Regulation 8, Rule 40 was originally adopted in 1986 to reduce the potential for nuisance complaints from soil aeration activities, and to prevent any one site from exceeding the New Source Review (Regulation 2, Rule 2) standard of 150 pounds per day (1986 standard). Depending on the level of contamination, the current rule allows aeration of contaminated soil at various daily rates. As such, the current rule provides limited emissions reductions, because the emissions may simply be spread out over time. The proposed amendments would prohibit uncontrolled aeration of contaminated soil beyond set exemption limits, effective June 1, 2000. Additional amendments require emission reduction measures to be employed during the excavation and handling of contaminated soil. District-wide emission reductions as a result of adoption of the proposed amendments are estimated to range between 2.6 and 2.8 tons per day of VOC. Facilities in the District subject to the rule include gasoline service stations, petroleum and chemical manufacturing facilities, solid waste disposal sites, and any other site where contaminated soil or underground storage tanks are present.

Major proposed amendments to Regulation 8, Rule 40 include:

• Effective June 1, 2000, uncontrolled aeration of contaminated soil is prohibited.
• Contaminated soil is defined as soil having a volatile organic content exceeding 50 parts per million by weight (ppmw).
• Add exemptions for small volumes of contaminated soil or soil contaminated by limited accidental spills.
• Add exemption from notification for aeration projects which emit less than 150 pounds and less than the Toxic Trigger Levels as per Regulation 2, Rule 1, Section 316.
• Add provisions for the use of an organic vapor analyzer (OVA) as a real time monitor of compliance.
• Add emission reduction measures for excavation and removal of contaminated soil.
• Add more specific reporting requirements for soil excavations and tank removals.
• Add definitions for greater clarity.
  

The Public Hearing for the proposed amendments was opened at the November 17, 1999 Board Meeting. Four members of the public spoke at the Public Hearing; three against and one in favor of the amendments. A representative for Chesapeake Environmental Group, Inc. spoke in favor of the amendments, advocating that they be adopted as written. He further advocated enhanced enforcement of the regulation and additional regulatory actions to ensure achievement of the emission reductions posed by the amendments. Two representatives for New Pacific Properties (NPP), a land development company, and one representative of the Western States Petroleum Association (WSPA) testified against the proposal. Both parties expressed concern that the amendments would impose costly sampling requirements and create overly burdensome management practices for sites with minimally contaminated soil. The representatives for NPP concluded that the amendments would prevent redevelopment of "Brownfield" sites, and thereby cause a significant adverse environmental impact that would void the CEQA Negative Declaration proposed for the rulemaking project. The representative for WSPA objected to restrictions on soil management, and objected to the added regulatory complexity posed by the amendments.

Due to the absence of a quorum, the Public Hearing was continued to the December 15, 1999 Board Meeting. In the time since the initial Public Hearing, staff has met with both NPP and WSPA to better understand their concerns with the proposed amendments. As a result of these meetings, some minor revisions have been made to the proposed rule amendments. These changes are described in the section below. Specific comments raised by NPP and WSPA, along with District staff’s responses, are provided in an attached document titled "Recent Comments on Proposed Amendments to Regulation 8, Rule 40, and District Staff Responses."

Proposed Rule Changes since November 17, 1999 Public Hearing: After the Public Hearing of November 17, 1999, staff made some additional minor changes to enhance rule effectiveness and clarity. These changes are not substantial and do not significantly affect the intent of the rule such that the proposed amendments would need to be delayed pursuant to Health and Safety Code Section 40726. These recent changes are reflected in the attached amended rule by double strike-through/double underline (e.g. double strike-through/double underline).

1. The quarterly limitation for small volume exemptions in Section 8-40-116 has been moved to subsection 8-40-116.2. This will allow for unlimited application of the one cubic yard exemption for soil excavation or aeration projects at individual facilities. Circumvention of the rule requirements by over-use of this exemption is unlikely to occur due to the small size of soil covered (one cubic yard).
   
2. The last sentence has been deleted from the definition of Contaminated Soil in Section 8-40-205. This sentence implied that only soil sampling and subsequent laboratory analysis could determine that soil was not contaminated. Deletion of this sentence allows the use of an OVA for compliance determinations.
   
3. The definition of "Backfill" in Section 8-40-215 has been amended to incorporate soil use where a new grade is established. Use of contaminated soil as cover material at landfills has been specifically excluded from this definition and continues to be prohibited. A new Section 8-40-306.6 has been added to detail requirements to minimize emissions during backfilling.
   
4. In Sections 8-40-306, the time limit for resolution of excavated contaminated soil was increased from 45 days to 90 days for soil containing less than 500 ppmw volatile organic compounds. Extending the timeframe will not likely result in significant emissions provided the soil cover is maintained as required. The soil resolution requirements of Section 8-40-310 have been deleted because they were redundant to those in Section 8-40-306.
   
5. The sampling requirements of Section 8-40-601 have been amended to detail specifically when sampling and laboratory analysis are required. This should allow for the use of an OVA to determine compliance where soil contamination is not previously known. Sampling is now only required for: a) prior to June 1, 2000, soil which will be aerated according to Table 1 in Section 8-40-301; b) excavation projects seeking the 8 yards at 500 ppmw exemption under Section 8-40-116.2; c) excavation projects seeking the 90 day resolution limit based on organic content (less than 500 ppmw); and d) soil associated with the removal of an Underground Storage Tank.
   
6. The language regarding the measuring distance when using an OVA has been amended in Section 8-40-604. The standard has been set at three inches rather than "no more than three inches" to eliminate potential controversy over measurements taken at different distances from the soil. Provisions have been added for allowing the surface of the soil to be disturbed to improve the effectiveness of this method for determining compliance.

The socioeconomic impact analysis prepared for the amendments shows that the changes could potentially affect a variety of businesses, many of which would be characterized as small businesses. The cost impacts are absorbable for most affected facilities with the greatest impact on gasoline service stations. There is, however, financial assistance available for these facilities through California’s Underground Storage Tank Cleanup Fund administered by the State Water Resources Control Board.

Based on an initial study performed for this project, staff has determined that there is no substantive evidence, in light of the entire record, that the proposed amendments to Regulation 8, Rule 40 will have a significant environmental impact. Pursuant to Public Resources Code, Section 21080 (c) and state CEQA Guidelines 15070, staff recommends adoption of the attached negative declaration.