Whistleblower Accusations at Sherwin Williams Toxics Cleanup Site

Project Manager at Sherwin Williams 
Toxics Site:

Substandard Clean Up, Pressure From Developer

A rank and file Project Manager at the California Environmental Protection Agency’s Department of Toxic Substance Control (DTSC) is charging that developer Lennar Multifamily Communities, a nationwide home builder, attempted to avoid adequate investigation and clean up at the Sherwin Williams-Emeryville brownfield site in cooperation with DTSC management, potentially putting future residents at risk of exposure to poisonous volatile organic compounds.
The DTSC employee, Project Manager Tom Price, who until recently had been providing regulatory oversight for the Sherwin Williams clean up, has filed complaints with the DTSC and other government agencies over fast and loose practices he says that presumably would benefit the developer who seeks to build hundreds of apartments on the site.  Most egregiously, the developer failed to initiate groundwater pumping to prevent arsenic from migrating off the site to downstream properties as required under a 2010 cleanup plan, he says.

Mr Price alleges that soil ‘characterization’ was inadequate in the locations of planned building footprints at the site, and that an executive-level DTSC manager who has since retired, attempted to give the developer a free pass by side stepping standard DTSC protocols, including requiring adequate sampling coverage and representative sampling that would work towards the benefit of the developer.  Unacceptably high levels of ground water arsenic observed in test wells along the western boundary of the property were ignored for years he says, allowing the poison to migrate off the property toward neighboring properties downstream in violation of a 2010 Remedial Action Plan approved by DTSC.

Former Project Manager Price told the Tattler he asked to be re-assigned following his requested customary due diligence and investigation documentation after those requests were ignored.  He indicated he was getting “interference” from DTSC management at the Sherwin Williams clean up and that also contributed to his request for reassignment.

Mr. Price told the Tattler that arsenic concentrations began to exceed allowable limits at the test wells migrating off the site three years ago and that downstream property owners were not notified as would normally occur as part of a public noticing of a proposed cleanup plan amendment which the consultant and developer hoped to avoid.  He subsequently alerted his higher ups that the site was "out of compliance" with the clean up plan.  In January of this year, the consultant for the developer started collecting groundwater samples at the Bay Street Development property to the west of the Sherwin Williams site and in the path of the migrating plume of arsenic, probably as a result of Mr Price’s complaints.  However required pumping has still not occurred for arsenic laced groundwater near Temescal Creek he alleges.
The groundwater arsenic ‘off site’ migration is particularly concerning having come in the face of warnings from the whistleblower, "Despite the ground water exceedances at the property boundary which should have triggered pumping, the developer and their consultant submitted a 'modeling report'.  When the model appeared to fail, they still didn't initiate pumping and as a result, the site has been out of compliance with the clean up plan for three years" he told the Tattler.

The site still lists Tom Price as the
project manager.  Photo taken this week.

The agency has been under a lot of pressure to speed up the final clean up at the site by the developer Lennar who stands to benefit by a fast construction schedule.  Rather than conduct customary investigation, the developer appears to have opted to “strip mine” part of the site and as a result, what was originally planned to be an excavation 1000 square feet in size is now an acre and the site is covered with unplanned soil stockpiles.  Thousands of cubic yards of soil are now being off hauled, far more than what initial plans called for, Mr Price says.

The site, located at 1450 Sherwin Street, is bounded by Horton Street to the east, the former Rifkin Property and Temescal Creek to the north, Sherwin Street to the south and railroad tracks to the west.  A former paint and pesticide manufacturer,  Sherwin Williams maintained operations there from the early 1900s until it was decommissioned in 2007.  The plant manufactured various types of coating products including oil-based paints and latex paints. Other products which were manufactured at the site included extremely toxic lead-arsenate pesticides from approximately the 1920s until the late 1940s.
A series of soil, groundwater and soil vapor investigations by the DTSC were conducted at the site starting in 1988 which showed contaminants of concern including metals, volatile organic compounds, semi-volatile organic compounds, and hydrocarbons.

Contractors were still digging at the site as late as January.

Interim remedial measures, sometimes referred to as the "big dig" by residential neighbors, were initiated in the 1990s including construction of a subsurface containment slurry wall, asphalt cap, and groundwater extraction, and monitoring.  The latest clean up activity, begun in the early fall, has occurred in response to Lennar's construction timeline and has been centered on the south side of the property, previously under a concrete slab and not cleaned up during the big dig.  A remedial action plan was implemented by 2011 which involved excavation of 100,000 cubic yards of contaminated soil for off-site disposal and placing a Land Use Covenant on the property to restrict future usages.

The breakdown in normal clean up protocols served as an impetus for the complaints with the DTSC and other government agencies, starting in September.   “As a private citizen (separate from my job at DTSC), I filed complaints all the way up to the governor’s office against the developer Lennar Multifamily Communities. In my opinion, they endeavored to skip customary due diligence and investigation for hazardous substances for [Sherwin Williams], a housing development at former industrial plant.” Mr Price said.   After his replacement at the Sherwin Williams site Project Manager Bud Duke took over, Tom reports that citizen complaints that he filed, appear to have resulted in considerably more cleanup than the developer originally proposed.

The City of Emeryville has not been included in the list of government agencies Tom Price has filed complaints with but since the City issued a revocable 'grading permit' for the site to Lennar, the City theoretically has leverage to force compliance with the remedial action plan it is a signatory to.  The City, the former Sherwin Williams cleanup manger said, has interest in a proper clean up of the site for the protection of future residents.

A Lennar sign on the property line fence overstates
the condition at the Sherwin Williams clean up site.

Oversight Committee Violates the Brown Act as it Moves to Support the Brown Act

'We Had to Violate the Brown Act in Order to

 Protect It'

Does the Oversight Committee Need an Oversight Committee?

Responding to a Tattler exposé, the Measure J bond Citizens Oversight Committee of the Emery School District, violated the California Brown Act accountability law Tuesday when, without a quorum, it moved to abandon its earlier plans to jettison the constraints of Brown Act regulations.  The committee, who’s state sanctioned job it is to watch and hold accountable the School Board as they spend $95 million in Emeryville taxpayer funds, dialed back a host of this and other illegal and unseemly proposals after the Tattler story posted on Monday.   Central to the Tattler story was a planned roll back of conflict of interest policy meant to stop committee members from unduly benefitting as a result of their committee work.
With only three legitimate attending members Tuesday night, the committee, without a quorum, was legally required to adjourn the meeting according to the Brown Act.  However, moving to support the Brown Act that they had previously placed on their agenda to disregard, the committee proceed to violate the Act it meant to support.  The committee will now follow the Brown Act, they say.
The irony of the situation was not acknowledged by any attending members, the Superintendent of the Schools or the bond consultant paid to advise the committee, both of whom who were also in attendance.

One of the components of the Brown Act makes it clear that the only legitimate action any bond oversight committee can make without a quorum is adjournment.  The quorum provisions of the Brown Act are something the committee members and even the paid staff professionals are unaware of.  After the Superintendent announced a quorum was lacking, instead of adjourning the meeting, the committee voted to forge ahead and make decisions on committee policy and other topics, but only in a “recommendation” capacity in an attempt to satisfy the Brown Act.  The Brown Act does not permit that and the whole meeting was in violation.

A central complaint of the Monday Tattler story was a highlighting of the committee’s attempt to erase existing Sacramento mandated conflict of interest policy that requires committee members to wait for two years until they are permitted to bid on or do (Emery) School District jobs.  The committee, feeling the pressure from the Tattler story, agreed to back off and maintain the two year waiting period but not before the consultant weighed in on the value of the deregulation scheme.  Matthew Kolker of Government Financial Strategies, a private government consulting firm, told the attendees the idea behind nixing the conflict of interest waiting period was to “streamline the process”, presumably for those committee members who would like to profit off the District using their built up associations with colleagues.  Asked how the public would benefit by the streamlining, neither the consultant nor the committee members ventured an opinion.

The committee expressed their frustration in getting the members to dutifully attend meetings, making quorums difficult to achieve.  It was conjectured by committee members that because the District had already spent all but approximately $20 million of the original $95 million of Measure J bond money, meetings are less consequential and therefore less compelling to many members. Mr Kolker suggested by removing the conflict of interest laws that bounds committee members, perhaps the district could more easily draw potential new member interest.

After the Tattler reported on numerous violations of the Brown Act, the local media picking up the story, a crash program of Brown Act instructional meetings were conducted by a contrite Emery Unified.  To no avail apparently.  The District continues to struggle with following or even understanding this important sunshine accountability law.

Should be posted in School District executive suites, conference rooms
and at all street entrances to the school district.  

The Tattler at Ten

Ten Years of Punching Up

The Tattler Celebrates a Decade of 
Muckraking and Shit Stirring

Ten years ago today three of us started the Emeryville Tattler with a mission.  Concern over a ‘develop at all costs’ juggernaut ensconced at City Hall serving as the impetus, we thought we could flip the City Council and therefore the whole culture in Emeryville politics, ushering in a new era we hoped.  We thought the interests of the residents and average people could be risen up and take precedence over those of the business class and the developers, many of whom had become very chummy with the Council members.  Considering the forces allayed against us, including the then mighty Emeryville Chamber of Commerce, it was pretty audacious of us in retrospect.  But we started up our scrappy little news site nonetheless, knowing we’d make plenty of enemies along the way (and boy, have we).

The idea was as simple as it was brassy.  We thought Emeryville needed a newspaper like our neighboring cities had.  We looked around and seeing the demographic populations of our neighbors with their center-left proclivities, we thought the extreme pro-developer culture at Emeryville City Hall was an anomaly, an accident and therefore not sustainable.  It just needed a little push.  We could see no reason why Emeryville should stand out so starkly among our Bay Area neighbors.  We thought the people here were like the people around us and all we would need to do is to inform them and let democracy take over.  So we did.

While acknowledging there is still work to be done, it is no exaggeration to say Emeryville has indeed flipped.  The former clubby atmosphere at City Hall with developers, businessmen (yes, men) and Council members literally mixing over drinks at the Townhouse or at closed door Chamber functions is bygone.  Our town hall now much more faithfully reflects the resident’s interests.  Emeryville, no longer a throwback curiosity among Bay Area cities, can now be called a leader among them.  We’ll take some small measure of credit here at the truculent little Emeryville Tattler.  The change has been great to be sure but we're still keeping their feet to the fire.

Readers of the above three paragraphs will detect a level of cocksureness if not arrogance.  We don’t deny it.  We always knew we’d have to fight hard to take down the connected wealthy business/developer class and their government sycophants here in Emeryville and we came ready for the fight.  Our pugnacious nature has served us well.  We noted everywhere we looked in this little town, we found rot and we knew we’d have to take on all comers.  And that’s the reputation we cultured.  Our reputation has preceded us. We developed a backchannel cadre of moles who informed us.  That’s how we found out how effective we were being.  There has always been a bit of fear of the Tattler mixed in with the anger in the corporate boardrooms and in government back rooms.

Ten years ago if you had asked us how long our little project would take, we would have guessed about ten years.  We got that right.  Emeryville is now poised to become the town the people here want.  But there are storm clouds all around us.  Senate Bill 330, as of January 1st, the law of the land and the proposed SB 50, stand to take away the democratic autonomy we fought for just as we take our bows.  This new suite of ‘develop at all costs’ laws are coming now not from City Hall, but from Sacramento and they threaten our town much more fundamentally.
We don’t know if the Tattler is ready to take on Sacramento.  We’re audacious, but not that audacious.  Maybe someone else can come in and take over the fight for Emeryville.

In the meantime, we’re going to do a little celebrating.  We celebrate our ten years with selections from the archives.  We’re going to re-post our favorite stories and reader favorites every couple of weeks starting from 2010.

The Tattler is ten!  Our masthead says it all: We're here working for the residents and average people- against those who would take away from the commons.  Looking back, there have been victories and setbacks in that fight.  Reporting on that struggle, it's always easy to see the glass half empty, concentrating on the work yet to be done.  Looking ahead, it's pretty scary.  But ten years on after the Tattler's audacious beginning taking on all comers among the power elite in Emeryville, there's no doubt there have been more victories than setbacks.  We didn't just sit on our duffs and watch our town change around us.  We got involved. And that has served us well.  We feel pretty good about this.

School District Moves to Deregulate Themselves Ahead of Parcel Tax Election

Oversight Committee Prepares to Decouple From Regulation;

Brown Act, Conflict of Interest Rules

Tomorrow night at the Emery school bond oversight committee meeting, the School District has prepared a suite of regulatory rollbacks to vote on that, up until now, has constrained the District including: laws governing conflicts of interest, the Brown Act open meetings law, reductions of the number of auditors for parcel taxes and bonds, and other burdensome regulations from their bond oversight committee.  The audacious deregulation gambit runs afoul of California law in some cases and begs the question of timing: With the Measure K parcel tax March 3rd plebiscite looming, why would the District be seeking this high visibility power grab disempowering ordinary citizens now? 

All told, the proposed deregulation promises to make it easier for District decision-makers to profit from their decisions, for developers to profit and to keep the public in the dark.
Those proposed changes can be seen in red here: http://emeryusd.k12.ca.us/wp-content/uploads/2020/02/Packet_2.11.2020-1.pdf

Compendium of District Proposed Deregulation
On page 15 (of the entire committee pdf packet), the District is proposing removing the existing two-year moratorium on oversight committee members profiting from Emery school bonds.  Given that there is currently one member who is a developer (Josh Simon, more on him later) and another is a contractor, the roll back would permit them to approve a project, resign from the committee, then bid on the project.
The District thinks it’s better to allow the overseers to immediately move into bidding on projects and working for the District upon vacating their positions, a classic ‘good old boy’ network the two year moratorium rule is meant to stop.

On page 12, the District excludes the committee from the Brown Act.  While the removal of the Brown Act from the bylaws does not exempt the committee from the Act, as all government committees are beholden to the Brown Act, striking it from the bylaws does not make Emery Unified look good.

The District might be trying to exempt the committee by reducing the number of members needed for a quorum as they do on page 12.  The new rules propose that two members represent a quorum.  Under the Brown Act, anytime two members of the committee discussed the bonds, it would be a violation of the Act if not done at a public meeting.  It also allows a single member to decide issues during a meeting because of the abstention voting rules.

ECCL Citizen's Oversight Committee
Member Josh Simon
Formerly of Emeryville, Mr Simon
would benefit by the deregulation
proposal.  His development company
could bid on projects without
constraint from existing
conflict of interest rules.

Other changes throughout the update make it easier for quick opaque decisions.  Things like updating the bylaws become easier by removing the two-thirds requirement putting into the hands of any two members, or a quarter of the members.  The update removes the requirement for parents or seniors to be members. It leaves in “people with knowledge of facilities,” code for developers (page 11).

It should be noted that former School Board member and regional developer Josh Simon has been the consistent member of the oversight committee since he moved out of Emeryville.   He is about to be term-limited out because of state law.  It is an interesting coincidence that Mr Simon, the same person that pushed for the ECCL single school site, campaigned for the $95 million bond measure that built it, and has been on the oversight committee that fought against an audit, is now about to be set free for his company to bid on projects or surplus land from the District.  Some might say this sort of conflict is exactly what lawmakers had in mind when the rules constraining this were written.

The Superintendent of the Schools was called to comment on this deregulation vote tomorrow night, but she didn’t return calls.

RULE Meeting: Onni Tower & Measure K Discussions

From RULE:

Residents United for a Livable Emeryville

Hello Friends and Neighbors!

Please join us for our next RULE meeting 10 am Saturday, February 8. Bring your questions and concerns and visit with your neighbors over coffee and breakfast. The meeting will be held at Doyle Street Co-housing, 5514 Doyle Street, Emeryville.

Mayor Christian Patz will attend from 10 am to 11 am to discuss the proposed 54-story (638-foot) Onni super tower at the corner of Christie Avenue and Powell Street in Emeryville.

RULE is working with city officials and staff to put together a March Town Hall meeting with residents, Onni developers, Emeryville Council members and planning staff, and outside environmental and other experts to discuss the project. RULE has also formed a Strategy Committee to focus efforts on the issue.

If time allows, Christian will also talk about Measure K, an upcoming ballot measure that, if approved, would provide the Emeryville Unified School District with close to $2 million. Christian opposes the measure because the District does not ensure the money will go to teacher pay and classroom resources.

Everyone is encouraged to attend and share their views!
__________________________

About the Onni project:
The proposed Onni Tower includes 653 residential units, the majority of which will be market rate studios and one-bedrooms. The development does not meet the city's required unit mix for families, and the developer has asked the City Council to excuse it from that requirement. For more information on the Onni Group proposal, go to: http://www.ci.emeryville.ca.us/1267/Onni and
http://www.emeryville.org/DocumentCenter/View/11303/Onni-Christie-Plans-Study-Session-I--Plans-12-13-18

Below is link to article about negotiating a community benefits agreement (CBA), an option if the project goes forward.
https://www.law.uchicago.edu/files/file/housing_initiative_clinic_briefs_-_best_practices_in_negotiating_and_drafting_community_benefits_agreements.pdf 

The next critical step in the process is the project’s Environmental Impact Report. The city’s website does not indicate when that will be complete. For more information, contact Senior Planner Miroo Desai, at 510-596-3785 or mdesai@emeryville.org.

Election Season Deceptive Flyer From School District

School District Falsely Claims Low Funding,
 Admin Salaries

The deceptive mailer was signed by the
Superintendent of the Schools

In anticipation of the March 3rd election and the Measure K school parcel tax proposal, the Emery Unified School District late last week released a four page public mailer deceptively claiming Emery to be “One of the lowest funded districts in California” despite being funded 4% above average of State funding and over nine times the average district in local funding according to the California Department of Education.  Additionally, Emery is asserting that “No [Measure K] money can be spent on administrators' salaries” but this is the same language that was used for the last Emery parcel tax (also called Measure K, in 2014) and the District subsequently increased the number of administrators while keeping teachers’ salaries low.  Spending on administrative salaries increased by 45% while teachers' salaries went up 8% three years after passage of the parcel tax.
The 2014 parcel tax language, like this year's, claimed to bolster teacher salaries while not increasing administration costs.

The year before the existing parcel tax (2013-14), Emery spent $3,374,743 on teachers’ salaries.  In 2017-18, the most recent year reported on Ed-Data.org, the district spent $3,631,650, an increase of $256,907.  Administrative salaries went from $622,780 to $903,052 an increase of $280,272.  That means administrative salaries increased by $23,365 more than fifty teachers’ salaries increased over the same period of time.
Past and present Emery parcel tax claims of 'no administration salary increases' appears to be a deceptive shell game that discounts the fungible quality of money, an argument of sophistry.

Usually, this kind of exaggerated rhetoric if not outright falsehoods can be found in election campaign literature but for a government agency to partake of it is untoward.  Noteworthy is the fact that the flyer contains no sources or accreditation for any of the information it contains.

Emery is highest in the East Bay in Per Pupil Spending
Emery spends $18,472 per student versus
California statewide all districts average of $12,714
Source: CA Dept of Ed

Government agencies including Emery Unified, are expressly not allowed to campaign for parcel taxes they place on the ballot as Emery has with the current iteration of Measure K.  They have to rely on citizen led election committees registered with the Fair Political Practices Commission (FPPC) to do such campaigning.  The Registrar of Voters provides that government agencies, including school districts, can only produce factual, objective information disseminated to voters, not campaign material. 
Emery Unified is claiming this flyer they produced and mailed to each voter in town is such a mailer; factual and objective.  As such, the District has charged Emeryville taxpayers for the cost to produce and mail the flyer.   If this mailer were produced as part of a campaign, the costs associated with it would have to be paid by private donations. 

The president of the School Board and the Superintendent of the Schools were invited to clarify or explain their statements in the mailer but they declined to.  The Tattler will report again on this story before the election and it is hoped the District will engage with the citizens on how they got this erroneous information of Measure K low Emery funding and no admin costs they sent out to voters last week.

Administration salaries went up disproportionally over teacher salaries after passage of the last
Measure K parcel tax despite claims to the contrary.
Source: Ca Dept of Ed