Oakland Municipal Code Art. I General Provisions

The purpose of this Chapter is to establish a Citywide ban on the storage, loading, unloading, stockpiling, transloading and handling of coal and coke, as defined below, throughout the City of Oakland, by the owner or operator of a coal or coke bulk material facility, as defined below, to protect and promote the health, safety and/or general welfare of its citizens, residents, workers, employers and/or visitors (hereafter called "constituents") by eliminating any risk of release into the environment (including without limitation airborne particulate or release into the soil or water or onto persons) from storage, loading, unloading, stockpiling, transloading and handling of coal and coke and to ensure that the handling of such materials does not create a public nuisance or cause any adverse public health, safety and/or general welfare impacts (including with respect to property values, aesthetics, and economic interests). Notwithstanding anything to the contrary contained in this Chapter, the purposes and intent of this Chapter are not to regulate the transportation of coal or coke, for example, by train or marine vessel, including without limitation through the City of Oakland or to or from a coal or coke bulk material facility; nor does this Chapter actually regulate such. Rather, the purpose and intent of this Chapter is to address the unique and peculiar health, safety and/or other impacts of coal or coke in Oakland, and specifically West Oakland.

(Ord. No. 13385, § 3, 7-19-2016)

A. This chapter serves the public interest and is necessary to protect and promote the health, safety, and/or welfare of the City of Oakland's Constituents, and is enacted pursuant to Article XI, Sections 5 and 7, of the California Constitution, Section 106 of the Charter of the City of Oakland, the City's General Plan, Oakland's Energy and Climate Action Plan, specific plans and other land use plans.

B. Specifically, the City Council finds and determines:

1. The transport and storing or handling of coal or coke in the City of Oakland, including without limitation to and from West Oakland, would have many public health and/or safety impacts, including without limitation the creation of conditions that would be substantially dangerous to the health and/or safety of Oakland's constituents:

a. Characteristics of coal and coke pose many risks to public health and/or safety, including without limitation because coal and coke release fugitive dust, as particulate matter (PM 10 ) and fine particulate matter (PM 2.5 ), toxic and non-toxic, which negatively affects air quality and the health and/or safety of persons who breathe in such particulate matter and fine particulate matter (including without limitation heart and lung disease and lung cancer). Coal contains toxic heavy metals including mercury, arsenic, and lead, and exposure to these toxic heavy metals is linked to cancer and birth defects. Coal is highly combustible (including by spontaneous combustion), which poses risks to the health and/or safety of persons who are residing, working or playing nearby as well as to public safety personal who would respond to such incidents.

b. Many communities in the City of Oakland, including without limitation West Oakland, and their residents are disadvantaged and disproportionately suffer health problems (including without limitation elevated levels of asthma, premature and low-weight births, cardiovascular disease, increased levels of emergency and non-emergency hospital admissions, and other pollution- and non-pollution-related ailments) and bear the brunt of health-related impacts caused by industrial or other activities, which is a matter of common knowledge and documented in healthy studies, and has been recognized by regulatory agencies (including the California Environmental Protection Agency which has determined West Oakland to be a Disadvantaged Community area and the Bay Area Air Quality Management District has designated West Oakland as a CARE ("Community Air Risk Evaluation") program community, i.e., one of the geographic areas within the Air District with high concentrations of air pollution and populations most vulnerable to health impacts from air pollutants (particularly toxic air contaminants (TACs) and fine particulate matter (PM 2.5 )). The American Lung Association considers coal dust a source of particulate matter that is dangerous to breathe. The World Health Organization cites coal dust, including silica and asbestos, as responsible for most occupational lung diseases due to airborne particulate. Uses in and around facilities where coal or coke would be stored or handled include residences, schools, child care facilities, parks, and other locations at which vulnerable persons spend substantial amounts of time. The existing air quality of Oakland, including West Oakland, is poor, and in particular is currently in nonattainment for several State and federal ambient air quality standards, including ozone, particulate matter, and fine particular matter, and monitored levels have often exceeded State and federal ambient air quality standards. The storage or handling of coal or coke would cause additional exceedances of ambient air quality standards, and would create conditions substantially dangerous to the health and/or safety of persons in these communities for this and other reasons which are discussed further below.

c. The rail transport of coal or coke through the City, including without limitation to and from West Oakland, would have substantial public health and safety impacts to constituents, including without limitation West Oakland, and would create conditions substantially dangerous to the health and/or safety of such persons. Reasons include without limitation that there are not sufficiently effective, safe means to prevent the release of fugitive coal dust during the rail transport of coal or coke (whether through use of dust suppressants (surfactants) or use of covered rail cars, and covered rail cars or application of a topping agent would not reduce the coal dust escaping from the bottom of the rail car during transport and deposited along the rail tracks or to adjacent properties to be resuspended into the ambient air and re-entrained over and over again). As to fugitive coal dust, for example, the best available means for preventing fugitive coal dust, whether by dust suppressant (surfactant) or covered rail cars (which have not been shown to be safer or more effective than dust suppressants and which are an unproven technology) would result in no more than eighty-five percent (85%) effectiveness (based upon railroad-furnished data that cannot be independently verified), which still would result in high amounts of fugitive coal dust through rail transport of coal and coke. No covers have been reported to be used on coke-filled railcars. Furthermore, the overall emissions from a coke or coal bulk materials facility are expected to exceed both the daily and annual PM 10 and PM 2.5 City of Oakland California Environmental Quality Act (CEQA) Thresholds, which would be considered a significant unavoidable impact under CEQA and thus presumptively a substantially dangerous condition to health.

d. Storing or Handling of Coal or Coke would have substantial public health and safety impacts to Oakland Constituents, including without limitation West Oakland, and would create conditions substantially dangerous to the health and/or safety of such persons. Reasons include without limitation that, as discussed above, there are not sufficiently effective, safe means to prevent the release of fugitive coal dust, or to prevent combustion (including spontaneous combustion) when Coal or Coke is delivered to and from, or stored at, rail-switching facilities or terminals. Contributions of particulates to local levels of total particulate matter, PM 10 and PM 2.5 , would cause additional exceedances of ambient air quality standards and cause conditions substantially dangerous to the health of the adjacent neighbors in disadvantaged communities, including without limitation West Oakland. Workers would be closest to the fugitive coal dust and respirable fine particulates during transport and staging of loaded cars for unloading and within the enclosed facilities. Further, coal is prone to spontaneous combustion, due to controlled factors (e.g., management techniques) and uncontrollable factors (e.g., the qualities of the coal, air temperatures), and the subsequent risks associated with fire are substantial. Coal fires have been well documented, including during rail transport, storage piles and at shipping facilities such as the proposed terminal. Coal fires are often difficult to control when spontaneous combustion occurs, particularly within a coal pile, and fire personnel need specialized equipment and training. Coal dust explosions more likely to occur in enclosed facilities. Firefighting personnel responding to a coal fire could generate a dust cloud that leads to an explosion. Toxic air pollutants released by coal fires would be similar to coal-fired power plant emissions, but without treatment by the emission control systems, and both acute and chronic health impacts can be expected for persons in close proximity to a coal fire including workers, emergency responders, and other adjacent constituents. Emissions from coal fires would include fine particulate matter, a wide variety of metals, especially mercury, toxic hydrocarbon/volatile organic compound species and small amounts of uranium.

e. The export of coal from facilities at the City of Oakland, including in West Oakland, would lead to the burning of coal overseas, where it is expected to be combusted in power plants. That would cause incremental increase of greenhouse gas ("GHG") emissions globally. This increase in GHG emissions would contribute incrementally to global climate change along with sea level rise and flooding that would be experienced locally in Oakland and which could disproportionally affect already vulnerable populations and significant City public-safety related infrastructure and utilities.

f. The export of coal from facilities at the City of Oakland, including in West Oakland, would lead to the burning of coal overseas, where it would be combusted in power plants. That would cause incremental increase of pollutants globally, which would be experienced locally in Oakland, contributing to the Bay Area's already high pollutant concentrations and further exceedances of the ambient air quality standards and exacerbating the health effects in adjacent communities.

2. The storing or handling of coal or coke in the City of Oakland, including without limitation to and from the West Oakland, would be detrimental to the general welfare of Oakland Constituents, for all the reasons stated in this Chapter (including without limitation the above findings of health and safety impacts). Storing or handling coal and coke also causes the following policy impacts: Exporting coal to be burned in Asia and other regions increases emission of harmful air pollutants, including carbon dioxide emissions, which fuel climate change and violate Oakland and California's climate change reduction goals. The export of coal interferes with the City's ability to address and mitigate impacts resulting from climate change. In addition, the rise of cleaner forms of energy such as natural gas, wind and solar, have contributed to a reduction of coal production, closure of coal plants, and the filing of bankruptcy of major coal companies. Reliance of businesses in the City on coal or coke industry is neither in the City's environmental nor economic interests, and reliance on coal exports for the facilities would not constitute sound economic development. Coal dust build-up may destabilize railroad tracks and degrade roadbeds, resulting in an increased financial risk for Oakland taxpayers to reconstruct or maintain these major improvements. There are significant financial risks to the City with coke or coal bulk materials facilities, as a number of them have shuttered in recent years, leaving the taxpayers to pay the closure and/or clean-up costs.

3. The storing or handling of coal and coke in the City of Oakland, including without limitation to and from the West Oakland, would have many detrimental impacts to the existing, natural environment, including without limitation because the burning of coal and coke, including the potential for coal combustion and the application of topping agents could result in the release of toxic air contaminants such as mercury, lead and other trace metals into the environment polluting waterways, soil and sensitive habitat within the City. Coal contains toxic heavy metals and Polycyclic Aromatic Hydrocarbons ("PAHs"), at levels that are harmful to fish and other wildlife.

C. Each individual finding presented in Subsections A. and B. above constitutes a separate and independently sufficient basis to adopt the Ordinance. The City Council finds and determines that each of the findings in Subsections A. and B. above is separately and independently adopted and applicable and should a court of competent jurisdiction determine than any particular finding(s) is or are insufficient to support the adoption of the ordinance from which this Chapter derives, such determination shall have no effect on the validity of the remaining findings. Moreover, when viewed collectively, the above findings constitute an overall basis to support adoption of the ordinance.

(Ord. No. 13385, § 3, 7-19-2016)

A. As used in this Chapter, the following terms have the following meanings, and to the extent a Planning Code and/or Municipal Code Chapter and/or Section is referenced herein, such reference shall also include future amendments, if any:

1. "ASTM" means the American Society for Testing and Materials.

2. "Coal" means a solid, brittle, carbonaceous rock classified as anthracite, bituminous, subbituminous, or lignite by ASTM Designation D388-77.

3. "Coke" means a solid carbonaceous material derived from the distillation of coal (including metallurgical coke) or from oil refinery coker units or other cracking processes (including petroleum coke and/or petcoke).

4. "Coal or Coke Bulk Material Facility" means an existing or proposed source, site, or facility, including all contiguous land, structures, other appurtenances, and improvements thereon, or any part thereof, where coal or coke is or may be stored or handled.

5. "Constituents" or "Oakland Constituent" means the citizens, residents, workers, employers and/or visitors of the City of Oakland.

6. "Conveyor Shuttle" or "Traveler" or "Tripper" means a device supporting a conveyor that can travel forwards or backwards along a feed conveyor as needed to allow the conveyor to load material onto a selected area, including without limitation of a ship, rail car, pile or pit.

7. "Fugitive Dust" means any solid particulate matter that becomes airborne by natural or human-made activities, excluding engine combustion exhaust and particulate matter emitted from a properly permitted exhaust stack equipped with a pollution control device.

8. "Metallurgical Coke" or "Metcoke" means a carbon material resulting from the manufactured purification of multifarious blends of bituminous Coal.

9. "Owner or Operator" means any person who has legal title to any coal or coke bulk material facility, who has charge, care or control of any coal or coke bulk material facility, who is in possession of any coal or coke bulk material facility or any part thereof, and/or who is entitled to control or direct the management of any coal or coke bulk material facility.

10. "Petroleum Coke" or "Petcoke" means a solid carbonaceous residue produced from a coker after cracking and distillation from petroleum refining operations, including such residues produced by petroleum upgraders in addition to petroleum refining.

11. "Pile" or "Stockpile" means any amount of coal or coke which attains a height of three (3) feet or more, or a total surface area of one hundred fifty (150) square feet or more (whether in a single pile or two (2) or more piles), including without limitation covered and uncovered piles, piles located above ground, underground or within containers.

12. "Store or Handle", or "Storing or Handling", or "Storage or Handling" means to store, load, unload, stockpile, transload or otherwise handle and/or manage, temporarily or permanently, physical material including without limitation coal and coke.

13. "Telescoping Loading Chute" means a length adjustable chute which completely encloses the material during loading or unloading operations.

14. "Transfer Point" means the location at or within a facility where material being moved, carried, or conveyed is dropped or deposited.

15. "Transloading" means transferring coal or coke from one mode of transportation (including without limitation a railcar, truck or ship) to another (including without limitation a railcar, truck or ship) or transferring goods from one container (including without limitation an import container) to another container (including without limitation a domestic container).

B. Interpretation of Terms. References to "coal" and "coke" shall be interpreted to mean coal and/or coke. References to "owner or operator" of a coal or coke bulk material facility shall be interpreted to mean an owner and/or operator of such facility. References to "store or handle coal and coke" shall be interpreted to mean store or handle coal and/or coke.

(Ord. No. 13385, § 3, 7-19-2016)

A. The regulations, requirements and provisions of this Chapter shall apply to any owner or operator of a coal or coke bulk material facility, and to any other person who stores or handles coal and coke at a coal or coke bulk material facility, unless exempt or excepted from this Chapter.

B. An owner or operator of a coal or coke bulk material facility shall not do any of the following at a coal or coke bulk material facility:

1. Allow or maintain any pile of coal or coke;

2. Operate any telescoping loading chute for the transport of coal or coke.

3. Operate any conveyor shuttle or traveler or tripper for the transport of coal or coke or in any manner which creates a transfer point on site.

4. Load, unload, transload or transfer any coal or coke between any mode of transportation, including without limitation between or among a motor vehicle (e.g., a truck), ship or train.

5. Otherwise store or handle any coal or coke.

C. Exemptions. The following are not included within the definition of coal or coke bulk material facility: (i) non-commercial facilities (e.g., educational facilities or residential property on which persons may store or handle small amounts of coal or coke for personal, scientific, recreational or incidental use), and (ii) on-site manufacturing facilities where all of the coal or coke is consumed on-site at that facility's location and utilized on-site as an integral component in a production process, and which are operated pursuant to, and consistent with, permits granted by the Bay Area Air Quality Management District.

D. Exception, Procedure.

1. Any person (including any entity) who contends application of this Chapter to him or her would constitute an uncompensated taking of property (in violation of the Fifth and Fourteenth Amendments of the U.S. Constitution or Article 1, Section 19, of the California Constitution) may petition the City Administrator to be excepted from the application of the chapter.

2. Petitions must be on the form provided by the Planning Bureau of the Planning and Building Department ("Department") and submitted to the Department to the attention of the Planning Director. Failure to submit such a petition will preclude such person from challenging this Chapter in court. The petition shall identify the name and address of the applicant and property owner, the affected application number, and shall state specifically and completely how this Chapter applied to him or her would constitute an uncompensated taking of property (in violation of the Fifth and Fourteenth Amendments of the U.S. Constitution or Article 1, Section 19, of the California Constitution), and shall include payment of fees in the same amount as specified in the City's Master Fee Schedule for appeals of zoning determinations to the City Planning Commission. Failure to raise each and every issue and provide appropriate supporting evidence will constitute waiver of that issue and be grounds for denial of the petition.

3. The petition may be granted only if the City Administrator finds, based upon substantial evidence, that both (a) the application of any aspect of this Chapter would constitute an unconstitutional taking of property, and (b) the exception will allow additional or continued land uses only to the minimum extent necessary to avoid such a taking. If the petition is granted, the City may impose reasonable conditions on the project.

4. The City Administrator, or designee, shall mail to the applicant a written determination accepting or rejecting the petition.

5. If any interested party seeks to challenge the written determination of the City Administrator, he or she must appeal to the City Council and such appeal must be filed within ten (10) calendar days of the date from which the City Administrator's written determination was issued, by 4:00 p.m. Appeals must be on the form provided by the Department and submitted to the Department to the attention of the Planning Director. The appeal must state specifically wherein it is claimed there was error or abuse of discretion by the City Administrator and/or wherein the decision is not supported by substantial evidence. The appeal also must include payment of fees in the same amount as specified in the City's Master Fee Schedule for zoning appeals to the City Council of decisions by the City Planning Commission.

6. Failure to make a timely appeal will preclude any interested person from challenging the City's decision in court. The appeal itself must raise each and every issue that is contested, along with all arguments and evidence in the record which support the basis for the appeal. Failure to do so will preclude any interested person from raising such issues during the appeal and/or in court. However, the appeal will be limited to issues and/or evidence presented in the petition to the City Administrator.

7. The City Council will conduct a public hearing and render a final administrative decision on the appeal via a resolution. The petition may be granted only if the City Council finds, based upon substantial evidence, that both (1) the application of any aspect of this Chapter would constitute an unconstitutional taking of property, and (2) the exception will allow additional or continued land uses only to the minimum extent necessary to avoid such a taking. If the petition is granted, the City may impose reasonable conditions on the project.

(Ord. No. 13385, § 3, 7-19-2016)