The following article is at http://www.pcl.org/pcl/pcl_files/7_Toxics.pdf
Chapter 6, Toxics,
page 105
Dow Chemical Plant Expansion
By Will Rostov and Catherine Engberg
In December 2001, the City of Pittsburg approved the construction
of a new Dow Chemical pesticide plant without requiring an Environmental
Impact Report (EIR). Dow proposed to build the plant at its
Pittsburg, California chemical complex,
which according to Dow’s website is “the largest
integrated chemical manufacturing complex of its kind on the
west coast.” The proposed plant would replace an
existing plant that was to be shut down upon project completion.
The new plant would triple Dow’s
production of the toxic pesticide sulfuryl fluoride (SF) to
18 million pounds per year.
The planning commission approved the new plant and found the
approval exempt from CEQA, citing the “replacement or
reconstruction” exemption. Communities for a Better Environment
(CBE) appealed the exemption to the City Council. Four months
later, the City issued a Notice of Intent to Adopt a Mitigated
Negative Declaration and noticed a public hearing before the
City Council.
At the hearing and in a lengthy comment letter, CBE argued
that the construction of a new pesticide plant required the
preparation of an EIR. CBE’s lead scientist raised serious
concerns about the dramatic increase in use of hydrofluoric
acid (HF) and chlorine, two of the constituents of SF. Both
chemicals can be deadly on human contact, and HF
in particular is one of the most dangerous chemicals known to
science. A staff scientist from the Pesticide Action
Network North America (PANNA) raised issues regarding the hazards
of SF. A third expert analyzed air quality impacts.
Despite clear evidence of potential hazards to workers and
community members from increased SF production, and despite
corresponding air pollution, noise, traffic, and other cumulative
impacts, the City Council approved the project. Further, they
disregarded city code provisions requiring a conditional use
permit for the plant expansion.
CBE and PANNA sued the City for both failing to prepare an
EIR under CEQA and for failing to require a conditional use
permit under its Municipal Code. The City and Dow quickly came
to the negotiating table. Following extensive settlement negotiations,
mediated by State Senator Tom Torlakson of Contra Costa County,
the parties reached a creative settlement agreement and entered
into a consent judgment in July 2003.
The settlement required Dow to
hire an independent consultant, agreed to by all parties, to
analyze in detail the air quality and hazard impacts of the
project, and to develop mandatory mitigation measures for these
impacts. The consultant proposed over thirty new measures, designed
to reduce emissions and minimize accidental releases during
plant operation, which Dow has agreed to incorporate into its
final project design. In addition, Dow consented to a 25 percent
reduction of certain air emissions from 2001 levels by the end
of 2006.
The settlement also required increased
public disclosure of Dow’s internal SF monitoring studies,
performed to determine the health and environmental effects
of the pesticide. Dow will provide a number of these studies
to the Department of Pesticide Regulation and to the general
public for use in setting appropriate
health standards.
The City of Pittsburg agreed to retain outside CEQA counsel
to train City planning staff on the CEQA process and to establish
a list of qualified CEQA consultants.
Finally, the agreement required Dow to fund two additional
environmental projects in the amount of $500,000 each, for a
total of $1,000,000. To be administered by the nonprofit San
Francisco and East Bay Community Foundations, these projects
will benefit public health and the environment in the Pittsburg/Antioch
area, and farm worker safety in California.
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Will Rostov is Staff Attorney with Communities for a Better
Environment.
Catherine Engberg, an associate attorney at Shute Mihaly &
Weinberger, represented PANNA in this case.
The agreement required Dow to fund two additional projects
in the amount of $500,000 each. These projects will benefit
public health and the environment in the region, and farm worker
safety in California.