Will Lennar ever be fined for dropping the dust ball?

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By Sarah Phelan
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But will the Air Quality District ever levy any asbestos-related fines from Lennar?

If you got the impression from yesterday's Board hearing that Lennar won’t get fined for screwing up asbestos dust mitigation at Parcel A of the Hunters Point Shipyard, think again. Or, at least, hold that thought for now.

Karen Schlocknick, spokesperson for The Bay Area Air Quality Management District, reports that the air district is still looking into the matter—and has “up to three years” to decide how much to fine Lennar.

One year has already passed since Lennar came forward and admitted that there was a problem with the batteries in its air monitors at Parcel A. So, that leaves the Air District with two more years to make its move, though Schlocknick predicts that, “it won’t take that long”.

Back in September 2006, the air district issued Lennar a notice of violation for a 385-day period (July 14, 2005 - August 3, 2006. It did so because Lennar failed to properly enforce its asbestos dust mitigation plan for 13 months at Parcel A, an asbestos-laden construction site on a hillside in Bayview Hunter's Point.

The air district’s notice of violation means Lennar risks being fined $1,000 a day, (if the violation is not found to be intentional or negligent), or up to $75,000 a day, if the conduct is found to have been intentional.

But just how did Lennar manage to violate its asbestos dust mitigation plan for a 13-month period?

Air District records show Lennar agreed to set up monitoring equipment well before the grading started, so as to record the level of asbestos in the air, before digging and grading on the Parcel A hilltop began.

But apparently, during the first ten months of data collection on Parcel A (before grading began), and during the first three months of the grading on Parcel A (when massive amounts of asbestos-laden soil got moved, and the weather was hot, dry and windy), the batteries in the air monitors on Parcel A weren't functioning correctly.

Lennar blamed the fact that 13 months managed to go by before anyone realized the monitors weren’t working on a “problem employee” with its subcontractor, CH2M Hill, an Oakland-based environmental consulting company that was hired to set up monitors, replace batteries and keep operational field notes.

The Guardian's review of the air district records failed to unearth the existence of any field diaries before Lennar’s August 3, 2006 “problem employee” confession. This absence of diaries raises disturbing questions about who was hired to do the work, why it wasn’t done, and why no one noticed the project was being so horribly mismanaged.

Equally disturbing is the fact that data from the monitors, which are battery-operated and pump air through filters to measure for asbestos dust, appear to be almost identical for the entire 13-month period tin question.

Now, you’d think that in the world of science, where measurements tend to vary slightly from day to day due to wind and heat and other variables, that this uniformity of data over a 385-day period would have raised a few eyebrows. Yet no red flags were raised until Lennar came forward, and said, Oops, we dropped the dust ball.

Records also show that Lennar’s admission left the City in the uncomfortable position of being unable to prove exactly how much asbestos the local community was exposed to during the first three months of grading work.

At yesterday’s Board hearing, Public health officials desperately tried to explain that the monitors are set to trigger work shutdowns when they register what the DPH describes as "highly conservative" levels of asbestos dust . But the truth is that since the air monitors’ batteries weren’t working, they did not trigger any shutdowns during the first three months of grading and digging at Parcel A, no matter how high asbestos levels may have been.

As it happens, officials with the Public Health Department have told us that they suspected something was amiss with Lennar’s asbestos dust monitors long before Lennar even reported any problem with the batteries. Why? Because while these officials could SEE huge trials of dust at the site, Lennar's monitors continued to register non-detectable traces of asbestos dust.

And once the problem was officially acknowledged and the batteries were replaced, the air monitors instantly triggered a shutdown that lasted for a week. It was also during this period that Lennar’s environmental consultants started sending field diaries to the air district for the first time in thirteen months.

At yesterday’s Board hearing, there was a lot of discussion about asbestos exposure, including the dueling notions that there is no safe level of exposure versus the idea of what I'll call "tolerably toxic" levels.

The Public Health Department argues that asbestos dust monitors trigger shutdowns at conservatively low levels—much like smoke detectors, or warning lights that alert you to hazards before any damage has been done.

But with no way of testing whether long-term harm has been done to our local residents, just how did the City arrive at the conclusion that no long-term damage has been done?
By using CAL OSHA data from adult workers? If so, is that data be applicable to children, who have higher metabolisms?
Or to senior residents who don’t leave the area at night to go home, but live in the community 24/7?
And do such health assessments factor in all the other potential sources of air pollution that are coming from the nearby freeways and industries, thereby compounding the BVHP’s exposure?

Hopefully, when the air district finally makes its decision on fines, some of these questions will be answered. In the meantime, the BVHP community has been left divided, given the impression that they were facing a choice between jobs or health, when surely both should be guaranteed?

Lots of residents noted that gang and gun violence, crack cocaine, substandard housing and a lack of decent paying jobs were a bigger threat to the community than the impacts of asbestos dust on their health. But ultimately, isn't the mishandling of the dust just the last in a long list of grievances that fuel's this community's pain?

For those audience members confused about how the board voted on Sup. Chris Daly's resolution, let's clarify that Daly'sresolution urged the Department of Public Health to temporarily shutdown the construction site until health concerns have been dealt with, and urged the City to set aside General Funds to cover any workers' wages that would be lost as a result of the shutdown.
The resolution failed in a 5-6 vote, with Sups Daly, Ross Mirkarimi, Tom Ammiano, Geraldo Sandoval and Ed Jew voting to urge the Health Department to do something. Sups Bevan Dufty, Sean Elsbernd, Michela Alioto-Pier, Aaron Peskin, Jake McGoldrick and Sophie Maxwell voted against it.

As one cameraman put it, as various ministers did verbal battle for their communities and interests within the hallowed marble corridors of City Hall, 'It's a Holy War, and it makes for good TV!"
But will such discussions make for good policy? At the end of the day, what this City needs is the power and political will to say to potential developers, if you want to do business in this town, here are our rules and regulations. And you better follow and enforce them, otherwise it's going to cost you, big time. To date, I haven't seen the City get that message across to Lenna, but, hey, correct me if I'm wrong.