Board accepts EIR, but vows to amend Candlestick-Shipyard plan

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Text by Sarah Phelan, images by Luke Thomas

At the end of a ten-hour hearing to appeal the final environmental impact report  for the city and Lennar’s massive Candlestick-Shipyard redevelopment project, the Board voted 8-3 to accept the FEIR, with only Sups. John Avalos, Chris Daly and Eric Mar voting to reverse certification of what they said was a flawed document.

But the vote does not mean the Board has voted to accept the city and the developer’s final redevelopment plan. That plan will come before the Board on July 27, and the supervisors are expected to introduce a slew of amendments, in addition to  five amendments that Board President David Chiu introduced earlier this week.

These amendments are intended to address longstanding concerns about toxins at the shipyard, limited liability on the part of the developer, the questionable need for a bridge over Yosemite Slough, the reality that Bayview residents may be cut out of any upcoming jobs, and the desire to nail down efforts to use public power at the site

“We can’t do the amendments here, we are frozen out, all we can do is an up and down vote on the EIR for now,” Sup. Ross Mirkarimi told the Guardian last night. 
Mirkarimi anticipates that the Board will seek additional mitigations, such as requiring liquidated damages to shore up a community benefits agreement that Labor entered into with Lennar in May 2008.

Mirkarimi said the Board would also seek to increase workforce development benefits.
“Thirty percent of the target workforce population are ex-offenders, so while they might get training, currently they won’t get jobs other than construction,” Mirkarimi observed.

Mirkarimi was proud of the Public Power amendment that Chiu has already lintroduced, pointing to an ordinance that he and then Sup. Gerardo Sandoval introduced and Mayor Gavin Newsom signed into law, in March 2006. This public power ordinance established that “where feasible, the City shall be the electricity provider for new City developments, including military bases and development projects.”

“PG& E was ripped when we pushed that through,” Mirkarimi said.

During yesterday’s marathon hearing, the supervisors grilled city staff on issues that have proved to be key sticking points, as the city seeks to win final project approvals, even though they cannot address these issues with amendments until the July 27 meeting.

The Board questioned the wisdom of moving forward with development on the Shipyard, as the Navy continues to clean up radiological contamination and other toxins at the site, including Parcel E-2, which contains some of the nastiest pollution at the yard.

“Why not just wait until the CERCLA process is completed?” Sup. Campos asked, referring to the fact that the Navy is responsible for shipyard clean up, under CERCLA, which is also known as the Superfund Act.

Campos question came after acclaimed environmental scientist Wilma Subra and national environmental human rights lawyer Monique Harden, challenged the sanity of having the Navy digging out toxins while a developer simultaneously installs infrastructure at the same site.

Subra, who works in Superfund sites throughout the U.S, warned the Board that it’s very common to find contamination at these sites after they have been declared clean.

“So, the number of samples isn’t the magic answer,” Subra said, referring to the city’s constant refrain that the Navy has taken thousands of samples at the site. Subra also warned that it is not uncommon for a contractor to dig into an area that has been capped, thereby potentially exposing workers and the community to contamination and resulting in legal stand-offs, as various parties argue as to who has responsibility to fix the resulting mess.

Harden, who is based in New Orleans but also has an office in D.C., expressed concern over the plan to begin construction on some shipyard parcels, even as the Navy continues to remove radiologically contaminated sewers and other deep infrastructure at the site.
“That’s like a person jumping up and down on a bed that another person is trying to make up,” Harden said

But Michael Cohen, Mayor Gavin Newsom’s chief economic advisor countered that there was no scientific evidence to support Subra or Harden’s concerns.

“It’s a very common situation, especially on brownfields,” Cohen said, (though the Shipyard is a Superfund site that’s been contaminated with radiological waste that was sandblasted off ships returning from a Bikini Atoll atomic testing experiment gone awry.)

“It’s the basis for shipyard artists and the police being on the site for many years,” Cohen continued. “It’s safe based on an extraordinary amount of data.”

But Cohen did agree that language in Chiu’s Parcel E-2 amendment should be changed from “should” to “shall” to indicate that city oversight is a requirement, not a request, when it comes to final decisions over the transfer of this particular parcel.

Mark Ripperda of U.S. EPA assured the Board that his agency is not going to permit transfer of parcels for development until cleanup is completed.
“We are not going to allow any transfer until we are convinced it’s safe,” Ripperda said.

Sup. Eric Mar chastised the EIR for its apparent failure to adequately discuss the impacts of the proposed development on schools in the surrounding area.

“There is less discussion of the impacts on schools than there is of the A-Bomb, which was held at the Shipyard for 1 to 2 days,” Mar said. “The analysis seems very weak.”

And Daly expressed frustration that the Board was being asked to take a decision when it lacked sufficient information about and understanding of the project.

“How do we know it’s safe? ” Daly asked, noting that, “Money talks, bullshit walks.”
(His point resonated as City staff scrambled to find key information within the 7,000 pages of comments and responses in the massive FEIR documents, and Amy Brownell of the city’s Public Health Department rattled off a series of measurements and schedules that few on the Board seemed to understand.)

“The risks are acceptable,” Brownell said. “And the only people allowed on the property [during the development] will be the ones doing the work.”

The Board also challenged the need for a bridge over the environmentally sensitive Yosemite Slough, especially in the wake of the June 2010 election in which Santa Clara voters approved building a new stadium for the 49ers near Great America.

“One reason I’ve been given for [the need for the bridge] is the financial viability of this project,” Campos said.

Cohen replied that if the city does not to build the bridge, “it elevates the financial risk.”

“Parcel C [on the shipyard] has been zoned for green tech, and for major employers, having that direct connectedness to BART and the T-Third is very important.”

Cohen also indicated that, thanks to the project’s huge reliance on tax increment financing, the loss of the bridge would translate into lost property tax revenues.

“Some of the repayment comes from generation of tax increment financing, so the failure to have a bridge here, degrades the potential of property tax revenues, and so you get much less tax increment,” Cohen stated.

The Board also expressed concerned that under the current terms of the deal they are now set to consider July 27, the developer has limited liability—an arrangement that has got supervisors worried that the city, and Bayview residents whose increased property taxes will help pay for the development, could end up on the wrong end of the financial hook.

Campos pointed to the disposition and development agreement (DDA) that the city drew up with Lennar.
“I’m specifically worried about a provision that on the face of it limits the developer’s liability,” Campos said, pointing to language that seems to say that “monetary damages are inappropriate”—conditions that Campos deemed, “Very unusual.

Cohen responded that the deal reflects the reality that, “the Navy, not Lennar is responsible for the cleanup.”
He added that the city retains the legal ability to sue, various remedies and, ultimately, “the right of reverter” (which folks call the “nuclear option” since it involves kicking out the developer, but losing everything in the process.)

“This is an incredibly frontloaded project,  in which we have the ability to terminate the developer at the cost of millions of dollars,” Cohen said.

But while the city and the developer ultimately affirm EIR certification, the decision left the Bayview community deeply divided, with many concerned that the FEIR failed to address their concerns, while others rejoiced, believing that they will benefit from jobs that will be created during the development’s 10-15 year build out and beyond. Only time will tell how it all plays out, but stay tuned as the Board prepares to try and make the plan the best it can in face of all these competing concerns.

 

Comments

Supervisor Mirkarimi's first quote in your article is a total joke. It would clearly be much -easier- to get the project amended into a far better form, if this deeply flawed Environmental Impact Report had been completely rejected outright, putting Lennar and the City staff into a bargaining position in which we, the opponents, would have a -strong- upper hand.

Mirkarimi, Chiu and Campos just handed the strong power in this fight to Lennar Corporation and its Mayoral puppet troupe.

The EIR itself was a totally indefensible document.

So Mirkarimi either didn't do his job and actually -examine- the document in detail, or he is far more concerned with his future plans to run for higher office than he is for his constituents, public safety and environmental protection.

This isn't the first time that Mirkarimi has pursued a weak and politically calculated strategy on this and other crucial environmental issues.

Mr. Mirkarimi, you are now on notice from at least one local organizer that it had damned well better be the last.

And the amendment process for the Shipyard 2 project better be one in which it is not allowed to go forward without -massive- changes to make it completely safe, and strongly promotional of at least 1) 50% truly affordable housing that all Bayview residents can afford, as well as 2) 50% local workforce hiring so Bayview residents are guaranteed a huge and badly needed job infusion.

Posted by Eric Brooks on Jul. 14, 2010 @ 12:03 pm

Hey Mr Perot, oops 'scuse me Ross. THEN YOU SHOULD HAVE VOTED THE DAMN THING DOWN !! You have been around this catastrophe long enough to know how riddled with double talk, obfuscation, mis/disinformation and plain lying this project is.
Chris' visual when he held up one of the 'submissions of fact' was on point. The old lawyers trick - procrastinate, prevaricate and when you cant delay any longer - bury them in paperwork and small print. Thought you were smarter and still more principled, despite your longevity in public office. Incidentally was that the full EIR or just the outline with notations and references to a multitude of other documents? I suspect it was the former, all flash and no cash, and even that was the size of two Valley Yellow Pages.
David, despite the fact that you were only recently elevated above the masses, that's no excuse for this defection, you've been around long enough to know better. In response to part of your question, "Why not wait....". Why ? Because every time you guys cave in and give them an inch - they take a mile - out of our hide. You further enable them and give creedence to the corporate malfeasence they are perpetrating, and which you now risk becoming a party to, both of you. We all know the other six have been bought and paid for long; I knew that Al 'gotta get mine' Norman's plea to 'Give Sophie a 10-0' was not gonna happen, but we have always hoped that we might be able to maintain at least a bare 5 - 6 for the good guys, and even win a few, but 8 - 3 was real sad and demoralising, just what 'they' want. Between you I suggest you try and find a pair - fast.
Chris, John, Eric ... Mille Grazie.

Posted by Guest Patrick Monk on Jul. 14, 2010 @ 6:42 pm

It is in fact the size of about 8 yellow pages books now...

Posted by Eric Brooks on Jul. 14, 2010 @ 10:26 pm

The EIR could address all the things the progressives are whining about and more, they would just find another reason to bitch and moan.

Posted by matlock on Jul. 15, 2010 @ 6:45 am

A Star Is Born: Environmental engineer Amy Brownell, of the city's Health Department, knew the project chapter and verse. Brownell swamped Daly's objection that there wasn't enough information with an avalanche of facts. And when Daly complained that "it would be helpful" if there was some data about the cancer risk at the site, she suggested "Page 3k-49" in the report. Daly read it, muttered "all right," and moved on.

Posted by matlock on Jul. 15, 2010 @ 10:29 am

Actually the core criticisms that Supervisors and appellants raised of the Shipyard project's environmental approval were never answered at all.

1) Since the Navy has not even completed its plans for the Superfund site clean up, has not even made clear whether it will fully clean up or instead only cap the the most toxic sector of the site, and therefore has not yet gotten its own environmental review of its clean up plans, it is flat out impossible for a local environmental review to be adequate.

1a) Staff answer? Crickets...

2) Where in the EIR is the danger of cumulative impacts of chemicals (and other factors like sea rise and earthquakes) all interacting dangerously -with- each other, thereby amplifying hazardous outcomes, considered?

2a) Staff answer? Silence. Because nowhere in the entire 7700 page document are these interactions addressed.

3) Since there is no safe level of asbestos exposure, and even the smallest exposure (one microfiber) can lead to extreme health dangers and death, and the City has legally adopted the Precautionary Principle, why does the EIR allow asbestos laden natural rock to be disturbed?

3a) Staff answer. Non-existent.

4) Since the EIR openly admits that a Yosemite Slough bridge will have considerable negative impacts on threatened species and their wetland habitat, and there are non-bridge alternatives in the EIR that are perfectly practical, why is the bridge the preferred choice of the EIR?

4a) Staff answer? Totally ridiculous claim that the bridge is necessary to address environmental racism.

4b) True answer that staff did not give -- The designers of a new stadium that will never be built, like the idea, because the bridge will allow wealthy stadium attendees to more easily drive to and from games without having to drive through neighborhoods where people of color live...

Posted by Eric Brooks on Jul. 15, 2010 @ 4:08 pm

you need to grind or split it up some way.

Just disturbing it isn't going to release any asbestos.

Serpentine rock is getting the same pseudo science treatment as cell phones and creation science.

Posted by matlock on Jul. 15, 2010 @ 5:30 pm

Matlock, the fuss over asbestos came to a head in 2006 when CH2M Hill, a subcontractor for Lennar, failed to properly monitor dust for the first 100 days when workers began grading a serpentinite hill on Parcel A of the shipyard that contained veins of naturally occurring asbestos.

Yes, serpentinite is all over California, but it's not every day that you dig into the stuff with heavy equipment on a massive scale. That's why the city and the state required the developer to develop dust mitigation plans.

Under this plan, which the developer signed in July 2005, the air was to be monitored for a year before the grading began to establish ambient levels of asbestos, as well as once the grading began. And  field diaries were to be kept, recording daily findings,  

Sadly, when I dug into the files at the Bay Area Air Quality Monitoring District (BAAQMD) in 2006, I found that no field diaries had ever been kept, and the monitoring results that were submitted kept showing "non detect," even after the digging began, even though everyone, including city officials like Amy Brownell, could see dust clouds blowing across the site.

In fact, Brownell helped folks realize that something was amiss, including the fact that the city's regular dust monitors didn't seem to be working, either.

So, the truth is that for the year before the digging started and for at least 100 days after it began, there were no records of what the dust levels were, and there wasn't even a tarp  hanging between the site and the neighboring school. 

As a result, children were playing and bouncing balls in a school yard right next to the site for at least 100 days with no protection and no warning. That's why the uproar about the dust began.

Even after CH2M Hill got fired from the monitoring job, subcontractor Gordon Ball failed to follow the developer's dust mitigation plans, which required them to water down dust and wash tires of trucks as they left the ship yard, so as to prevent the dust from being spread across town. 

Interestingly, what I did find in the files was a note saying that it cost the developer $40,000 a day, each time there was a work stoppage, which was what the city and the state required, when dust exceeded a certain level.

So, while there has since been plenty of misinformation all around on the issue of the dust, ever since, the truth is that promises were made, and then broken, and the developer ended up being fined half a million dollars for failing to stick to its own asbestos dust mitigation plan.

Somehow, I doubt whether the biggest fine in BAAQMD's history would have been levied if the developer had been found to have followed the plan. And while you can fault the community for not understanding the science behind all this, they weren't the ones who made promises they then broke.

Too bad no one from the Mayor's Office had the balls to stand up like Obama did after the B.P. disaster and publicly say, "They will pay for any damage they caused."

Yes, ultimately, Lennar did end up paying, but the silence from city officials around the  fact that the developer failed to keep its promise, gave the impression, rightly or wrongly, that they were shielding the developer. And that perception has been as toxic to the project as any dust.

 

 

Posted by sarah on Jul. 15, 2010 @ 6:26 pm

'Matlock' you are simply incorrect about the asbestos in serpentine rock. It is incredibly dangerous, and this has been well established science for over a decade now.

When I commented on the environmental impact report I carefully researched the subject, and found the following two European Union government sites which show the EU's determination that there is no safe level of exposure to what is known as chrysotile or 'white' asbestos, and that it was consequently banned in Europe in 2005.

http://xrl.us/bhszrw
http://xrl.us/bhszr8

It is also not true that serpentine must be pulverized to release asbestos fibers. Natural weathering has in fact led to proven contamination and disease. See the report about the UC Davis research on this subject at http://xrl.us/bhszsg

Posted by Eric Brooks on Jul. 15, 2010 @ 8:50 pm

The only mention of weather was "whether"

"With the recent building of new homes and schools in asbestos-bearing regions of California, local and federal environmental officials have suspected that the natural deposits could put residents at risk. Earth-movers and other heavy construction equipment can disturb these formations, producing fiber-laden dust that can be inhaled by people who exercise or play nearby."

and

Mesothelioma kills about 2,500 people each year nationwide. The overall rate of the disease in California is about one case per 100,000 persons per year. California has not experienced a recent increase in the rate of this cancer.

However, Schenker says that given the decades it takes to develop the deadly illness, it is vital that researchers learn as much as they can about the risk of living near asbestos-bearing mineral formations. “If all the growth and activity going on in these areas now is associated with an increased risk of mesothelioma,” said Schenker, “it will take 30 to 40 years to find that out. Believing as we do in prevention, that is not the way we want to discover that the risk is significant.”

Tiny control group out a state of millions

========

Do a search for

vermiculite insulation

Go to EPA web page.

Granted people should follow the advice of the page, but if this was a proximity issue every handyman, electrician and insulation installer working from the 30's to the 80's would have Andy Kaufman's disease by now. There are thousands of building in the city with this insulation.

After the quake we should have seen a massive increase of Andy Kaufman's disease in the city.

Posted by matlock on Jul. 16, 2010 @ 11:31 am

@matlock You obviously only care about spin and rationale and don't care about people. When Mesothelioma begins to appear in your friends, family or maybe even your lungs, then let's talk again about statistics.

The Bayview has been plagued for more than three generations due to pollutants that has created generational asthma and other very serious conditions.

Now, you want to talk statistics. This is compounding what already exists in the city and we're 7x7 miles. Live anywhere here can be hazardous to your health.

Get real.

Posted by Bruce Wolfe on Jul. 16, 2010 @ 10:10 pm

?????????????

Posted by matlock on Jul. 16, 2010 @ 10:37 pm

Say it three times with this EIR in mind.

And, don't be pressured because so-and-so has already made this or that investment and will stand to lose this much money. Dabbling in the "free-market" is a risk at any cost.

Protect their coffers and halt the project until *we* are all satisfied.

Jobs over health?! Sorry, that is why there is OSHA however crippled a dept it is. And, what happens if the Bayview work force gets another bad break like what happened with Home Depot? Then what?

Listen to the people that live here and don't live here yet. There is no one really banging that hard to come live in the city at this point when there are still so many properties up for sale at reduced rates (for SF, that is).

--> It would behoove you, Supes, to set a limit on any construction breaking ground no matter when they get their approved permits until current available for purchase condominiums and other commercial properties are sold.

I challenge you to resolve that.

Don't we do that with condo-conversions? Lottery, I think they call it, rhetorically.
Do the same for all construction. Yes, we *can* as a city afford not build so much so fast. We need *not* to be in this kind of business as a city.

We've had a hard enough time during the dot-com boom (and bust) and in current fiancial times where there is too much vacant property available and far less rental space. How many units are still vacant in Rincon Tower (second one not even built yet)? And, we're also going to have to deal with the SFRA development, too, soon.

--> Where are all these buyers going to come from when there are CURRENTLY, on average, 24 homes for sale in a three-block radius for no less than $500k?

We MUST look at our urban sprawl holistically and demand use of the http://TheHDMT.org, if not, amend it into the planning code for all new development. (I don't think this project would pass its scrutiny on health and environment.)

That is all I have to say on the matter, Supes.

Posted by Bruce Wolfe on Jul. 16, 2010 @ 10:43 pm

San Francisco's reputation as a 'socialist paradise', second only to Beserkley, may have been justified in days of yore, and may still be fair commentary when compared to Arizona and other neanderthal netherlands; but the reality for many years has been that even in Baghdad By The Bay, 'progressive neighborhoods' have been isolated islands in the fog. My dear departed neighbor, Harry Aleo, put a sign in his window many years ago saying, "Welcome to looney valley, the home of the cell phone, latte sipping, left wing liberals". The old curmudgeon called it right. The solid 'progressive' base in Noe Valley is on shifting sand. Three major reasons. An influx of moneyed arrivistas who ironically are destroying what was unique about the neighborhood and enabling it's transformation into a second rate Union Street, generic downtown USA; many of the GLBT community who were active and instrumental in demanding and achieving equality for all regardless of...., have lost that fire in the belly now that they have theirs, even to the point of of advocating NIMBYism when it comes to providing support to young folks of a 'diiferent' sexual orientation; transient dot-commas and other bedroom community commuter types who have little connection or commitment to the community beyond having easy access to lattes and 'natural' arugula from WholePaycheck.
But then that's the reality of life in an America that is sucking the life blood out of the planet.
Have a lovely weekend.
GO GIANTS. (They're our local Baseball team)

Posted by Guest Patrick Monk on Jul. 17, 2010 @ 6:55 pm