Environmental Justice’ and facility-related health risk scrutiny coming to a community near you

By Scott D. Cohen, P.E., C.I.H.

Three years ago, California Asphalt magazine published an article describing changes in health risk assessment (HRA) cancer risk methodologies. It described how cancer risk had increased on paper, air district actions as they scrambled to respond, and recommended ways that operators could prepare, including the following recommendations:

• Know what’s in the air district engineering files by submitting a record request.

• Be certain that emissions inventories submitted are as accurate as possible (e.g., inclusion of control efficiencies assigned during recent permit modifications).

• Develop site-specific parameters and substitute them for default parameters that predict greater emissions. Air toxics programs are retrospective.

Emissions are assessed for health risk many months to years after they are submitted. Waiting for an HRA to be requested before determining site-specific data may be too late depending on air district preferences/policy and whether conditions on-site remain representative of conditions that existed during the inventory year.

• Perform an HRA on last year’s emissions inventory using the new methodology to see where the facility stands with respect to the cancer-risk threshold in your air district and take actions to refine the results, if necessary. Better yet, perform an HRA on the facility potential to emit (PTE) to know the maximum risk possible.

Hopefully, right now you’re thinking, “Yeah, we did all that. Tell me something new.” What’s new is the current renewed public interest, participation, monitoring and other features of the environmental justice movement as embodied in Assembly Bill 617 (AB617), titled “Nonvehicular Air Pollution: Criteria Air Pollutants and Toxic Air Contaminants” (authored in 2017 by Assemblywoman Cristina Garcia, D-Bell Gardens). In addition, the California Air Resources Board (CARB) has proposed updates to the list of toxic air contaminants that must be reported by stationary sources under the existing Air Toxics "Hot Spots" Information and Assessment Act (AB2588, authored by Assemblyman Lloyd Connelly, D-Sacramento) What follows are the latest developments that are certain to impact asphalt pavement industry in California.

AB617 – Environmental justice bill goes beyond the Clean Air Act

AB617 provides regulatory authority separate from existing federal and state air quality laws, which theoretically expands the scope of sources that may be regulated and control measures that may be enforced. The intent of AB617 is to develop a collaborative relationship between CARB and local air districts to facilitate community participation, provide a science-based foundation supporting the identification of communities with high cumulative exposure burdens, accelerate the development and use of advanced air-monitoring methods and equipment, and support the use of new mobile and stationary source technology. To achieve those goals, AB617 requires six significant measures: (1) Annual Reporting; (2) Best Available Retrofit Control Technology (“BARCT”); (3) a Statewide Clearinghouse of BARCT; (4) Community Air Monitoring; (5) Community Emissions Reduction Programs; and (6) Increased Penalties.

The “Regulation for the Reporting of Criteria Air Pollutants and Toxics Air Contaminants” also known as the California Toxics Rule (CTR), requires annual reporting of criteria and toxic emissions data using a uniform statewide system. During a recent CARB Board Meeting, a board member suggested expansion of the list of facilities required to report beyond the statutory amount (about 1,600). CARB staff then brought back to the Board a rule that required about 50,000 facilities to report, which was later withdrawn so that the original language could be approved. Although local air districts oppose expanding reporting applicability, CARB staff has yet to cease efforts to amend CTR so that more facilities will be required to report. CalAPA submitted a letter opposing that rule change as well as provisions of the existing rule, which requires asphalt plants to report regardless of the amount of emissions generated (i.e., zero threshold trigger). There is concern among industry surrounding

Left: The California Communities Environmental Health Screening Tool: CalEnviroScreen 3.0 was updated in June 2018. CalEnviroScreen is a screening methodology that can be used to help identify California communities that are disproportionately burdened by multiple sources of pollution. CalEPA has used CalEnviroScreen 3.0 to designate disadvantaged communities pursuant to Senate Bill 535 in April 2017.

differences in emissions factors and calculation methods between air districts and CARB. As long as these differences remain, comparison of emissions among facilities in different jurisdictions will quite often lead to erroneous conclusions about which facility has greater emissions and associated health risk.

BARCT can be addressed by an air district any time a better technology is identified by making a new rule or updating an existing rule. AB617 pushes that schedule forward by mandating BARCT and seeks to facilitate exchange of information by creating a clearinghouse upon which air districts will post their BARCT findings. BARCT standards affect each source and not necessarily just those sources at facilities that must report emissions under CTR.

AB617 also allows CARB to issue grants to community organizations for performing air monitoring. Industry concerns with validity of data produced and published by grant recipients stems from lack of grantee experience and expertise in air sampling and potential for use of alternative methods or monitors that may produce unreliable or inaccurate results when compared to standard methods used by air regulators. In 2018, the Community Air Grants Program received 65 applications and awarded 28 projects totaling $10 million. In the Summer of 2019, the Community Air Grants Program issued a second solicitation for an additional $5 million in funding. An additional $10 million was provided in the fiscal year 2019/20 state budget, which will be the subject of a third solicitation in 2020. All combined CARB claims that $740 million in grants for air quality improvement projects is available among various programs (a link to the website on this subject is at the end of this article).

Communities are selected from a pool of applicant communities each year to develop a Community Emissions Reduction Plan (CERP). The CalEnviroScreen prioritization model is a primary tool for selecting the communities. In the first year of CERP preparation, the 10 communities listed below were chosen:

• Richmond (San Francisco Bay Area). • West Oakland (San Francisco Bay Area Air Quality

Management District). • Calexico, El Centro, Heber (Imperial County Air

Pollution Control District). • South Sacramento – Florin (Sacramento

Metropolitan Air Quality Management District). • Portside Environmental Justice Neighborhoods (West National City, Barrio Logan, Logan Heights, and Sherman Heights) (San Diego County Air

Pollution Control District). • Shafter (San Joaquin Valley Air Pollution

Control District). • South Central Fresno (San Joaquin Valley Air

Pollution Control District). • East Los Angeles, Boyle Heights, West Commerce (South Coast Air Quality Management District). • Muscoy, San Bernardino (South Coast Air Quality

Management District). • Wilmington, West Long Beach, Carson (South

Coast Air Quality Management District).

The CARB staff report for the 2019 community selection included only the four communities listed below, at least one of which would continue work from having been selected in 2018.

Right: Overall CalEnviroScreen scores are calculated from the scores for two groups of indicators: Pollution Burden and Population Characteristics. This map shows the combined Pollution Burden scores, which is made up of indicators from the Exposures and Environmental Effects components of the CalEnviroScreen model. Pollution burden represents the potential exposures to pollutants and the adverse environmental conditions caused by pollution.

• Portside Environmental Justice Neighborhoods (San Diego Air Pollution Control District). • Southwest Stockton (San Joaquin Valley Air

Pollution Control District). • Eastern Coachella Valley (South Coast Air Quality

Management District). • South East Los Angeles (South Coast Air Quality

Management District).

Existing law establishes maximum criminal and civil penalties for any person, as defined, for violations of air pollution laws from nonvehicular sources. Existing law generally establishes the maximum criminal and civil penalties to be $1,000 per day, unless otherwise specified. AB617 increased the maximum for the generally applicable criminal and civil penalties to be $5,000 per day adjusted annually based on the California Consumer Price Index.

AB2588 – Expanded list of toxic air contaminants and provisional risk factors

In June 2019, CARB first presented to the Scientific Review Panel (SRP) its intention to list additional chemicals in Appendix A-1 to the AB2588 Program Guidelines, which is titled, “Substances for Which Emissions Must Be Quantified.” Currently, there are 468 chemicals in Appendix A-1. Nearly half (228) of the listed chemicals lack an approved risk factor, making them impossible to include in an HRA. At the time, CARB wanted to add 449 chemicals, the majority of which also lack approved risk factors, more than doubling the total number of chemicals to be quantified by facilities that must comply with AB2588.

In March of 2020, CARB held a webinar on the proposed changes and upped the number of chemicals being added to Appendix A-1 to 730 (a link to information on from this webinar is at the bottom of this article). CARB staff must have realized the limited utility of adding chemicals that can’t be assessed for health risk. The number of such chemicals would be approaching 1,000 (i.e., 228 + 730 = 958), and approximately 132 years would pass before risk factors could be developed for each chemical assuming the average historical approval rate (7.25 chemicals/year).

In the June 23, 2020 notice for the July 9, 2020 SRP meeting it was stated that CARB would be proposing “provisional” health risk factors for chemicals that did not already have risk factors. At the July 9, 2020 meeting there were presentations by CARB and state Office of Environmental Health Hazard Assessment (OEHHA) discussing various approaches that could be taken to develop “provisional” risk factors. However, industry representatives and even non-governmental organizations did not seem persuaded. The July 9, 2020 comment letter from California Council for Environmental and Economic Balance (CCEEB) to the Scientific Review Panel, OEHHA and CARB contains a seemingly fair and relatively comprehensive review of the current proposals and potential cumulative effects. [ Continued on page 24 ]

HERRMANN EQUIPMENT, INC., AND HAITBRINK ASPHALT PAVING, INC.

Above Left: Haitbrink Asphalt’s new Bomag 1200/35 milling machine. Center: New Bomag BW151AD articulated tandem roller. Abover Right: Alex Luna, Shop Foreman (left), Robert Haitbrink, Hunter Haitbrink, of Haitbrink Asphalt and Rob Pickrell, Herrmann Equipment. Left: New Carlson CP100 paving machine.

Haitbrink Asphalt Paving, Inc. (Haitbrink) has been one of Southern California’s premier paving companies for more than 30 years. They are a full-service grading and paving contractor that also specializes in grinding, trench repair, seal coating, striping, ADA upgrades and concrete construction services. Headquartered in Corona, Haitbrink maintains their reputation for excellence by hiring the best in the business and owning only the most productive and reliable equipment.

Haitbrink recently took delivery of three brand new machines from Herrmann Equipment, Inc., a company that was recommended to them by others in the industry for their impeccable service, training, and parts availability. Founder, Robert Haitbrink serves as the CEO with his son, Hunter, overseeing operations as the company president. “This was our first purchase from Herrmann Equipment and we have been very impressed with both the equipment and the way everything was handled by the folks at Herrmann,” says Hunter. “We just can’t say enough about the Herrmann Equipment team. Their

sales manager, Rob Pickrell, is extremely knowledgeable with consistent follow-up and outstanding support throughout the entire sales process. Mike, Jackie and Rob and their team put customers first and that is why they have our business.”

Haitbrink’s initial purchase was for their new Carlson CP100 paving machine. “We absolutely love our new Carlson Paving machine because it is an awesome mid-sized paver with the features of a full-size machine,” continues Hunter. “It’s heavy duty design really packs a punch. In my opinion, there is just no competition for this particular size machine.

Haitbrink also purchased a Bomag 1200/35 cold planer milling machine, a Bomag BW151AD articulated tandem roller and a Carlson CP100 paving machine. “We had been renting a milling machine three to four days a week and it just made sense to purchase a larger machine to fulfill our busy schedule. Alex Luna is Haitbrink’s shop foreman had this to say about the purchase. “We liked the flush cut design, and the rear mounted drum that makes maintenance so much easier,” says Luna. “The overall electronics and state-of-the-art controls also made a big impression on all of us.”

Hunter Haitbrink was also very excited about the Bomag BW151AD articulated tandem roller purchase. “We really lucked out on this fully-loaded Bomag roller. We had ordered the open cab unit, but when one was not available, Herrmann upgraded us to the fully enclosed cab model at the same price,” says Hunter. “We are the first paving company on the west coast to take delivery and having the enclosed cab is just that much sweeter.”

SALES • SERVICE • PARTS • RENTAL

NORTHERN CALIFORNIA (916) 783-9333 9220 VIKING PLACE, ROSEVILLE, CA 95747

[ Continued from page 22 ] A link to that letter is at the end of this article. CARB’s July 9, 2020 presentation shows that they anticipate the following timeline of events:

• Discuss concepts with SRP: July 2020 • Develop proposed approach with OEHHA: mid-2020 to early 2021 • Present the proposed approach for SRP review and further discussion: early 2021 • Draft health guidance: mid-2022 • Provisional health guidance available for use: mid-2023

In summary, many operators of facilities that report emissions under AB2588 will need to prepare an HRA to address cancer risk methodology changes adopted in recent Health Risk Assessment Guidelines (OEHHA, 2015). For the foreseeable future, reporting will be scrutinized more closely by the public and regulators given the effect AB617 has had on government as it responds to the environmental justice community. There is also a chance that if “provisional” risk factors are allowed to be published, these same facilities will again be subjected to HRA because new pollutants with “provisional” risk factors may then apply. CA

Scott D. Cohen, P.E., C.I.H., is a Principal Engineer with CalAPA member SESPE Consulting Inc., and co-chair of the CalAPA Environmental Committee. SESPE Consulting, Inc. has assisted dozens of companies throughout California and elsewhere with air emissions quantification, dispersion modeling and health risk assessment for a variety of purposes, including AB 2588 compliance, permitting/NSR, and CEQA. Scott can be reached at (619) 894-8670.

REFERENCES: The California Air Resources Board 2019 staff report on the Community Air Grants Program and recommendations can be found here: https://ww2.arb. ca.gov/sites/default/files/2019-12/2019_ community_recommendations_staff_ report_november_8_acc_3.pdf

California Air Resources Board information on proposed changes to AB2588 “Substances for Which Emissions Must Be Quantified.”: https://ww2.arb.ca.gov/hot-spotsinventory-guidelines

July 9, 2020 comment letter from the California Council for Environmental and Economic Balance (CCEEB) to the Scientific Review Panel, OEHHA and CARB on proposed AB2588 expansion is here: https://ww2.arb.ca.gov/sites/ default/files/2020-07/CCEEB_AB2588_ final%20ADA.pdf

Cohen, S. (2017) “Health Risk Assessment: What to Expect, How to Prepare.” California Asphalt, Journal of the California Asphalt Pavement Association, Vol. 21, Issue 4, PP 14-18.

Snyder, R. (2019) “Latest draft of CARB rules on community air monitoring removes onerous reporting language.” California Asphalt, Journal of the California Asphalt Pavement Association, Vol. 23, Issue 4, PP 20-22.