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The U.S. Navy, state and city agencies, cleanup contractors including Tetra Tech, and property manager John Stewart Co. named as defendants
by Carol Harvey
On Tuesday, Jan. 21, 2020, a press conference was held in front of San Francisco Superior Court, at 400 McAllister, at which San Francisco Attorney Stanley Goff and lead plaintiffs and former Treasure Island residents Andre Patterson and Felita Sample publicly announced a “class action lawsuit and complaint for damages,” arising from public and private exposure to toxins on Treasure Island.
The Navy’s toxic history on Treasure Island
For 56 years, 1941 to 1997, the United States Navy contaminated with radiation and chemicals its base on Treasure Island in San Francisco Bay. During those years, thousands of Navy personnel cycled on and off the island.
After the island was decommissioned in 1997, in anticipation of redeveloping Treasure Island, remediation contract workers were employed by the Navy to clean radiation and chemicals from five toxic dumps the Navy called “solid waste disposal areas.”
San Francisco citizens, many of them homeless, were, and continue to be, housed there in dilapidated Navy housing with walls full of asbestos and toxic black mold.
Children attended a now-shuttered elementary school covered by an asbestos roof. Flaking lead paint blows in the island’s high winds from broken down Navy buildings onto students currently studying in, and exiting, an operating charter school, the Life Learning Academy.
Before they were brought to the island, none of the Navy troops, civilians or cleanup workers were informed that they would be exposed in their homes, schools or workplaces to radiation, chemicals, asbestos, toxic mold and lead. It has been alleged that Navy contractors failed to supply cleanup workers with proper protective gear.
The class action lawsuit
The lawsuit filed by Attorney Goff on Jan. 17 states: “Soil at the site is contaminated with radioactive waste (and) with nuclear byproducts on the island that were higher than [the] Navy disclosed.”
Because the defendants “engaged in an ultra-hazardous activity,” island residents, children and workers were exposed to these toxins. This exposure caused “harm, damages, losses, injuries, including fear of contracting cancer, birth defects for their children, born and unborn, and economic and non-economic damages.”
Who are the members of this class?
The suit identified class plaintiffs as “former and current residents of Treasure Island, consisting of individuals who have been living in, or had substantial contact with, the Treasure Island Community, from 2006 to the present.” Forty-seven lead plaintiffs were listed. Other unnamed plaintiffs were yet to be “incorporated herein.”
The suit states on line 37: “Plaintiffs bring this lawsuit as a class action and on behalf of themselves and all others who are similarly situated. The class is composed of all persons who WERE RESIDENTS OR ARE RESIDENTS OF TREASURE ISLAND, consisting of individuals who have been living, working, attending school or had substantial contact with the community from 2007 to present.”
Why a class action lawsuit?
Line 40 continues: “The members of the class are so numerous, approximately 2,000 residents, that joining them all individually would be impracticable. Plaintiffs don’t know the exact number of the members of the class at this time, but the number and identity of the class members is easily ascertainable through Defendants’ business records.”
Fourteen defendants were named:
1) Treasure Island Development Authority (TIDA), administering Treasure Island “under the municipality of the City of San Francisco”;
2) Treasure Island Homeless Development Initiative (TIHDI, now One Treasure Island), an umbrella agency managing island subsidized housing “under the municipality of the City of San Francisco”;
3) Shaw Environmental, a Navy cleanup contractor;
4) Jim Sullivan, a past “U.S. Navy cleanup director”;
5) David Clark, now a U.S. Navy “clean up lead project manager”;
6) Keith Forman, a past “U.S. Navy representative”;
7) Tetra Tech EC, Inc., a remediation contractor indicted in cleanup fraud at Hunters Point;
8) The California State Department of Toxic Substance Control (DTSC), regulators with final approval of island cleanup;
9) The San Francisco Department of Public Health;
10) Lennar, Inc., a builder, active at Hunters Point and Treasure Island;
11) Dan L. Batrack, a Lennar official;
12) Five Point Holdings, LLC, a consortium, active in Treasure Island redevelopment;
13) The John Stewart Co., a property management corporation responsible for island market rate and subsidized housing; and
14) (John) Does, 1-100 inclusive, who have yet to be named.
These 14 defendants were charged with:
1) False and misleading statements;
2) Negligence fear of cancer;
3) Strict liability for ultra-hazardous activities;
4) Violation of Proposition 65;
5) Public nuisance;
6) Private nuisance;
7) Civil conspiracy.
Plaintiffs demanded a jury trial.
Eight charges, or ‘causes of action’
First cause of action: False and misleading statements
The suit accuses the defendants of fraud. It alleges: “Defendants made untrue and misleading statements about the implementation, execution, disposition, discharge, clean-up, and remediation of radiation and toxins at Treasure Island.”
It further states: “Defendants’ wrongful conduct constitutes unfair and fraudulent business practices that have in fact deceived Plaintiffs and class members in violation of California Business & Professions Code section 17500.”
Second cause of action: Negligence fear of cancer
Defendants exposed Plaintiffs “to radiation, carcinogens and other toxic substances,” acting with “despicable,” “cruel and unjust” malice aforethought, oppression and “fraudulent … intent to cause Plaintiffs harm” and in “conscious disregard for Plaintiffs’ rights.”
“Reliable medical or scientific opinion confirms that the Plaintiffs’ risk of developing cancer was significantly increased by the exposure and has resulted in an actual risk that is significant.”
As a result of defendants’ negligent conduct for failing to disclose to the plaintiffs and the public “a material fact” – “the true levels of radioactivity on Treasure Island” – “Plaintiffs suffered serious emotional distress from a fear that they will develop cancer as a result of the exposure.”
Defendants’ deliberate misconduct “undertaken with oppression, fraud or malice within the meaning of California Civil Code section 3294,” justifies “an award of exemplary damages sufficient to punish defendants and to deter them from such misconduct in the future.”
Third cause of action: Strict liability for ultra-hazardous activities
The suit states that defendants repeatedly exposed plaintiffs to ionizing radiation. It alleges that defendants are responsible for engaging in “ultra-hazardous activity at Treasure Island,” including “remediation of nuclear waste” and “radioactive materials.” As a result, “Plaintiffs have a reasonable fear that said exposure more likely than not increases their risk of developing cancer in the future.”
Plaintiffs’ “harm, damages, losses (and) injuries” include “fear of contracting cancer, birth defects for their children, born and unborn, and economic and non-economic damages.”
“Defendants conduct and behavior caused, and will continue to cause plaintiffs in the future, personal injury, pain, anxiety, mental and emotional distress, discomfort, fear, incontinence, property damage, loss of enjoyment of their property and life, the need for periodic examination and treatment, as well as economic losses, including loss of earnings, stigma damages, the cost of obtaining potential cure, and other needless expenditures of time and money.”
These harms would be anticipated as a result of the risk created by exposure to the radiation released at Treasure Island.
Defendants’ deliberate misconduct “undertaken with oppression, fraud or malice within the meaning of California Civil Code section 3294,” justifies “an award of exemplary damages sufficient to punish defendants and to deter them from such misconduct in the future.”
Fourth cause of action: Violation of Proposition 65
Proposition 65 California Health and Safety Code sections 25249.5 – 25249.13 impose a “Prohibition on Contaminating Drinking Water With Chemicals Known to Cause Cancer or Reproductive Toxicity.”
Proposition 65 section 25249.6 also “required the Defendants to disclose and warn the Plaintiffs of the exposure to chemicals known to cause cancer or reproductive toxicity.”
“Since 2007, all Defendants breached this duty when they failed to comply with Proposition 65 by failing to notify Treasure Island Plaintiffs that they were releasing radioactive materials in the air, and by failing to give warning that Defendants were leaving, covering over, paving under, and covering up radioactive materials on the grounds of Treasure Island.”
Fifth cause of action: Public nuisance
Plaintiffs suffered harm because defendants created a public nuisance.
“Ordinary people would be reasonably annoyed, disturbed and offended by Defendants’ conduct in failing to disclose that they left radioactive soil in the densely populated residential community,” “fully aware that dust, debris, and radionuclides would blow with the prevailing winds over the Treasure Island Community and cause life threatening permanent injuries and death.”
By leaving radioactive materials and other toxins on Treasure Island, defendants “created conditions that were harmful and injurious to health and life; were offensive to the senses; were an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life and property; unlawfully obstructed the free passage or use, in the customary manner; and created other dangerous conditions to Treasure Island by contaminating ground water, soil for vegetation, lawns, and the quality of the air that the Plaintiffs have to breathe.
“Defendants’ conduct was a substantial factor in causing the Plaintiffs’ injuries … including, … cancer, asthma, respiratory failure, heart attack, (and) stroke.”
Sixth cause of action: Private nuisance
“By leaving radioactive materials and other toxins on Treasure Island,” and “by contaminating ground water, soil for vegetation, lawns, and the quality of the air that they had to breath(e),” Defendants interfered with the Plaintiffs’ safe and free use and enjoyment of their property and land, creating conditions that were offensive to the senses, harmful and injurious to health and life.
“Defendants’ behavior caused the Plaintiffs personal injury, pain, anxiety, mental and emotional distress, discomfort, fear, incontinence, suffering, property damage, loss of enjoyment of their property and life, the need for periodic examination and treatment, as well as economic losses including loss of earnings, stigma damages, the cost of obtaining potential cure, and other needless expenditures of time and money.”
Seventh cause of action: Conspiracy
All named Defendants – Shaw Environmental, Jim Sullivan, David Clark, Keith Forman, Tetra Tech EC, Dan Batrack of Lennar, Inc., agents of Five Point Holdings, LLC, and John Stewart corporation management and employees – “conspired and planned to intentionally falsify statements to the Plaintiffs and the public regarding the true levels of radiation contamination on Treasure Island and to not issue true disclosures and warnings regarding the true levels of toxins and other hazardous waste on Treasure Island.”
Eighth cause of action: Injunctive relief
“Defendants” – including TIDA, TIHDI, State Department of Toxic Substance Control, SF Department of Public Health, Lennar, Inc., and Five Point Holdings, LLC – “are aware that there remain dangerous levels of radiation on Treasure Island which endangers the local community and any other people who eventually relocate there.”
Defendants have ignored Plaintiffs’ repeated demands that they stop redeveloping Treasure Island “until thorough, complete, and verified test results prove that all the toxins and radioactive materials have been removed.”
Because “Defendants’ wrongful conduct is ongoing and threatens to be continued in the future,” Plaintiffs have suffered and will continue to suffer irreparable injury unless and until this Court enjoins Defendants from continuing their wrongful conduct.
“Plaintiffs have no adequate remedy at law for the injuries suffered. An award of monetary damages would not provide an adequate remedy because money damages cannot replace safety, health and lives lost from exposure to radiation and other toxins confirmed now at Treasure Island.
“An injunction is the only remedy available to Plaintiffs to protect themselves and the general public.”
Plaintiffs ask for judgement against defendants for:
“1) An order requiring Defendants to show cause … why they should not be enjoined as set forth in this complaint, during the pendency of this action;
“2) A preliminary injunction enjoining each defendant and their agents, servants and employees, … and all persons acting under, in concert with, or for them” to:
a) Take “anticipatory action” to prevent harm and thoroughly explore current toxicity and carefully analyze courses of action in order to present the least threat to residents on Treasure Island; and
b) “Conduct an immediate Health and Safety assessment for residents, workers and students on Treasure Island.”
3) Each of the Defendants “must be ordered to STOP ALL DEVELOPMENT, CONSTRUCTION, BUILDING, DIGGING, ERECTING, DISTURBING THE SOIL, DIRT, EARTH, BUILDINGS, STRUCTURES, PIPES AND ALL ACTIVITY AT TREASURE ISLAND UNTIL INDEPENDENT VERIFIED REPORTS CAN BE OBTAINED SHOWING COMPLETE AND TOTAL REMEDIATION OF ALL TOXIC SUBSTANCES, INCLUDING ALL RADIOACTIVE MATERIALS FROM Treasure Island.”
4) Monetary damages of $2 billion.
5) Costs;
6) Further relief as the Court deems proper.
Plaintiffs and members of the class request that the court enter an order or judgment against current and future defendants for:
1) An order certifying the class, appointing plaintiffs and their counsel to represent the class, and notice to the class to be paid by defendants;
2) An injunction ordering defendants to cease and desist any additional remediation at Treasure Island.
3) An order requiring defendants to immediately pay for medical screenings for early detection of any radiation related medical conditions.
Carol Harvey is a San Francisco political journalist specializing in human rights and civil rights. She can be reached at carolharvey1111@gmail.com.
