Rubberized Asphalt Concrete in Mendocino County*

- The County Board of Supervisors is the District Board of Directors. AQMD Response: The District agrees with this finding. The Air Quality Management District actually has two Boards, the District Board of Directors and the Hearing Board. As established by California Health and Safety Code, Section 40100, the Board of Supervisors sits as the Air Quality Management District Board of Directors. The makeup of the Board could include members from the four incorporated cities if the Board so desired. The Air Quality Management District Board establishes general policy direction for the District, approves the budget, adopts or amends regulations and appoints the Air Pollution Control Officer. The District is a legally separate and distinct entity from the County, created through legislation and charged with the primary responsibility for the control of air pollution from non-vehicular sources. (California Health and Safety Code, Section 39000, et seq.). The California Air Resources Board has primary oversight over all District programs in conjunction with US EPA, Region IX. The District is charged with enforcing District Regulations as well as State and Federal Law through delegation agreements. As provided for by California Health and Safety Code, Section 40800, et seq, the Air Quality Management District Hearing Board is made up of volunteers from the community appointed by the District Board (five members plus five alternates). The Hearing Board issues abatement orders, rules on variance requests and hears appeals of individual permits issued by the District. As a Judicial body, their decisions are legal and binding and can only be overturned by a court of law. The Hearing Board cannot adopt or modify regulations and the District Board cannot repeal or modify individual permits. For further information on Hearing Boards and their function please review "Fairness in the Air by Kenneth Manaster of Santa Clara University School of Law available online at http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1044&context=facpubs

- RAC projects divert waste tires from the landfill. AQMD Response: The District is unable to confirm or deny this finding. The origin of the products used in the production of Rubberized Asphalt Concrete is not under the purview of the District.

- RAC street and highway surfaces provide a quiet ride for the traveling public. AQMD Response: The District is unable to confirm or deny this finding. The quality of street and highway surfaces using Rubberized Asphalt Concrete or non-Rubberized Asphalt Concrete is not under the purview of the District.

- The design thickness of RAC is less than AC. AQMD Response: The District is unable to confirm or deny this finding. The design thickness of street and highway surfaces using Rubberized Asphalt Concrete or non-Rubberized Asphalt Concrete is not under the purview of the District.

- RAC is not a new, untested product. AQMD Response: The District partially disagrees with this finding. Although there have been studies and testing done on Rubberized Asphalt Concrete, the District is unaware of any studies conducted at a facility where homes are located less than 200 feet from the Asphalt Batch Plant. The North State Street Asphalt Batch Plant is surrounded on three sides by residential neighborhoods and is less than 200 feet from low income housing. Because of the geography in the area, the North State Street Asphalt Batch Plant sits at a lower elevation than the surrounding residential housing. In addition, the North State Street Asphalt Batch Plant is of an older design, although significant upgrades occurred in 2010 some of its components date back to the 1970s. The production of Rubberized Asphalt Concrete for the 2011 project was a new process at the facility. In 2003, the District issued a permit for a temporary Asphalt Batch Plant on property adjacent to Hwy 101 and directly across from the North State Street facility. Although the temporary Asphalt Batch Plant did not involve the production of Rubberized Asphalt Concrete, the residents adjacent to the project had concerns regarding its placement and the potential odors. In response to public comments the District included a requirement that an "odor control plan" be developed by the facility operator within 10 days of notification from the District that a violation of California Health and Safety Code, Section 41700 or District regulations had occurred. Based on all of the above information the District determined that careful evaluation of the new Rubberized Asphalt Concrete process and its associated equipment was necessary for the protection of public health and to alleviate concerns from the public.

- There are State Tire Recycling Grant Funds available to Public Works agencies that use RAC on their projects. AQMD Response: The District is unable to confirm or deny this finding. The State Tire Recycling Grant Funds are not available to the District therefore the District is not aware of the requirements for public works agencies receiving those grant funds for their projects.

- Extensive studies and testing of RAC by numerous government agencies and industry associations indicate that there are no significant differences between AC and RAC air emissions. AQMD Response: The District disagrees with this finding. Although there have been studies and testing done on Rubberized Asphalt Concrete, indicating that emissions from Rubberized Asphalt Concrete are similar to traditional Hot-Mix Asphalt, the potential increase in emissions of air toxics and other regulated compounds, in addition to State law and District regulations, require the District to evaluate emissions based on the specific facility as well as the new process and/or specific equipment used. The CalTrans Highway 20 Study conducted in 2005 in Lake County in which the District took part, included emissions testing at the Asphalt Batch Plant and involved four different types of asphalt product. The CalTrans Report published in November 2005 indicated that the draft source test results were similar for all four products. The Report did not include any final conclusive data.

- Extensive studies and testing of RAC by numerous government agencies and industry associations indicate that there is not an issue with RAC regarding odor. AQMD Response: The District disagrees with this finding. Although there have been studies and testing done on Rubberized Asphalt Concrete, the District is unaware of any studies conducted at a facility where homes are located less than 200 feet from the Asphalt Batch Plant. The CalTrans Highway 20 Study conducted in 2005 involved an Asphalt Batch Plant located more than 3/4 of a mile from homes. During the Highway 20 Study (in which District staff took part) objectionable sulfur odors were detected during the production of the Rubberized Asphalt Concrete as well as during the transport and lay-down activities. A sulfur odor was detected by District staff during the production of Rubberized Asphalt at the North State Street plant and during the transport and lay-down activities in 2011. However, the odors during the transport and lay-down activities were transitory in nature and dispersed fairly quickly. Proper oversight by facility operators is required to ensure that the materials are not heated excessively and that the oil additive is mixed properly to avoid excessive odors. The District is required to ensure that the operator complies with the permit conditions and excessive odors are not produced.

- Methods to mitigate any possible RAC odor at the manufacturing plant are to use "warm-mix" RAC, maintaining low temperatures, or inclusion of an "asphalt additive" to the RAC mix. AQMD Response: The District disagrees with this finding. The use of 'warm-mix' rubberized asphalt is not approved for all road projects. For example, CalTrans used warm mix for the Highway 1 project in 2011, but chose not to use warm mix for similar work at the same time on Highway 128. The District cannot mandate the use of "Warm Mix" or "Hot Mix" on a project. The production of all forms of asphalt require proper temperature control, however production temperature and odors must be balanced with other factors. Lowering the production temperature may not comply with the bid specifications required due to the typically long haul times that occur in Mendocino County. In discussions with District staff the operators of the North State Street Asphalt Batch Plant have stated that, in their experience, use of the asphalt additive for odor control was not effective when used at other plants and its use may increase costs with little benefit. In addition to the factors listed above, successful odor management also requires proper control equipment for the production process, proper plant design, regular maintenance cycles, and well trained, attentive, operators. The majority of the factors for successful odor management are met at a modern well managed plant, such as the North State Street Facility.

- The District uses California Health and Safety Code, which defines odor as a public nuisance. AQMD Response: The District disagrees with this finding. The District is a regulatory enforcement agency. The District enforces the California Health and Safety Code as well the Federal Clean Air Act and District regulations. Public Nuisance is defined in California Health and Safety Code, Section 41700. Specifically Section 41700 states: "...A person shall not discharge from any source whatsoever quantities of air contaminants or other material that cause injury, detriment, nuisance, or annoyance to any considerable number of persons or to the public, or that endanger the comfort, repose, health, or safety of any of those persons or the public, or that cause, or have a natural tendency to cause, injury or damage to business or property..." The above definition is not exclusive to odors. It is also reasonable to assume that the discharge of air contaminants from Rubberized Asphalt Concrete may "endanger the comfort, repose" or "health" of the neighbors surrounding the production facility – separate from odors. It is important to note that odor is not the only pollutant regulated by the District in relation to the production of Rubberized Asphalt Concrete. The District enforces Federal, State and District Regulations which require controls of Particulate emissions, NOx, CO, Sulfur, Lead, Mercury, Air Toxics, Ozone Depleting Chemicals and most recently Carbon Dioxide Equivalents (CO2e).

- The District has determined that odor is considered a "public nuisance violation" when there are three or more complaints to the District in a 24 hour period. AQMD Response: The District disagrees with this finding. The District has not made the determination as stated above. Three or more complaints in a 24-hour period do not automatically constitute a "public nuisance violation". Three or more complaints from unrelated individuals who are not operating in concert, is a general guideline for enforcement staff. Odors must be confirmed by District staff and the source of the odors must be clearly identified. Each case is reviewed individually taking into consideration all available evidence.

- There have never been three RAC odor complaints to the District in any 24- hour period. AQMD Response: The District disagrees with this finding. The District has not received more than three complaints in a 24-hour period from unrelated individuals concerning the production of Rubberized Asphalt Concrete. The Rubberized Asphalt Concrete produced at the North State Street facility in 2011 did result in complaints from local residents however there were not three complaints within any 24-hour period. District staff also detected excessive odors on North State Street from haul trucks leaving the facility. The District tracks complaints by address. Complaints regarding the use of Rubberized Asphalt Concrete at a job site would not be associated with the address for the production facility therefore the District cannot state definitively that "at no time were three or more complaints received in a 24- hour period regarding Rubberized Asphalt". From 2001 through 2011 the District received over 25 odor complaints regarding the North State Street Facility, including complaints specific to Rubberized Asphalt Concrete production in 2011. The District is aware of at least one instance where the previous owner of the North State Street facility purchased a neighboring property from the resident in order to resolve a long standing dispute regarding impacts from the facility.

- The District requires construction contractors to prepare an "odor control plan" and to conduct "neighborhood odor patrols" as conditions on their RAC permits. AQMD Response: The District disagrees with this finding. Contrary to the Grand Jury Report, the District does not permit, track or regulate the transport and lay-down activities associated with the use of Rubberized Asphalt Concrete at a job site. Therefore, the District has never required odor control plans or neighborhood odor patrols from construction contractors, although District inspectors have observed lay-down activities, checked temperatures and recorded odors as part of their normal duties. The requirement for an "odor control plan" in the case of Rubberized Asphalt Concrete production is a permit condition contained in the permit issued to the production facility only.

- The District is the only Air Quality Management District in Northern California to require contractors to provide RAC odor mitigation plans and conduct RAC odor patrols. AQMD Response: The District disagrees with this finding. As stated in the District's response to

- Mendocino County taxpayers continue to pay the additional costs associated with manufacture and hauling of RAC from outside Mendocino County. AQMD Response: The District disagrees with this finding. The District did not receive an application for the production of Rubberized Asphalt Concrete until 2011. A permit was issued for the project at the time and has since expired. The District cannot issue a permit for the production of Rubberized Asphalt Concrete unless an application has been submitted. At the time of the Grand Jury Report, the District had not received an application from any facility for a permit to produce Rubberized Asphalt Concrete in Mendocino County. Since there have been no applications for the production of Rubberized Asphalt Concrete in Mendocino County and the District does not permit, track or regulate the transport and lay-down activities associated with the use of Rubberized Asphalt Concrete, any additional costs associated with the manufacture and hauling of Rubberized Asphalt Concrete are unrelated to the District.