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Emails show regulators conspiring with Lennar to cover up Shipyard development danger

March 23, 2011

Pack the courtroom on Thursday, March 24, 9:30 a.m., at Superior Court, 400 McAllister St., Room 613, San Francisco, for a hearing on Lennar’s EIR – scroll down for more info and a report on the hearing

by Jaron Browne

For 20 years, ever since the Hunters Point Naval Shipyard was decommissioned and declared a dangerously polluted Superfund site, residents have demanded a thorough cleanup prior to any development. Once Lennar, one of the nation’s largest and most criticized home builders, was selected as “Master Developer” for the shipyard in 1999, it applied intense pressure to local, state and federal agencies to transfer title from the Navy to the City and then to Lennar of all 500 acres long before they were cleaned of its deadly toxins, including high levels of radioactivity, that contaminate them. This protest by POWER at Lennar’s shipyard trailer took place on July 17, 2007.
Since 2006 when heavy grading and excavation began by the Lennar Corp. at the Hunters Point Naval Shipyard, residents of Bayview Hunters Point, a majority African American, Samoan and Latino low-income community, suffered from health problems including nose bleeds, rashes and headaches that they believed were caused by asbestos and heavy metals being unearthed from these actions. Residents complained en mass to the EPA, the San Francisco Department of Public Health, and other federal, state and local environmental and health agencies demanding testing of the community and regulatory enforcement.

However, little did residents know that officials in the Environmental Protection Agency Region 9 and the San Francisco Department of Public Health were conspiring with Lennar to conceal the health threats of asbestos laden dust.

Email correspondence obtained through a public records request now reveals that Mark Ripperda, EPA Region 9 remedial project manager for the Hunters Point Naval Shipyard, and Amy Brownell, environmental engineer at the San Francisco Department of Public Health, used their offices to manipulate environmental data and create false reports in support of Lennar’s plan for a major redevelopment project on the shipyard site.

Their numerous emails to employees and consultants of the Lennar Corp. show a concerted effort to conceal asbestos exposures in order to avoid the shutdown of redevelopment activities. Additional email correspondence indicates a conspiracy to create a justification for Lennar’s redevelopment project to move forward. Excerpts from their emails follow.

EPA email excerpts: Asbestos exposure coverup

1) May 14, 2009, 3:37 p.m.

From: Mark Ripperda, EPA Region 9

To: Jeff Austin, Lennar Corp. employee

Minister Christopher Muhammad of the Nation of Islam, whose sophisticated opposition prompted collusion and coverup of the dangers of developing the shipyard, studies his notes before testifying at one of dozens of hearings on the Hunters Point Shipyard in the past few years. This one was held by the San Francisco Board of Supervisors Land Use Committee on July 9, 2007. Muhammad became alarmed when Lennar’s excavation created dust that covered the children when they came in from recess at his school, which lies just outside the shipyard fence, and they began suffering unexplained maladies. – Photo: Francisco Da Costa
“Hi, Jeff, as you’ve probably heard, the NOI [Nation of Islam]* is now beating on our door about asbestos.”

*Note: The Nation of Islam operates a school for children ages 3 to 18 that is located next to the Hunters Point Naval Shipyard in the Bayview Hunters Point community.

2) June 24, 2009, 10:00 a.m.

From: Mark Ripperda, EPA Region 9

To: Rob Balas, principal of Iris Environmental, Inc., consultant to the Lennar Corp.

Re: Asbestos data flow chart call – 6/22

“We would like to take Lennar up on their offer to analyze the additional 8 samples from Lennar monitors so that we can do 16 filters from the City. This will also help lower the ‘worst case risk’ by including more samples with lower counts.”

3) Oct. 28, 2009, 1:26 p.m.

Mark Ripperda, Region 9 remedial project manager for the U.S. Environmental Protection Agency
From: Mark Ripperda, EPA Region 9

To: Rob Balas, principal of Iris Environmental, Inc., consultant to the Lennar Corp.

Re: Hunters Point data re-analysis

“We’re meeting with the BAAQMD [Bay Area Air Quality Municipal District] and the City on November 3, and would like to meet with you soon thereafter to discuss the details and talking points. I prefer to keep our message as simple as possible and stay away from health assessments and from shutdown days. Something along the lines of: Our analysis using more detailed methodology showed that there are fewer ‘health risks fibers’* present than what the Air District assumed in setting the trigger levels.* Thus the Air District’s methods and levels are appropriate and we will defer all regulatory issues concerning asbestos to the District.

“I’m not the asbestos expert, so is this a true statement?”

*Note: “Health risk fibers” refer to a concentration of asbestos that can cause adverse health effects. “Trigger levels” refer to the standards set by the Bay Area Air Quality Municipal District that require the shutdown of redevelopment activities by the Lennar Corp. at the Hunters Point Naval Shipyard when an air monitor detects 16,000 or more asbestos fibers in a cubic meter.

4) May 29, 2009, 4:16 p.m.

From: Rob Balas, principal of Iris Environmental, Inc., consultant to the Lennar Corp.

To: Mark Ripperda, EPA Region 9

Subject: Re: Hunters Point – Follow-up to Tuesday’s conference call

Despite the efforts revealed by these emails to cover up the dangers of toxic contamination at the Hunters Point Shipyard, one of the nation’s dirtiest Superfund sites, the Navy has been prudent enough to place these warning signs to protect itself from liability. This photo was taken in 2007.
“[I]if we proceed with the limited sampling to check the correlation between the two different counting rules as it pertains to the fiber distributions, it is unlikely that we would use this initial evaluation to reach publicly communicable risk conclusions – say by using any found correlation to draw risk conclusions about current AHERA* dataset. To make any conclusions, a more robust, statistically significant sampling would need to be conducted. Even then, robust risk conclusions, ready for public consumption, may be impossible without activity-based sampling.* Ultimately this will be a policy management decision.”

*Notes: AHERA stands for Asbestos Hazard Emergency Response Act and refers to one method of counting asbestos fibers in a given sample of dust.

Bayview Hunters Point residents repeatedly called on the EPA and the Health Department to conduct activity-based sampling, which is more statistically representative of actual human exposure to asbestos fibers. The EPA and the Health Department never complied with this request.

San Francisco Department of Public Health email excerpts: Asbestos exposure coverup

1) Jan. 19, 2007, 8:26 a.m.

From: David Rizzolo, San Francisco Department of Public Health

Amy Brownell, environmental engineer for the San Francisco Department of Public Health
To: Amy Brownell, San Francisco Department of Public Health

Cc: Rajiv Batia, San Francisco Department of Public Health

Subject: Re: Fwd: worst case exposure assumption

“there may be other problems with reanalyzing worker exposure samples by TEM.* you would have to get the okay from Gordon Ball. the big problem i see is that measurements that were low by PCM* often turn out to be very high when reanalyzed by TEM. this is not a problem with OSHA because OSHA does not recognize TEM measurements. however, explaining to workers what this new information means for them can be a problem (pandora’s box). that may be a bigger problem in reality than the one were are trying to address.

In the process of removing 35 feet of Hunters Point Hill, Lennar excavated tons of serpentinite rock, the source of naturally occurring asbestos, which releases cancer-causing asbestos fibers when it is disturbed. The work is conducted immediately adjacent to homes, schools and day care centers, where it endangers thousands of residents and students. Children are especially susceptible to toxic poisoning. This photo was taken April 10, 2007. – Photo: Liz Hafalia, San Francisco Chronicle
“in general, i see that in trying to put together a case to argue that exposure was ‘low,’ we are legitimizing the allegations. it seems to me that the available facts are on our side, so we should stay away from trying to create more data. more data might not help us. we can talk more about this directly.”

*Note: TEM stands for “transmission electron microscopy” and PCM stands for “phase contrast microscopy.” Both are methods used in microscopes to count the asbestos fibers.

2) Oct. 13, 2006, 3:52 p.m.

From: Amy Brownell, San Francisco Department of Public Health

To: Sheila Roebuck and Jeff Austin, Lennar Corp. employees

Subject: very, very rough draft

“I’m sure you will also want to change my wording on how I portray the problems, lack of monitors, etc. Go ahead and change any way you want. I may change some of it back but I’m willing to read your versions. as noted, don’t bother adding the worker monitoring information. I don’t want to use it. I understand your sensitivity on this issue and if specifically asked in a public meeting, I will be willing to verbally state the facts related to worker monitoring. But I’m not willing to make it part of this narrative.”

EPA email excerpt: Concocting reasons for the Lennar redevelopment plan to move forward

1) Nov. 3, 2009, 12:10 PM

From: Mark Ripperda, EPA Region 9

To: Rob Balas, principal of Iris Environmental, Inc., consultant to the Lennar Corp., and Amy Brownell

Lennar completely reshaped Parcel A of the Hunters Point Shipyard, excavating 35 feet of Hunters Point Hill to make a moonscape out of what had been a pleasant hilltop neighborhood of officer housing – bungalows with big yards and trees on cul de sacs. Though Lennar has controlled the 75-acre Parcel A for six years, promising to build thousands of upscale condos there, nothing has yet been built. This photo was taken June 23, 2007. – Photo: Francisco Da Costa
Subject: EPA’s preliminary results and conclusions from asbestos slide re-analysis

“Hi Rob, here are the main talking points that we will be presenting at this afternoon’s meeting. You’ve been a careful reviewer of my language in the past – do you see any problems in how I’ve worded any of these points?”

2) Nov. 4, 2009 9:25 a.m.

From: Mark Ripperda, EPA Region 9

To: Rob Balas, principal of Iris Environmental, Inc., consultant to the Lennar Corp.

RE: HP [Hunters Point] asbestos re-analysis conclusions (2).doc.

“Thanks Rob, I appreciate your input and yes, you can share this internally with Lennar. These were talking points for yesterday’s meeting with the City and the Air District. … I need a different focus for meeting with both the NOI [Nation of Islam, administrator of the school located next to Hunters Point Shipyard] and the greater community. The conclusions for general communication will probably stay similar, with one addition, a statement that EPA sees no reason to stop the development.*

SLAM (Stop Lennar Action Movement), a coalition of local community groups, joined forces with the nationally influential New Orleans-based Advocates for Environmental Human Rights to write this letter to regulatory, prosecutorial and political leaders demanding an investigation of the corruption revealed by the emails in this report and removal of the personnel responsible.
“I’m not sure how to create a basis for the conclusions, however, for the general public. The information in the first set of points is appropriate for government/industry types, but I’m searching for a way to justify that the development is acceptable without getting into details of risk assessment. Given NOI’s sophistication, maybe we do have to provide more details than I hoped. I’m open to any written narrative or bullet list that you think might work.

“While I’m not going to use the list you edited again, partially because of confusion it created for even informed people like you and Rajiv,* I’ll try and clarify a few things so we’re on the same page as we massage the message. … My statement in the conclusion is ambiguous, because I presented a risk for single worst case earlier in my list, but am then assuming that an average of the data will result in a much lower risk, without actually calculating a risk. I can’t use that logic for general communication for several reasons, one of which is because Christopher* will quickly point out that the highest level that we re-analyzed is not the highest level overall.”

*Notes: Following this email, Mark Ripperda, EPA Region 9 remedial project manager, repeatedly stated in public forums and meetings with local officials that EPA sees no reason to stop the Lennar Corp.’s redevelopment project at the Hunters Point Naval Shipyard. Ripperda’s statement served as justification for the San Francisco Planning Department to draft an environmental impact report in support of the redevelopment plan by the Lennar Corp. and for a majority of the San Francisco Board of Supervisors to approve the environmental impact report.

The people referenced in this email are Rajiv Bhatia, the director of occupational & environmental health in the San Francisco Department of Public Health, and Minister Christopher Muhammad, a community leader advocating for health protections from Lennar’s redevelopment activities at the Hunters Point Naval Shipyard.

The cozy relationship between regulators and industry

Governmental statements that have downplayed the dangers of recent environmental disasters, such as the BP oil drilling disaster in the Gulf of Mexico and the exposures to radiation from nuclear reactors damaged by the recent earthquakes and tsunami in Japan, have raised significant public distrust. Such distrust centers on the relationship that governmental regulators have with regulated industries.

Powerful Congresswoman Nancy Pelosi, who has led the effort to privatize the Hunters Point Shipyard and strongly supports its development by Lennar, rejoiced in January of 2005, backed by then District 10 Supervisor Sophie Maxwell, when Parcel A was transferred from the Navy to the City and then to Lennar. That first transfer of title of a portion of the shipyard, made before it had been completely cleaned – thus called a “dirty transfer” – was opposed by the Navy. According to the San Francisco Chronicle, Pelosi had to twist the admiral’s arm to win his approval. Now Lennar is pushing for the dirty transfer of two more parcels, both highly contaminated.
In the wake of the BP oil drilling disaster, President Obama blasted the “scandalously close relationship” he said has persisted between Big Oil and government regulators and promised to end it. This email correspondence reveals that a cozy relationship also exists between governmental regulators and developers. EPA Region 9 and San Francisco Public Health Department officials have developed a closely aligned relationship with the Lennar Corp. that is detrimental to the Bayview Hunters Point community.

Bayview Hunters Point is located in southeastern San Francisco. Residents of the community and surrounding neighborhoods are predominantly people of color, who are disproportionately burdened with environmental hazards from the Hunters Point Naval Shipyard Superfund Site, the city’s main sewage treatment plant, industrial facilities, diesel rail and truck corridors and substandard housing.

This photo, taken Sept. 9, 2000, shows the effect of a fire on the surface of the 46-acre landfill on Parcel E of the shipyard that continued to burn underground for months. That landfill is the most contaminated part of the shipyard, where tons of toxic and radioactive waste is buried – and where fires continue to break out occasionally. Residents have long demanded removal of the landfill. – Photo: Maurice Campbell
These environmental hazards increased in 2000, when a brush fire at the Hunters Point Naval Shipyard smoldered underground for several months, exposing nearby residents to toxic smoke and chemicals. Massive excavation and grading activities at the shipyard were conducted in 2006 and 2007 without proper air monitoring stations and pollution control measures, resulting in the release of asbestos laden dust.

However, EPA and San Francisco Public Health Department officials have suppressed information about the full impact of these and other environmental hazards. Their unconscionable decision to manipulate data and present false reports constitutes a blatant disregard for the human rights of people who live, work and attend school in the Bayview Hunters Point community.

Demand for justice

Based on the obtained email correspondence, a coalition of residents and environmental justice and worker rights organizations are calling on FBI Special Agent-in-Charge Stephanie Douglas and California Attorney General Kamala Harris to:

  • Launch a full investigation into public corruption involved in the Lennar Corp. redevelopment of the Hunters Point Naval Shipyard.
After World War II and until 1969, the Hunters Point Shipyard was the site of the Naval Radiological Defense Laboratory, the U.S. military’s largest facility for applied nuclear research. The Navy brought ships exposed to nuclear bomb tests in the South Pacific to the shipyard for experiments in removing radioactive contamination. Sandblasting was the favored method, and the irradiated, iridescent residue paved paths and roadways all over the shipyard. Generations of Hunters Point children played with the shiny stuff, calling it “black beauty sand.”
The coalition calls on U.S. EPA Administrator Lisa Jackson to:

  • Remove Mark Ripperda, EPA Region 9 remedial project manager for the Hunters Point Naval Shipyard and any other EPA employee found to be involved in the coverup from their roles in the Hunters Point Navy Shipyard project.
  • Place a moratorium on all activities that fall under the authority of the EPA project manager at the Hunters Point Naval Shipyard and conduct a comprehensive investigation of past and present environmental hazards and public health threats associated with both remediation and redevelopment activities.

The coalition calls on San Francisco Mayor Edwin Lee, the San Francisco Board of Supervisors and San Francisco Public Health Director Barbara Garcia to:

  • Remove Amy Brownell, environmental engineer in the San Francisco Department of Public Health, and any other city employee involved in the coverup from their involvement in the Hunters Point Shipyard Project.
  • Launch a full investigation into public corruption involved in Lennar redevelopment of the Hunters Point Naval Shipyard.

The email correspondence obtained through a public records request is available at www.cleanupnotcoverup.com.

Jaron Browne, lead organizer for POWER (People Organized to Win Employment Rights), can be reached at jb@unite-to-fight.org or (415) 864-8372. This report is written on behalf of the SLAM Coalition of Bayview Hunters Point Community Organizations, of which POWER is a member, and Advocates for Environmental Human Rights, 650 Poydras St., Suite 2523, New Orleans, Louisiana 70130.

Hearing on legal challenge to Hunters Point redevelopment EIR Thursday, March 24

by POWER and Greenaction

The decades-long fight by the low-income residents of color in Bayview Hunters Point for environmental justice will clear an important hurdle Thursday as Judge Ernest Goldsmith hears arguments that the City of San Francisco and Lennar failed to disclose the potential health impacts of development on the toxic Hunters Point Naval Shipyard Superfund site.

For the many years the Hunters Point Shipyard was largely abandoned, big holes in the fence around its 500 acres allowed neighborhood children to play freely there – neither they nor their elders aware of the dangers. Now, with major portions of the shipyard off limits and marked with signs like this, reading “Radiologically Controlled Area, Radiation Awareness Training Required for Entry,” nearby residents know of the dangerous toxic and radioactive contamination and are demanding thorough cleanup prior to development.
At the heart of the legal challenge is whether the EIR for the planned development at the Superfund site is adequate, accurate and complete in the analysis of the health impacts from toxic contamination at the site.

The City and Lennar contend that they do not have to conduct such an analysis because the Navy is responsible for cleaning up the shipyard.

Yet as POWER and Greenaction have argued in a recent brief filed by attorneys from Earthjustice, “The purpose of preparing an EIR is not simply to generate paper but to fully understand and provide the public with a meaningful analysis of the environmental impacts of a project and mitigation measures to minimize such impacts.”

Specifically, the California Environmental Quality Act (CEQA) requires that if the developer is asking for approval to build on a toxic site, it must explain in accurate detail to what degree the land is contaminated and how they will protect the health of the existing population, the workers at the construction site, remediation workers and the new population coming into the area.

“Look, it’s simple. We just want development that is safe for the workers, the community and anyone working, living and raising families in our neighborhood,” said Bayview resident Esselene Stancil. “Any community deserves that. We want the same careful consideration that other communities get.”

Health concerns with development at the Superfund site are also heightened by the Navy’s proposal for an “early transfer” of the Shipyard parcels which would allow the Navy to transfer the land to the City before it is fully clean, making the City and Lennar responsible for the remaining remediation at the site.

“Right now the whole world is watching Japan in shock at how we could have allowed such a precarious situation to exist in the first place,” said Marie Harrison, a longtime Bayview activist with environmental justice group Greenaction. “Here in San Francisco today we have the opportunity to avoid the disastrous conditions that develop when we allow corporations to cut corners. We can and we must do better and comply with the law.”

This ugly 23-pound fragmentation bomb was found 2 feet under the surface in the yard of a house being built by Lennar in 2007 in an upscale subdivision in Orlando, Florida. It was one of many live, undetonated munitions including bombs up to 500 pounds, rockets, rifle grenades and incendiary bombs found on the land, which had been a World War II bombing range. Families that had already moved into the subdivision discovered Lennar had neglected to investigate the property before building 54 homes there. Homebuyers were furious when bombs were found on all 54 lots. Now Lennar is refusing to ensure cleanup of dangerous conditions at the Hunters Point Shipyard in San Francisco prior to constructing thousands of new upscale condos. – Photo: Orlando Channel 13
Lennar is facing lawsuits in Texas, Florida, Arizona and San Diego, California, where it has built on toxic land. In Orlando, Florida, Lennar built homes on top of a World War II bombing range. People began to find undetonated bombs underneath their homes, including a 23-pound fragment bomb. The City of Orlando called for a forced evacuation of surrounding homes and a day care center. (See http://www.searchhutto.com/huttoparke/Orlandobomb2.html.)

“It may be inconvenient, but it is in fact the truth that the Hunters Point Shipyard is extremely contaminated land,” said Jaron Browne of POWER. “Superfund is the classification for the most toxic sites in the country. It’s shocking that the City and Lennar chose not to address the biggest question everyone needs to understand before we can make an informed decision about whether or not the site can be safely developed for housing and other public access.”

Judge Goldsmith will likely issue a ruling sometime in the coming months. If the judge rules in favor of the complaint raised by POWER and Greenaction, the City and Lennar will have to disclose the health impacts of the contamination and the mitigation plans related to the cleanup. They would then release a new draft environmental impact report for the shipyard that includes this critical information.

Hunters Point community organizations have also released a report (republished above) showing emails over the past five years between EPA, the San Francisco Department of Public Health and Lennar that reveal a conspiracy to manipulate facts regarding asbestos exposure from construction activities taking place at the shipyard and to present false claims in support of Lennar’s redevelopment plan. The emails were obtained through a Freedom of Information Act request.

The Hunters Point Shipyard served as a working naval operation from 1941 to 1974. The site included the Naval Radiological Defense Laboratory, which was involved in the decontamination of ships exposed to atomic weapons testing and conducted experiments on radiological decontamination and the effects of radiation on living organisms and materials. The shipyard was later leased to the Triple A Machine Shop, a company that was eventually charged with criminal violations for the illegal storage and disposal of hazardous waste on the property. In 1989, the shipyard was designated as San Francisco’s only federal Superfund site under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

An independent analysis of the Shipyard site has shown the presence of extremely toxic contamination including radionuclides, VOCs (such as benzene, carbon tetrachloride, chloroform, naphthalene, tetrachloroethane and others), semi-volatile organic compounds, petroleum hydrocarbons, polycyclic aromatic hydrocarbons, PCBs, pesticides, heavy metals (arsenic, beryllium, chromium, chromium VI, lead, manganese, mercury and nickel) and asbestos.

Asthma, breast cancer and other respiratory illnesses are among the health impacts reported by Bayview residents living close to the Superfund site.

Update: Report on March 24 hearing

Thank you so much to everyone who came and out and packed the courtroom! Your presence made a huge impact. We wanted to send you all a quick update about what happened at our hearing at Superior Court.

The hearing went all day, from 10 a.m. to 4 p.m. The judge seemed to respond very favorably to the issues that POWER and Greenaction raised, particularly:

1. Our core concern about the failure of the EIR to adequately address the toxic contamination at the shipyard.

2. Our argument that the EIR’s description of the project is extremely confusing and fails to tell us exactly what the project is. Lennar and the City did something very unusual with this EIR by including several “variants” as part of project description. For example, in one scenario, the project might feature a new 49ers stadium. If not, it could be a research and development building. In another scenario, it could be some combination of housing and research facilities.

Those are very different projects and all have very different impacts. It is completely unprecedented under CEQA to propose an array of different projects. The project has to be described as one clear plan. Otherwise confusion arises for the decision makers and the public who need to be able to assess the actual environmental impacts accurately. That was a really big deal to the judge.

3. The judge was also suggesting that the scope of this project is so big – 770 acres – and lasts so many years – 20-30 years of construction – that he thought that was part of the problem for Lennar and the City. He was encouraging Lennar and the City to break the project up into manageable pieces and bring in separate EIRs over time. This would enable them to more effectively explain and account for exactly what they are planning to build and what the various environmental impacts of the project are.

The judge has not ruled yet. In the hearing he just raised the questions that he was grappling with, about where Lennar and the City’s EIR did not seem to be in compliance with CEQA.

Toward the end of the hearing, Lennar and the City requested a meeting with POWER, Greenaction and our lawyers. We agreed to meet with them.

The judge continued our hearing until April 18 to allow time for this meeting. All arguments have been presented. The hearing on April 18 will be to report back to the judge if anything comes from the meeting between the parties.

After the hearing on April 18, we expect that the judge would issue a ruling sometime in the coming months.

Visit POWER (People Organized to Win Employment Rights) and Greenaction to learn more and get involved.

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