Angeles (1982) 134 Cal.App.3d 491, 504-505). "Significant environmental effect" is defined very broadly as "a substantial or potentially substantial adverse change in the environment." Pub. Res. Code ("PRC") § 21068; see also 14 CCR § 15382. An effect on the environment need not be "momentous" to meet the CEQA test for significance; it is enough that the impacts are "not trivial." No Oil, Inc., 13 Cal.3d at 83. "The 'foremost principle' in interpreting CEQA is that the Legislature intended the act to be read so as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language." Communities for a Better Env't v. Cal. Res. Agency (2002) 103 Cal.App.4th 98, 109 ("CBE v. CRA").
The EIR is the very heart of CEQA. Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1214 (Bakersfield Citizens); Pocket Protectors v. City 2 City of Richmond Community Development Dept Planning Division, Notice of Public Hearing. Available at:
https://www.ci.richmond.ca.us/DocumentCenter/View/63799/PLN21-282-PC-NOTICE.
of Sacramento (2004) 124 Cal.App.4th 903, 927. The EIR is an "environmental 'alarm bell' whose purpose is to alert the public and its responsible officials to environmental changes before they have reached the ecological points of no return." Bakersfield Citizens, 124 Cal.App.4th at 1220. The EIR also functions as a "document of accountability," intended to "demonstrate to an apprehensive citizenry that the agency has, in fact, analyzed and considered the ecological implications of its action." Laurel Heights Improvements Assn. v. Regents of Univ. of Cal. (1988) 47 Cal.3d 376, 392. The EIR process "protects not only the environment but also informed self-government." Pocket Protectors, 124 Cal.App.4th at 927.
An EIR is required if there is substantial evidence, in light of the whole record betore the lead agency, that the project may have a significant effect on the environment." PRC 8 21080(d); see also Pocket Protectors, 124 Cal.App.4th at 927. In very limited circumstances, an agency may avoid preparing an EIR by issuing a negative declaration, a written statement briefly indicating that a project will have no significant impact thus requiring no EIR (14 CCR § 15371), only if there is not even a "fair argument" that the project will have a significant environmental effect. PRC, §§ 21100, 21064. Since "It]he adoption of a negative declaration ... has a terminal effect on the environmental review process," by allowing the agency "to dispense with the duty [to prepare an EIR]," negative declarations are allowed only in cases where "the proposed project will not affect the environment at all." Citizens of Lake Murray v. San Diego (1989) 129 Cal.App. 3d 436, 440. Even "conformity with a general plan does not insulate a project from an EIR requirement." Aptos Council v. Cnty. of Santa Cruz, 10 Cal. App. 5th 266, 291, 216 Cal.
Rptr. 3d 142, 161 (2017), as modified on denial of reh'g (Apr. 25, 2017) citing City of Antioch, supra, 187 Cal.App.3d at p. 1332, 232 Cal.Rptr. 507.
Additionally, a "negative declaration is inappropriate where the agency has failed either to provide an accurate project description or to gather information and undertake an adequate environmental analysis." City of Redlands v. County of San Bernardino (2002) 96 Cal.App.4th 398, 406, 117 Cal.Rptr.2d 582. Cities are obligated to evaluate "the forms and extent of future development that now reasonably seem most likely to result from the roadway and utility projects." Aptos Council v. Cnty. of Santa Cruz, 10 Cal. App. 5th 266, 292, 216 Cal. Rptr. 3d 142, 161 (2017), as modified on denial of reh'g (Apr. 25, 2017) (citing City of Antioch, supra, 187 Cal.App.3d at p. 1338, 232 Cal.Rptr. 507); see also Stanislaus Audubon Society, Inc. v. County of Stanislaus (1995) 33 Cal.App.4th 144, 39 Cal.Rptr.2d 54 (Stanislaus Audubon Society).
Under the "fair argument" standard, an EIR is required if any substantial evidence in the record indicates that a project may have an adverse environmental effecteven if contrary evidence exists to support the agency's decision. 14 CCR § 15064(f)(1); Pocket Protectors, 124 Cal. App.4th at 931; Stanislaus Audubon Society v. County of Stanislaus (1995) 33 Cal.App.4th 144, 150-51; Quail Botanical Gardens Found., Inc. v. City of Encinitas (1994) 29 Cal.App.4th 1597, 1602. The "fair argument" standard creates a "low threshold" favoring environmental review through an EIR rather than through issuance of negative declarations or notices of exemption from CEQA. Pocket Protectors, 124 Cal.App.4th at 928. The "fair argument" standard is virtually the opposite of the typical deferential standard accorded to agencies. As a leading CEQA treatise explains:
This 'fair argument' standard is very different from the standard normally followed by public agencies in making administrative determinations. Ordinarily, public agencies weigh the evidence in the record before them and reach a decision based on a preponderance of the evidence. The fair argument standard, by contrast, prevents the lead agency from weighing competing evidence to determine who has a better argument concerning the likelihood or extent of a potential environmental impact. The lead agency's decision is thus largely legal rather than factual; it does not resolve conflicts in the evidence but determines only whether substantial evidence exists in the record to support the prescribed fair argument.
Kostka & Zishcke, Practice Under CEQA, §6.29, pp. 273-74. The Courts have explained that "it is a question of law, not fact, whether a fair argument exists, and the courts owe no deference to the lead agency's determination. Review is de novo, with a preference for resolving doubts in favor of environmental review." Pocket Protectors, 124 Cal.App.4th at 928 (emphasis in original).
For over forty years the courts have consistently held that an accurate and stable project description is a bedrock requirement of CEQA-the sine qua non (that without which there is nothing) of an adequate CEQA document:
Only through an accurate view of the project may affected outsiders and public decision- makers balance the proposal's benefit against its environmental cost, consider mitigation measures, assess the advantage of terminating the proposal (i.e., the "no project" alternative) and weigh other alternatives in the balance. An accurate, stable and finite project description is the sine qua non of an informative and legally sufficient EIR.
County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185 at 192-93. CEQA therefore requires that an environmental review document provide an adequate description of the project to allow for the public and government agencies to participate in the review process through submitting public comments and making informed decisions.
Lastly, CEQA requires that an environmental document include a description of the project's environmental setting or "baseline." CEQA setting Guidelines § 15063(d)(2). The CEQA "baseline" is the set of environmental conditions against which to compare a project's anticipated impacts. CBE v. SCAQMD, 48 Cal.4th at 321. CEQA Guidelines section 15125(a) states, in pertinent part, that a lead agency's environmental review under CEQA:
...must include a description of the physical environmental conditions in the vicinity of the project, as they exist at the time [environmental analysis] is commenced, from both a local and regional perspective. This environmental will normally constitute the baseline physical conditions by which a Lead Agency determines whether an impact is significant.
See Save Our Peninsula Committee v. County of Monterey (2001) 87 Cal.App.4th 99, 124-25 ("Save Our Peninsula").) As the court of appeal has explained, "the impacts of the project must be measured against the 'real conditions on the ground,'" and not against hypothetical permitted levels. Id. at 121-23.
Ill. DISCUSSION
A. AIR QUALITY
i. Significant Information Regarding Air Quality is Missing from the Record, Which the City Should Review Before Issuing a CEQA Determination On May 11, 2022, the Bay Area Air Quality Management District (BAAQMD) determined that the Air Permit Application to construct the Raven SR Bioenergy Project (Application #31700) was incomplete. BAAQMD, as a responsible agency, needs complete information to weigh in on the review; and accordingly, the City needs such information to fully evaluate the Project's air quality impacts. The Air Permit Application remains a live application under review and the City's IS/MND does not include a disclosure or assessment of essential information requested by BAAQMD in its letter.
Specifically, BAAQMD flagged a staggering 57 missing or incomplete items that still need to be disclosed and analyzed, including important information needed to assess community health impacts—such as confirmation that maximum annual throughputs for specific equipment are enforceable permit conditions, possibly missing emissions sources, clarification of process details, missing Health Risk Assessment (HRA) forms for specific emission sources, confirmation that formaldehyde would not be released from the biogas engines, and clear enforceable limits on flare use. Until and unless all 57 concerns are addressed, the City should not move forward with a MND. Full information regarding air pollutant loads and impact is all the more important because the Project would be located in an already overburdened community.
Punting important air quality concerns to the BAAQMD air permitting process is not appropriate, given that CEQA is the primary forum for community engagement over a comprehensive environmental review of the project, which includes air impacts.
At the hearing held December 14, the Commission dismissed this concern on the ground that CEQA does not require completion of the BAAQMD permitting process before the City issues its permit for the project. But that response misses the point. The issue is not whether the City needs to wait for the conclusion of the BAAQMD permitting process before issuing its own permit - it does not, necessarily. Rather, the issue is whether the City needs to wait unti BAAQMD develops complete information relevant to the air quality risks described below - which it clearly does. The City cannot rationally or responsibly make a decision concerning air quality impacts until the missing information flagged by BAAQMD is produced by the project applicant and considered by the City. The City has jumped the gun before BAAQMD collected and analyzed what may well be critical information pertaining to air quality. ii. There is Substantial Evidence of a Fair Argument that the Project Will Have a Significant Health Risk Impact from its Air Quality Impacts
Considering the serious air quality problems already present in the communities surrounding the Project, it is essential for the MND to provide accurate estimates of how the
toxic air contaminants emitted by the Project will impact air quality. The City has a duty to investigate issues relating to a project's potential environmental impacts. See Cry. Sanitation Dist. No. 2 v. Cty. of Kern, (2005) 127 Cal.App.4th 1544, 1597-98 ("under CEQA, the lead agency bears a burden to investigate potential environmental impacts"). Furthermore, "deficiencies in the record may actually enlarge the scope of fair argument by lending a logical plausibility to a wider range of inferences." Id. at 1597 (citing Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 311, 248 Cal.Rptr. 352.).
Toxic air contaminants known to be associated with biogas engines, like formaldehyde, are improperly omitted from the Initial Study. Although the Initial Study clearly identifies the "biogas engine combustion process, where the engines emit exhaust" as the primary source of Project emissions, the Initial Study prematurely ends its air quality analysis by stating that the Project would "replace an existing biogas-fired engine with three (3) newer, lower emitting, and more efficient...engines [which] would result in a lower emissions profile.?* These calculations were not presented, and there is no mention of whether a higher volume of biogas would feed through the new engines which would impact the relative volume of emissions. Furthermore, a relative efficiency "profile" is not the same as a total volume of toxic emissions. The Initial Study should have addressed these in order to inform the public of the risks associated with biogas engines.
According to the Raven SR BAAQMD Air Permit Application, toxic air contaminants are a cause for serious concern. Emissions from the biogas engines powered by landfill gas exceed chronic and acute thresholds that trigger the need for a BAAQMD Health Risk Assessment ("HRA") under Rule 2-5 for eight different toxic chemicals. Acute HRA limits are exceeded for formaldehyde, while chronic limits are exceeded for 1,3-butadiene, acetaldehyde, acrolein, ammonia, benzene, diesel particulate matter (PM), formaldehyde, and naphthalene.
The mitigated negative declaration makes no mention of any of these compounds. The biogas engines would produce a total of 10,000 Ibs. per year of toxic air contaminants; biogas engines are expected to emit 5,650 Ibs. per year of formaldehyde, while BAAQMD chronic health risk assessment (HRA) trigger is 14 Ibs. per year - over 400 times the HRA threshold. It is entirely inappropriate to punt on such serious air quality concerns.
Furthermore, while the IS/MND concludes the impact on air quality is insignificant because criteria pollutant emissions fall below BAAQMD Thresholds for Significant Operational Impacts, the annual operational criteria pollutant emissions are very close to the threshold.S Overall emissions for NOx are calculated to be 9.05 tons per year, when the significance threshold is 10 tons per year. Overall emissions for VOC/ROG are calculated to be 9.19 tons per year, when the significance threshold is 10 tons per year. Being so close to the limit makes a finalized air permit application, an accurate project description, and corresponding air quality analysis even more important. This is a considerably sized industrial project, utilizing novel technology where past impacts of similar projects can't be easily assessed. 3 Konkol et al, 2022. Biogas Pollution and Mineral Deposits Formed on the Elements of Landfill Gas Engines.
Materials. Available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8999940 4 Id.
S Initial Study, Table 4.3-4, p. 38.
As the lead CEQA agency for this Project, this public process is the primary forum for community engagement for a comprehensive environmental review of the Project, including air quality impacts of toxic air contaminants. Furthermore, conducting a more detailed air quality significance and impact analysis is necessary to develop corresponding mitigation measures.
Current mitigation measures relating to air quality primarily cover dust, however, could also include emission control technologies for the toxic air contaminants released by the biogas engines.
Because the pending BAAQMD Air Permit Application and Commenters' research is substantial evidence of a fair argument of a significant environmental impact to future users of the project, an EIR must be prepared to disclose and mitigate those impacts. iii. The City Failed to Rebut the Substantial Evidence for a Fair Argument that The Project Will Have a Significant Health Risk Impact from its Air Quality Impacts
The City has an independent responsibility to adequately assess the potential for air quality impacts and are not limited to the BAAQMD CEQA Air Quality Guidelines (BAAQMD CEQA Guidelines"). They are, in fact, simply guidelines:6 The recommendations in the CEQA Guidelines should be viewed as minimum considerations for analyzing air quality impacts. Lead agencies are encouraged to tailor the air quality impact analysis to meet the needs of the local community and may conduct refined analysis that utilize more sophisticated models, more precise input data, innovative mitigation measures, and/or other features.
The BAAQMD CEQA Guidelines recommend both identifying risks and hazards when there are sensitive receptors within 1,000 feet and "enlarge[ning] the 1,000 foot radius on a case by case basis if an unusually large source or sources of risk or hazard emissions that may affect a proposed project is beyond the recommended radius." Additionally, the California Department of Justice recommends lead agencies "prepar[e] a quantitative HRA assessment in accordance with California Office of Environmental Health Hazard Assessment and local air district guidelines" as a best practice for CEQA compliance. OEHHA recommends that if a project is expected to last over 6 months, the exposure should be evaluated throughout the project using a 30-year exposure duration to estimate individual cancer risks.? • Bay Area Air Quality Management District, CEQA Air Quality Guidelines 2017, p. 1-4. Available at https://www.baaqmd.gov/~/media/files/planning-and-research/ceqa/ceqa_guidelines_may2017-pdf.pdf BAAQMD CEQA Guidelines, p. 2-4.
8 While this CEQA guidance from Attorney General Bonta is directed towards warehouse development, it is a guide to best practices from the Bureau of Environmental Justice "meant to help lead agencies pursue CEQA compliance and promote environmentally-just development" as a result of cases arising from "neighborhoods already suffering from disproportionate health impacts and systemic vulnerability." Department of Justice, Warehouse Projects: Best Practices and Mitigation Measures to Comply with the California Environmental Quality Act, Sept. 2022. Available
Here, the nearest sensitive receptors to the project site are residences at generally West Gertrude Avenue/Malcolm Drive (approximately 0.75 miles southeast), Verde Elementary School at 2000 Giaramita Street (approximately 1.1 miles southeast), and Contra Costa Health Clinic at 1501 Fred Jackson Way (approximately 1.2 miles southeast). North Richmond is already overburdened with air pollution and heartbreaking chronic disease and death, with a CalEnviroScreen in the 96th percentile. Toxic air contaminants associated with biogas engines like formaldehyde are known to cause cancer and worsen respiratory symptoms. 10, I| There is a fair argument here that this Project poses significant air quality impacts to some of the most vulnerable members in the Richmond community.
In its response to Comments, the City stated that the HRA is merely "a tool to answer checklist question 3" and treats the 1,000 foot (0.19 miles) sensitive receptor recommendation as a ceiling, rather than a floor. It gestured at the lack of sensitive receptors within 2,000 feet (0.37 miles) of the property line, despite already having identified very close sensitive receptors just beyond that point.
The City also states, "the emissions presented in the IS/MND are not anticipated to undergo any considerable changes prior to the issuance of an air permit. As such, the IS/MND is reflective of the best available information for assessing potential impacts to the atmospheric environment under BAAQMD guidance."I2 Yet this Project involves the installment of many pieces of equipment including a rotary primary reformer, two heat recovery steam generators, secondary reformer, ash management system, syngas compressor, sulfur removal reactor, pressure swing absorption units, hydrogen compression system, ammonia chiller system, steam and condensate system, cooling tower, nitrogen system, compressed air system, a flare system, and more. Even if there is a less than considerable change, there exists a distinct possibility that the BAAQMD criteria pollution thresholds would be exceeded. iv. Insufficient Public Outreach
At the December 15 public hearing to adopt the Project, North Richmond resident Kiara Pereira testified that parents of the nearby elementary schools were not engaged about this Project. Additionally, outreach materials were not provided in Spanish, despite many parents and residents in the area having Limited English Proficiency or being monolingual Spanish speakers. 10 In 1992, the California Air Resources Board ("CARB") designated formaldehyde as a toxic air contaminant with no safe level of exposure. Formaldehyde is classified as a known human carcinogen by the National Toxicology Program based on evidence in animal and human studies. It is known to cause cancer in the upper respiratory tract, specifically nasopharyngeal cancer. The National Toxicology Program and the National Research Council have identified formaldehyde as causing myeloid leukemia, and the International Agency for Research on Cancer conducted an assessment concluding that formaldehyde causes leukemia. " Formaldehyde exposure is associated with a range of respiratory effects. It can irritate the respiratory tract, decrease pulmonary function, increase the risk of asthma and allergic conditions, especially in children, and increase the severity of childhood asthma attacks. Epidemiology studies document an association between formaldehyde exposure and adverse reproductive outcomes in women, including reduced fertility. 12 City of Richmond, Raven SR ISMND Response to Comments Updated MMRP, 9-1, p. 33. Available at https://www.ci.richmond.ca.us/DocumentCenter/View/63796/Exhibit-C---Raven-SR-ISMND-Response-to- Comments UpdatedMMRP_113022.
It is essential that the City conduct its own qualitative health risk assessment that identifies the impact and mitigation strategies to protect the health and well-being of the children and parents at Verde Elementary School, residents seeking treatment for their illnesses and the health workers at the Contra Costa Health Clinic, and the residents who live at West Gertrude Avenue/Malcolm Drive. We also urge the City and the project proponent to engage in linguistically appropriate outreach activities around this Project.
B. CUMULATIVE IMPACTS
The Initial Study fails to conduct an adequate cumulative impacts analysis. Increased emissions from this project add to the cumulative pollution impacts of the many projects currently in operation and primed for development in North Richmond and adjacent Richmond areas. North Richmond is already one of the most pollution burdened areas of the state. Full and robust cumulative impacts analysis, as required under CEQA, is thus particularly critical here. "One of the most important environmental lessons evident from past experience is that environmental damage often occurs incrementally from a variety of small sources." (Kings Cty.
Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 720.) Consequently, the CEQA Guidelines mandate all assessments of environmental impacts to include an analysis of cumulative impacts that "take[s] account of the whole action involved." (CEQA Guidelines, § 15355, Appendix G.)
Here, the documents summarily conclude in Finding (b)' that "the project does not result in a cumulative consideration impact for any environmental factors." It improperly uses a characterization of the Project as one with a "relatively small scope... when considered with the potential effects of past, current, and probable future projects"14 as a reason to conclude there are no cumulative impacts. Doing so, the City misses important cumulative impacts of significance.
Two cumulative impacts stand out with particular importance. First, there will be increased truck traffic as a result of this project, which is expected to add 100 trips per day of heavy-duty trucks. The Initial Study minimizes the importance of this increase as 'not significant' because the area already has high truck volumes. However, this reasoning is exactly backwards: the existing high truck volumes points to the need to carefully assess potential cumulative impacts from even more heavy-duty trucks. This is particularly so given, as described above, how close NOx and VOC pollutant emissions will potentially come to the BAAQMD threshold for significant impacts.
Second, there are two other hydrogen-related projects being evaluated by and/or within the City that are not recognized in this IS/MND:! Chevron has proposed to expand its 13 Initial Study, p. 105.
14 Id.
15 Raven SR, Renewable fuels company Raven SR announces strategic investment from Chevron, ITOCHU, Hyzon Motors and Ascent Hydrogen Fund. Available at https://ravensr.com/investment-from-chevron-itochu-hyzon- motors-and-ascent-hydrogen-fund/.
production of hydrogen for retail salel and Chevron has also proposed an almost certainly related application to construct a hydrogen fueling station. Chevron's production expansion will result in increased air pollutant emissions; and it is very possible, in the absence of information to the contrary, that the hydrogen produced at the Project would be marketed via, inter alia, the proposed filling station. Yet these two other projects were not even mentioned in the MND.
All three projects should have been addressed in the IS/MND for a cumulative impacts analysis. Pollution increases from the Chevron production project should have been considered cumulatively with pollutant emissions from this Project. As Richmond is driven toward a hydrogen economy that has the potential to be highly polluting, risking the health and safety of residents, it behooves the City to consider that direction as a whole before simply signing off on only one corner of it.
C. HAZARDS AND SAFETY
i. There is Substantial Evidence of a Fair Argument that the Project Improperly Defers Mitigation of Hazard and Safety Planning The Project only vaguely describes an intent to comply with various health, hazard, and process safety management regulations. Yet CEQA prohibits "deferred mitigation." A study conducted after approval of a project will inevitably have a diminished influence on decision-making. Even if the study is subject to administrative approval, it is analogous to the sort of post hoc rationalization of agency actions that has been repeatedly condemned in decisions construing CEQA." Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 307.
[RJeliance on tentative plans for future mitigation after completion of the CEQA process significantly undermines CEQA's goals of full disclosure and informed decision-making; and[,] consequently, these mitigation plans have been overturned on judicial review as constituting improper deferral of environmental assessment. Communities for a Better Environment v. City of Richmond (2010) 184 Cal.App.4th 70, 92.
Additionally, the Project fails to disclose-—and so it fails to address in its mitigation plans—important properties of hydrogen. Hydrogen is a highly flammable gas that can cause explosions and invisible fires.!? At present, it difficult to detect hydrogen leaks because hydrogen has no odor and there are no known odorants that can be added to it; in other words, by the time 16 Chevron U.S.A. Inc., Chevron, Iwatani Announce Agreement to Build 30 Hydrogen Fueling Stations in California. Available at https://www.chevron.com/newsroom/2022/q1/chevron-iwatani-announce-agreement-to- build-30-hydrogen-fueling-stations-in-california.
1 U.S. Department of Labor, Occupational Safety and Health Administration, Green Job Hazards, Hydrogen Fuel Cells: Fire and Explosion. Available at https://www.osha.gov/green-jobs/hydrogen/fire- explosion#:~:text-lower%20flammability%20limit.-
‚Hydrogen%20used%20in%20the%20fuel%20cells%20is%20a%20very%20flammable.that%20a%20flame%20is% 20present.
a worker smells an odorant, the hydrogen concentrations might have already exceeded its lower flammability limit.' Also, when leaked into the atmosphere, hydrogen contributes to climate change by making other greenhouse gases more powerful.
In a full environmental impact report, City should provide a more detailed hazard safety assessment and mitigation plan that reflect the unique properties of hydrogen.
D. PROJECT DESCRIPTION
i. There is Substantial Evidence of a Fair Argument that the Project Description is Incomplete or Inaccurate
The IS/MND's project description does not adequately describe the Project because it omits key details that are essential for accurately assessing the Project's environmental impacts.
The CEQA Guidelines require an initial study to describe a proposed project. (CEQA Guidelines, § 15063, subd. (d)(1).) Project descriptions should contain all details that are essential components of a project since "an accurate project description is necessary for an intelligent evaluation of the potential environmental effects of a proposed activity." San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1994) 27 Cal.App.4th 713, 731 [quotation omitted].)
The IS/MND states that "any additional electricity needed to operate the facility would be sourced from an existing PG&E power drop to the site and no new distribution power line would be required for the project." Condition 49 then states, "The permittee shall obtain power for all operations aside from vehicles via either combustion of landfill gas or the pre-existing electrical grid infrastructure at WCCSL"20 The condition further prohibits use of "any type of petroleum- based product" - which should, if the intention is to prohibit all fossil fuel use for non- transportation purposes, be broadened to say specifically that.
These restrictions and limitations, however, do not suffice as a project description, and do not obviate the need for further analysis. The Project primarily proposes using landfill gas and tail gas from a pressure swing adsorption (PSA) unit to purify the hydrogen product. The biogas engines will provide around 60% of the site's power, while the rest will come from PG&E.?1 However, the landfill gas will run out in an estimated 15-20 years, with declining capacity during those years. This fact raises unanswered questions. First, it is unclear where the tail gas would be routed if the sole source of power for the facility is additional electricity from PG&E.
Additionally, as the landfill gas declines and eventually runs out, the project would likely need to undergo a fairly significant change in configuration to make up for this and allow use of increasing amounts of energy from the grid. The project description should define this reconfiguration and describe the anticipated local impacts of that change. 18 Id.
19 Ocko and Hamburg. Atmos. Chem. Phys., 22, 9349-9368, 2022 https://doi.org/10.5194/acp-22-9349-2022. 20 Final Packet, Attachment 1, Res. No. 22-18, p. 16
21 Initial Study, p. 59.
Accordingly, the project description needs to specify the nature of the reconfiguration that will be required when the landfill gas inevitably runs out, and the CEQA analysis should disclose the impacts of this increased use of PG&E power. It should also disclose the plan for treating or rerouting the tail gas of the PSA unit.
ii. There is Substantial Evidence of a Fair Argument that the Project Baseline is Insufficient
CEQA requires that an environmental document include a description of the project's environmental setting or "baseline" at the time environmental review commences. CEQA Guidelines § 15063(d)(2). Every CEQA document must start from a "baseline" assumption. The CEQA "baseline" is the set of environmental conditions against which to compare a project's anticipated impacts. Communities for a Better Environment v. So Coast Air Qual. Mgmnt. Dist. (2010) 48 Cal. 4th 310, 321.)
See Save Our Peninsula Committee v. County of Monterey (2001) 87 Cal.App.4th 99, 124-125 ("Save Our Peninsula.") As the court of appeal has explained, "the impacts of the project must be measured against the 'real conditions on the ground," and not against hypothetical permitted levels. Save Our Peninsula,87 Cal. App.4th 99, 121-123. As the court has explained, using such a skewed baseline "mislead(s) the public" and "draws a red herring across the path of public input." San Joaquin Raptor Rescue Center v. County of Merced (2007), 149 Cal.App.4th 645, 656; Woodward Park Homeowners v. City of Fresno (2007), 150 Cal.App.4th 683, 708-711.) The IS/MND does not appear to offer baseline figures for air quality and greenhouse gas emissions. Without a clearly disclosed baseline, the public cannot assess whether the findings of significance are appropriate.
E. ADDITIONAL CONCERNS
Commenters would like to draw the Council's attention to additional potentially incomplete environmental assessments, such as soil and groundwater contamination identified by the Department of Toxic Substances.
The City appears to provide a potentially incomplete response to a very significant concern about groundwater contamination. In its comment letter, DTSC provides a short history of the WCCSL site. After initial wastes received included demolition debris, municipal solid waste, and industrial waste. In later years, the site was designated to receive hazardous waste.
So, the Project area has operated a corrective action groundwater monitoring program for the Hazardous Waste Management Facility (HWMF) since March 1996. In its letter, DTSC concluded that it "believes that City of Richmond must address these concerns to avoid any significant impacts under CEQA that may occur and ensure that the West County Landfill Inc.
Post-Closure care is operational during and after construction of the SR Bioenergy Project." However, in response, the City simply stated that its previous analyses rendered this recommendation moot. Without additional time for analyses of the additional information about the DTSC Post-Closure permit and disruption of contamination at the site, we recommend that the Council direct staff to investigate this potential for contamination further.
IV. CONCLUSION
In light of the above comments, the City must prepare an EIR for the Project and the draft EIR should be circulated for public review and comment in accordance with CEQA. We welcome the opportunity to work with the City Council and the project proponent in order to protect the health of the Richmond community. Thank you for considering this letter of appeal.
Sincerely,
Connie Cho, Associate Attorney
[email protected]
Tessa Wardle, Staff Researcher
[email protected]
Communities for a Better Environment
Ann Alexander, Senior Staff Attorney
[email protected]
Natural Resources Defense Council
Teresa Cheng, Senior Campaign Representative
[email protected]
Sierra Club
Kiara Pereira, concerned North Richmond resident
[email protected]
November 22, 2022
Lydia Elias, Planner 1
City of Richmond Planning Division
450 Civic Center Plaza—2nd Floor
Richmond, CA 94804
510-620-5558
Submitted electronically via lydia [email protected] Re: Comment on Draft Initial Study/Mitigated Negative Declaration (IS/MND) for Raven SR Bioenergy Project (PLN21-282)
Dear Ms. Elias,
Please accept these comments from the undersigned organizations concerning the Draft Initial Study and Mitigated Negative Declaration (IS/MND) for the Raven SR Bioenergy Project, Project No. PLN21-282 (Project). We are thankful for the opportunity to share our concerns during this extended comment period. For the reasons described below, we do not believe the analysis supporting the IS/MND is sufficient, and therefore request that you produce a full Environmental Impact Report (EIR).
Raven SR Inc. (Applicant) proposes the construction of a novel technology for creating hydrogen that has no real precedent, making the need to do a thorough environmental impact analysis even more important. We would like to work collaboratively with the City Planning Division to ensure that the already overburdened community in North Richmond does not face any unexpected cumulative impacts from this new project. While the project is being touted as green, such claims should not influence the need for thorough in-depth analysis of Project impacts under the California Environmental Quality Act (CEQA). We believe the City should be asking many more questions, and providing the public with transparent answers about the scope of the Project; and answering them in a full EIR.
I. Outstanding air permit items must be resolved and disclosed in order to properly assess the Project's potential environmental impact
On May 11, 2022, the Bay Area Air Quality Management District (BAAQMD) determined that the Air Permit Application to construct the Raven SR Bioenergy Project (Application #31700) was incomplete. BAAQMD, as a responsible agency, needs complete information to weigh in on the review; and accordingly, the City needs such information to fully evaluate the Project's air quality impacts. The Air Permit Application remains a live application under review and the City's IS/MND does not include a disclosure or assessment of essential information requested by BAAQMD in its letter.
Specifically, BAAQMD flagged a staggering 57 missing or incomplete items that still need to be disclosed and analyzed, including important information needed to assess community health impacts—such as missing Health Risk Assessment (HRA) forms for specific emission sources, missed potential sources of emissions (i.e. lime stored onsite and biochar if stored onsite), confirmation that formaldehyde would not be released from the bioengines, and clear enforceable limits on flare use. Until and unless all 57 concerns are addressed, the City should not move forward with a MND. Full information regarding air pollutant loads and impact is all the more important because the Project would be located in an already overburdened community.
II. Exceedances of chronic and acute thresholds for toxic chemicals trigger the need for a Health Risk Assessment (HRA)
Based on the current version of the BAAQMD Air Permit Application, emissions from the biogas engines powered by landfill gas (LFG) exceed chronic and acute thresholds that trigger the need for a Health Risk Assessment (HRA) under Rule 2-5 for eight different toxic chemicals. Acute HRA limits are exceeded for formaldehyde, while chronic limits are exceeded for 1,3-butadiene, acetaldehyde, acrolein, ammonia, benzene, diesel particulate matter (PM), formaldehyde, and naphthalene.
We also request that the City be conservative in determining the scope of an HRA for these chemicals. According to the Initial Study, an HRA was not conducted for the impacts of diesel PM from construction because sensitive receptors are not within 1,000 ft of the site and due to "trigger levels not applying to the project". However, there are sensitive receptors (residences) within 0.75 miles, an elementary school within 1.1 mile and a health clinic within
1.2 miles, which is still close enough to warrant full analysis. In reviewing Rule 2-5, it is unclear why HRA trigger levels would not apply to this project. Further, while emissions of criteria pollutants NOx and VOCs are estimated to be below the BAAQMD threshold for significant impact, they are extraordinarily close to the threshold. NOx emissions are estimated at 9.05 tons per year (tpy) and VOCs at 9.19 tpy, both with a threshold of 10 tpy.
III. Cumulative pollution impacts should be considered more fully Increased emissions from this project adds to the cumulative pollution impacts of the many projects currently in operation and primed for development in North Richmond and adjacent Richmond areas—-which is one of the most pollution burdened areas of the state.' Full 'OEHHA, CalEnviroScreen 4.0. Available at https://oehha.ca.gov/calenviroscreen/report/calenviroscreen-40. and robust cumulative impacts analysis, as required under CEQA, is thus particularly critical here.
Two cumulative impacts stand out with particular importance. First, there will be increased truck traffic as a result of this project, which is expected to add 100 trips per day of heavy duty trucks. The Initial Study minimizes the importance of this increase as 'not significant' because the area already has high truck volumes. However, this reasoning is exactly backwards: the existing high truck volumes points to the need to carefully assess potential cumulative impacts from even more heavy duty trucks. This is particularly so given, as described above, how close NOx and VOC pollutant emissions will potentially come to the BAAQMD threshold for significant impacts.
Second, there are two other hydrogen-related projects being evaluated by and/or within the City that are not recognized in this IS/MND:2,3 Chevron has proposed to expand its production of hydrogen for retail sale and Chevron has also proposed an almost certainly related application to construct a hydrogen fueling station. Chevron's production expansion will result in increased air pollutant emissions; and it is very possible, in the absence of information to the contrary, that the hydrogen produced at the Project would be marketed via, inter alia, the proposed filling station. Yet these two other projects were not even mentioned in the MND.
All three projects should have been addressed in the IS/MND for a cumulative impacts analysis. Pollution increases from the Chevron production project should have been considered cumulatively with pollutant emissions from this Project. To the extent it remains unclear whether the hydrogen produced by the Raven project will be marketed at the proposed Chevron filling station, the City should have asked that question of Chevron and Raven, and adjusted its analysis accordingly - possibly even considering the two projects in one EIR, but at the very least considering their impacts cumulatively. Richmond is overall being driven toward a hydrogen economy that has the potential to be highly polluting, risking the health and safety of residents 5; and it behooved the City to consider that direction as a whole before simply signing off on only one corner of it.
" Chevron U.S.A. Inc., Chevron, Iwatani Announce Agreement to Build 30 Hydrogen Fueling Stations in California.
Available at
https://www.chevron.com/newsroom/2022/q1/chevron-iwatani-announce-agreement-to-build-30-hydrogen-fueling-s tations-in-california.
3 Raven SR, Renewable fuels company Raven SR announces strategic investment from Chevron, ITOCHU, Hyzon Motors and Ascent Hydrogen Fund. Available at
https://ravensr.com/investment-from-chevron-itochu-hyzon-motors-and-ascent-hydrogen-fund/. * Chevron U.S.A. Inc., Chevron, Iwatani Announce Agreement to Build 30 Hydrogen Fueling Stations in California.
Available at
https://www.chevron.com/newsroom/2022/q1/chevron-iwatani-announce-agreement-to-build-30-hydrogen-fueling-s da invest Renewablc fuels company Raven SR announces stratogic investment from Chevron, TOCHU, Hyzon Motors and Ascent Hydrogen Fund. Available at
https://ravensr.com/investment-from-chevron-itochu-hyzon-motors-and-ascent-hydrogen-fund/.
IV. The biogas engines using landfill gas involves combustion, and the air pollution impacts of this combustion should be analyzed in more detail Landfill gas is primarily methane and CO2, but it also contains many toxic chemicals from the landfill contents. Based on past studies, biogas engines have potential to emit multiple toxic chemicals that are associated with the landfill contents. The Project includes the use of biogas engines to power the hydrogen extraction and purification process, and results in emissions of both criteria air pollutants and toxic air contaminants. While the Initial Study mentions the existing biogas engines already onsite and a lower emission profile from the new engines, it does not appear that the likely increased volume of landfill gas processed by the biogas engines was taken into account. A thorough multi-criteria lifecycle assessment is important to understanding the relevant air quality impact of the new biogas engines.
V. The odor mitigation plan is inadequate
The proposed odor mitigation measures are insufficient. The Initial Study states that the method of odor control would be to employ "control measures similar as those currently employed by WCCSL [West Contra Costa Sanitary Landfill]." However, those measures have already proven insufficient, as local residents are currently complaining of odors from WCCSL.
Moreover, possible solutions are framed as a form of deferred mitigation, a proposal to address an odor problem only if it arises later rather than a plan to address it from the start.
CEQA requires concrete and immediate mitigation plans, not promises to develop mitigation in the future.
And it is fairly clear that odor is going to be a problem. The site of this facility that would have piles of putrescible green waste is approximately 158 feet closer to residences than the existing composting facility. The IS claims that "nuisance odor from Raven is unlikely since feedstock material would only be on the feedstock management area floor for relatively short periods of time." However, the air permit lists the duration of feedstock onsite as 12 hours. Since the facility is running 24/7, it seems unavoidable that there would be compost and green waste onsite at all times.
VII. Potential to convert and create other fuels
Finally, the Raven SR patented technology covers other fuel products that have greater climate implications than hydrogen. We question whether the intended use of the facility is fully 6 Konkol et al, 2022. Biogas Pollution and Mineral Deposits Formed on the Elements of Landfill Gas Engines. Materials. Available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8999940/ disclosed, and whether there is any potential that the facility could be used down the line to make liquid fuels such as alternative aviation fuel. The Initial Study should have explored that possibility.
VI. Conclusion
We appreciate the opportunity to comment on this project and are especially grateful for the extension of the comment period. We hope to work collaboratively with the City to ensure the full consideration of impacts to the community of North Richmond.
Sincerely,
Connie Cho, CBE Attorney
Tessa Wardle, CBE Staff Researcher
Communities for a Better Environment
Teresa Cheng, Senior Campaign Representative
Sierra Club
Faraz Rizvi, Campaign and Policy Manager
Asian Pacific Environmental Network
Katt Ramos, Managing Director
Richmond Our Power Coalition
Kiara Pereira, Just Transition Organizer
Rafael Castro, Just Transition Organizer
Urban Tilth
Ann Alexander, Senior Attorney
Natural Resources Defense Council