Legal Legacy of Harm to the Hunters Point Community
“On behalf of named plaintiffs and thousands of other victims to be named including residents, deceased family members and unborn children,” renown civil rights attorneys Bonner & Bonner filed a $27 billion lawsuit — on May 1, 2018 — for damages arising from “generational threats of cancer and other incurable illnesses attributed to the documented fraud perpetrated by US Navy contractor Tetra Tech in assuring Hunters Point residents and the City of San Francisco that the radiation contaminated land at the Hunters Point shipyard had been cleaned.”
In that historic filing, Attorneys representing nine thousand plaintiffs of the Hunters Point Community Lawsuit, Charles and Cabral Bonner affirmed, “Scientists, environmentalists and the people of Hunters Point have been pushed back and discredited by government officials and developers…until now!”
In a statement issued in June of 2020, Bonner & Bonner notified plaintiffs that a 60 Day Notice of Proposition 65 Violation had been filed with the California Department of Justice and received by Attorney General Xavier Becerra. That filing was prompted by video captured by Hunters Point hilltop residents of deep soil excavations being conducted on the southern hillside in the region designated Parcel A-2.
The Bay Area Air Quality District confirmed a dust complaint had been filed supported by video of a “backhoe” excavator at the fence line of Hunters View public housing, schools and recreation centers. According to the Office of Community Investment and Infrastructure, “Land and vegetation clearing work is underway at the site and construction is scheduled to begin this summer allowed under the city’s shelter in place orders and permitted as an essential activity by executive order of Mayor London Breed.”
In the article, Bayview Residents Sound Alarm Over Potential Dust from Toxic Site, investigative journalist Rebecca Bowe revealed “The City” allowed earth moving and excavation at the Hunters Point shipyard despite clear and present dangers posed by the“perfect storm” of high COVID-19 case rates, high levels of air pollution amplified by the worst wildfire season in California history.
Bayview Hunters Point is a fence line community located in heavily industrialized southeast San Francisco. The California Air Resources Board ranks Bayview Hunters Point one of the most polluted neighborhoods in the state.
A fence line community is a neighborhood adjacent to a polluting industry that is chronically and negatively impacted by chemical, particulate and odorous emissions, traffic routes, noise and hazardous operations that devalue human health, safety and private property. Like Bayview Hunters Point, fence line communities are home to very low income people of color, children and the working poor.
Environmental justice emerged as a “lightning rod” topic during the historic October 22, 2020 presidential debate when Joe Biden referenced his early childhood in a fence line community adjacent to a Delaware oil refinery. That’s why so many people were dying and getting cancer. The fact is in those front line communities, it’s not a matter of what you’re paying them. It matters how you keep them safe. What do you do? You impose restrictions on the pollutants coming out of those fence line communities.”
Biden campaigned on an ambitious environmental justice platform. The Build Back Better plan proposed investing 40% of a $2 trillion clean energy plan into communities on the front lines of poverty, pollution and racial inequity. In January 2021, the Biden administration assumed leadership over implementation of the Toxic Substances Control Act (TSCA), the US law for chemical management. TSCA offers powerful tools to identify people in fence line communities disproportionately affected by exposure to chemicals and to mitigate risks of environmental exposures.
On January 27, 2021 Biden signed an executive order establishing a White House Interagency Council on Environmental Justice, forming an office of Health and Climate Equity at DHHS and an Office of Environmental Justice within the Department of Justice. The appointment of Michael Regan as EPA Administrator sends a signal of commitment to Environmental Justice. Regan grew up in a front line community, began his career as an air quality specialist in President Bill Clinton’s EPA and brings 20 years of experience, advocacy and a demonstrable commitment to the tenets of environmental justice.
In June of 2020, amidst a global pandemic and record breaking wildfire season, soil excavations resumed at the Hunters Point shipyard at the fence line separating the most contaminated regions of the federal Superfund system from the hilltop community on Kiska Road. This dense residential region includes Hunters View public housing, Hunters Point Boys & Girls Club, Hunters Point HeadStart Program and Muhammad University of Islam. Youth comprise up to 39% of the hilltop population and median incomes are as low as $22,697.
At the southern boundary of Parcel A-2 sits the radiation contaminated Parcel E shoreline, the Parcel E-2 landfill — a federal Superfund site — and the Crisp Road laboratory complex used by the Naval Radiological Defense Laboratories from 1946 to 1969. Building 815 housed central laboratory and administration operations for the NRDL. It is situated on Parcel A-2 where digging resumed this summer.
Adding insult to injury, a photo taken in June of 2020 by a UCSF worker from the fence line separating Building 830 from the radiation contaminated Parcel E shoreline captures Navy personnel conducting backhoe excavations of the radioactive shoreline at the same time Lennar began excavations of the nearby Hunters Point hillside.
In 1991, delegates to the Environmental Leadership Summit in Washington, DC authored the Principles of Environmental Justice. “Environmental justice calls for universal protection from nuclear testing, extraction, production and disposal of toxic hazardous wastes and poisons that threaten the fundamental right to clean air, land, water and food…Environmental justice protects the rights of victims of environmental injustice to receive full compensation and reparations for damages as well as quality health care.”
In adopting the Precautionary Principle Ordinance in 2003, the San Francisco Board of Supervisors declared, “Every San Franciscan has an equal right to a healthy and safe environment.” The Precautionary Principle requires careful analysis based on the best available science to combat threats of serious harm or damage and, “lack of full scientific certainty about cause and effect shall not be viewed as sufficient reason for the city to postpone effective measures to prevent degradation of the environment and protect the health of its citizens.”
The most high profile application of the Precautionary Principle in the Environmental Justice movement in Bayview Hunters Point occurred on September 25, 2007 when the San Francisco Board of Education unanimously adopted Resolution 79–25A1 — In opposition to Lennar Corporations Hunters Point Naval Shipyard Development and in Support of the Community Demand for a Temporary Stoppage and Independent Health and Safety Assessment to Protect our Students and Their Families.
Between 2006 and 2007, an estimated 2 million tons of serpentinite rock was graded from the Hunters Point hilltop for an ambitious mixed use housing development project that resulted in Lennar corporations neighborhood complex on Parcel A-1. In 2006 BAAQMD fined Lennar Corporation $587, 000 for failing to monitor asbestos concentrations following numerous notices of violation issued during the grading of the Parcel A-1 hilltop, east of where new excavations of the southern hillside began in June of 2020.
The 2007 Board of Education Call for Moratorium memorialized the “audacity of courage” demonstrated by the deceased Principle Plaintiff of the Hunters Point Community Lawsuit, Christopher Carpenter.
As reported by the San Francisco Bay Guardian in September 2007, Green City: Signs of Asbestos, Carpenter was terminated after complaining about dust generated by a backhoe excavating the Parcel A-1 hillside on October 2, 2006. Carpenter is revered as a hero for notifying hilltop residents and schools of the toxic dust exposures that triggered work shutdowns at the Lennar construction site. Carpenter was fired following a physical altercation with a supervisor who was angry he had notified the hilltop community of the work shut down.
Carpenter sued Lennar contractor Gordon N. Ball in Superior Court for whistleblower retaliation, racial discrimination and infliction of emotional distress. That lawsuit documents Carpenter complained about unsafe and unhealthy work conditions that violated BAAQMD and city health codes. Carpenter lost his job in 2006 and lost his life in 2016 to a rare cancer called peripheral T cell lymphoma that, in a worldwide review of 584 cases, is associated with electrical workers.
The most spectacular asbestos exceedance occured on May 30, 2008 when a reading of 138,000 fibers per cubic meter was detected and concealed from Hunters Point residents and workers days before the June 3, 2008 election. Proposition G was on the ballot — an initiative granting Lennar permission to proceed with constructing 10,000 new homes on the federal Superfund site. Asbestos detected by air monitors in concentrations higher than 16,000 fibers per cubic meter triggered an automatic work shutdown. No work shut down occurred and residents were not informed of the astronomical asbestos level until July 14, 2008.
At the July 15, 2008 hearing of the San Francisco Health Commission, residents accused the Health Department of turning a blind eye to Lennar Corporations’ toxic construction at the shipyard. Health Director Mitch Katz stated “nosebleeds and asthma are normal in children.” Health Commissioners reported they were not informed of the toxic dust being generated at Lennar’s shipyard site and called on Katz to provide an immediate update.
The January 2002 issue of the National Coalition of Concerned Legal Professionals official journal Verdict features the two part series Shame About the Shipyard authored by Saul Bloom — Director of Arc Ecology. Founded in 1983 as ARC/Arms Control Research Center, Arc Ecology is a public interest organization focused on the environmental, economic, social and military impacts of United States governmental activities and policies and providing technical and strategic planning and support to low income and communities of color. “On November 7, 2000 some 287 San Franciscans sent a clear and unmistakable message to the federal government and the United States Navy:87% of San Francisco voters passed Proposition P, a landmark initiative where — for the first time in the history of the federal Superfund program-the public determined a cleanup standard.” Saul Bloom — Author Proposition P
On June 19, 2008 the first Hunters Point Community lawsuit was filed by 18 residents and workers who sued Lennar and consultants CH2M and Gordon N. Ball in Superior Court on behalf of their school aged children who suffered headaches, nosebleeds, skin rashes and cardiopulmonary diseases requiring hospitalization and emergency care during the excavations of Parcel A-1.
Scott v. Lennar Corporation NoA133890 failed to prove direct cause and effect relationships between the toxic dust exposures and associated disease, but served as a test case for the nine thousand plaintiff Hunters Point Community Lawsuit filed on May 1, 2018 that is currently in mediation.
“The court found plaintiffs failed to create triable issues of fact as to exposure to asbestos, other toxins and causation of injuries resulting from their exposures.” The San Francisco Department of Public Health issued evidence against the plaintiffs arguing, “there is no medical or scientific evidence that dust generated from grading operations on Parcel A pose an endangerment to human health.”
John Balmes MD, Professor of Medicine at UCSF and Chief of the Division of Occupational and Environmental Medicine at San Francisco General Hospital argued against the plaintiffs, ‘It is highly unlikely exposure to naturally occurring asbestos from grading operations at Parcel A will create a significant risk to health in the community.”
In October of 2020, John Balmes MD issued an apology and admission to the Hunters Point community he “misrepresented my relationship with Lennar regarding asbestos dust levels during the grading of Parcel A as an early step in development at Hunters Point Naval Shipyard. I was asked by the Department of Public Health to provide advice about the issue.”
The apology came after Dr. Reza Shirazi obtained proof Balmes acted as a paid consultant of Lennar developers when he issued the opinion used against the parents of exposed symptomatic children in Scott v. Lennar Corporation.https://www.newsbreak.com/california/san-francisco/news/2087942370222/open-letter-of-apology-from-ucsf-professor-john-balmes-md-to-the-bayview-hunters-point-community-and-ahimsa-sumchai-md
Balmes was awarded a seat on the California Air Resources Board in December 2007 and in July 2019 chaired a panel of four “white male UC scientists” in the University of California Review of Hunters Point Shipyard Radiation Soil Standards, announced by Breed in the 2019 State of the City Address.
In an audiotaped conference call on August 16, 2019, Balmes revealed to Ramona Tascoe, MD and myself that the UC scientists believed the 2018 Parcel A gamma scanning conducted by the California Department of Public Health was “inadequate” and expected their findings to be censored. In their final report sent to London Breed in January of 2020, however, the UC scientists rubber stamped the gamma scanning conducted on Parcel A and advanced the Parcel A2 hillside development that began in June of 2020. https://www.ucsf.edu/news/2020/01/416471/ucsf-releases-report-hunters-point-naval-shipyard-testing-protocols
The malfeasance of the UC Review and representatives of Mayor London Breed was filed as a complaint with State Attorney General Xavier Beccera and with the City Attorney’s office. An email exchange between John Balmes, MD and San Francisco Chronicle investigative journalist Jason Fagone offers solid evidence in support of the Hunters Point Community Lawsuit demand for a construction moratorium:
Gamma scanning conducted on Parcel A-1 and Parcel A-2 detected a total of 230 above background gamma anomalies dismissed by health officials as “naturally occurring” radioactive potassium, in addition to the discovery of a gamma emitting radium dial. A similar strategy was used by health officials in 2006 to dismiss as “naturally occurring” asbestos levels detected by air monitors in concentrations as high as 138,000 fibers per cubic meter.
The gamma emitter manganese has been detected in 100% of over 2000 soil samples analyzed at the Hunters Point Shipyard and has a 100% detection frequency in urinary screenings of nearby residents and workers. In stark contrast, the California Biomonitoring Program has detected manganese in only 19% of urinary screenings conducted in the regional CARES study.
If the California Department of Public Health did not perform conclusive spectral analysis of all 230 above background gamma anomalies detected on Parcel A-1 and Parcel A-2, manganese should be considered a source of the gamma emissions detected by walkover and towed array.
In March of 2011, Hunters Point residents charged government agencies with fraud and criminal collusion after 2000 emails, obtained via the Freedom of Information Act, reveal correspondence between Mark Ripperda of the EPA, Amy Brownell of the Department of Public Health and Lennar consultant Rob Balas documenting their conspiracy to downplay health risks of the asbestos clouds residents believe caused asthma, nosebleeds, rashes and headaches in Hunters Point children. A directive was sent to DPH employees in 2007 to “avoid doing analysis that might cause public outrage.” In an email to Lennar consultant, EPA Remedial Project Manager Mark Ripperda states: “I prefer to keep our message as simple as possible and stay away from health assessments and shut down days.” Ripperda was reassigned after release of the emails led to government hearings in 2011, but remains an EPA Project Manager. https://sfbayview.com/2011/03/emails-show-regulators-conspiring-with-lennar-to-cover-up-shipyard-development-danger/
Brownell survived a unanimous vote by the shipyards Restoration Advisory Board to unseat her in 2009, a damning Civil Grand Jury Investigation in 2010, two professional licensing investigations and three front page Chronicle investigations that uncovered her criminal and unethical malfeasance. Brownell is the only SFDPH employee with 25 years of “boots on the ground” experience at the Hunters Point Shipyard. Under Article 31 of the Health Code — adopted as a city ordinance in 2004 — Brownell and the Health Department are compensated by Lennar developers via the Office of Investment and Infrastructure, for earth moving activities at the federal Superfund site. It is speculated Amy Brownell may be protected by a benefactor “all the way at the top of the government ladder”…in the office of Nancy Pelosi!
“A federal Superfund site is, by definition, a property where the EPA used a Hazard Ranking System to calculate a score based on actual or potential release of hazardous substances causing harm to human health. On a scale of 1 to 100, a score of 28.5 or more places a property on the National Priorities List. The Hunters Point Shipyard has a Hazard Ranking Score of 80 overall and 100 for groundwater migration, corresponding to an 80 to 100% risk the “toxic stew” present at the shipyard will contact sensitive receptors via airborne, soil, water or ingestible routes. Thus, by legal definition and regulatory classification, the Hunters Point Shipyard is a harmful property and negative health effects seen in residents and workers on and adjacent to it, under the Precautionary Principle, must be presumed causal.”
Ahimsa Porter Sumchai, MD PD — Determination of Harm to Plaintiffs of the Hunters Point Community Lawsuit Due to Tetra Tech EM, Inc. Criminal Fraud and Negligence at the Hunters Point Shipyard — a federal Superfund site.
USLegal defines harm as an injury, loss or damage. Harm can be physical or psychological, actual or potential. Harm principle refers to a theory that an action can be banned if it harms someone. As a spiritual principle, harmlessness is the meaning of a word from the oldest attested human language — Ancient Sanskrit. That word is Ahimsa.
On May 27, 2020, A Resolution in Support of the Community Harmed by Toxic Substances and Radiation was adopted by the San Francisco Democratic County Central Committee. Introduced by D10 resident Gloria Berry, the resolution was sponsored by DCCC Chair David Campos and 12 elected members. It was adopted with resolve that, “The San Francisco DCCC urges the City of San Francisco, the State of California, the US Navy and the federal Government to immediately halt all construction and further resolves that reparations be paid to the residents of Bayview Hunters Point in the form of healthcare to include toxic testing and personal injury compensation in order to begin repairing the damage caused by years of exposure to radioactive waste and environmental injustice.”
Despite mounting evidence of health disparities linked to toxic exposures in Bayview Hunters Point, human biomonitoring to detect cause and effect relationships between toxic exposures and expressions of disease has never been implemented by the San Francisco Department of Public Health. Testing for lead and other heavy metals, though widely available, was never offered to hundreds of police crime lab personnel sited at Building 606- former site of a radioactive laundry- at the boundary of Parcel D and the radiation contaminated Parcel E shoreline where a cluster of environmentally linked cancers and diseases, human and canine deaths and other unexplained incidents are being litigated.
The SFPD class action lawsuit pits “The Boys in Blue v. The Boys in Blue” as the United States Department of the Navy was named as principal defendant by the Law Offices of Walkup, Melodia, Kelly and Schoenberger. It charges negligent misrepresentation and infliction of emotional distress and wrongful death in complaint for damages. “The Navy negligently told the City there was no history of radioactive use of Building 606 and gave San Francisco the green light to use Building 606 despite its status as subject of environmental testing.” https://www.classaction.org/media/abbey-et-al-v-united-states-of-america-et-al.pdf
The Environmental justice movement emerged “like a Phoenix” out of the pioneering research of Robert Bullard, PhD. Combining sociological data, geographic mapping and litigation, in 1978, Attorney Linda Bullard recruited her husband as expert witness in the trailblazing civil rights case Bean v. Southwestern Waste Management. The injunction charged racial and environmental discrimination in a city of Houston decision to site a garbage dump in an affluent African American suburb. Bullard produced maps and statistical evidence proving race was the decisive factor. “The maps we generated proved, without a doubt, that race was the major player in where the city sited environmental hazards.”
Bullard went on to author books advocating environmental justice including The Quest for Environmental Justice: Human Rights and the Politics of Pollution. Director of the Environmental Justice Resource Center at Clark Atlanta University, Bullard is considered the foremost authority on Environmental Justice in the United States.
The approach to operationalizing environmental justice across multiple federal agencies in the Biden administration and nationwide must incorporate advanced screening tools including the EPA environmental justice mapping and screening tool EJSCREEN — along with human biomonitoring.
The Hunters Point Community Biomonitoring Program is establishing cause and effect relationship between environmental toxins and expressions of disease. HP Biomonitoring is advancing environmental public health in the implementation of community surveillance combined with geospatial mapping of toxins detected using a simple, reliable, low cost urinary screening capable of detecting up to 35 biomarkers of toxic exposure and nutritional deficiency. The screening is analyzed by a certified laboratory using mass spectrometry. The laboratory screening has been successfully used as evidence in civil and criminal proceedings and was introduced into deposition on November 12, 2020 by an attorney representing five UCSF workers sited at the Hunters Point Shipyard Building 830, 75 Crisp Road.
The Hunters Point Community Biomonitoring Program is advancing environmental justice and paving the way for new medicolegal frontiers in substantiating toxic exposures in one of California’s most vulnerable communities:
Key plaintiffs of the Hunters Point Community Lawsuit include SF Bayview editor and publisher Mary & Willie Ratcliff, who have published the neighborhood newspaper for 29 years from their home office near 3rd and Palou at the shipyards historic main entry. Mary Ratcliff retired last month due to health challenges posed by metastatic breast cancer.
The Ratcliffs, their neighbors and 15 UCSF Building 830 workers have undergone urinary screening that — combined with geospatial mapping- places them in HP Biomonitorings ROC Cluster—a group of screenings in which multiple designated radionuclides of concerns at the Hunters Point Shipyard have been detected. These biomarkers of radiation exposure include uranium, cesium, thallium, strontium, gadolinium, rubidium, the gamma emitter manganese and the alpha emitter vanadium — that when inhaled causes headaches and nosebleeds!
Additional scientific evidence in support of the demand for a construction moratorium is derived from research documenting improvements in mortality and fertility between the years 2005 and 2016 during the decommissioning of eight power plants in California- including the PG&E Hunters Point Power Plant. According to Jennifer Burney, UC San Diego Associate Professor of Environmental Science, airborne particulate matter and contaminants “wreak havoc on human health when inhaled.” Burney combined EPA, NASA and CDC data with county changes in mortality and found the shutdown of power plants saved an estimated 26,610 lives and was associated with a reduction in preterm births in fence line communities.
The Hunters Point Community Lawsuit entered into mediation with Lennar’s attorneys on November 23, 2020. The three pronged Community Demand calls for a temporary Moratorium on all excavations at the Hunters Point Shipyard until both parties — Community and Lennar — can assess the feasibility of safe digging and a mutually agreed upon plan to resume safe digging, along with medical monitoring for five years and monetary compensation.
“Judge Weinstein delivered the key take away from our discussion, emphasizing to Lennar’s Attorneys that Lennar must legitimate community concerns, well founded and growing out of years of mistrust and misinformation.”
Charles A. Bonner — Attorney for Plaintiffs — The Hunters Point Community Lawsuit