|Richmond Planning Department -
A Negative Declaration Mill?
December 21, 2002
The article that follows this E-FORUM appeared in today's West County Times. Although the story is accurate and detailed, I want to add some editorial comment about this project and the approach in general of the Richmond Planning Department to application of CEQA (California Environmental Quality Act).
The Richmond Planning Department has a long history of perceiving itself an extension of an applicant or developer's own staff where the mission of moving a project into implementation as quickly as possible finds a seamless merge with public policy. The classic shortcut around a time consuming EIR is what CEQA calls a negative declaration. This action essentially concludes that a project either will have no adverse impact on the environment or that such impacts can be mitigated to insignificance. Used correctly, this tool has many appropriate applications.
Large developers and industries with controversial projects in Richmond routinely benefit from negative declarations. Infamous past examples are the Chevron MTBE Plant and a reconstruction of the General Chemical plant. More recent ones include the Chevron LPG tanks and Ethanol Blending Facility. These same types of businesses also routinely benefit from "piecemealing," a process banned by CEQA but embraced with alacrity by the Richmond Planning Department.
The recent rejection by the City Council of an appeal of the negative declaration for Western Research Center (EID 02-03) was, in my opinion, a similar misuse of public policy. The City Council, however, was only following the advice of its Planning Department staff, bolstered by the city attorney, who have stated publicly that their highest priority is moving projects through the process as quickly as possible. I always thought the City's highest priority should be representing the interests of its residents and safeguarding public health and welfare.
In the case of the Western Research Center, credible evidence was presented by the public and the appellant that there may have been experiments at the site during the Cold War that involved uranium, and that there may be some residual contamination. During the public hearing, the following facts came out:
· An agency of the U.S. Government reported possible secret experiments using radioactive materials at the site.
· The applicant claimed to have researched the uranium issue, and their representatives made an oral presentation that concluded it was of no consequence. However, no written information or documents were provided to or requested by the Richmond Planning Department to support the applicant's allegations.
· No independent verification of the applicant's version of the uranium issue was made by either the City of Richmond or its EIR consultant, Public Affairs Management.
· According to Mary Bean of Public Affairs Management, the firm developed no independent data or assessment of the hazardous materials characterization of the site. They simply reviewed data developed by the applicant.
· EIR consultants, like Public Affairs Management, are supposed to be objective and independent. Although project applicants pay for their services, they are typically retained by public agencies to provide the illusion of objectivity. However, Public Affairs Management has a long history of also serving the very clients it is supposed to be regulating. Although they have a long list of public agency clients, their website shows that they also serve Bechtel, Union Pacific Railroad, Dupont, Chiron, Hewlett Packard, Vintage Properties and Wareham Development Company, to name a few. I am not suggesting that they had a specific conflict of interest on this project; I am simply observing that they know where their paychecks originate.
· The applicant, the EIR consultant and Planning Department staff repeatedly deferred to a California State agency, the Regional Water Quality Control Board for analysis of the hazardous materials characterization of the site and the efficacy of the cleanup. While this may seem reasonable on the surface, these people are not infallible. Remember that these same types of state regulators brought us MTBE and the "alien landing pad" hazardous materials cleanup project at Seacliff in Richmond. There is certainly a case to be made that the citizens of Richmond deserve an independent verification of state regulators.
What is clear from the hearing and the public comment received is that this this remains a controversial project until the uncertainties about piecemealing, hazardous waste and potential radioactivity have been resolved. The appellant's representative, attorney Adrienne Bloch, cited a clear and compelling legal precedent that would have justified at least a focused EIR:
'The very uncertainty created by the conflicting assertions made by the parties as to the environmental effect ... underscores the necessity of the EIR to substitute some degree of factual certainty for tentative opinion and speculation.' (NO OIL, INC., et al., Plaintiffs and Appellants, v. CITY OF LOS ANGELES et al., Defendants and Respondents, 13 Cal.3d 68, L.A. No. 30268, Supreme Court of California, December 10, 1974 - http://ceres.ca.gov/ceqa/cases/1974/nooil_121074.html)
"Pro-development" Richmond planners continue to delude themselves that they are doing developers favors by shortcutting the CEQA process. The fact is that they are not only shortchanging the people they work for -- the citizens of Richmond -- they are also slowing down, rather than speeding up, the projects they are regulating. A good example is the Richmond Parkway Commerce Center (EID 00-01 and DRO 0-23), also known by its developer, Panattoni Development Company. An inadequate initial study was performed by the Planning Department, and a negative declaration was noticed on December 23, 2000. Ultimately, the negative declaration was appealed by the Urban Creeks Council of California, the Richmond Environmental Defense Fund, the City of San Pablo and the West County Legal Defense Fund. Later, CBE (Communities for a Better Environment) weighed in. After the appeals delayed the project for several months, the City Council finally rejected the last one on March 9, 2001. The Planning Department continued to keep its head in the sand, and in July of 2001, CBE noticed its intent to litigate. Finally seeing the light (dimly) the City Council set aside its previous actions and ordered an EIR in October of 2001. It is now December 2002, and the EIR has not yet been released. The project has already been delayed two years and will probably go another over issues that could have been long ago resolved if the Planning Department had not tried to exercise its misguided pro-development helpfulness and either required an EIR in the first place or facilitated a resolution of the prohject's controversial components. What our Planning Department has never learned is that developers don't crave shortcuts, they just want to know what the rules are and get on with it. They also don't want appeals and lawsuits from outraged citizens that can delay projects for years.
Other examples include two Chevron expansion projects that are now held up by litigation over CEQA issues, and Seacliff Estates, which was delayed for two years by appeals and litigation. All these have in common lousy CEQA analysis, hack EIR's and disregard of community interests.
We have good new leadership and good new technicians in our Planning Department. They just don't understand who they work for and how to get things done right. I believe they are trainable, but they need support and encouragement. With help from the citizens of Richmond, perhaps they will see the light in 2003.
County Times, December 20, 2002
RICHMOND - The city has given its blessing to a sprawling research and development complex on the former Stouffer Chemical Co. site -- no environmental study required.
Simeon Properties will build on 28 of the 86 acres it purchased from Zeneca Corp., directly south of Interstate 580 at the Bayview Avenue interchange.
Oakland-based Communities for a Better Environment had appealed a planning commission decision to let Simeon skip an environmental review of the site.
A deeply divided council ultimately backed the commission's decision but requested further investigation into possible uranium contamination, indemnifying the city if contaminants are found.
"Our basic position is that contamination issues must be looked at before a permit is issued, not afterward," said Adrienne Bloch, staff attorney for Communities for a Better Environment.
Bloch condemned the "complete lack of analysis" of possible radioactive and toxic materials at the site, even though federal legislation makes children who lived in the area eligible for compensation.
The council did not specify what materials should be studied or how, nor did it say what steps would be taken if toxic substances were discovered.
At issue are the 52 acres that Simeon has not committed to any particular project. Pocked with toxic hot spots resulting from chemical production and dumping dating back to the late 1800s, the ravaged land is undergoing a massive cleanup.
Arsenic and lead have turned up in adjacent marshlands; wells and drilled holes revealed concentrations of toxic metals, PCBs, and DDT.
Those who recall the plant's festering heyday, when sour smells and eerie sights were a daily given in the lives of neighborhood children, called for a full environmental review.
"I was just a little girl," said former resident Ethel Dotson, who attended the hearing. "I used to like to play outside in the rain. That stuff would just be flowing all along the walkways." She also remembered dunes of yellow material, "and did it smell bad."
The Atlanta-based Centers for Disease Control and Prevention and the U.S. Department of Energy have identified the site as one of 20 in the state that may have processed radioactive and toxic materials in a secret project during the Cold War. Yet there was no environmental testing required before the Seaport Village housing development went up on neighboring lots.
Jay Paxton, a lawyer for Simeon, said the 28-acre parcel where the research facility will be built has a clean bill of health. The project should not be held up because the remainder is contaminated, he said.
"This site has two very distinct areas," he said. "Our site is quite clean. It has been extensively studied. It's to be used for the same purpose as before -- as a research and development campus."
Paxton said the company voluntarily contacted the state Water Quality Control Board for guidance on bringing the relevant portion of the acreage into compliance. The board issued a "No Further Action Necessary" letter after the company took corrective steps.
He also said there has only been one instance of uranium use, during a two-week period in 1961. The experiment was conducted inside a vacuum tube, and all waste was carried out in enclosed containers, he said.
City planning director Barry Cromartie said a complete environmental review now would require the firm to tear down the existing buildings and dig into the ground.
"There needs to be concrete evidence of toxics and radiation to justify an EIR, and to date we don't have that in front of us," he said.
In addition, "it's difficult to ask for an EIR when the future uses of part of that land are not known and the site in question is clean. You do one kind for residential use. You do another for commercial use. You would be wasting money to do an EIR now."
Zeneca has spent $18 million to rehabilitate the site, which Richard Mitchell of the Richmond Redevelopment Agency said "is unprecedented and demonstrates their commitment."
In fact, the company was ordered by the Bay Area Water Quality Control Board to take care of contamination at the site two years ago. Polluted water is being pumped and treated and the soil capped.
The firm's representatives acknowledged that no outside source has conducted an independent study.
"They may figure, 'Well, we'll figure it out as we go along,' and maybe they will, but the whole point is to let the public find out all these things and participate," Bloch said.