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Redevelopment Commision Holding Meeting on the Shipyard Conveyance Agreement
On April 1, the San Francisco Chronicle made the shocking announcement that the Navy and the City had just signed a conveyance agreement to give the green light to Lennar to start building 1,600 homes on Parcel A of the Hunters Point Shipyard as early as this summer. Yet Proposition P, passed in 2000 by an 87 percent voter landslide, calls for the entire Shipyard to be cleaned to residential standards before any development begins – and the Shipyard is far from clean
On April 1, the San Francisco Chronicle made the shocking announcement that the Navy and the City had just signed a conveyance agreement to give the green light to Lennar to start building 1,600 homes on Parcel A of the Hunters Point Shipyard as early as this summer. Yet Proposition P, passed in 2000 by an 87 percent voter landslide, calls for the entire Shipyard to be cleaned to residential standards before any development begins – and the Shipyard is far from clean.
To win environmental justice, the community is fighting back. Intent on stopping any conveyance or development, the Community First Coalition is sending this letter to the Redevelopment Commission. The Commission is holding a special meeting on the conveyance agreement on April 29th, 6pm at the Bayview Opera House, just east of Third Street, in Hunters Point. Everyone is urged to attend.
Commissioner Ramon E. Romero, President
San Francisco Redevelopment Agency Commission
Dear Commissioner Romero:
On behalf of the Community First Coalition (CFC), a coalition of citizen groups dedicated to environmental and economic justice for the people of Bay View Hunters Point and other communities, we request the San Francisco Redevelopment Agency (SFRA) continue the matter of your Agency’s approval, on March 31, 2004, of the Conveyance Agreement (CA) between the U.S. Navy and the City and County of San Francisco (CCSF) for the Hunters Point Shipyard for at least 60 days, but at least until such time as SFRA, as the California Environmental Quality Act (CEQA; Public Resources Code § 21000 et seq.) "lead agency," completes its environmental review of both the CA and the Lennar/BVHP Disposition Development Agreement (DDA), executed on December 2, 2003, by the SFRA[1]. Both the CA and DDA are "projects' within the meaning of CEQA.
Request for Continuance of Conveyance Agreement Pending Environmental Review
The CCSF Redevelopment Commission took discretionary action on December 2, 2003, by approving the DDA for the development of the Hunters Point Shipyard. Additionally, by and through Mayor Gavin Newsom, CCSF took what is clearly discretionary action by approving (i.e., entering into) the CA with the U.S. Navy. The CA sets a specific timetable for giving CCSF a portion of the Hunters Point Shipyard for residential development (herein referred to as Parcel A), as well as giving commercial development rights to Lennar/BVHP, a private, non-governmental organization.
To our knowledge (and please advise us immediately if and how we are wrong), neither of the discretionary actions involving the CA and DDA previously described has been subjected to public review or comment, nor have these actions been subjected to environmental review as required by CEQA for such projects.
On November 7, 2000, CCSF voters passed, with 87 percent approval, Proposition P calling upon the U.S. Navy to remediate the entire Hunters Point Naval Shipyard to residential levels for unrestricted use of the property. The Navy is required under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. § 9601 et seq., and its implementing regulations, 40 CFR Parts 300–311, to take community acceptance into account in its cleanup decisions.
On July 30, 2001, CCSF's Board of Supervisors (the Board) passed unanimously a resolution implementing the will of the voters as expressed by Proposition P. The Board's vote confirmed as the policy of CCSF that the Navy should clean the Hunters Point Naval Shipyard of toxic and hazardous contamination to the highest level. Since the voters empowered the Board to enforce Proposition P, and the Board then proceeded to do so, the Board clearly has a duty to also vote on the CA.
Both the CA and the DDA must be subjected to all applicable government approvals, including all required environmental reviews under both CEQA and its federal counterpart, the National Environmental Policy Act (NEPA). There are a number of additional governmental approvals that must be obtained prior to the development allowed by the CA and DDA, including General Plan amendment(s) and redevelopment area mergers.
There are also legal mandates for a subsequent or supplemental environmental analysis to augment the study done in 1999, which provides no complete or adequate environmental analysis of the impacts associated with the development envisioned and allowed by the CA and DDA. The impacts that are being ignored pose imminent threats of grave if not fatal harm to human life and safety, as well as the environment.
The impacts and their potentially grave harm must be analyzed by considering the pertinent documentation from the Navy and the Hunters Point and San Francisco Fire Departments, particularly in regard to the residential development being planned for Parcel A under the CA and DDA. It is common knowledge that this area has been the site of a series of fires during the summer months of the years 2003, 2002, 2001 and 2000.
The ignition of these fires was fueled by flammable, explosive chemicals whose presence is documented in the Parcel A Record of Decision and include petroleum products, pesticides, volatile organic compounds in the air and soil, and gaseous emissions from the partially capped industrial landfill on Parcel E, which is immediately adjacent to Parcel A.[2]
The U.S. Navy and Tetra Tech EM Inc. have provided documentation that five separate fires occurred in upland Parcel A between July and August of 2003 at the exact site where the Lennar/BVHP developers propose to begin the demolition and deconstruction of existing Parcel A buildings in time for the proposed construction of 1,600 homes this summer.
As a further example of matters that must be fully investigated and analyzed to adequately protect human health and safety as well as the environment, Hunters Point Fire District Run Report #45, dated September 11, 2001, documents that at 3:15 p.m. that day both SFFD and HPFD were dispatched to Crisp Avenue near Parcel A where they encountered "fire moving at a rapid speed with flames 15 to 25 feet high." The fire was observed moving towards the parking lot area of Building 815 in the Parcel A region of the Shipyard.
According to the email alert sent by the Navy under the Community Notification Plan, "family dwellings above the fire were threatened. After deployment of several hundred feet of hose and equipment, the fire was extinguished at 5pm." HPFD was reactivated to the Building 815 site to extinguish hot spots over the next two days as verified in fire run reports #56 and #47. A total of seven fires were responded to in September of 2001. All occurred in the Parcel A and B regions of the Shipyard.
Further CEQA/NEPA analysis is legally required for the proposed development of Parcel A given the additional facts that:
1. Parcel A has undergone boundary changes as documented in the Parcel A FOST Revision 2 dated August 26, 2002, to include sub parcels N-13a and N-18A. Additionally, in the Draft final FOST dated March 19, 2004, Parcel A boundaries were revised to exclude radiation-impacted Buildings 813 and 819 situated along Spear Avenue. A NEPA compliant EPA risk assessment protecting human health is, therefore, a requirement (morally as well as legally).
2. On August 16, 2000, the Parcel E landfill, adjacent to Parcel A, was the site of a fire that burned for six hours. Several areas estimated to be less than five acres continued to burn for several weeks according to the ATSDR Consultation Summary. The Parcel E landfill has been classified by ATSDR as a Completed Exposure Pathway, meaning that in assessment of risk to nearby residents, it could be shown that "exposure to contaminants could have occurred in the past, is occurring or will occur in the future.”
3. An August 2002 landfill gas survey detected flammable, explosive methane gas emanating from the Parcel E landfill within 100 feet of Parcel A in concentrations exceeding 80 percent in air. This represents a violation of state law mandating that methane gas concentrations be less than 5 percent in air. A recent decision by the California Integrated Waste Management Board forbids construction within 1,000 feet of the detection of methane gas. The Navy publicly acknowledges in the Draft Final FOST that it was required to use active extraction to remove subsurface methane gas from beneath laboratories and kennels operated by the University of California at San Francisco at the boundary of Parcels E and A in January of 2004.
4. The Draft Final Historical Radiological Assessment, released on February 25, 2004, documents Parcel A to be the site of five MARSSIM Class 1 Radiation-impacted contaminated buildings, including Buildings 816, 821, 813, 819 and FUDs site 815. Parcel A covers approximately 75 acres and is the site of 61 buildings and 43 foundations, according to the 1995 ROD. The Navy conducted investigations on nine Parcel A sites only. Additionally, radiation-impacted buildings on Parcel A have been cleared for unrestricted use by an outdated cleanup standard that is well below the EPA recommended level and is currently being challenged in California Superior Court.
5. Parcel A buildings and foundations have been determined to contain lead and asbestos. Deconstruction of these structures during development may lead to the release of these toxins into surrounding air and soil, thus producing pathways for exposure for future Parcel A residents.
6. Proposition P, which contains a Declaration of Policy, passed by a landslide 87 percent of the CCSF electorate in the November 7, 2000, municipal election. Proposition P states, in pertinent part: "[T]he National Contingency Plan, the regulation governing cleanup of a toxic site, established community acceptance as one of its nine principal criteria. The Bayview Hunters Point community wants HPS cleaned to a level enabling the unrestricted use of the property - the highest standard for cleanup established by the U.S. Environmental Protection Agency." Proposition P was ratified by the CCSF Board of Supervisors on July 30, 2001, and signed by the Mayor on August 10, 2001.
7. The Memorandum of Agreement between the City of San Francisco and the Navy, signed on November 2, 2000, stipulates that cleanup of Parcel A and the remaining five shipyard land parcels adhere to strict health-based preliminary remediation goals to provide total estimates of carcinogenic and non-carcinogenic health hazards under the residential scenario. The Parcel A Human Health Risk Assessment Report (HHRA) assesses the probability and magnitude of potential harm to human health from exposure to threatened and actual releases of hazardous substances on Parcel A sites. The HHRA and supporting documents do not support the Navy's contention that the nine sites explored on Parcel A pose no threat to human health or the environment. The Navy reports hazard indices up to 36 times greater than health protective standards for children exposed to soil on Parcel A under a residential scenario; soil lead contamination above California preliminary remediation goals; hazard indices 100 times greater than health protective standards for vegetable consumption at numerous Parcel A sites; and an exceedingly high cancer risk of 2x10-3 at the major IR site investigated. Studies conducted by the San Francisco Department of Public Health in 1995 and 1997 identify a high incidence and mortality from cancer among BVHP residents. The scientific documentation by the Navy of hazard indices and cancer risks above health protective standards on Parcel A is in violation of multiple federal, state and local laws and regulations in addition to violating the terms of the original Conveyance Agreement signed by Mayor Willie Brown on November 2, 2000. These laws and regulations include the CERCLA act of 1980 as amended by the SARA act of 1986, NEPA, CEQA and Proposition P.
Executive Order 12898, 59 Fed. Reg. 7629 (1994), Section 1-101, requires that each federal agency, including the U.S. Navy and U.S. EPA, make achieving "Environmental Justice" part of its mission by identifying and addressing any disproportionately high and adverse human health or environmental effects of its programs, policies and activities on minority populations and low-income populations. The BVHP neighborhood is a predominately African-American community of color that is disproportionately impacted by existing environmental hazards and has a disproportionately high number of families with household incomes below the poverty level compared to the CCSF as a whole.
Title VI of the Civil Rights Act of 1964 requires CCSF, and the SFRA, in coordination with the California Environmental Protection Agency, Department of Toxic Substances Control, to identify and address any disproportionately high human health, socioeconomic or environmental impacts of their programs, policies and actions on minority or low-income populations. CEQA is primarily a public disclosure statutory scheme allowing the affected community to be informed and members of the public to voice their opinion, and to have input, about projects that may affect their environment. CEQA requires a review of the environmental impacts of overall activities ("the whole of an action" - 14 Cal. Code Regs. § 15378(a)) defined as "projects." (Pub. Res. Code § 21065.) This strong, broad right of public participation under CEQA has a political component (i.e., CEQA allows the compilation of a record concerning the approval of development projects that can be used by the public to vote environmentally insensitive decision-makers out of office come election day), the violation or deprivation of which has constitutional ramifications on an affected community as well as the public at large.
In mandating separate Disposition Development Agreements and “conveyance agreements” for the development of the shipyard (Parcels A-E), SFRA, as the lead agency under CEQA, is "piecemealing" the overall activity. CEQA strongly forbids this kind of “chopping up [of] a proposed project into bite-size pieces which, individually considered, might be found to have no significance on the environment.” (Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 716, citing Orinda Assn. v. Board of Supervisors (1986) 182 Cal.App.3d 1145, 1171, 1172; see also Bozung v. LAFCO (1975) 13 Cal.3d at 283-284; Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 309.)
CEQA provides that a proposed project may have a significant effect on the environment when the possible effects on the environment are individually limited but “cumulatively considerable.” (Pub. Res. Code § 21083(b); 13 Cal. Code Regs. § 15065.) “’Cumulatively considerable’ means that the incremental effects of an individual project are considerable when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects.” (14 Cal. Code Regs. § 15065.) In addition to analyzing the direct impacts of a project, the CEQA lead agency must also consider a project's potentially significant cumulative impacts.
Recent statutory law has invigorated CEQA's role in ensuring "the fair treatment of people of all races, cultures, and incomes with respect to the development, adoption, implementation, and enforcement of environmental laws, regulations, and policies" (i.e., environmental justice).” (Emphasis added; see SB 115, Solis; Stats. 99, ch. 690, Gov. Code § 65040.12 and Pub. Res. Code §§ 72000-720001.)
In conjunction with the regulatory provisions of the federal Clean Air Act and Division 26 of the Health and Safety Code,[3] CEQA provides an ideal mechanism for ensuring that Environmental Justice will be addressed in all activities and projects that may have a significant effect on the environment.
CEQA requires that environmental documents (i.e., an environmental impact report (EIR) or a negative declaration) be prepared whenever a public agency proposes to undertake a discretionary activity (which is defined extremely broadly as the "whole of an action" being engaged in) that may have a significant effect on the environment. (See Pub. Res. Code §§ 21002.1, 21061, 21064, and 21080.1; see also 14 Cal. Code Regs. §15002.)
In enacting CEQA, the Legislature expressly declared a number of important policies with which activities and documentation must be consistent, and which must be complied with and enforced, including:
"It is the intent of the Legislature that all agencies of the state government which regulate activities of private individuals, corporations, and public agencies which are found to affect the quality of the environment, shall regulate such activities so that major consideration is given to preventing environmental damage, while providing a decent home and satisfying living environment for every Californian." (Pub. Res. Code § 21000(g) (emphasis added).)
It is California policy to "[d]evelop and maintain a high-quality environment now and in the future, and take all action necessary to protect, rehabilitate, and enhance the environmental quality of the state." (Pub. Res. Code § 21001(a) (emphasis added).)
It is the policy of this state to require that public agencies "[t]ake all action necessary to provide the people of this state with clean air and water, enjoyment of aesthetic, natural, scenic, and historic environmental qualities, and freedom from excessive noise." (Pub. Res. Code § 21001(b) (emphasis added).)
State policy calls for ensuring "that the long-term protection of the environment, consistent with the provision of a decent home and suitable living environment for every Californian, shall be the guiding criterion in public decisions." (Pub. Res. Code § 21001(d) (emphasis added).)
State policy requires "governmental agencies at all levels to develop standards and procedures necessary to protect environmental quality" (Pub. Res. Code § 21001(f) (emphasis added).)
California policy requires "governmental agencies at all levels to consider qualitative factors as well as economic and technical factors and long-term benefits and costs ..." (Pub. Res. Code § 21001(g) (emphasis added).)
"The interrelationship of policies and practices in the management of natural resources and waste disposal requires systematic and concerted efforts by public and private interests to enhance environmental quality and to control environmental pollution." (Pub. Res. Code § 21000(f).)
"Every citizen has a responsibility to contribute to the preservation and enhancement of the environment." (Pub. Res. Code § 21000(e).)
The recent enactment of Public Resources Code sections 71110 through 71115, and Government Code section 65040.12, in conjunction with other statutory and regulatory requirements, such as the Bay Area Air Quality Management District State Implementation Plan and EPA regulations, require the SFRA, as well as other agencies, to infuse Environmental Justice into every aspect of decision-making. This panoply of statutory authority supplements the general authority to "do such acts as may be necessary for the proper execution of the powers and duties granted to, and imposed upon [a public agency] ..." (Health & Saf. Code § 39600.) Further, the rules, regulations and standards that the SFRA and other agencies adopt must be "consistent with the state goal of providing a decent home and suitable living environment for every Californian"[4] (Id. § 39601(c).)
Therefore the two agreements, the CA and DDA, and all associated activities constituting the "whole of an action" being carried out by the public agencies involved capable of having an adverse environmental impact (14 Cal. Code Regs. § 15378(a); see also Pub. Res. Code § 21065), must be subjected to environmental review pursuant to CEQA to ensure that all the project's adverse, potentially significant impacts on the Bayview Hunters Point community, as well as the entire region in which the project is located, are fully and fairly investigated, identified, analyzed, evaluated and, perhaps most importantly of all, mitigated - while also ensuring that project alternatives capable of avoiding or reducing the impacts are considered and, if feasible, adopted.
Request for Commission Members to Recuse Themselves Who Have Appearance of Conflict of Interest
We respectfully request that all members of the Redevelopment Commission currently under investigation by any federal or state agency, including the San Francisco Ethics Commission, recuse themselves from voting on this matter because of the appearance - if not the actual existence - of conflicts of interest in dealings with the Lennar/BVHP developers. We are informed and believe the SFRA has been subjected to questions of conflict of interest of several of its members - such as Benny Yee, Leroy King and Darshan Singh - for their dealings with Lennar/BVHP, which is apparently comprised of Lennar Communities, LNR Partners, Luster Venture and Mariposa Management. The following excerpt from the SF Chronicle explains the conflict under investigation:
“Ethics panel eyes redevelopment role in Hunters Point
“SF Chronicle, Monday, March 17, 2003
“San Francisco - The trio whose habit of voting together on controversial items has tagged them the "Pep Boys" of the San Francisco Redevelopment Commission - Benny Yee, Leroy King and Darshan Singh - were all hit with subpoenas from the city's ethics watchdog agency this past week.
“Soon to join the list: City Hall insider Susan Horsfall, who works for the law firm that represents Lennar Corp. - the developer that won the right to take over the old Hunters Point shipyard.
“No one at the Ethics Commission is talking, but word among Redevelopment insiders is that a complaint came in more than a year ago alleging that Horsfall and the Pep Boys appeared to be a little too close for comfort - often dining out together after meetings.
“Right around the time, it seems, that the commission - including the Pep Boys - voted to disregard its consultant's findings and award the rights to develop the shipyard to Lennar.”
Under these highly unusual circumstances, there would clearly be, at the very least, an appearance of impropriety to allow these individuals to vote on pending matters as to which a conflict of interest can be reasonably inferred. Indeed, we believe any member of the SFRA who has any type of economic interest in or in regard to Lennar/BVHP (positive or negative, e.g., the possibility of having to return, refund or pay for benefits wrongly obtained from the developer, not to mention the cost of having to go to jail for having requested or obtained such benefits) is required under the Political Reform Act of 1974, Gov. Code § 81000 et seq., to recuse him or herself from voting on any project or agreement with the developer.
Apparently, this did not take place at the SFRA's December 2, 2003, meeting, however, and we hereby object to and request that all action taken at that meeting (as well as any subsequent meeting in which the so called "Pep Boys" participated) be declared null and void and set aside, without having any force or effect whatever ab initio. Our request is supported by the strict, express requirements of the Political Reform Act, including the following prohibition, which the SFRA apparently violated by letting the Pep Boys vote on matters in which Lennar/BVHP, or any of its associated entities or individuals, is in any way involved:
"No public official at any level of state or local government shall make, participate in making or in any way attempt to use his official position to influence a governmental decision in which he knows or has reason to know he has a financial interest." (Gov. Code Section 87100 (emphasis added).)
Conclusion
Wherefore, for good cause shown, the Bay View Hunters Point Community First Coalition respectfully requests the San Francisco Redevelopment Agency (SFRA) grant its request and continue the matter of your Agency’s approval of the “conveyance agreement” between the U.S. Navy and the City and County of San Francisco for the Hunters Point Shipyard, for at least 60 days, but until such time as the SFRA as the lead agency under the California Environmental Quality Act completes its environmental review on its proposed project, including the April 1, 2004, conveyance agreement and the Lennar/BVHP Disposition Development Agreement executed December 2, 2003, by the SFRA.
Secondly, we respectfully request that members Benny Yee, Leroy King and Darshan Singh recuse themselves from participating in these proceedings because of the appearance of impropriety or actual conflict of interest involving the project applicant or beneficiary, Lennar/BVHP.
Thirdly, we respectfully request that you declare all actions taken in which Lennar/BVHP or any of its associated persons or entities have been involved, and in which Benny Yee, Leroy King and Darshan Singh (aka the Pep Boys) participated, be declared null and void and immediately set aside, having no legal force or effect whatever ab initio.
Respectfully Submitted,
Olu Obayemi, Attorney at Law
Counsel for Community First Coalition (CFC)
2710 Telegraph Ave., Suite 260
Oakland, CA 94612
Tel/Fax: (510) 836-0716
E-mail:obayemilaw [at] yahoo.com
cc: Mayor Gavin Newsom, City Attorney Dennis Herrera, Board of Supervisors, Congresswoman Nancy Pelosi, Ethics Commission Executive Director Mabel Ng
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[1] If you disagree with this CEQA characterization, please advise us immediately, and please provide the legal authority on which you are relying. If you don't advise us that you disagree, we will assume that you agree and will rely on that agreement in taking further action.
[2] Information on these vital subjects is readily available, and we respectfully request that to the extent it hasn't been done yet, a full investigation be conducted prior to an further discretionary action involving the CA and DDA. If such an investigation has been done or commenced, please consider this our request under the California Public Records Act for an opportunity to inspect all writings in your possession concerning such an investigation.
[3] 42 U.S.C. § 7401 et seq. (Public Law 88-206, 77 Stat. 392, December 17, 1963, as last amended by the Clean Air Act Amendments of 1990, P. L. 101-549, November 15, 1990); Health & Saf. Code § section 39000 et seq.
[4] This overlapping of statutory goals and requirements (see Pub. Res. Code § 21000(g), quoted above) is typical among statutory schemes aimed at protecting the public health.
To win environmental justice, the community is fighting back. Intent on stopping any conveyance or development, the Community First Coalition is sending this letter to the Redevelopment Commission. The Commission is holding a special meeting on the conveyance agreement on April 29th, 6pm at the Bayview Opera House, just east of Third Street, in Hunters Point. Everyone is urged to attend.
Commissioner Ramon E. Romero, President
San Francisco Redevelopment Agency Commission
Dear Commissioner Romero:
On behalf of the Community First Coalition (CFC), a coalition of citizen groups dedicated to environmental and economic justice for the people of Bay View Hunters Point and other communities, we request the San Francisco Redevelopment Agency (SFRA) continue the matter of your Agency’s approval, on March 31, 2004, of the Conveyance Agreement (CA) between the U.S. Navy and the City and County of San Francisco (CCSF) for the Hunters Point Shipyard for at least 60 days, but at least until such time as SFRA, as the California Environmental Quality Act (CEQA; Public Resources Code § 21000 et seq.) "lead agency," completes its environmental review of both the CA and the Lennar/BVHP Disposition Development Agreement (DDA), executed on December 2, 2003, by the SFRA[1]. Both the CA and DDA are "projects' within the meaning of CEQA.
Request for Continuance of Conveyance Agreement Pending Environmental Review
The CCSF Redevelopment Commission took discretionary action on December 2, 2003, by approving the DDA for the development of the Hunters Point Shipyard. Additionally, by and through Mayor Gavin Newsom, CCSF took what is clearly discretionary action by approving (i.e., entering into) the CA with the U.S. Navy. The CA sets a specific timetable for giving CCSF a portion of the Hunters Point Shipyard for residential development (herein referred to as Parcel A), as well as giving commercial development rights to Lennar/BVHP, a private, non-governmental organization.
To our knowledge (and please advise us immediately if and how we are wrong), neither of the discretionary actions involving the CA and DDA previously described has been subjected to public review or comment, nor have these actions been subjected to environmental review as required by CEQA for such projects.
On November 7, 2000, CCSF voters passed, with 87 percent approval, Proposition P calling upon the U.S. Navy to remediate the entire Hunters Point Naval Shipyard to residential levels for unrestricted use of the property. The Navy is required under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. § 9601 et seq., and its implementing regulations, 40 CFR Parts 300–311, to take community acceptance into account in its cleanup decisions.
On July 30, 2001, CCSF's Board of Supervisors (the Board) passed unanimously a resolution implementing the will of the voters as expressed by Proposition P. The Board's vote confirmed as the policy of CCSF that the Navy should clean the Hunters Point Naval Shipyard of toxic and hazardous contamination to the highest level. Since the voters empowered the Board to enforce Proposition P, and the Board then proceeded to do so, the Board clearly has a duty to also vote on the CA.
Both the CA and the DDA must be subjected to all applicable government approvals, including all required environmental reviews under both CEQA and its federal counterpart, the National Environmental Policy Act (NEPA). There are a number of additional governmental approvals that must be obtained prior to the development allowed by the CA and DDA, including General Plan amendment(s) and redevelopment area mergers.
There are also legal mandates for a subsequent or supplemental environmental analysis to augment the study done in 1999, which provides no complete or adequate environmental analysis of the impacts associated with the development envisioned and allowed by the CA and DDA. The impacts that are being ignored pose imminent threats of grave if not fatal harm to human life and safety, as well as the environment.
The impacts and their potentially grave harm must be analyzed by considering the pertinent documentation from the Navy and the Hunters Point and San Francisco Fire Departments, particularly in regard to the residential development being planned for Parcel A under the CA and DDA. It is common knowledge that this area has been the site of a series of fires during the summer months of the years 2003, 2002, 2001 and 2000.
The ignition of these fires was fueled by flammable, explosive chemicals whose presence is documented in the Parcel A Record of Decision and include petroleum products, pesticides, volatile organic compounds in the air and soil, and gaseous emissions from the partially capped industrial landfill on Parcel E, which is immediately adjacent to Parcel A.[2]
The U.S. Navy and Tetra Tech EM Inc. have provided documentation that five separate fires occurred in upland Parcel A between July and August of 2003 at the exact site where the Lennar/BVHP developers propose to begin the demolition and deconstruction of existing Parcel A buildings in time for the proposed construction of 1,600 homes this summer.
As a further example of matters that must be fully investigated and analyzed to adequately protect human health and safety as well as the environment, Hunters Point Fire District Run Report #45, dated September 11, 2001, documents that at 3:15 p.m. that day both SFFD and HPFD were dispatched to Crisp Avenue near Parcel A where they encountered "fire moving at a rapid speed with flames 15 to 25 feet high." The fire was observed moving towards the parking lot area of Building 815 in the Parcel A region of the Shipyard.
According to the email alert sent by the Navy under the Community Notification Plan, "family dwellings above the fire were threatened. After deployment of several hundred feet of hose and equipment, the fire was extinguished at 5pm." HPFD was reactivated to the Building 815 site to extinguish hot spots over the next two days as verified in fire run reports #56 and #47. A total of seven fires were responded to in September of 2001. All occurred in the Parcel A and B regions of the Shipyard.
Further CEQA/NEPA analysis is legally required for the proposed development of Parcel A given the additional facts that:
1. Parcel A has undergone boundary changes as documented in the Parcel A FOST Revision 2 dated August 26, 2002, to include sub parcels N-13a and N-18A. Additionally, in the Draft final FOST dated March 19, 2004, Parcel A boundaries were revised to exclude radiation-impacted Buildings 813 and 819 situated along Spear Avenue. A NEPA compliant EPA risk assessment protecting human health is, therefore, a requirement (morally as well as legally).
2. On August 16, 2000, the Parcel E landfill, adjacent to Parcel A, was the site of a fire that burned for six hours. Several areas estimated to be less than five acres continued to burn for several weeks according to the ATSDR Consultation Summary. The Parcel E landfill has been classified by ATSDR as a Completed Exposure Pathway, meaning that in assessment of risk to nearby residents, it could be shown that "exposure to contaminants could have occurred in the past, is occurring or will occur in the future.”
3. An August 2002 landfill gas survey detected flammable, explosive methane gas emanating from the Parcel E landfill within 100 feet of Parcel A in concentrations exceeding 80 percent in air. This represents a violation of state law mandating that methane gas concentrations be less than 5 percent in air. A recent decision by the California Integrated Waste Management Board forbids construction within 1,000 feet of the detection of methane gas. The Navy publicly acknowledges in the Draft Final FOST that it was required to use active extraction to remove subsurface methane gas from beneath laboratories and kennels operated by the University of California at San Francisco at the boundary of Parcels E and A in January of 2004.
4. The Draft Final Historical Radiological Assessment, released on February 25, 2004, documents Parcel A to be the site of five MARSSIM Class 1 Radiation-impacted contaminated buildings, including Buildings 816, 821, 813, 819 and FUDs site 815. Parcel A covers approximately 75 acres and is the site of 61 buildings and 43 foundations, according to the 1995 ROD. The Navy conducted investigations on nine Parcel A sites only. Additionally, radiation-impacted buildings on Parcel A have been cleared for unrestricted use by an outdated cleanup standard that is well below the EPA recommended level and is currently being challenged in California Superior Court.
5. Parcel A buildings and foundations have been determined to contain lead and asbestos. Deconstruction of these structures during development may lead to the release of these toxins into surrounding air and soil, thus producing pathways for exposure for future Parcel A residents.
6. Proposition P, which contains a Declaration of Policy, passed by a landslide 87 percent of the CCSF electorate in the November 7, 2000, municipal election. Proposition P states, in pertinent part: "[T]he National Contingency Plan, the regulation governing cleanup of a toxic site, established community acceptance as one of its nine principal criteria. The Bayview Hunters Point community wants HPS cleaned to a level enabling the unrestricted use of the property - the highest standard for cleanup established by the U.S. Environmental Protection Agency." Proposition P was ratified by the CCSF Board of Supervisors on July 30, 2001, and signed by the Mayor on August 10, 2001.
7. The Memorandum of Agreement between the City of San Francisco and the Navy, signed on November 2, 2000, stipulates that cleanup of Parcel A and the remaining five shipyard land parcels adhere to strict health-based preliminary remediation goals to provide total estimates of carcinogenic and non-carcinogenic health hazards under the residential scenario. The Parcel A Human Health Risk Assessment Report (HHRA) assesses the probability and magnitude of potential harm to human health from exposure to threatened and actual releases of hazardous substances on Parcel A sites. The HHRA and supporting documents do not support the Navy's contention that the nine sites explored on Parcel A pose no threat to human health or the environment. The Navy reports hazard indices up to 36 times greater than health protective standards for children exposed to soil on Parcel A under a residential scenario; soil lead contamination above California preliminary remediation goals; hazard indices 100 times greater than health protective standards for vegetable consumption at numerous Parcel A sites; and an exceedingly high cancer risk of 2x10-3 at the major IR site investigated. Studies conducted by the San Francisco Department of Public Health in 1995 and 1997 identify a high incidence and mortality from cancer among BVHP residents. The scientific documentation by the Navy of hazard indices and cancer risks above health protective standards on Parcel A is in violation of multiple federal, state and local laws and regulations in addition to violating the terms of the original Conveyance Agreement signed by Mayor Willie Brown on November 2, 2000. These laws and regulations include the CERCLA act of 1980 as amended by the SARA act of 1986, NEPA, CEQA and Proposition P.
Executive Order 12898, 59 Fed. Reg. 7629 (1994), Section 1-101, requires that each federal agency, including the U.S. Navy and U.S. EPA, make achieving "Environmental Justice" part of its mission by identifying and addressing any disproportionately high and adverse human health or environmental effects of its programs, policies and activities on minority populations and low-income populations. The BVHP neighborhood is a predominately African-American community of color that is disproportionately impacted by existing environmental hazards and has a disproportionately high number of families with household incomes below the poverty level compared to the CCSF as a whole.
Title VI of the Civil Rights Act of 1964 requires CCSF, and the SFRA, in coordination with the California Environmental Protection Agency, Department of Toxic Substances Control, to identify and address any disproportionately high human health, socioeconomic or environmental impacts of their programs, policies and actions on minority or low-income populations. CEQA is primarily a public disclosure statutory scheme allowing the affected community to be informed and members of the public to voice their opinion, and to have input, about projects that may affect their environment. CEQA requires a review of the environmental impacts of overall activities ("the whole of an action" - 14 Cal. Code Regs. § 15378(a)) defined as "projects." (Pub. Res. Code § 21065.) This strong, broad right of public participation under CEQA has a political component (i.e., CEQA allows the compilation of a record concerning the approval of development projects that can be used by the public to vote environmentally insensitive decision-makers out of office come election day), the violation or deprivation of which has constitutional ramifications on an affected community as well as the public at large.
In mandating separate Disposition Development Agreements and “conveyance agreements” for the development of the shipyard (Parcels A-E), SFRA, as the lead agency under CEQA, is "piecemealing" the overall activity. CEQA strongly forbids this kind of “chopping up [of] a proposed project into bite-size pieces which, individually considered, might be found to have no significance on the environment.” (Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 716, citing Orinda Assn. v. Board of Supervisors (1986) 182 Cal.App.3d 1145, 1171, 1172; see also Bozung v. LAFCO (1975) 13 Cal.3d at 283-284; Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 309.)
CEQA provides that a proposed project may have a significant effect on the environment when the possible effects on the environment are individually limited but “cumulatively considerable.” (Pub. Res. Code § 21083(b); 13 Cal. Code Regs. § 15065.) “’Cumulatively considerable’ means that the incremental effects of an individual project are considerable when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects.” (14 Cal. Code Regs. § 15065.) In addition to analyzing the direct impacts of a project, the CEQA lead agency must also consider a project's potentially significant cumulative impacts.
Recent statutory law has invigorated CEQA's role in ensuring "the fair treatment of people of all races, cultures, and incomes with respect to the development, adoption, implementation, and enforcement of environmental laws, regulations, and policies" (i.e., environmental justice).” (Emphasis added; see SB 115, Solis; Stats. 99, ch. 690, Gov. Code § 65040.12 and Pub. Res. Code §§ 72000-720001.)
In conjunction with the regulatory provisions of the federal Clean Air Act and Division 26 of the Health and Safety Code,[3] CEQA provides an ideal mechanism for ensuring that Environmental Justice will be addressed in all activities and projects that may have a significant effect on the environment.
CEQA requires that environmental documents (i.e., an environmental impact report (EIR) or a negative declaration) be prepared whenever a public agency proposes to undertake a discretionary activity (which is defined extremely broadly as the "whole of an action" being engaged in) that may have a significant effect on the environment. (See Pub. Res. Code §§ 21002.1, 21061, 21064, and 21080.1; see also 14 Cal. Code Regs. §15002.)
In enacting CEQA, the Legislature expressly declared a number of important policies with which activities and documentation must be consistent, and which must be complied with and enforced, including:
"It is the intent of the Legislature that all agencies of the state government which regulate activities of private individuals, corporations, and public agencies which are found to affect the quality of the environment, shall regulate such activities so that major consideration is given to preventing environmental damage, while providing a decent home and satisfying living environment for every Californian." (Pub. Res. Code § 21000(g) (emphasis added).)
It is California policy to "[d]evelop and maintain a high-quality environment now and in the future, and take all action necessary to protect, rehabilitate, and enhance the environmental quality of the state." (Pub. Res. Code § 21001(a) (emphasis added).)
It is the policy of this state to require that public agencies "[t]ake all action necessary to provide the people of this state with clean air and water, enjoyment of aesthetic, natural, scenic, and historic environmental qualities, and freedom from excessive noise." (Pub. Res. Code § 21001(b) (emphasis added).)
State policy calls for ensuring "that the long-term protection of the environment, consistent with the provision of a decent home and suitable living environment for every Californian, shall be the guiding criterion in public decisions." (Pub. Res. Code § 21001(d) (emphasis added).)
State policy requires "governmental agencies at all levels to develop standards and procedures necessary to protect environmental quality" (Pub. Res. Code § 21001(f) (emphasis added).)
California policy requires "governmental agencies at all levels to consider qualitative factors as well as economic and technical factors and long-term benefits and costs ..." (Pub. Res. Code § 21001(g) (emphasis added).)
"The interrelationship of policies and practices in the management of natural resources and waste disposal requires systematic and concerted efforts by public and private interests to enhance environmental quality and to control environmental pollution." (Pub. Res. Code § 21000(f).)
"Every citizen has a responsibility to contribute to the preservation and enhancement of the environment." (Pub. Res. Code § 21000(e).)
The recent enactment of Public Resources Code sections 71110 through 71115, and Government Code section 65040.12, in conjunction with other statutory and regulatory requirements, such as the Bay Area Air Quality Management District State Implementation Plan and EPA regulations, require the SFRA, as well as other agencies, to infuse Environmental Justice into every aspect of decision-making. This panoply of statutory authority supplements the general authority to "do such acts as may be necessary for the proper execution of the powers and duties granted to, and imposed upon [a public agency] ..." (Health & Saf. Code § 39600.) Further, the rules, regulations and standards that the SFRA and other agencies adopt must be "consistent with the state goal of providing a decent home and suitable living environment for every Californian"[4] (Id. § 39601(c).)
Therefore the two agreements, the CA and DDA, and all associated activities constituting the "whole of an action" being carried out by the public agencies involved capable of having an adverse environmental impact (14 Cal. Code Regs. § 15378(a); see also Pub. Res. Code § 21065), must be subjected to environmental review pursuant to CEQA to ensure that all the project's adverse, potentially significant impacts on the Bayview Hunters Point community, as well as the entire region in which the project is located, are fully and fairly investigated, identified, analyzed, evaluated and, perhaps most importantly of all, mitigated - while also ensuring that project alternatives capable of avoiding or reducing the impacts are considered and, if feasible, adopted.
Request for Commission Members to Recuse Themselves Who Have Appearance of Conflict of Interest
We respectfully request that all members of the Redevelopment Commission currently under investigation by any federal or state agency, including the San Francisco Ethics Commission, recuse themselves from voting on this matter because of the appearance - if not the actual existence - of conflicts of interest in dealings with the Lennar/BVHP developers. We are informed and believe the SFRA has been subjected to questions of conflict of interest of several of its members - such as Benny Yee, Leroy King and Darshan Singh - for their dealings with Lennar/BVHP, which is apparently comprised of Lennar Communities, LNR Partners, Luster Venture and Mariposa Management. The following excerpt from the SF Chronicle explains the conflict under investigation:
“Ethics panel eyes redevelopment role in Hunters Point
“SF Chronicle, Monday, March 17, 2003
“San Francisco - The trio whose habit of voting together on controversial items has tagged them the "Pep Boys" of the San Francisco Redevelopment Commission - Benny Yee, Leroy King and Darshan Singh - were all hit with subpoenas from the city's ethics watchdog agency this past week.
“Soon to join the list: City Hall insider Susan Horsfall, who works for the law firm that represents Lennar Corp. - the developer that won the right to take over the old Hunters Point shipyard.
“No one at the Ethics Commission is talking, but word among Redevelopment insiders is that a complaint came in more than a year ago alleging that Horsfall and the Pep Boys appeared to be a little too close for comfort - often dining out together after meetings.
“Right around the time, it seems, that the commission - including the Pep Boys - voted to disregard its consultant's findings and award the rights to develop the shipyard to Lennar.”
Under these highly unusual circumstances, there would clearly be, at the very least, an appearance of impropriety to allow these individuals to vote on pending matters as to which a conflict of interest can be reasonably inferred. Indeed, we believe any member of the SFRA who has any type of economic interest in or in regard to Lennar/BVHP (positive or negative, e.g., the possibility of having to return, refund or pay for benefits wrongly obtained from the developer, not to mention the cost of having to go to jail for having requested or obtained such benefits) is required under the Political Reform Act of 1974, Gov. Code § 81000 et seq., to recuse him or herself from voting on any project or agreement with the developer.
Apparently, this did not take place at the SFRA's December 2, 2003, meeting, however, and we hereby object to and request that all action taken at that meeting (as well as any subsequent meeting in which the so called "Pep Boys" participated) be declared null and void and set aside, without having any force or effect whatever ab initio. Our request is supported by the strict, express requirements of the Political Reform Act, including the following prohibition, which the SFRA apparently violated by letting the Pep Boys vote on matters in which Lennar/BVHP, or any of its associated entities or individuals, is in any way involved:
"No public official at any level of state or local government shall make, participate in making or in any way attempt to use his official position to influence a governmental decision in which he knows or has reason to know he has a financial interest." (Gov. Code Section 87100 (emphasis added).)
Conclusion
Wherefore, for good cause shown, the Bay View Hunters Point Community First Coalition respectfully requests the San Francisco Redevelopment Agency (SFRA) grant its request and continue the matter of your Agency’s approval of the “conveyance agreement” between the U.S. Navy and the City and County of San Francisco for the Hunters Point Shipyard, for at least 60 days, but until such time as the SFRA as the lead agency under the California Environmental Quality Act completes its environmental review on its proposed project, including the April 1, 2004, conveyance agreement and the Lennar/BVHP Disposition Development Agreement executed December 2, 2003, by the SFRA.
Secondly, we respectfully request that members Benny Yee, Leroy King and Darshan Singh recuse themselves from participating in these proceedings because of the appearance of impropriety or actual conflict of interest involving the project applicant or beneficiary, Lennar/BVHP.
Thirdly, we respectfully request that you declare all actions taken in which Lennar/BVHP or any of its associated persons or entities have been involved, and in which Benny Yee, Leroy King and Darshan Singh (aka the Pep Boys) participated, be declared null and void and immediately set aside, having no legal force or effect whatever ab initio.
Respectfully Submitted,
Olu Obayemi, Attorney at Law
Counsel for Community First Coalition (CFC)
2710 Telegraph Ave., Suite 260
Oakland, CA 94612
Tel/Fax: (510) 836-0716
E-mail:obayemilaw [at] yahoo.com
cc: Mayor Gavin Newsom, City Attorney Dennis Herrera, Board of Supervisors, Congresswoman Nancy Pelosi, Ethics Commission Executive Director Mabel Ng
--------------------------------------------------------------------------------
[1] If you disagree with this CEQA characterization, please advise us immediately, and please provide the legal authority on which you are relying. If you don't advise us that you disagree, we will assume that you agree and will rely on that agreement in taking further action.
[2] Information on these vital subjects is readily available, and we respectfully request that to the extent it hasn't been done yet, a full investigation be conducted prior to an further discretionary action involving the CA and DDA. If such an investigation has been done or commenced, please consider this our request under the California Public Records Act for an opportunity to inspect all writings in your possession concerning such an investigation.
[3] 42 U.S.C. § 7401 et seq. (Public Law 88-206, 77 Stat. 392, December 17, 1963, as last amended by the Clean Air Act Amendments of 1990, P. L. 101-549, November 15, 1990); Health & Saf. Code § section 39000 et seq.
[4] This overlapping of statutory goals and requirements (see Pub. Res. Code § 21000(g), quoted above) is typical among statutory schemes aimed at protecting the public health.
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