Note: BNC Policy Regarding Letters
BNC invites letters from eNEWS readers. Letters and photos should be sent to newsletter@berkeleyneighborhoodscouncil.com and should be about issues of neighborhood interest. Letters should be no longer than 500 words, although at times we will publish letters that exceed that length. All letters should state the name(s) of the author and at least the general area where the author lives or the neighborhood group he/she is affiliated with. That information will be published with the letter. Letters should also include a phone number and e-mail address where the author can be contacted. That information will not be published. We ask for it just in case we have any questions, and, of course, we need to verify who it was that sent the letter.
This Month’s Letter concerns Air Quality in West Berkeley
BNC is of the opinion that this month’s letter concerns one of the most important issues that our City must resolve. Clean air is vital to every Berkeley neighborhood AND to the communities around us. Our neighborhoods in West Berkeley are living at Ground Zero for dirty air emissions coming from industrial plants and the I-80 freeway. There is a significant impact not only on the people who live and work there but also on the people who simply want to enjoy nature in places like Aquatic Park, and the children who play soccer and baseball there.
We’ve written about it before and we urge readers to not only consider the information below but to check out the Neighborhood Forum article in eNews Issue 12, Late August-September 2014, Clean Air? A View from the West, by M.S. Siegal, a West Berkeley resident. The article has links to the Community Risk Reduction Plan and where to get more information from the West Berkeley Alliance for Clean Air and Safe Jobs and the Global Community Monitor. You can find it in our Archives Section. It’s basically about Pacific Steel Casting and the “Blame Game” that has been key to the continuation of these problems without resolution.
This month’s letter regarding the air quality in West Berkeley is posted below, unedited, except for the elimination of one sentence that urged people to come to the January 20th Council meeting. We have deleted that sentence because that meeting has past. Following the letter, BNC reports on what happened at the January 20th Council meeting.
This Month’s Letter
On Tuesday, Dec. 13, a small number of environmental activists from West Berkeley met in a local café for the purpose of taking the next step in putting an end to air pollution in their neighborhood. West Berkeley has long faced various forms of health threats from industry in that area, principally from Hanson Asphalt and Pacific Steel Casting.
At the meeting, one person reported lead in water that rose up out of his lawn, coating it with a white substance. Another, an engineer, reported that he had in the past measured nickel and manganese levels in the air that were way above EPA health thresholds. Another complained that the soot from Pacific Steel Casting at times is so heavy that it changed the color of her pet cat. The school buses that are garaged on 6th St where Urban Ore used to be are also often coated with soot. They are used that way without being cleaned first, and the children often get this soot on themselves. The steeple at St. Ambrose Church is being rented to ATT to put in a cell phone antenna. The church people know of the health risks of cell phone antennas. Residents have been fighting against the installation of these antennas in Berkeley for years. The antennas are being installed anyway.
Another person reported walking her dog at midnight, and being seriously affected by malodorous gases coming from Pacific Steel Casting. She reported it to the Air Quality Control Board. When an agent from the Board phoned her about her complaint, he had already contacted Pacific Steel Casting, and they had said that no gases had been released that night, thus discounting her report. The gathering expressed the need for a reliable pollution reporting mechanism.
An important issue raised was the proximity of elementary and middle schools to the sources of these noxious gases. It was mentioned that a number of schools in Berkeley are closer to air pollution sources than any other schools in the state. The Duck’s Nest Preschool is one block down wind from Pacific Steel. On this score, it was also mentioned that the new Whole Foods store on Gilman is itself in a toxic zone.
This group is going to go to city council on Tuesday (1/20) to make two major demands. First, that a system of air quality monitors be installed along 6th St., to curtail industry denials, and provide real data concerning industry violations of standards. And second, that a public hearing be called to investigate whether Hanson Asphalt has complied with the conditions of a court decree of 1999. At that time, a Nuisance Suit was filed against Hanson (then Berkeley Asphalt) for unhealthy effluents, bad odors, and the use of toxic odor-disguising chemicals. The suit was dropped when a consent decree was reached that established a list of required mitigations for continuation of the company’s Land Use Permit. These mitigations have to do with the company’s truck traffic, dust production, odors, noise, etc. Those present at the meeting reported that Hanson has not complied with those mitigations. A public hearing would bring the situation to public attention, determine the degree to which the company had complied with the court settlement, and establish the need for some kind of rectification to the extent it had not.
A number of interesting issues were raised during the meeting. One was the use by industry of odor-disguising chemicals. They do not rectify the emission of toxic fumes, but simply cover it up. In many cases, they even add toxicity to the fumes emitted. Both Hanson Asphalt and Pacific Steel Casting have been reported to have used odor-disguising chemicals, rather than clean up the waste gases they produce.
In another item of discussion, it was noted that Pacific Steel Casting had recently been purchased by an equity firm. They seem to be planning on “flipping” the property — that is, it was purchased on speculation. The new owner may put in exhaust gas scrubbers because it will increase the value of the property for resale. In those terms, the cynical conclusion seems to be the most realistic, that environmental protection and resident health concerns will be considered only if made profitable, and that will occur only in the event that the property becomes an object of speculation.
Finally, the issue of the toxicity of electromagnetic radiation (EMF — now known as “electro smog”) was also raised, as another form of environmental pollution. EMF is emitted by cell phones, cell phone towers, and Smart meters, among other things. Where noxious gases and odors are perceptible, the toxicity of EMF is not. Nevertheless, it pollutes the environment, and creates serious health problems for many people. The gathering recognized the conjunction between these forms of pollution but decided to focus primarily on the issues of air pollution by Hanson Asphalt and Pacific Steel Casting.
Steve Martinot
North Berkeley, Live Oak Neighborhood resident
This is What Happened on January 20, 2015
The Community Health Commission, Housing Advisory Commission and City Manager all placed reports regarding West Berkeley’s air quality on the Council’s January 20, 2015 agenda. Their recommendations refer to Use Permit #3033 granted to Berkeley Asphalt Co. and Berkeley Ready Mix when they (collectively referred to as BARM) sought to expand their operations at 699 Virginia St. The Use Permit modifications were approved and in October 1998 the Ocean View Neighborhood Association (ONA) filed a public nuisance complaint against both the City and BARM and Communities for a Better Environment (CBE) sued the City in Alameda County Superior Court claiming that the Use Permit modifications had been approved without preparing an adequate Environmental Impact Report. A Settlement Agreement between CBE, the City, and ONA was signed in August 1999. The Settlement Agreement required the City to include the 48 provisions contained in the Agreement in the Use Permit. The provisions of the Agreement concerned traffic, truck routes, dust control, odor, and noise. BARM was required to pay CBE’s legal fees and there was to be a semi-annual review meeting for a period of three years following the execution of the Agreement.
Since the 1999 Agreement, per City reports, Berkeley Asphalt was sold to Lehigh Hanson Cement, a company owned by Heidelberg Cement, said to be:
the global market leader in aggregates and a prominent player in the fields of cement, concrete and other downstream activities, making it one of the world’s largest manufacturers of building materials. The company employs some 52,600 people at 2,500 locations in more than 40 countries.
City staff reports state that the Housing Advisory Commission was informed on September 4, 2014, that:
- 93 residents, workers, and business owners signed and submitted a California Public Records Act request in June 2014 to obtain City records on whether the City of Berkeley complied with the Settlement Agreement, and that
- in a one-year period, between 2012 and 2013, the West Berkeley Alliance for Clean Air and Safe Jobs, California Environmental Justice Coalition, homeowners and residents made 111 complaints to the Bay Area Quality Management District.
Residents provided public comment to the Community Health Commission on September 11, 2014 that:
the fumes have gotten worse over the last five years, the plant operates at unauthorized hours, and that compliance with several terms of the settlement has not been fully realized.
On January 20, 2015, the City Council had three staff reports for action on their agenda. The Community Health Commission recommended:
- That the Council hold a Public Hearing on air quality complaints regarding the West Berkeley Lehigh Hanson Asphalt Co. plant, Bayline Concrete Cutting Co. and Pacific Steel Casting Co. and that the City provide relative health information; and
- Direct the City Manager to complete the compliance check list based on the 1999 Settlement Agreement with the Oceanview Neighborhood Association, and
- If the City Manager and delegated staff or department finds the West Berkeley Lehigh Asphalt Co. plant is not compliant with the compliance check list based on the 1999 Settlement Agreement, the City and its jurisdictional bodies or the appropriate authority should implement corrective action and enforce the 1999 Settlement Agreement compliance checklist immediately.
The Housing Advisory Commission recommended that:
The City Council direct the City Manager to complete the compliance check list based on the 1999 Settlement Agreement with the Oceanview Neighborhood regarding air quality complaints in West Berkeley.
The City Manager recommended that:
- The Council send a letter to the Bay Area Air Quality Management District (BAAQMD) expressing concern about the District’s response to emissions and odor complaints received from the Oceanview neighborhood, and
- Direct the City Manager to implement procedures for notifying complainants who contact the City on how to file complaints with BAAQMD regarding odors and air emissions.
The City Manager essentially said in her report “don’t blame the City”, and stated that various records have not been retained. In her own words:
BARM was responsible for implementing measures to improve operations that were included in checklists that were part of the agreement. The Company also was required to maintain logs to record certain operational activities and complaints.
There was no requirement in the Settlement Agreement for the City to produce a written record or report of the audit of the logs and no known written record of the audit exists. The checklists referenced in the Settlement Agreement were supposed to be completed by BARM, retained by BARM and were never required to be submitted or reviewed by the City.
BARM was required under the Settlement Agreement to send to the Zoning Compliance Officer a monthly log of complaints that BARM had received under the provisions set up in the Settlement Agreement. BARM has sent monthly logs and we have electronic records dating back to 2008 of these logs. Other than this ongoing complaint log reporting, the checklist and log auditing provisions of the Settlement Agreement ended in 2002. Any records that may have been produced of inspection or audit results, even though they were not required to be produced, are long past the record retention dates and the absence of such reports is not evidence of non-compliance.
Twenty-five speakers spoke during the public comment period for this item. The vast majority of them urged the City Council, in no uncertain terms to hold a public hearing. One stated that residents were insulted by the City Manager’s recommendation because they had been dealing with this problem for many years, they knew how to file complaints and did not require any training to do so. Another stated that when she voiced her complaints at meetings of the BAAQMD, Mayor Bates who sits on that Board got up and left the meeting. Another wondered why his District representative, Vice Mayor Maio, hadn’t been more responsive to West Berkeley residents about this problem.
Both the Mayor and Vice Mayor responded to the criticism: Mayor Bates stating that the BAAQMD had monitored the air quality for two months and found the problem wasn’t as severe as it was made out to be and Vice Mayor Maio stating that due to her efforts, the air quality had much improved over what it had been.
In the end, a motion was made by Council Member Anderson, seconded by Council Member Arrequin to adopt the Community Health Commission’s recommendation to hold a public hearing. The motion failed on the following vote:
Voting Yes: | Council Members Anderson and Arrequin |
Voting No: | Council Members Capitelli, Droste, Maio, Moore, Wengraf and Mayor Bates |
Absent: | Council Member Worthington (absent 10:50 PM — 11:27 PM per City Clerk’s notation) |
On a Motion by Vice Mayor Maio, seconded by Council Member Droste the following motion carried:
- Council Members Maio and Droste will work with neighbors, businesses, and the City Staff to review the complaints and make good faith efforts to mitigate impacts in the areas where the City has authority such as noise and odors and to bring their findings back to the City Council.
- Direct the City Manager to enforce the terms of the Use Permit and the 1999 Settlement Agreement with the Oceanview Neighborhood Association; and
- If the City Manager and delegated staff or department finds the West Berkeley Lehigh Asphalt Company plant is not compliant with the Use Permit or the 1999 Settlement Agreement with the Oceanview Neighborhood Association, the City and its jurisdictional bodies or the appropriate authority would implement corrective action and enforce the 1999 Settlement Agreement Use Permit immediately.
Voting Yes: | Council Members Arreguin, Capitelli, Droste, Maio, Moore, Wengraf and Mayor Bates |
Voting No: | Council Council Member Anderson |
Absent: | Council Member Worthington (absent 10:50 PM — 11:27 PM per City Clerk’s notation) |
BNC Response
The Community Health Commission Report of this date states that:
According to the 2013 City of Berkeley Health Status Report “asthma hospitalizations of children under five years of age are most common in West Berkeley.”
It further quotes from the City Manager’s most recent report to the City Council on the Breathmobile submitted to the Council on September 16, 2014 as an Information Item:
The new “Health Happens in Berkeley” initiative has identified asthma hospitalizations in children (up to 15 years of age) as one of four preliminary Public Health priorities. The Public Health Division is committed to addressing the asthma health inequities seen in Berkeley’s Health Status Report 2013.
The Commission’s report goes on to point out that the Occupational Health and Safety Administration states that since:
potential health effects of exposure (to) asphalt pollutants and fumes include: headache, skin rash, sensitization, fatigue, reduced appetite, throat and eye irritation, cough, and skin cancer, it is imperative that the City act to mitigate the potential for these health effects to manifest in the citizens of West Berkeley.
BNC wholeheartedly agrees. The problems have continued for too long and affects both residents in West Berkeley but also the residents of Albany Village, owned and operated by the University of California as student family housing, not to mention the workers in the pertinent industrial plants themselves.
BNC proposes the following program:
- Write the City Council stating that the requested public hearing should have been held, not only to shed light on the subject for the entire Berkeley community, but also to ensure that the full scope of the problem is put before the Council, and assure West Berkeley residents that the City indeed cares about these problems.
- It needs to be made clear to residents that the meetings of the Maio-Droste Committee are open to the public and fully noticed under all requirements of the Brown Act.
- Each and every City record needs to be collected and placed on the City’s website in an electronic file that is open for public review, as well as in a paper file in the City Clerk’s office.
- Locations of air monitors and all complaints need to be included in this file as well as an analysis undertaken to discover any relationship between the monitors and complaints based on location, dates, times, outcomes of the complaints and other relative factors.
- All records from the BAAQMD need to be obtained and posted in this file as well. These records should include staff reports as well as full Board and committee minutes with a complete record of actions taken.
- The City’s Health Department or an independent health authority should review the materials in #4 and #5 above and analyze them with occurrence and health statistics over at least a 15-year period.
- Since some of the compliance checklist items based on the 1999 Settlement Agreement may have terminated after three years, the list seems to have been required to become a part of the Use Permit for the Lehigh Hanson Asphalt Co. and Bayline Concrete Cutting Co. Use Permits do not expire. The Council needs to direct the Zoning Officer to determine whether these items have actually been incorporated fully into that Permit, when that occurred, and if it hasn’t occurred, for what reason and which Use Permit items are deemed to be in compliance.
- The Council needs to be informed by the City Manager as to why, when complaints have been filed, enforcement of the Use Permit has not taken place.
After BNC met with some residents in the Oceanview Neighborhood Association regarding our proposed program, we will forward these points in a letter to the City Council and City Manager. We would like to hear from our other consulting organizations and individual subscribers as well. Please contact us as soon as possible at bnc50@berkeleyneighborhoodscouncil.com.
On a lighter note
Update regarding the Presentation by Spencer Veale, East Bay Community Solar Project
BNC readers will remember that the purpose of Mr. Veale’s project was to “promote conversion to solar by helping people navigate the conversion process and by offering a bulk discount when several households get together to do it at the same time.” BNC received the following e-mail from Mr. Veale:
With the deadline to sign-up for a proposal approaching (12/31), we currently have 25 confirmed participants. This means we are still 15 short of reaching tier 3 and the associated discount, which for many will be over $1,000. At this time we still have over 50 people who either have their appointments scheduled or have already had their proposal presented, but have not made a decision. So, there is still a decent chance we will make it to tier 3. Of course, the more people we get to sign up for proposals, the better the chance we have.
I wanted to take this opportunity, in the context of a looming deadline, with tier 3 in reach, to again urge you to take a few minutes to think who you know that might be interested in going solar. In the past I have encouraged you to forward these prospects the link to the website. If it is something you are comfortable doing, I’d like now to encourage you to make a phone call or two inviting your friends, colleagues or neighbors to avail themselves of the community support the project offers by signing up for a no-commitment proposal.
Thanks again for your interest in the project. I hope it has been helpful.
Spencer Veale
Project Coordinator
ebcsolarproject.com