Scapegoating the judge: Tetra Tech deflects the blame for Hunters Point Shipyard eco-fraud

The people of Hunters Point have been protesting inadequate and fraudulent cleanup of the Hunters Point Shipyard for more than two decades. These longtime residents, living just outside the shipyard fence, have sued for the damage to their health, damage that is now being measured by Dr. Ahimsa Sumchai’s Biomonitoring Project. Here, residents Shirley Hamby and Lisa Arnold march at Montgomery and Market on July 2, 2018, take their complaints to Tetra Tech spokesman Sam Singer. – Photo: Kevin N. Hume, SF Examiner

Judge James Donato: “It just doesn’t make any sense to me, that a guy rolls out of bed and says, ‘Hey, today is the day I’m going to swap out the test samples.’”

by Carol Harvey and Mary Ratcliff

Tetra Tech is desperate. As the cleanup contractor for two local Superfund sites, the Hunters Point Naval Shipyard and Treasure Island, the most contaminated sites in the country, both closed Navy bases poisoned with radiation and other deadly toxins and both handed by San Francisco to mega-developer Lennar for multi-billion dollar development, Tetra Tech stands accused of massive eco-fraud, of swapping clean soil samples for radiation-laced dirty samples.

Tetra Tech is so desperate as to call for the judge presiding over a raft of cases against it to recuse himself. An Oct. 23, 2019, letter to federal District Court Judge James Donato from the Hanson Bridgett law firm representing Tetra Tech begins: “On behalf of defendants Tetra Tech EC, Inc. [one of Tetra Tech, Inc.’s 141 subsidiaries], and Tetra Tech, Inc. [parent company] (collectively, ‘TtEC’), we write … to request that Your Honor consider recusal from this case and the related cases … on the grounds that Your Honor’s ‘impartiality might reasonably be questioned.’”

Why is Tetra Tech afraid of Judge Donato? The judge doesn’t believe that the buck stops at the two low-level employees he sentenced to prison terms for falsifying soil samples. He wants to know how high it goes – who made the decision to put lives at risk of radiation poisoning, an extreme and obscene display of profit over people.

Common sense

Judge Donato knows the two employee scapegoats, Tetra Tech workers Stephen Rolfe and Justin Hubbard. They were tried, convicted and sentenced for swapping clean for dirty soil samples in his courtroom. At Hubbard’s sentencing hearing, the judge mused, as quoted in the letter calling for recusal:

“I just don’t get that. I mean, I don’t understand how a man just decides one day he’s going to substitute clean dirt for dirty dirt on his own out of the blue. Who wakes up in the morning and says, ‘I’m going to go to the jobsite today and swap out the test samples. Just something I’m going to do.’ I find that to not be common sense – it just doesn’t make any sense to me, that a guy rolls out of bed and says, ‘Hey, today is the day I’m going to swap out the test samples, sua sponte, just because I feel like it.’ I don’t get that, Mr. Long.” Long was representing Tetra Tech.

A few moments later, Judge Donato warns of his wide latitude to compel discovery, noting, “3553(a) allows me to do broad inquiries, and I’m responding to the idea that this was something that was purely a personal choice.” Intent on discovering where the buck stops, he continues to press his common sense argument on attorney Long:

“For the life of me, I just don’t get how a guy at a jobsite gets up in the morning and says, ‘I’m going to swap out the test samples. They’re not my test samples. They’re just dirt in the earth that I’m working on at a site, and it just feels right to me to swap it’ – that makes no sense to me. I’m very skeptical that this was something that he came up (with) completely on his own in his own personal choice and acted on it. This just makes very little sense to me.

Tetra Tech’s lawyer’s underlining marks the section of the judges’ statement that she interprets as biased. Her interpretation suggests she either doesn’t grasp or is pretending not to know how corruption can poison a development project. Judge Donato appears determined to unmask the real culprits no matter who or how powerful they may be.

The lawsuit discussed in this story is the second major suit filed by Hunters Point residents over the eco-fraud, this one against Tetra Tech and Lennar by homeowners who have purchased the new condos built by Lennar at the shipyard. From left are community leader Linda Parker Pennington, the lead plaintiff, their attorney Joseph Cotchett, and plaintiffs Theo and Victoria Seray Ellington at a news conference on July 25, 2018. – Photo: Kevin N. Hume, SF Examiner

How it works

In her recusal request letter, Hanson Bridgett partner Davina Pujari quotes from Judge Donato’s Oct. 18, 2019, orders in cases including Pennington v. Tetra Tech, the suit filed by current residents of what Lennar calls the San Francisco Shipyard, swapping the name Hunters Point, which is known as a Black neighborhood, for a name benign enough to attract high end condo buyers. Here the judge describes the hierarchy responsible for carrying out Tetra Tech’s cleanup work:

“’The United States Navy is the lead agency responsible for the environmental remediation of HPNS [Hunters Point Naval Shipyard]. It hired defendants Tetra Tech, Inc. and Tetra Tech EC, Inc., to do the clean-up work, and has paid them approximately three hundred million dollars in federal funds for work they did not do, as plaintiffs allege. A substantial amount of litigation has ensued, much of which is pending before this Court.’ (Emphasis added.)”

It’s obvious on its face that this judge is skeptical the workers came up with this idea completely on their own, deciding to swap out the samples that day just because they felt like it.

One reaches the obvious conclusion: These men must have been following orders. They must have been told to speed up the cleanup – to get it done, so more condos could be built, sold and occupied, more residents exposed to radiation poisoning, perhaps more lives prematurely lost.

Apparently, people with more power in the Tetra Tech organizational hierarchy originated the idea of switching the samples, simplifying cleanup by simply declaring the shipyard magically cleaned of all the radiation and other deadly toxins that make it the most contaminated ground in the country. They communicated down the chain of command the suggestion that whoever pulled off this cheating – hopefully undetected – would be rewarded for fast-tracking the cleanup. So, at least two of the workers complied.

The Navy is working with Lennar at both Hunters Point and Treasure Island. The command structure and pecking order is identical:

1) Federal, state and local politicians expect to benefit politically – and some evidence suggests financially as well – from the redevelopment of these former Navy bases.

2) The Navy feels political pressure to speed up the work.

3) Lennar is the builder, eager to profit. Lennar steps on everyone’s heels to hurry.

4) The Navy hires the contractor, Tetra Tech, which is henceforth placed under marching orders to speed up the work.

5) Tetra Tech repeats that order to its management staff.

6) Management in turn pressures the working stiffs on the ground to speed things up.

Feeling the heat, the workers follow orders – stated or unstated – swapping out dirty dirt with clean. The fact that two workers complied means that at least two people got the message loud and clear.

Somebody was found out. Somebody must pay.

Neither Tetra Tech’s CEO nor its management staff were incarcerated. Instead, the employee scapegoats in this top-down scenario of corruption and blame – Justin Hubbard and Stephen Rolfe – took one for the team, serving eight-month prison sentences.

Judge Donato’s recusal could result in absolving Tetra Tech of any responsibility to repay hundreds of millions of dollars plus damages in what’s being called the “biggest case of eco-fraud in US history” since the EPA found that “as much as 97 percent of the cleanup data is unreliable and must be retested.”

But this judge appears unsatisfied with handing Tetra Tech a big bill. What terrifies Tetra Tech is his dogged determination to hold the ultimate wrongdoers accountable.

Who is Judge Donato?

U.S. District Judge James Donato, in addition to presiding over the Tetra Tech case, is overseeing an even “hotter” case, the process of estimating PG&E’s total wildfire liability for its bankruptcy case.

Hanson Bridgett has taken on a well-respected judge. James Donato, 59, from Pasadena, California, leaped from a 1983 UC Berkeley BA to a 1984 Harvard Master of Arts degree and a 1988 Juris Doctor degree from Stanford Law School after serving on the board of the Stanford Law Review.

In San Francisco, Donato clerked at the U.S. Court of Appeals for the 9th Circuit from 1988 to 1989; was an associate at Morrison and Foerster from 1990 to 1993; served as deputy city attorney in San Francisco from 1993 to 1996; was a partner at Cooley LLP until 2009 and a litigation partner in the San Francisco office of Shearman and Sterling concentrating on antitrust litigation and class action lawsuits from 2009 to 2014. He is also past president of the Bar Association of San Francisco.

On June 20, 2013, Donato was nominated by President Barack Obama to serve in the U.S. District Court for the Northern District of California. His nomination was submitted to the Senate, which confirmed him 90-5 on Feb. 25, 2014. Donato received his judicial commission the following day.

Carol Harvey is a San Francisco political journalist specializing in human rights and civil rights. She can be reached at carolharvey1111@gmail.com. Bay View editor Mary Ratcliff can be reached at editor@sfbayview.com.