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Justice and injustice in California: A comparison between rich and poor communities

October 27, 2009

by Roland Sheppard

In 2006, using this poster, Bayview Hunters Point activists fanned out across San Francisco and found people eager to sign the referendum petition in every neighborhood. “Not in my name,” said San Franciscans, shocked at the Redevelopment Agency’s massive land grab of the entire Bayview Hunters Point neighborhood. In only 90 days, over 33,000 people signed the petition. Now that the California Supreme Court has reinstated a Pleasanton referendum petition in very similar circumstances, can BVHP find lawyers to take ours back to court ... and win back our community?
In 2006, using this poster, Bayview Hunters Point activists fanned out across San Francisco and found people eager to sign the referendum petition in every neighborhood. “Not in my name,” said San Franciscans, shocked at the Redevelopment Agency’s massive land grab of the entire Bayview Hunters Point neighborhood. In only 90 days, over 33,000 people signed the petition. Now that the California Supreme Court has reinstated a Pleasanton referendum petition in very similar circumstances, can BVHP find lawyers to take ours back to court ... and win back our community?
“There is no such thing as justice – in or out of court.” – Clarence Darrow

“(C)ourts are not instruments of justice; when your case gets into court it will make little difference whether you are guilty or innocent; but it’s better if you have a smart lawyer. And you cannot have a smart lawyer unless you have money.” – Clarence Darrow

I begin with a comparison between the Bayview Hunters Point community of San Francisco, the last predominately Black area to be gentrified in mainly white San Francisco, and the majority white community with its magnificent and Mediterranean estates of Pleasanton, Alameda County, which had the distinction of being named the wealthiest mid-sized city in the Unites States by the Census Bureau in 2005.

Hunters Point is, in Martin Luther King’s words, an area of “work-starved men searching for jobs that do not exist” – a Black population living on a “lonely island of poverty surrounded by (San Francisco’s) ocean of material prosperity,” a “triple ghetto of race, poverty and human misery.”

During the reign of Black Mayor Willie Brown, 1996-2004, the process of gentrification kicked into high gear. The “hook” was a new stadium for the San Francisco 49ers football team and the redevelopment of Bayview Hunters Point.

In 2006, the San Francisco Redevelopment Agency Commission voted to place the entire Bayview Hunters Point neighborhood under the jurisdiction of the Redevelopment Agency and the decision was later ratified by the Board of Supervisors. The Redevelopment Plan, which included the radioactive Hunters Point Naval Shipyard, an EPA Superfund Site blighted with radioactive “hot spots” since World War II, would cover 1,400 acres, the largest such project in San Francisco history.

The Redevelopment Agency promised to clean up blight, build affordable housing and stimulate business, relying in part on its ability to finance projects with bonds that will be paid off with future property tax revenue. Lennar Corp., a nationwide housing developer with political connections not only to Mayor Gavin Newsom but to Speaker of the House Nancy Pelosi and, more recently, Sen. Dianne Feinstein, both residents of San Francisco, had been chosen by the Redevelopment Agency to be the developer for the project.

Opponents feared that the city would take property by eminent domain and that private developers’ desire for profit would drive up housing prices and accelerate gentrification. San Francisco was already pushing its Black population out faster than any other major U.S. city, and Bayview Hunters Point was Black San Francisco’s last stand.

The citizens of the community exercised their unalienable right to petition the government to address their grievances and put the whole plan up for a vote by the people. In September of 2006, the city Elections Department certified that the people of Bayview Hunters Point had gathered over 33,000 signatures on their referendum petition, far more than the required 21,615 valid signatures of registered voters to qualify their referendum on the Redevelopment Plan for the November 2007 ballot.

City leaders were horrified that citizens actually wanted to let the people decide the question. San Francisco City Attorney Dennis J. Herrera, who had approved the petition before it was circulated, suddenly invalidated it six days after the 33,000-plus signatures had been certified. Although the petition included the full text of the ordinance to be voted on, Herrera said it should also have included all the attachments – a sheaf of papers as thick as a phone book.

His opinion was unprecedented – yet unquestioned at City Hall. San Franciscans were denied the right to vote on whether the people or Redevelopment Agency bureaucrats would determine the fate of Bayview Hunters Point.

In December, the Defend Bayview Hunters Point Committee filed a lawsuit asking the Superior Court to review and reverse the city attorney’s opinion. The judge had knowingly accepted a campaign contribution from the city attorney, yet he did not recuse himself from the case and decided in favor of the city attorney. The right to petition was formally denied. The appeals court refused to hear the people’s appeal.

Now let us return to the affluent city of Pleasanton.

In 1992, the city of Pleasanton had first developed a plan to build a plan to build 122 housing units and an 18-hole golf course, but voters vetoed it the following year. What a novel idea – unlike San Francisco, the people actually had the right to vote on such matters.

But the city of Pleasanton was determined to proceed with the project with developers Jennifer and Frederick Lin. Opponents, a local group called Save Pleasanton Hills, collected enough signatures for a referendum vote last year, but Alameda County Superior Court Judge Frank Roesch ruled the referendum petitions invalid because they failed to include details of the development plan, such as maximum height of the houses.

In this case, the First District Court of Appeal in San Francisco overruled Roesch in July of this year, saying, according to the San Francisco Chronicle, that “state law requires a referendum petition to include only the text of the law that the ballot measure would repeal.”

The developers appealed this decision, and, on Wednesday, Oct. 14, the California Supreme Court denied review. With the referendum reinstated, “the issue will go before the voters next year,” the Chronicle reported. The right of the people of California to petition and to vote was upheld by the state’s highest court.

So in this tale of two cities, we have justice denied in San Francisco’s largely Black and poor Bayview Hunters Point – 91 percent people of color – and justice granted to the affluent citizens of 80.44 percent white Pleasanton.

Environmental justice for the rich, not for the poor

Lennar HP Shipyard Parcel A excavation 0307 by Paul Chinn, SF ChronicleIn March 2007, when this photo was taken, Lennar was busy “shearing off the top of the hill,” the Chronicle reported. Lennar cut 35 feet off beautiful Hunters Point Hill in this massive earthmoving process that has been poisoning the neighborhood with toxic dust for three and a half years. These apparently unprotected workers are drilling into bedrock that releases deadly asbestos fibers when disturbed. – Photo: Paul Chinn, SF Chronicle
Lennar HP Shipyard Parcel A excavation 0307 by Paul Chinn, SF ChronicleIn March 2007, when this photo was taken, Lennar was busy “shearing off the top of the hill,” the Chronicle reported. Lennar cut 35 feet off beautiful Hunters Point Hill in this massive earthmoving process that has been poisoning the neighborhood with toxic dust for three and a half years. These apparently unprotected workers are drilling into bedrock that releases deadly asbestos fibers when disturbed. – Photo: Paul Chinn, SF Chronicle
In another tale of two cities, let’s compare the protection of the citizens of El Dorado County, where the estimated median household income in 2007 was $116,551, and the citizens of San Francisco’s Bayview Hunters Point from exposure to asbestos dust arising from the excavation of serpentine rock. Serpentine rock, the source of asbestos, is common throughout California and, in fact, is designated the state rock. While undisturbed serpentine asbestos is not health threatening, asbestos fibers can be released and become airborne when the rocks are crushed or broken.

In the case of El Dorado County, the California Air Resources Board (ARB) released a Proposition 65 Notice for Airborne Asbestos in El Dorado County on Jan. 15, 1999. It quotes ARB Executive Officer Michael Kenny, who said, “The ARB has conducted monitoring around the (Weber Creek serpentine rock) quarry as part of our ongoing efforts to assess the public’s exposure to asbestos in El Dorado County. The concentrations we found are greater than those typically measured in other areas of El Dorado County and point to the need to ensure that effective measures are in place at sources of asbestos emissions to protect public health.”

In 2008, another release reports that the ARB “performed ambient airborne asbestos sampling at Oak Ridge High School located in El Dorado County. This sampling was conducted to assess the nature and extent of asbestos fibers released during mitigation of naturally occurring asbestos (NOA) while completing the school’s soccer fields. Mitigation consisted of covering asbestos containing soils and slopes with dirt, grass, concrete, etc., as appropriate for the site, as well as preventing dust emissions by wetting all soils present on the fields and soils brought to the fields. …

“Ambient monitoring specific to asbestos was performed during all phases of construction. Samples were taken at the edge of the field, near residences, and at locations the students and public usually had access. These areas were closed during construction. During this time, the field was encapsulated with fabric blanket …”

In this El Dorado County case, samples were analyzed by “transmission electron microscope.” This is very important to note, for an optical microscope does not give an accurate account of the total amount of asbestos fibers in the air.

World cancer expert Samuel S. Epstein, M.D., stated on page 57 of his 1998 book – its introduction written by Congressman John Conyers – “The Politics of Cancer, Revisited”:

“The ultimate acceptance of the carcinogenicity of asbestos has not been easily achieved. Even today, the controversy persists, but now the questions are not ‘whether’ but ‘how much’ and ‘what type.’ The importance of this issue is directly related to the vast economic stake which industry has in winning its battle with the government over the standard regulating levels of exposure to asbestos …

“Regulatory standards for asbestos are based on the number of fibers in a unit volume of air. … Current optical microscopic techniques for counting fibers in the workplace only detect those which are relatively long, more than 5 microns in length. Smaller fibers, or fibrils, which can only be counted by electron microscopy and not by optical microscopy, may outnumber the longer ones by as much as 100 to 1. … It should be recognized that these are believed to be more carcinogenic than the long fibers.”

The extreme care taken by state and local agencies in upscale El Dorado County to protect its students, workers and residents from asbestos exposure where serpentine rock is being crushed stands in stark contrast to a comparable health threat in the Hunters Point neighborhood of the City and County of San Francisco. As the infamous Lennar conducted a massive earthmoving operation in Parcel A of the Hunters Point Shipyard, excavating and removing 35 feet of the Hunters Point hilltop, students at a Nation of Islam school immediately adjacent to the Shipyard and at several public schools and child care centers nearby reported a startling increase in asthma and other respiratory diseases, rashes and nosebleeds.

Clouds of dust blanketed the neighborhood despite mandates requiring Lennar to suppress it, and residents suspected the dust, laden with asbestos released from the tones of crushed serpentine rock plus other toxins known to be present, was to blame. Development permitted by the Redevelopment Plan their referendum petition had sought to oppose was making their worst nightmare come true, and their children were the first to feel the effects.

The dust was so bad that the San Francisco School Board, on Sept. 25, 2007, passed Resolution No. 79-25A1, quoted here in full:

“In Opposition to Lennar Corporation’s Hunters Point Naval Shipyard Development and In Support of the Community’s Demand for a Temporary Stoppage and an Independent Health and Safety Assessment to Protect Our Students and Their Families – Commissioners Eric Mar and Kim-Shree Maufas

“WHEREAS: Patterns of environmental racism, inequity and injustice exist within San Francisco, where schools in communities like Bayview Hunters Point bear the brunt of environmental health problems; and

“WHEREAS: Since October 2006, when a young worker blew the whistle on Lennar Corporation’s Hunters Point Naval Shipyard development, large numbers of students, teachers, educators, workers, and families of the Bayview Hunters Point area have been voicing their concerns about the construction-related dust at the Hunters Point Shipyard site and the dangerous health impact that the dust and toxics in it, including asbestos, heavy metals and other inorganics, are having on our SFUSD students, staff and members of the community; and

“WHEREAS: Lennar Corporation is a Florida-based Fortune 500 company which reportedly had revenues of $16.3 billion in 2006 from development projects throughout the country like the 1500-unit condominium development planned for Hunters Point; and

“WHEREAS: Lennar Bayview Hunters Point LLC was involved in large scale grading that reportedly caused untold amounts of toxic dust and Asbestos Structures to migrate over its boundary and into areas were children and families live, work and play; and

“WHEREAS: In response to these health dangers and concerns, a broad grassroots coalition of Bayview Hunters Point and social justice community organizations has been demanding a temporary stoppage in Lennar Corporation’s construction so that an independent health assessment can be conducted; and

“WHEREAS: There has been a history of problems with implementing the City’s dust-mitigation plan since the soil grading and disposal process began that has included: an absence of air monitoring for the first four months of the project during heavy grading; malfunctioning air monitors; a Notice of Violation from the Air Quality Management District; and when the monitors started working, routine exceedances of the agreed-upon allowance of asbestos prevalence in the air – 16,000 structures per cubic meter [SF Department of Health Regulations, Article 31] including 9 exceedances in June alone; and very poor communication of these exceedances to adjacent neighbors; and

“WHEREAS: Numerous studies have documented that Bayview Hunter’s Point and other communities in Southeast San Francisco are overburdened with the cumulative impacts of a multitude of environmental health threats that impact the health and well-being of children and other residents who are overwhelmingly African American and other people of color. These impacts include exposure to toxic air pollution, carcinogens, and other inorganic substances from industrial facilities, power plants, sewage treatment and solid and hazardous waste facilities and diesel particulate from trucks, trains and other vehicles. Additionally, these impacted children and residents are more vulnerable to environmental toxics due to their limited access to quality health care and healthy foods and other social and cultural factors. And, this disproportionate impact has a damaging effect on our students academic achievement and opportunities for success in school and in their lives; and

“WHEREAS: San Francisco public schools such as Malcolm X Academy, George Washington Carver, Bret Harte, and Dr. Charles Drew College Prep Academy, other schools, childcare centers, and playgrounds are in the immediate vicinity of the Lennar development site; and

“WHEREAS: Three African American employees of Lennar Corporation filed a whistle blower lawsuit in SF Superior Court on March 16, 2007, alleging that they suffered retaliation after reporting asbestos dust exposure and racial discrimination and that the company failed to contain asbestos dust while drilling into the Shipyard site, endangering the local community, including the school children of the neighboring Muslim University; and

“WHEREAS: The World Health Organization reports that there is no evidence for a threshold for the carcinogenic effect of asbestos and that increased cancer risks have been observed in populations exposed to very low levels of asbestos; However, there are tests for lead, chromium, radon, arsenic, etc., which are toxic chemicals that are present in the dirt on the affected site; and

“WHEREAS: The ‘Precautionary Principle’ has been adopted by a growing number of cities, including San Francisco, as well as the Los Angeles Unified School District, as a proactive approach to promote the safest, lowest risk approach to protecting people’s health, the environment, and property; and

“WHEREAS: The Precautionary Principle as adopted by the City and County of San Francisco includes the following “essential elements:”:

“1. Anticipatory Action: There is a duty to take anticipatory action to prevent harm. Government, business, and community groups, as well as the general public, share this responsibility.

“2. Right to Know: The community has a right to know complete and accurate information on potential human health and environmental impacts associated with the selection of products, services, operations or plans. The burden to supply this information lies with the proponent, not with the general public.

“3. Alternatives Assessment: An obligation exists to examine a full range of alternatives and select the alternative with the least potential impact on human health and the environment including the alternative of doing nothing.

“4. Full Cost Accounting: When evaluating potential alternatives, there is a duty to consider all the reasonably foreseeable costs, including raw materials, manufacturing, transportation, use, cleanup, eventual disposal, and health costs even if such costs are not reflected in the initial price. Short-and long-term benefits and time thresholds should be considered when making decisions.

“5. Participatory Decision Process: Decisions applying the Precautionary Principle must be transparent, participatory, and informed by the best available information. (City of San Francisco, Precautionary Principle Ordinance, Section 101, August 2003,

“THEREFORE BE IT RESOLVED: That the Board of Education of the San Francisco Unified School District believes that the Precautionary Principle as adopted by the City and County of San Francisco requires them to take ‘anticipatory action’ to prevent harm and through exploration and careful analysis of courses of action in order to present the least threat to the students, families and staff of the schools in the vicinity of the Hunters Point development; and

“BE IT FURTHER RESOLVED: That the Board of Education of the San Francisco Unified School District calls on the City to require an immediate halt of Lennar Corporation’s development of Parcel A in the Hunter’s Point Shipyard until an immediate and independent health and safety assessment can be conducted in cooperation with the Superintendent and the School District’s School Health Programs Office and relevant community organizations and City task forces like the SF Asthma Task Force; and

“FURTHER BE IT RESOLVED: That the Board of Education of the San Francisco Unified School District hereby urges the City and County of San Francisco to make available to the public and to the San Francisco Unified School District, the results of any independent analysis including the recently completed analysis by the Centers for Disease Control (CDC) and the Environmental Protection Agency (EPA), as well as any concerns raised through these studies of environmental issues at this site, and

“BE IT FURTHER RESOLVED: That the Board of Education requests that the Superintendent and staff of the San Francisco Unified School District work with the City to draft an agreement that would require the City and County to notify and consult with the San Francisco Unified School District regarding any major construction in proximity to SFUSD school sites.”

A few months before this resolution was passed, I testified at a public hearing on the subject at San Francisco City Hall. San Francisco Department of Public Health Director Mitchell H. Katz had stated that the levels of airborne asbestos were safe.

It is too bad that the San Francisco Health Department doesn’t have to testify under oath when it says the air is safe at the construction site. In its “Revised Dust Control Plan Parcel A Phase I Development, Hunters Point Shipyard,” “Dust Monitoring,” states:

“Real-time particulate dust monitors (Miniram PDM-3 or equivalent) will be placed in three locations at the site, one upwind and two downwind. Prevailing wind on the site is from the west or southwest towards the east or northeast. Monitoring locations will initially be established based on these prevailing winds but will be checked daily and adjusted if necessary to maintain the upwind and downwind locations. An action level of 0.5 milligrams per cubic meter will be used. If dust is generated from on-site soil disturbance or excavation activities and dust levels from these activities are recorded above the action level, the work will stop until additional controls are implemented to reduce dust generation from the specific work area causing the problem.”

I noticed that this section on dust monitoring listed the action level in “milligrams per cubic meter” and so I knew that electron microscopy was not required but rather optical microscopy. On Oct. 11, 2007, I called the Bay Area Air Quality Management District (BAAQMD) office, at 939 Ellis St., San Francisco, (415) 771-6000, and spoke to a Hemant Amin at extension 4633, in the TEC AQ Chemist Laboratory. He told me that “we only test with optical microscopy, since that is all we have at the lab”!

So even though California Environmental Protection Agency “Fact Sheet #5 Monitoring for Asbestos” states: “How can you test for asbestos in the ambient (or outdoor) air? A sampler consisting of a pump and cassette holder containing a filter is used to determine the amount of asbestos in the ambient air. Asbestos in the air is trapped onto the filter as air is drawn through the filter. The filter samples are analyzed by counting the number of asbestos fibers on the filters using transmission electron microscopy (ref. Federal Register, 40 CFR Part 763),” San Francisco is in violation of its own Precautionary Principle, as well as state and federal safety laws!

On Aug. 7, 2008, the chief executive officer for Lennar in San Francisco, Kofi Bonner, entered into a settlement agreement with BAAQMD Executive Officer Jack Broadbent to pay $515,000 in civil penalties for violations of California Health and Safety Code Section 42400 based upon optical microscopy and not the electronic microscopy used in El Dorado County.

So in this tale of two cities, justice is applied to the wealthy El Dorado County as it had been in wealthy Pleasanton. Yet in Bayview Hunters Point, San Francisco’s poorest neighborhood, justice is denied by the courts and by environmental and health regulatory agencies. Ironically, even San Francisco Public Health Director Katz has publicly stated that Bayview Hunters Point suffers from environmental racism.

Roland Sheppard is a writer and activist and the retired business representative of the Painters Union in San Francisco. Email him at rolandgarret@aol.com and visit his website, http://web.mac.com/rolandgarret.

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