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HomeMy WebLinkAbout26-Public Services ,. OR\G\NAL CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: Ken Fischer, Director Subject: A resolution ratifying a settlement agreement between the City of San Bernardino and the South Coast Air Quality Management District (AQMD) concerning the installation of an enhanced vapor recovery system (EVR) for the City's gasoline dispensing facility. Dept: Public Services Date: April 13, 2009 Meeting Date: April 20, 2009 Synopsis of Previous Council Action: Recommended Motion: Adopt Resolution. ;:;r- t/ Signature Contact person: Ken Fischer, Director Supporting data attached: Staff Report, Resolution and Attachment "1" and "2" Phone: 5140 Ward: 1 FUNDING REQUIREMENTS: Amount: $ 2,000 Source: FY 08-09 Account No. 635-341-5113 (Motor Fuel & Lubricants) Council Notes: Finance: A?-s.<? :2009- '7'3 Agenda Item No. '2JI t.f..U"O' CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION Staff Report Subject: A resolution ratifying a settlement agreement between the City of San Bernardino and the South Coast Air Quality Management District (AQMD) concerning the installation of an enhanced vapor recovery system (EVR) for the City's gasoline dispensing facility. Background: California State law requires that "all retail and non-retail gasoline dispensing facilities (GDF) with underground storage tanks be equipped with a certified Phase II Enhanced Vapor Recovery System" by April 1, 2009. This requirement is designed to further reduce emissions of gasoline vapors, by an additional 3 percent. Since approval of the annual budget, staff has worked cooperatively to move this project forward as quickly as possible. Still the time necessary to complete the steps to bid the work, gain plan approval, issuance of permits, and begin construction could not be met in the timeframe required. In an effort to meet this deadline staff budgeted funds in the FY 08/09 budget. However, the length of the bid process required permitting and expected construction time, resulted in not meeting the April 1 , 2009 deadline. The following timeline of events documents past actions taken and future actions to be taken, to ensure work will be completed in May 2009: November 25, 2008 December 9, 2008 December 17, 2008 December 30, 2008 January 8, 2009 January 23, 2009 February 17, 2009 February 18,2009 February 26,2009 February 26, 2009 April 6, 2009 April 21, 2009 Public Services issued a Request for Proposals to complete the work. Public Services had a mandatory pre-proposal job walk. Questions from companies interested in making a proposal were due. City responses were sent back. Proposals were due. Reviews were completed. The Council approved the award of work. A requisition to issue a purchase order was entered. A purchase order was issued. The contractor has worked on completing the project since the approval of their purchase order. Plans are completed and are submitted to the City and County for permits. Permits are expected to be issued and construction will begin immediately thereafter. Construction is expected to take a maximum of two weeks. 1 CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION Staff Report - Continued Staff received a registered letter from AQMD on March 24, 2009, stating that there would be no extension of time to meet the April 1, 2009 deadline unless the City signed a settlement agreement and submitted a $1,000 penalty for each month beyond April that the installation of the enhanced vapor recovery system (EVR) is not completed. The only other option was to close the station until the EVR was completed. The action taken by AQMD is aggressive. There are hundreds of gasoline stations that are having a difficult time getting systems installed, and relief is under consideration by the State Legislature. As of now, the City has no alternative. The City Manager executed the settlement agreement, after consulting with the Attorney's Office, and sent the required materials and $1,000 check for the month of April. It is anticipated that a second $1,000 check will need to be sent to the AQMD for the month of May. All of the work is expected to be completed in May 2009 at a total cost of $83,300. AQMD pointed out that failure to submit the settlement agreement and pay the $1,000 per month penalty, or close the station could result in an enforcement action with fines as high as $25,000 per day. Financial Impact: Funds for these payments are available in Account No. 635-341-5113 (Motor Fuel & Lubricants) in the amount of $2,000. Recommendation: Adopt Resolution. 2 1 2 3 4 5 6 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. CCO)[P)f A RESOLUTION RATIFYING EXECUTION OF A SETTLE MEN AGREEMENT AND DECLARATION OF GAS DISPENSING FACILITY BETWEEN THE CITY OF SAN BERNARDINO AND THE SOUTH COAST AIR QUALI MANAGEMENT DISTRICT (AQMD) CONCERNING THE INSTALLATION OF AN ENHANCED VAPOR RECOVERY SYSTEM (EVR) FOR THE CITY'S GASOLINE DISPENSING FACILITY. WHEREAS, the AQMD required all gas dispensing facilities within its 7 jurisdiction to have an enhanced vapor recovery ("EVR") system in place and working 8 on or before April 1, 2009; and 9 WHEREAS, if the EVR system was not in place and working at the City gasoline dispensing facility on or before April 1, 2009, the City was required to either cease pumping fuel at its facility or execute a Settlement Agreement between the City of San Bernardino and South Coast Air Quality Management District ("Settlement Agreement") and a Declaration of Gas Dispensing Facility ("Declaration") with the AQMD, to allow continued pumping; and WHEREAS, per the Settlement Agreement a $1,000 penalty is assessed for each month between April 1, 2009 and August 31, 2009, in which the EVR is not installed and dispensing of fuel continues, and with an increase in fees thereafter; and WHEREAS, pursuant to the above, on March 31, 2009, the Acting City Manager executed the Settlement Agreement and the Declaration on behalf of the City. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCil OF THE CITY OF SAN BERNARDINO AS FOllOWS: SECTION 1. That the execution by the Acting City Manager of the City of San Bernardino of the Settlement Agreement between the City of San Bernardino and South Coast Air Quality Management District (AQMD), a copy of which is attached F:\WILSON\Public ServicesIResolution Vapor Recovery System.doc 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 hereto, marked Attachment "1" and incorporated herein by reference as fully as thoug set forth at length and the Declaration of Gas Dispensing Facility attached heret marked Attachment "2" and incorporated herein by this reference, is hereby ratified. SECTION 2. That pursuant to this determination the Director of Finance or he designee is hereby authorized to issue a Purchase Order to South Coast Air Quali Management District (AQMD) in the amount of $2,000. III III III F:\WILSON\Public ServicesIResolution Vapor Recovery System.doc 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A RESOLUTION RATIFYING EXECUTION OF A SETTLEMEN AGREEMENT AND DECLARATION OF GAS DISPENSING FACILITY BETWEE THE CITY OF SAN BERNARDINO AND THE SOUTH COAST AIR QUALlT MANAGEMENT DISTRICT (AQMD) CONCERNING THE INSTALLATION OF A ENHANCED VAPOR RECOVERY SYSTEM (EVR) FOR THE CITY'S GASOLlN DISPENSING FACILITY. 2 3 4 5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by th 6 Mayor and Common Council of the City of San Bernardino at a 7 meeting thereof, held on the day of 8 following vote, to wit: 9 Council Members: NAYS ABSTAIN ABSENT AYES ESTRADA BAXTER BRINKER SHORETT KELLEY JOHNSON MCCAMMACK Rachel G. Clark, City Clerk The foregoing resolution is hereby approved this ,2009. Approved as to Form: Patrick J. Morris, Mayor City of San Bernardino F:\WILSON\Public ServicesIResolution Vapor Recovery System.doc day of ATTACHMENT 1 SETTLEMENT AGREEMENT WHEREAS, the name of the gas dispensing facility (hereinafter "GDF') is, CITY OF SAN BERN, CITY YARD located at 182 S SIERRA WAY, SAN BERNARDINO, CA 92410 WHEREAS, the South Coast Air Quality Management District (hereinafter "District") is a body corporate and politic established and existing pursuant to Health & Safety Code S40400, e1 seq. and is the sole and exclusive local agency with the responsibility for comprehensive air pollution control in the South Coast Air Basin. WHEREAS, the GDF is regulated and pennitted by the District, and is subject to District Rules 461 and 203(b) as well as requirements adopted by the California Air Resources Board (hereinafter "CARB"), which are enforceable by the District. WHEREAS, the GDF is subject to CARB's requirements to install and successfully test Phase II Enhanced Vapor Recovery ("PII-EVR) beginning on and after April I, 2009, and may be subject to the requirement to install and test an In-Station Diagnostic ("ISD") system by September I, 2009. Both these requirements are embodied in Title 17 Section 9401 I of the California Code of Regulations (CCR) as well as District Rules 461 (c)(2)(A), (e)(3) and 203(b). WHEREAS, the GDF will not have installed and tested all necessary PII-EVR equipment by April I, 2009, so that its equipment will not be considered CARB certified as required by that date, and if subject to the September 1,2009 ISD deadline, it.will not have timely installed and tested the ISD system; so that it will be in continuing violation of the above- referenced requirements until it achieves full compliance with the PII-EVR requirements and the ISD requirements. THEREFORE, for good and valuable consideration, the GDF and the District (collectively referred to as the Parties) agree to the following: LIMITATIONS OF AGREEMENT I. This Agreement will not be in effect if the District Hearing Board does not issue a Stipulated Order for Abatement against the GDF. 2. This Agreement resolves only those violations associated with the failure, if any, to file a PII-EVR compliance plan by December 31, 2008, the failure to operate CARB certified PIl-EVR equipment occurring between April I, 2009 and December 3 I, 2009, and the failure to install and operate an ISD system from September I, 2009 to December 31, 2009; and not any other violations, including any violations related to the failure to file either a compliance plan or a Phase II EVR pennit application by March 18,2009. The period of coverage for violations of the PII-EVR and ISD requirements between April I and December 31,2009 may only be extended by mutual agreement in writing between the GDF and the District. Unless this Agreement is extended, operation of the GDF beyond December 31, 2009 is illegal and the GDF will be subject to prosecution for the full amount of penalties allowed under the law as well as the possible tag-out or shut-down of the GDF. PENALTY FOR NOTICE OF VIOLATION 3. If the GDF has received a Notice of Violation for violating District Rule 461(i), it shall pay by separate check $500 in addition to the monthly penalties set below. MONTHLY PENALTIES 4. The GDF understands that its continuing violations are subject to penalties under state law of up to $25,000 per day for each day of negligent emission violations. The District considers numerous factors in assessing an appropriate level of penalties. Two such CITY OF SAN BERN. CITY YARD (I\) 65891) 1 factors in this case is the number of dispensers at the GDF and the average monthly throughput in gallons of gasoline dispensed by the GDF from 111/08 to 12131108. The GDF thus states under penalty of perjury that it has. Fovrt.. dispensers and its average montWy throughput of gasoline from 1/1/08 to 12131/08 is 3'3. S'lol gallons of gasoline per month. The GDF further understands that if the District later determines that either of these stated nUDIbers is inaccurate, this Agreement will be considered void and the GDF will be subject to prosecution for the full amount of penalties allowed under the law as well as the possible tag-out or shut-down of the GDF. 5. GDF agrees to the penalty and payment schedule attached to this Agreement as Table l. Based on Table I, and using the above-stated number of dispensers, GDF represents that its monthly penalty for the months of April, May, June, July and August of 2009 is $1.orJO /month. . . 6. The GDF further understands that in order to provide an incentive for early compliance, the monthly penalty will increase beginning September I, 2009. Again, based on the attached Table 2 and using the above-stated number of dispensers and average monthly throughput, GDF represents that its monthly penalty for the months of September, October, November and December of 2009 is $/. ..,.,0 /month. , REDUCED PENALTIES 7. Temporary shut-down to avoid penalties: The GDF may choose at any time to temporarily shut-down its gas dispensing operation until it achieves full compliance with. the PII-EVR requirements and the September 1,2009 ISO requirement, if applicable. The GDF must first notify the District in writing, by completing the enclosed Statement of Temporary Shutdown and submitting it as directed on the form. After notification, there will be no applicable daily penalty for the period of time in which tbe GDF is shut- down. MONTHLY PAYMENT SCHEDULE 8. Monthly penalties are due in advance by the first of each month. The first payment shall be included with the return of this fully completed and signed Settlement Agreement. The first payment shall include the monthly payment for the month of April 2009, and any other montWy payments that may be past due. Payments shall be made out to the South Coast Air Quality Management District, marked with your Facility ID No., and mailed to the address listed below. LATE PAYMENTS 9. Monthly payments received after the due dates are subject to an additional 50% late fee. The late fee payment shall be included with the monthly payment. However, monthly payments received by the 10th of the applicable month will not be deemed late. If a monthly payment is not received within 30 days after the due date, this Agreement will be considen;d void and the GDF will be subject to prosecution for the full amount of penalties allowed under the law as well as the possible tag-out or shut-down of the GDF. FULL COMPLIANCE 10. Within 5 calendar days after the GDF installs all required Phase II EVR equipment and any ISD system required by September 1,2009, and successfully tests the installed equipment and system pursuant to District Rule 461(e), the GDF shall notify the District of the date that the GDF has achieved full compliance. Notification shall be made using the District form entitled, Statement of Full Compliance, and shall be submitted as directed on the form. CITY OF SAN BERN, CITY YARD(ID65891) 2 MISCELLANEOUS 11. Bindin!!. This Agreement shall be deemed to obligate, extend to, and insure to the benefit of the Parties to the Agreement, and the legal successors, assigns, transferees, grantees, and heirs of each such Party, including those who may assume any or all of the capacities described herein. 12. Entire A!!reement. This Agreement constitutes an integrated contract expressing the entire agreement of the Parties hereto relative to the subject"matter discussed herein. This Agreement supersedes all prior proposals, agreements, and understandings between the Parties and may not be changed or terminated orally, and no change, termination, or attempted waiver of any of the provisions hereof shall be binding unless in writing and signed by the Party against whom the same is sought to be enforced. 13. Authoritv to Execute. Each Party represents and warrants to the other Party that the signatories to the Agreement have been duly authorized to execute the Agreement on behalf of the entities identified below. 14. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same document. The Parties may execute and deliver this Agreement by transmitting an authorized signature by fax or pdf via e-mail, and copies of this Agreement signed and delivered by means of faxed signatures or signatures in a pdf document shall have the same effect as copies executed and delivered with original signatures. 15. Effective Date. Agreeing to and accepting all of the provisions herein, the undersigned have executed this Agreement on the date set forth below The effective date of this Agreement is April I, 2009. Mailin\! Address Send all completed documents and payments to: District Prosecutors Office EVR Phase II South Coast Air Quality Management District 21865 Copley Dr Diamond Bar, CA 91765-9819 IN WITNESS THEREOF, the Parties have executed this Agreement by their duly authorized representatives as of the date set forth below their respective signatures. SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT NAME of GDF CITY OF SftN i?ERN!tR.DINO By: By: Lo...i '5""$100",- William B. Wong, Esq. Principal Deputy District Counsel Name' (J1iL2 Dated Dated 'j-~I -ocr CITY OF SAN BERN, CITY YARD (ID 65891) 3 between April I, 2009 and August 31, 2009 Number of Dispensers: 5.9 $ 1,500 " 10 $ 2,000 Table 2 - Monthly Penalty between September I, 2009 and December 31, 2009 11: Monthly Number of Dispensers: Th roughput 1-4 5-9 " 10 (Qallonsl 1 through 1,000 $1,010 $1,510 $2,010 1,000 through 2,000 $1,020 $1,520 $2,020 2,000 through 3,000 $1,030 $1,530 $2,030 3,000 through 4,000 $1,040 $1,540 $2,040 4,000 through 5,000 $1,050 $1,550 $2,050 5,000 through 6,000 $1,060 $1,560 $2,060 6,000 through 7,000 $1,070 $1,570 $2,070 7,000 through 8,000 $1,080 $1,580 $2,080 8,000 through 9,000 $1,090 $1,590 $2,090 9,000 through 10,000 $1,100 $1,600 $2,100 10,000 through 20,000 $1,200 $1,700 $2,200 20,000 through 30,000 $1,300 $1,800 $2,300 30,000 through 40,000 r- $1,400 $1,900 $2,400 40,000 through 50,000 $1,500 $2,000 $2,500 50,000 through 60,000 $1,600 $2,100 $2,600 80,000 through 70,000 $1,700 $2,200 $2,700 70,000 through 80,000 $1,800 $2,300 $2,800 80,000 through 90,000 $1,900 $2,400 $2,900 90,000 through 100,000 $2,000 $2,500 $3,000 100,000 through 110,000 $2,100 $2,600 $3,100 - .--- -- . ..- mn_ ---.- 110,000 through 120,000 $2,200 $2,700 $3,200 120,000 through 130,000 $2,300 $2,800 $3,300 130,000 through 140,000 $2,400 $2,900 $3,400 140,000 through 150,000 $2,500 $3,000 $3,500 150,000 through 160,000 $2,600 $3,100 $3,600 160,000 through 170,000 $2,700 . $3,200 $3,700 170,000 throu9h 180,000 $2,800 $3,300 $3,800 180,000 through 190,000 $2,900 $3,400 $3,900 190,000 through 200,000 $3,000 $3,500 $4,000 200,000 through 21 O,DOll $3,100 $3,600 $4,100 210,000 through 220,000 $3,200 $3,700 $4,200 220,000 through 230,000 $3,300 $3,800 $4,300 230,000 through 240,000 $3,400 $3,900 $4,400 240,000 through 250,000 $3,500 $4,000 $4,500 250,000 through 260,000 $3,600 $4,100 $4,600 260,000 through 270,000 $3,700 $4,200 $4,700 270,000 through 280,000 $3,800 $4,300 $4,800 280,000 through 290,ooo $3,900 $4,400 $4,900 290,000 through 300,000 $4,000 $4,500 . $5,000 300,000 through 310,000 $4,100 $4,600 $5,100 310,000 through 320,000 $4,200 $4,700 $5,200 CITY OF SAN BERN, CITY YARD(TID65891) 4 ATTACHMENT "2" OFFICE OF THE DISTRICT PROSECUTOR SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT 2 William B. Wong, SBN 120354 Principal Deputy District Prosecutor 21865 Copley Drive Diamond Bar, California 91765-0940 4 Telephone: (909) 396-3400 Facsimile: (909) 396-2961 1 3 5 ? Attorneys for Petitioner SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT 7 8 9 JO BEFORE THE HEARING BOARD OF THE SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT In the Matter of Case No. 5732-1 II SOUTH COAST AIR QUALITY MANAGEMENT DECLARATION OF GAS DISPENSING DISTRICT, FACILITY 12 13 14 IS 16 17 18 19 20 21 22 23 Petitioner, DATE: TIME: PLACE: 9:00 a.m. 21865 Copley Drive Diamond Bar, CA 91765 vs. Gas Dispensing Facilities, Does 1-2600 Respondents. Lnri 0tS500n (Print Your Name) , declare: I, 1. I am the authorized representative of CITY OF SAN BERN, CITY YARD (Name of Gas Dispensing Facility or GDF) I have full authority to agree to and sign this Stipulation on behalf of this GDF and legally bind it to the statements and agreements contained in this Stipulation. I am 24 25 the owner, operator, ora corporate officer [circle one] in charge of the GDF. This GDF has the following: 26 Address: 1825 SIERRA WAY SAN BERNARDINO, CA 92410 27 28 CITY OF SAN BERN, CITY YARD (10 65891) 1 1 Facility ID No.: 65891 2 My contact information is the following: Address: 300 t-JOI'"t\... 'I If D S;+r~e.-+ S"'''" l3'er,,<l..rJ.,~ Cf\ CI;2'-f(g 3 4 5 ( q D'1) (901) 3'is'"i - 5127- 3-gLf. - S ['3f 6 Telephone: 7 Fax: 8 E.mail: :s 0.. 5<,,.,61\ _ La ~ 56.:: .fy .d"j request the GDF be substituted as a Respondent in this pending 9 2. ]0 Abatement Order proceeding. I further agree on behalf of the GOF that it: ] ] (a) has been legally and properly served with a copy of this Petition for ]2 Stipulated Group Order for Abatement (Petition) and attached Proposed Order; 13 (b) agrees to the facts listed in the Petition; ]4 (c) knowingly and intelligently waives its rights to receive notice of the 15 hearing; 16 (d) agrees to have this matter. placed on the Hearing Board's consent 17 calendar; ]8 (e) knowingly and intelligently waives all rights to be present at the 19 hearing upon which the Hearing Board may issue its Order for Abatement; and 20 (f) agrees to be bound by the terms of the attached Proposed Order if issued, 21 and acknowledges that failing to comply with those terms may subject the GDf to 22 civil penalties of up to $25,000 per day and/or shut-down of the GDE 23 3. To allow this matter to proceed on the Hearing Board's consent 24 calendar, the GDF and the SCAQMD further stipulate and agree, as follows: 25 (a) This matter may be placed on the Hearing Board's Consent Calendar at 26 27 28 9 a.m. on any date proVided by. the Hearing Board, such date being publicly available prior to the hearing. CITY OF SAN BERN. CITY YARD(ID 65891) 2 1 (b) This stipulation may be admitted into evidence regarding this matter. 2 (c) The GDF and the SCAQMD have agreed on the proposed Order for 3 execution by the Hearing Board, a copy of which is attached to the Petition. 4 5 (d) SCAQMD may provide additional evidence at the Consent Calendar 6 7 proceeding as the Hearing Board may request to enable it to issue the proposed Order. 8 (e) No nuisance violation under Health and Safety Code Section 41700 is 9 expected to result from operation of this GDF while under the 10 requested Order for Abatement. 11 I declare under penalty of perjury under the laws of the State of California that the 12 foregoing is true and correct. 13 14 15 16 17. 18 STIPULATED TO: Executed on ~l?J ( ate) , 2009 at <.7/1 hrrurdirla ,CA (insert city) (fJ;.~ t I SIgnature 0 aut onze representa lve 19 South Coast Air Quality Management District 20 By: r 21 22 23 24 25 26 27 28 CITY OF .SAN BERN. CITY YARD (ID 65891) 3