Have You Met Your Toxic Neighbors?

The following guest opinion is part of our weeklong coverage of transparency within local government as part of Sunshine Week 2012.

The legacy of a toxic gas release near Barron Park five years ago is in the spotlight this week, serving as a sobering reminder of the need for government transparency in regulating industry in Palo Alto.

Community Right-to-Know laws were passed in the 1980’s in the U.S. in the wake of the tragedy in India in which a plume of methyl isocyanate fumes released at a Union Carbide plant in Bhopal killed and maimed tens of thousands of people, most of whom had no idea they were living near a site that used or stored extremely hazardous materials.

One of the principal purposes of this law, along with the 1990 Clean Air Act, was to identify sites in the US with large amounts of extremely hazardous materials, and to require each one to develop a Risk Management Plan that would be shared with neighbors, who could be impacted by a toxic release from the site.

Several years afterward, California passed its own version of the law, called the California Accidental Release Prevention program (CalARP) under Title 19 of California codes and regulations, which strengthened the Federal program. The California regulation applies to any site using or storing one or more extremely hazardous materials in quantities above specific threshold quantities. 
CalARP is one of the best examples I know of sunshine laws. Within Palo Alto, however, it did not work as planned.

Toxic Neighbors

Communications and Power Industries (CPI), a maker of microwave products and a spinoff of Varian in Stanford Research Park, was one of only two facilities in Palo Alto subject to the CalARP/Title 19 regulations. Yet it was permitted to place large amounts of extremely hazardous materials very close to residences, and to do it under complete silence between the City of Palo Alto and the public it serves. 

The CPI Risk Management Plan identified two extremely hazardous materials on the site in quantities well above the Title 19 reporting threshold (nitric acid and potassium cyanide) and the potentially chilling offsite consequences of an accident.

But the plan was locked away and out of public sight in the filing cabinets of the Fire Marshal, the City’s overseer of hazardous materials use, and within the Santa Clara County Department of Environmental Protection, the agency given responsibility from the State for oversight of the CalARP/Title19 program.

And then in 2004, CPI proposed to consolidate operations previously located in San Carlos with those in Palo Alto and completely reconstruct its hazardous material handling facility, a plating shop on the 2nd floor of a building on Hansen Way. The plating shop overlooks the backyards of residents on my street.

Despite our City’s reputation for open, sometimes prolonged, public debate on building projects, the plan was quickly and quietly approved. No notifications were sent out. No hearings were held. The CalARP report from CPI did not enter into the City’s approval process even though the consequences of an accidental release of hazardous materials from CPI could be disastrous. The sun was blocked out of the sunshine laws.

Transparency Left in the Dark

What explains the city's failure to disclose what the public had the right to know?  Unfortunately, the City did not have the legal responsibility to do so, but given the singular nature of this project, with CPI using and storing the largest amounts of extremely hazardous materials in Palo Alto, and with their placement so close to residences, why wasn’t the public informed?

This is where it gets murky. Was it bureaucratic negligence or did this project just slip through the cracks? Was the silence of the City officials toward the public a deliberate policy, or was it just business as usual – following previous City actions that leaned over backwards to accommodate requests of Stanford Research Park companies? Or was it a case of the City’s hazardous material oversight team being too cozy with those they oversee?  

We don’t know; maybe a bit of all of the above. In any event, had the sun in the sunshine laws been out in strength, a project that has since caused much controversy and consternation would have been handled in a different and better way.

A Rude Awakening 

It took an accident, a release of toxic nitric acid fumes at CPI in 2006, for the City’s role, in keeping CPI’s CalARP/Title 19 documents under wraps, to become public. The accident caused a huge furor, in part, because CPI evacuated their building but did not notify the Fire Department hazardous materials emergency responders. Nor did they notify any residents of the true nature of magnitude of the danger. Those residents then began to organize and research the issues to try to understand what had been happening literally behind their backs and backyards.

I contacted the Santa Clara County offices in San Jose and asked to see what records and documents they had on file. On my first visit to the office, I was astounded to read the Risk Management Plans that CPI had filed with them.

These documents laid out in black and white the large amounts of hazardous materials above the CalARP/Title 19 threshold and the significant offsite consequences of an accident. Palo Alto’s Fire Marshal at the time (now retired) sheepishly admitted having had copies in his office.

The Fire Marshal’s office keeps the annual inventory reports of hazardous materials that each company in Palo Alto licensed to use such materials has on its site. I filed a request to examine those reports submitted by CPI and was allowed to look through a stack of reports that listed hundreds of hazardous chemicals. Included were huge tanks containing hundreds of gallons of concentrated hydrochloric, sulfuric acid, and nitric acid; many large open tanks of tanks of acid and cyanide compounds, and barrels of potassium cyanide powder.

Frankly, I was flabbergasted by the extent and amount of these hazardous materials at CPI, and their proximity to my family and those of my neighbors, and I was astounded that the zoning rules in Palo Alto had allowed this situation to exist.

The City of Palo Alto began to recognize its responsibility for the careless decisions that allowed CPI to locate its hazardous materials so close to residences. In the year following the release, while the Fire Department conducted its investigation of the nitric acid fume release, a group of residents worked with the Planning Department to craft a zoning ordinance update to address this issue.

There was blowback from the Fire Marshal at the time, but reason prevailed and ultimately the Planning & Transportation Commission and the City Council unanimously passed a zoning update that, going forward, bans hazardous materials above Title 19 threshold levels within 300 feet of a residential zone.

This was an example of how sunshine on governmental affairs together with an engaged public promotes sensible planning and zoning practices.

The use and storage by CPI very hazardous materials, however, was grandfathered in as a non-conforming use. So the possibility of another, possibly even more serious toxic gas release remains an ever present risk to the health and safety of nearby residents.

The way to deal with this, an approach approved by a new and enlightened City staff a few years ago with strong backing by residents, is for the City to phase out CPI’s non-conforming use over time, to allow CPI to continue operations in place until they have recouped their investment while giving them time to plan a change in their operations. This process is called amortization.

The City staff hired an outside consultant in 2010 to conduct a study to determine an appropriate and fair length of time for CPI before this non-conforming use would no longer be allowed. The report was completed in 2010, but it has not yet been publicly released.  At the writing of this article, City Council members are considering this issue. They need to move ahead at all deliberate speed, to provide full disclosure and open the debate to the sunlight of the day.

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