Ventura Board Votes to Put Cabrillo Port on Stricter Smog Diet

Photo credit, MSN/Hans Laetz

TESTIMONY—Malibu activist Keely Shaye Brosnan addresses the Ventura Air Pollution Control Board at Tuesday’s hearing.

• Panel’s Unanimous Action Could Make It More Difficult for Project to Meet Requirements

A Ventura County smog control agency dealt a heavy blow to BHP Billiton’s plans to anchor a liquefied natural gas terminal off the Malibu coast, when it told federal regulators Tuesday that Cabrillo Port must meet the strongest level of pollution control rules.

By a 9-0 vote, the Ventura County Air Pollution Control Board asked the U.S. Environmental Protection Agency to place the LNG terminal under the New Source Review guidelines of the federal Clean Air Act. The vote came after the board was told the LNG project may be impossible to build under the severe rules, which could require BHP Billiton to buy and retire existing air pollution credits in Ventura County that may not exist.

The smog board’s executive director, Mike Villegas, told the board that public testimony last summer convinced him it was a mistake for him to officially support a policy reversal on Cabrillo Port by EPA officials in 2005. The EPA switch came after local EPA scientists and lawyers felt heavy pressure from BHP Billiton, Australian government and White House officials to ease up on Cabrillo Port, the Malibu Surfside News has reported.

Villegas said the outpouring of public opinion at public hearings last summer, coupled with legal opinions filed on behalf of Malibu residents, “brought us to the realization that we were flawed in our decision, that there was a crack in our logic.”

“During the public comment period last summer, some enlightening comments were made that made me go back and look at our initial finding,” Villegas told the board. “When I face the fellow in the mirror that I see shaving, I want to make sure I see a face of integrity.”

At Tuesday’s meeting, Malibu resident Keely Shaye Brosnan implored the smog board to endorse Villegas’ finding, and “as the mother of two small children, one of whom has asthma,” tell the EPA it has also made a mistake.

Brosnan noted that the EPA decision to grant BHPB for an exemption “undermines our area’s commitment to improve air quality,” and said “there is no reason why BHP Billiton should receive special treatment, even if they have friends in the White House.”

But a BHPB lawyer urged the agency not to undo the change, which he said was unfair to do to the company at this late date. “There was a general understanding as to what was going to be the interpretation on Rule 26(c),” said attorney Tom Wood, who said it the company has relied on that interpretation as it prepares to build the LNG terminal.

Don Facciano, president of the Ventura County Taxpayers Association, said “the company has been spending a lot of money during the past year under the assumption that the EPA interpretation was acceptable to you, and now you want to unilaterally change it. Is that a flip-flop?”

But Linda Krop, lead attorney for the Environmental Defense Center, rebutted, “Remember, it was the EPA that first changed the rules, and now it is proper to ask them to go back.” EDC’s legal filings this year were the first to formally object to the EPA reversal, and were partly funded by the City of Malibu, California Coastal Protection Network and Malibu residents.

BHP Billiton’s attorney told the board the company currently plans to remove more pollution from California skies than required, even under the stricter rules, by removing two heavily-polluting tugboat engines from regular service between San Francisco and San Pedro. But environmentalists have scoffed at that plan as not sufficient, because the smog reduction must be accomplished near the same place that the new smog is created, which may not be possible given the lack of heavy industry in Ventura County.

The tighter smog rules were opposed by several Oxnard and Ventura residents. Chris McLaughlin said he was there “to represent the views of the silent majority who support this plant and the energy and jobs it will bring. It’s not right to change the rules in the third quarter.”

Oxnard Chamber of Commerce director Nancy Lindholm also blasted the decision. “We believe this issue appears political, given that it comes up late in the process after many public hearings have already occurred.”

But the EDC’s air pollution lawyer, Karen Krauss, urged the board to make the change back to the original interpretation. “EPA has chosen to single out Cabrillo Port for an exemption from the Ventura County regulations that apply to every other business. And Cabrillo Port is nowhere near the Channel Islands, much less on them, as the rule states.”

After the vote, BHP Billiton spokeswoman Kathi Hann said the board’s vote “was just their interpretation of a rule, and we’ll have to see what the EPA does.”

Indeed, the Tuesday vote hands the matter back to EPA officials in San Francisco, who are digesting more than 12,000 anti-LNG comments filed last summer. EPA officials said a final determination on the level of smog rules to be applied to Cabrillo Port will come this summer, a separate legal issue from the project’s overall environmental and operating permits.

The complicated issue boils down to Ventura County Smog Rule 26(c), which, when written in 1994, exempted a small Navy generator on San Nicolas Island and the lighthouse on Anacapa Island from mainland smog rules.

When it first examined the Cabrillo Port application in 2003, EPA ruled that BHPB would have to purchase 1.3 pounds of smog credits for every one pound of nitrous oxide emissions generated at the LNG terminal – a burden that could be impossible, given that there is not a lot of heavy industry in Ventura County, county supervisors said.

After the White House lobbying, EPA reversed itself in 2005 and “exercised its discretion” to interpret Rule 26(c) to mean the offshore plant and its 270 tons per year of smog-causing chemicals would be governed by the same rules as the small generator on San Nicolas Island, 60 miles distant, instead of the Ventura County shoreline 14 miles away. Net result: BHP Billiton would not have to meet the offset rules, which could kill the plant.

After the meeting, Malibu city councilman Andy Stern credited the smog agency’s director for changing policy after hearing from the public. “You don’t see that happen very often like that,” he said.

CAPTION 1. Photo credit, MSN/Hans LaetzTESTIMONY—Malibu activist Keely Shaye Brosnan addresses the Ventura Air Pollution Control Board at Tuesday’s hearing.