Response to Chevron Appeal of Planning Commission CUP 93-40
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Response to Chevron Appeal of Planning Commission CUP 93-40 Prepared By Thomas K. Butt (Draft in Progress, January 18, 1994) TABLE OF CONTENTS INTRODUCTION 4 Conditional Use Permit Appeal 4 The Project 4 Why A Conditional Use Permit is Required 5 Powers of the Planning Commission 5 FINDINGS 5 Types of Findings 5 Conditional Use Permit Findings 5 Evidence from the Public Record 6 Social and Psychological Changes 9 Environmental Findings 10 Statement of Overriding Consideration 10 THE NEXUS PERPLEXUS 11 The Case for Adequate Nexus 11 Congressional Committee on Natural Resources 12 The Clinton Administration 12 History of North Richmond 13 Education Nexus 14 The CAP as a Measure of Student Performance 14 CAP Scores at Schools Nearest The Chevron Refinery 15 Mitigating a Predetermination of Low Achievement 16 ECONOMICS 17 Chevron - An Economic Giant 17 Effect on Profit 18 Effect on Cost of Product 18 Chevron Charity 18 Taxes 19 EMPLOYMENT 19 PROPERTY IMPROVEMENTS 20 CONCLUSIONS 22 Introduction Conditional Use Permit Appeal On December 16, 1993, the Richmond Planning Commission Granted Conditional Use Permit CU 93-40 with the addition of nine additional conditions and the modification of two others. The nine additional conditions are identified in the Staff Report, Attachment B, dated December 16, 1993, as conditions II-13 through II-21. On December 27, 1993, Chevron filed an appeal to the Richmond City Council of the Richmond Planning Commission approval of Conditional Use Permit application CU 93-40 for the Chevron Reformulated Gasoline and FCC Plant Upgrade Project. Chevron requested deletion of conditions II-2, II-3 and II-4 recommended in the original staff report as well as conditions II-13 through II-16 and II-18 through II-21 added by the Planning Commission. As reasons for the appeal, Chevron alleged that the conditions added by the Planning Commission were unlawful, arbitrary and capricious, unsupported by evidence, and unconstitutional. Chevron did not appeal new condition II-18 which called for the elimination of a threat of phosgene gas either by utilizing a safe alternative or by providing a detailed study to show how a release will be contained or not cause a hazard. Also on December 27, 1993, a Chevron press release described the [Planning] commission’s conditions as shortsighted and ill-advised, putting the refinery at a competitive cost disadvantage in a business where refineries can live or die on the basis of pennies per gallon in operating costs. The purpose of this paper is to respond to Chevron’s criticisms of the conditions imposed by the Planning commission and to show why the conditions are appropriate, legal, and consistent with policies of the General Plan and the Zoning Ordinance. The Project Chevron continues to euphemistically characterize the project as simply the “Cleaner Fuels Project” involving “certain specific modifications needed to produce clean fuels as mandated by Federal and State law”. Frequently omitted from Chevron’s description is the fact that approximately half the cost of the project will be to improve the efficiency and reliability of the FCC Plant and to increase feedstocks to the Alkylation, MTBE, and TAME Plants.1One result is that the production capacity for motor gasolines will rise from approximately 97,000 bbls. per day to approximately 110,000 bbls. per day.2 The proposed project is the latest component of a continuing modernization of the entire refinery, an industrial “Winchester House” beginning ten years ago with the $530 million Lubricating Oil Plant. Major projects completed since then include a $55 million Lubricants Blending and Packaging facility, a new $98 million, 99 megawatt electrical cogeneration plant, a $36 million MTBE Plant, and a $61 million diesel hydrotreater. In November 1991, the No. 4 Crude Unit was modified to increase its capacity from 200,000 bbls. per day to approximately 245,000 bbls. per day.3 Since 1987, Chevron has reported over $1.1 billion of projects under the unique Certified Inspector Program where Chevron calculates its own costs, reviews its own plans, and inspects its own construction. The total cost of these recently completed modernization projects and the proposed project is nearly twice the $1.16 billion value of the entire existing refinery complex, raising the spector of piecemealing a de facto refinery reconstruction project to avoid full environmental review under CEQA. The Chevron Refinery proper consists of 2,900 acres but is located adjacent to two other Chevron operations, Chevron Research and the Ortho Division of Chevron Chemical. Although the adjacent General Chemical facility is legally a separate entity, it is joined by a pipeline to the refinery and exists principally to process products to and from the refinery. The acid cloud of July 1993 was formed from material either destined for or coming from the refinery. 1DEIR, II.1 2DEIR, Figure III-5 3DEIR, III.13 Why A Conditional Use Permit is Required The existing General Plan land use designations for the Chevron refinery property are General Industry (GI), Special Industry (SI), and Park, Recreation, and Open Space (P). The area within which the proposed project will be constructed is designated General Industry.4 Because petroleum refining is a use which may be obnoxious or offensive by reason of emission of odor, dust, smoke, gas, noise, vibration, and the like, the Planning Commission has the authority under RMC 15.04.140.A.39.n to ...to impose such conditions as it deems necessary to protect the best interests of the neighboring property or neighborhood and to carry out the purposes of the zoning ordinance and the General plan.5 Powers of the Planning Commission The Planning Commission may, after a public hearing, permit uses requiring a Conditional Use Permit, provided three findings can be made: 1. The location of the proposed conditional use is in accord with the policies of the General Plan.6 2. The location, size, design and operating characteristics of the proposed development or use will be compatible with, and will not adversely affect the livability or appropriate development of, abutting properties and the surrounding neighborhood.7 3. The proposed conditional use complies with all applicable provisions of the Zoning Ordinance.8 There are two policies of the General Plan applicable to this project which have not been adequately discussed in the EIR or the staff analysis. The first states that, Performance standards which will safeguard adjacent...residential areas, or other land uses in the community will govern developments of general industry.9 The second is, Limit all forms of activity that may be objectionable such as odors, fumes, vibration or glare so that they will not be noticeable beyond the limits of the industrial district.10 Findings Types of Findings One purpose of a staff report for a Conditional Use Permit is to evaluate whether or not the provisions necessary to grant a permit have been met. These are called “findings.” In this case, there are two types of findings. The first set of findings relates to whether or not the project conforms to the General Plan and the applicable zoning ordinances, including the chapter describing Conditional Use Permits. The second set of findings are known as “environmental findings” because they respond to the requirements of CEQA regarding significant impacts and how they are mitigated. Conditional Use Permit Findings In evaluating Conditional Use Permit Provision Number 2, staff concluded that the location, size, design, and operating characteristics of the proposed development will be compatible with and will not adversely affect the livability or appropriate development of abutting properties and the surrounding neighborhood. The staff concluded further that the Project should be compatible with and overall beneficial to the livability or 4DEIR, IV.A..7 5DEIR, IV.A.11 and RMC 15.04.190.C.5 6RMC 15.04.190.A.1 7RMC 15.04.190.A.2 8RMC 15.04.190.A.3 9Concise General Plan Document of the Richmond General Plan (CGPRGP), 2.04.A 10Ibid., 2.04.A(5) appropriate development abutting properties and the surrounding neighborhood.11In perhaps the largest leap of irrationality, staff concluded that even though the EIR recognized [increased] air emissions from the project as an adverse impact when compared to existing conditions, the project will not adversely impact the livability or appropriate development of abutting properties and the surrounding neighborhood because the increased emissions will not be recognized as such by the BAAQMD for permitting purposes. The Planning Commission, in approving the Conditional Use Permit with additional conditions, rejected the staff Finding for Provision Number 2 because of the overwhelming evidence that the Chevron Refinery, both currently and with the proposed project has continuing adverse impacts on the surrounding neighborhood relating to pollution and safety, and these impacts are inconsistent with the policies of the General Plan and are violations of the Zoning Ordinance and other provisions of the Richmond Municipal Code. Evidence from the Public Record The EIR cites substantial evidence, based on public agency records and information provided by Chevron that the Chevron Refinery has a history of routine and periodic activities , including production of odors and fumes, which are objectionable to or adversely affect the livability of non-industrially zoned surrounding neighborhoods and are therefore contrary to the policies of the Zoning Ordinance and General Plan. The EIR cites no evidence that the Chevron Refinery will not continue to adversely affect the livability of surrounding neighborhoods and, in fact, concludes that the proposed project will result in increased emission of air pollutants and increased handling of hazardous materials that might pose threats to the public. 1. BAAQMD has issued 155 violation notices against Chevron from October 1988 through October 1992, some of which came from public complaints about smoke and odor.