Draft Report Not Released to Public
Judith Scherr,  Berkeley Daily Planet, January 5, 2000

The Bay Area Air Qua1ity Management Board hearing panel will be discussing its October decision on Pacific Steel Castings Thursday.The deliberations are open to the public, though the public may not be able to understand what the discussions are about.That is because no member of the public is permitted to view the document on which the deliberations will be based.

The document in question is a draft decision, written by BAAQMD's hearing panel, a body independent of BAAQMD. The summer hearings on PSC's request to lift a 1984 Unconditional Odor Abatement Order, brought out dozens of West Berkeley and Albany residents who contend the odor coming from the plant is noxious.

The panel held three hearings in Berkeley, listening both to residents' complaints and to PSC's response. Community members asked the panel to keep the abatement order in place. PSC argued that the number of complaints never amounted to a violation -- five verified complaints on a single incident constitute a violation and that no one had proved the odors were coming from the plant rather than from nearby industries. PSC attorneys concluded that the 1984 order --which carries hefty fines for violations -- should be lifted.

On Oct. 28 the hearing panel rendered a decision: The order would be lifted, but certain conditions would be imposed for a year. The hearing panel put the decision and its conditions into a draft decision and in the middle of December and sent copies to the BAAQMD and PSC.

Mary Romaidis, Deputy Clerk of the Boards, said she was unable to provide the Daily Planet or the public with a copy of the draft decision because "it's like going to court' and having a draft decision made by a judge. "You don't want a draft copy circu1ated," she said.

Emeryville City Councilmember Greg Harper, a member of the BAAQMD, was surprised that the public would not have access to the document. He thought the BAAQMD counsel, Robert Kwong, might facilitate making it available, but Kwong said that because the document came from the hearing panel, he could not provide it to the public.

Both PSC and the Air Quality Management Board wrote letters to the hearing panel, objecting to the decision. These letters are part of the public record and were given to the Daily Planet. Although the public will not be privy to the basis on which the discussion will be held and will not be permitted to comment --deliberations are among panelists and the meeting is not a public hearing -- the public may attend.

Berkeley resident L A Wood tried unsuccessfully to obtain a copy of the draft decision. In response, he shot off a letter to the panel, which said, in part "let it be said that this kind of backroom decision process invalidates the public deliberation process and defeats the notion of public participation envisioned by our legislators."