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.

School District Whistleblower Levels Charge

Teacher Accuses Administration:

Emeryville School Cheats Students:

Minimum Phys Ed Standards Unmet 

An Emeryville school teacher informed the Tattler recently that the School District is cheating elementary school children out of State mandated minimum requirements for physical education.  The teacher, who wished to remain unidentified due to fear of reprisals, told the Tattler that California law requires a minimum of 200 minutes of PE instruction per every 10 days of school for students in 1st through 6th grade however the school, Anna Yates Elementary, is only providing 60 minutes every 10 days for most children.  A high level school administrator, who also spoke to the Tattler and also wished to remain anonymous, denied the charges but promised to "look into the matter".

Student Injured By Incompetence
The teacher noted a recent injury to a student came as a result of an unqualified instructor providing the "paltry amount" of PE students do get.  The teacher alleges the "classified" or non-credentialed instructor, had students running backward on the asphalt, something any credentialed teacher would know not to do.  One child fell backwards and fractured his arm during the dangerous exercise.

The teacher said in an e-mail that the School District was "very out of compliance" with State mandated minimums for PE and indicated the District may be trying to adjust the numbers as reported to the State to fit the requirements.

The teacher also said that the administration at the school has a lackadaisical attitude and doesn't take State mandates seriously.  The attitude was summed up with a hubris filled paraphrase attributed to the administration by the teacher, "We're a small district and special and we don't have to follow the same rules as everybody else."

The administration rebuffed the charges of not meeting State law according to the complainant teacher who added the administration official played down calls to meet State minimum requirements.  When the teacher informed the administrator that PE instruction was sub standard at the school, the response was, "We've always done it that way."

The State requires an accurate accounting of the number of minutes of instruction for public schools and the District risks fines or worse from Sacramento if these charges are substantiated.  The Tattler will continue to investigate and report as this story unfolds.

The School Board Monday, promised to address the issue at a future meeting.