Sherwin Williams Whistleblower Charges State Agency With Corruption

Sherwin Williams Toxic Cleanup Whistleblower

 to File Complaint With Feds:

  Corruption Charged

State Department of Toxic Substances Control  

Called Out For Incompetence, Worse

City Council Listed as Responsible Party to Protect 

Emeryville Citizens

An employee with the California Department of Toxic Substances Control (DTSC)  turned whistleblower has notified the City of Emeryville that he will be submitting a citizen complaint with the United States Attorney’s office for the Northern District of California, alleging fraudulent practices of a DTSC staff member related to regulatory oversight at the Emeryville Sherwin-Williams toxic brownfields cleanup site.  Speaking as a private citizen, in a June 29th letter to the City of Emeryville and City Council, the former Sherwin-Williams project manager and current DTSC employee, Tom Price said the department has a “corruption problem” related to this toxic site and that the public may ultimately be exposed to toxins at the future residential site as a result.

Toxic soil being removed at the
Sherwin Williams site.

Mr. Price filed complaints with state overseers against DTSC staff starting back in August 2019 regarding what he called bogus sampling plans and inadequate investigation and cleanup of volatile and semi-volatile organic compounds (VOCs and SVOCs).  At the time, Mr Price charged DTSC officials of working with improper regulatory oversight, hand in glove with the residential developer of the site, Lennar Multi-Family Communities, a charge he is continuing in his impending complaint with the feds.

The impending citizen complaint by Mr. Price, who has protective whistleblower status under Occupational Safety and Health Administration regulations, include complaints already made against the state-issued professional licenses of five DTSC employees, including an engineer, Jose Salcedo, whom he says “inappropriately approved site development documents” at Sherwin Williams since proper investigation and cleanup were skipped.  Former DTSC Northern California Division Chief of the Site Mitigation and Restoration Program, Mark Malinowski is also named in the citizen complaint for what Mr. Price says amounts to a cajoling of DTSC staff to inappropriately approve development plans with inadequate technical evaluations and attempting to deprive future residents of the honest regulatory oversight services which DTSC normally provides.
Mr. Malinowski has since reported to be retired although the DTSC appears to be using his services in some consultancy capacity.

Regardless of the misconduct of DTSC managers noted by Tom Price up until this point, the former project manager told the City Council it is not too late to properly clean up the site.  He said the City of Emeryville, with its authority over a grading permit which was issued to the developer, should direct DTSC to require the developer to investigate and/or excavate potentially contaminated soils from hundreds of feet of abandoned utility lines on the site that were identified on old maps from the days when Sherwin Williams was engaging in pesticide and paints manufacturing.  Writing as a private citizen in his letter to the City and the Council, Mr. Price recommended bringing a mobile laboratory to the site to complete the investigation with screening of soil gas samples for VOCs and SVOCs in the locations of the abandoned utility lines and former tanks which correspond to the planned living spaces which have not been tested yet.  Mr Price named DTSC senior staff in Southern California including Shahir Haddad and Theodore Johnson, who conducted a review of site documents and identified those deficiencies yet, he noted, they failed to recommend customary investigation and cleanup.

Speaking as a private citizen to potential risks at the Emeryville Sherwin Williams site, former project manager Price told the Tattler,  “According to guidance documents of DTSC and the United States Environmental Protection Agency, a vapor intrusion mitigation system such as the one planned for this site should not be considered a substitute for appropriate investigation and remediation. If that is skipped, the long-term protectiveness of the remedy may be compromised. That is unacceptable because these residential buildings will house sensitive receptors including pregnant women and children for decades.”
Mr. Price’s professional experience includes conducting dozens of such field investigations as a field chemist at former industrial sites and service stations across Northern California. It was noted Branch Chief Richard Hume of DTSC's Sacramento office has not responded to Mr. Price's requests for the additional investigation and cleanup of the site which has a history of being one of the most polluted sites under DTSC oversight in the region.

A long-term DTSC employee and Sherwin Williams project manager from May of 2018 to October 2019, Tom Price used the June 29th letter to the City of Emeryville and the Council to inform them that the people of Emeryville, especially the future residents at the Sherwin-Williams site, deserve the honest and professional services of the Department of Toxic Substance Control and they have not received it.  The City and the Council have not yet responded to Mr Price's letter.

After his attempts to provide appropriate regulatory oversight for the project were unsuccessful due to reported interference from Mr. Malinowski, former Northern California Division Chief of the Site Mitigation and Restoration Program at DTSC, Tom Price requested to be transferred off of the Sherwin-Williams cleanup, a request that was accepted.  He remains an employee at the department.

The Sherwin-Williams residential project will have land use restrictions owing to the toxins that will remain on the site.
The apartments being constructed, including many 'family friendly' units, will be ready for occupancy some time in 2022.
A new park adjacent to the residences will be separated from toxic soil by a geotechnical cloth product according to the DTSC cleanup plan.


A 1996 video from the UC Graduate School of Journalism (above) presupposed that underground toxins in Emeryville would be contained in a good faith manner.  They didn't count on the Department of Toxic Substances Control, a government agency tasked with regulating private sector developers and polluters, would be in bed with the very organizations it is supposed to regulate.  It's a classic case of 'regulatory capture'.

Onni Project Threatens City Hall With Regulatory Capture

City Hall, Enthralled  
Captured by Onni

Work Performed at 1313 Park Ave is Done to Onni's Benefit

"Regulatory capture is a form of government failure which occurs when a regulatory agency, created to act in the public interest, instead advances the commercial or political concerns of special interest groups that dominate the industry or sector it is charged with regulating."

News Analysis/Opinion
Resident communities get to plan their cities as they see fit.  That's a given.  All the planning documents ensconced in City Hall, made with lots of voluntary citizen work and taxpayer money is evidence of this.  And planning, by definition, means regulation and thus the people of Emeryville have created a regulatory framework to facilitate the building of the town as they envision it.  It’s a good thing.

The proposed Onni Development with its 700' Tower
So seductive to the City Council, they have allowed the
 Canada based Onni Corporation to capture our regulatory
safeguards meant to protect Emeryville's residents.

Except of course for those who end up being regulated.
We needn’t go into a lot of expository rhetoric parsing how the regulated tend to push back against the regulators in such a dynamic.  Suffice it to say the public commons are a contested space and there is always a yin to every yang in the administration of a democratic public policy.
What’s evolved of late in Emeryville however upsets this familiar apple cart; a new grand mal of late capitalism excess embodying total corporate empowerment; private for-profit entities, especially billion dollar entities pushing for and getting carte blanche access to the levers of public power.

Enter the specter of ‘regulatory capture’ to Emeryville; that being an abdication of the checks generally imagined to be inherent in representational governance, by a rapacious private sector intent on seizing the commons.  In a word, Emeryville  City Hall, in the thrall of the recently proposed Christie Avenue Onni project, has abdicated control of the regulatory regime to that corporate entity.  Meaning, the developer of the Onni project gets his say utterly in virtually all the circumstantial aspects of this looming mega-project in our town.  And that’s not all. The regulations that are being lifted for the benefit of Onni now, will expose the citizens of Emeryville to future development of a kind that will likely be at least as voracious. 

Onni Residential Tower Unit Mix as Proposed
A portrait of regulatory capture.

While this regulatory capture is unwritten of course, it can easily be seen in the City Council chambers when the existing tower separation regulations are repealed at Onni’s say so.  Done without public debate.  Did we mention this developer’s proposal would be constrained by our tower separation regulations?  …And when our family housing unit mix is repealed, again for Onni’s benefit and without debate.  …And when our General Plan’s provisions for acres of park per new residents are pushed aside, again all for the benefit of the Onni developer and again, without a public debate.  ...And when our General Plan's provisions to make our town a town of no more that 16,600 souls by 2029 are pushed aside, again to the benefit of Onni and again, without public debate.

It all adds up to a corporate capture of the constraints on greed that were set up to serve the citizens’ interests.  Barring a citizens’ revolt against Onni, the public will receive nothing but crumbs for all the destruction of the commons this project with its 700 foot luxury apartment tower and accompanying 200 foot office tower will bring.

Regulatory capture is evident when a single private entity is able to steer the government to its corporate bidding on multiple fronts, simultaneously and without real public debate.  It becomes weaponized when there are enough local calculating politicians with hidden agendas and/or when the private entity behemoth is out of scale with the local government.  City Hall, clearly enthralled with the billion dollar Onni Corporation and wont to hand over the reins likely represents a less corrupt version sometimes called non materialist regulatory capture or cognitive capture, meaning government regulators begin thinking like the regulated.  As opposed to a simple series of illicit money transactions taking place behind closed doors.  That's probably not taking place here.  Probably.

Onni, at 638 units is an extremely large development, and it would remake our town even if we still had control over our regulatory system.  The problems the Onni project brings are legion if not familiar for such a large project; massively increasing traffic and congestion, increasing pollution in all its forms, the blocking of views and the creation of a generally alienating environment of course all come with any large development project to a small city.  But Onni, being a 100% rental project also dramatically drives down the ratio of homeowners in our town, a town that already has the lowest percentage of home ownership in the East Bay.

Onni Residential Tower if Built as Required
Emeryville's existing family friendly unit mix regulations
provides housing for families.  A portrait of a town trying to
make up lost ground after a generation of losing families.

But what’s at stake specifically is our capacity for our own autonomy as we attempt to make our city a city for families, to build park land, to address legitimate concerns over crowding of towers and to limit our city's population to 16,600.  All things we have identified as desirable for us.  All things the law allows us to pursue.  And unfortunately, all things the developer of Onni has captured and turned away from us.
And woe be it to anyone who attempts to defend our public regulatory system in such an environment.  Indeed, the old familiar epithet of NIMBYism has already entered the Onni debate such as there is one.  But there is nothing beyond a debate tactic to conflate the idea that people who don’t want more traffic in their town or their views blocked and those who don’t want to see outright regulatory capture by a specific developer.  One is democratic and the other isn’t.

Residents Per Acre of Park Land
Emeryville Already Has the Least Acreage of Parks in the East Bay
The Onni project will drive down our already lowest
in the East Bay acres of park per resident.
Onni provides park land at 2200 residents per acre. 
Emeryville's existing average is about 512 residents per acre.
The General plan says we should have no more
than 333 residents per acre.

Number of People Per Rental Unit
Emeryville Already Has the Fewest Families in East Bay
Emeryville compared with our neighbors.
Onni will drive down Emeryville's average even lower.
Our schools will suffer the consequences.