Cothran

The Dirt on the Giants' Dirt
Forget most of what you've read in the papers, seen on television, and heard on the radio about the San Francisco Giants' toxic dirt debacle. What you've been told is so incomplete, shallowly researched, and beside the point that it doesn't even begin to approximate truth.

Following time-honored Bay Area traditions, our daily newspaper and broadcast outlets (some owned by companies that have a financial interest in the Giants) spent last week repeating Giants spin, rather than attempting to accomplish journalism. At every conceivable level, the fair-haired boys who own San Francisco's Major League Baseball franchise got a media break.

Actually, the Giants' top executives didn't just get a break. They received a journalistic gift -- the gift of having potentially criminal behavior covered up and reported as a routine tale of government bungling.

This is the story the Giants and our incurious press worked together to present to you:

1) The Giants dug up a bunch of contaminated soil while building a new stadium in the industrial wastelands along China Basin Channel, and needed to do something with it.

2) State officials tested the soil, and made an honest mistake: They deemed the 27,000 tons of soil, which contained lead and other nasty industrial byproducts, to be nonhazardous, and told the Giants so.

3) The Giants started honestly hauling the dirt to a landfill in Livermore.
4) But then the state discovered its honest mistake.
5) So the Giants, honest as the day is long, stopped hauling the dirt, pending further testing of the soil.

This story is pleasant and uplifting. It follows a straight line from 1) to 5). It is also fiction.

The truth of the matter is much darker, much more complicated, and much less favorably disposed toward the Giants.

The full extent of the Giants' connivance related to the illegal dumping of its toxic waste is not yet known. But this much is clear: The state never actually gave the Giants approval to dump tons of highly contaminated dirt in a landfill meant for nontoxic materials.

And the team knew, or should have known, that it was breaking state law when it loaded up convoys of trucks, sometimes in the middle of the night, between Feb. 26 and March 2 and hauled the toxic dirt to a non-hazardous-waste dump in Alameda County.

This is not a story about people making honest mistakes, in five easy steps. No, this is the tale of a crude muscle job that backfired on the Giants in a big way -- until the press came to the rescue.

For the past six to eight months, the Giants have had a small mountain of toxic soil sitting on the site of the team's new baseball stadium, within a few hundred feet of San Francisco Bay. The Giants' attempts to handle this mountain seem to have violated environmental laws in several ways.

First, for the past several months, most if not all of the hill was exposed to the air, wind, and rain. For a very long time the hill of lead-laced dirt had no covering whatsoever. Contaminated dirt could have washed into the bay, or flown away in the breeze to be breathed in by workers and people who work nearby. Not until about a month ago did workers place tarps over a small portion of the pile. Not until last week was a more thorough tarping job done.

The Bay Area Air Quality Management District, a state regulatory agency, is currently investigating the Giants in regard to possible violation of regulations regarding toxic waste storage. If the district finds against the Giants, the team could be liable for fines. "The Air District has no record of the Giants ever contacting the Air District about the soil," says Luna Salaver, an Air Quality District spokesperson.

The second, and more serious, legal question involves dirt disposal. Sometime in January this year, the China Basin Ballpark Corp. and its environmental consultant, Geomatrix Consultants Inc., decided they had to get rid of the dirt mountain. Apparently, the Giants didn't want to spend $1 million or more sending the 27,000 tons of toxic dirt to the type of landfill designed to handle hazardous waste, known in environmental jargonese as a Class 1 facility.

Instead, the Giants wanted to do one of two things: use the dirt in the construction of a nearby parking lot. Or send it to the Altamont Landfill in Livermore, a Class 2 facility meant only for nonhazardous waste such as municipal garbage.

Since 1996, when Geomatrix conducted soil tests on the ballpark site, both the consulting group and the Giants knew that some of the soil at the site contained lead well beyond legal thresholds. But back then the team had planned on leaving the soil in place and building a ballpark on top of it. The main regulatory agency reviewing the Giants' environmental impact assumptions, the Regional Water Quality Control Board, accepted the team's argument that the lead in the soil was not soluble, and would not wash into San Francisco Bay with tidal actions.

The Giants broke ground on the new stadium on Dec. 11, 1997, and everything proceeded according to plan -- at least initially. All the soil disturbed during the construction would go back on site and, eventually, underneath the ballpark.

But during heavy rains last year, the Giants decided to excavate the site and cover the footprint of the ball field with broken concrete blocks, hoping this would improve drainage and ameliorate muddy site conditions. This excavation produced the 27,000 tons of dirt the team was unable to put back in place under the ballpark.

And on Jan. 1, 1999, these extra 27,000 tons of dirt became, by the workings of a new California law, hazardous waste that could be disposed of only -- only -- at a Class 1 landfill.

And the San Francisco Giants know all about that law.

In 1998, state Sen. Byron Sher, a renowned environmental lawmaker from the Peninsula, and Assemblywoman Virginia Strom-Martin from the North Coast, both Democrats, introduced a bill that would set thresholds for the levels of toxic metals and chemicals that would designate a substance to be hazardous waste that must be disposed of in Class 1 waste facilities. For lead, the threshold would be 350 milligrams per kilogram. Soil or any other constituent with lead above that level would have to go to a Class 1 facility.

The Giants soil was above that level.
The new law was meant to head off deregulation efforts under way at the state Department of Toxic Substance Control (DTSC). Environmentalists such as Jody Sparks, the president of the Toxic Assessment Group, were fighting to stop an eradication of California toxic waste regulatory guidelines that was masquerading as deregulation. The Sher/Strom-Martin law was a first step in that fight.

Sparks is one of two heavyweight environmental lobbyists in Sacramento. She and the Sierra Club are about all there is in the way of environmental lobbying in the state's capital. Sparks is both technically and politically brilliant. She knows the science of toxic waste, and the art of legislative battle.

And she's a real terrier when displeased.
Sparks fought hard alongside Sher and Strom-Martin to get the new law passed.

There were efforts to sidetrack and nullify the law. As the bill was heading toward final approval, the director of the state's toxic control bureaucracy, Jesse Huff, sent out two letters -- one to the Governor's Office -- attempting to interpret the law out of existence by suggesting that the DTSC had ultimate authority over whether the law applied in any given case.

Sher and Strom-Martin informed Huff that he was wrong as wrong gets. The law was clear: Toxic waste above the thresholds they set into law had to go to a Class 1 facility. "The opinion of some bureaucrat doesn't make the law otherwise," Sher said in an interview. "The law controls."

By Jan. 1, 1999, when the law went into effect, its meaning was settled.
And the Giants suddenly had a very expensive pile of dirt on their hands.

The Giants had a double-barreled problem.
The Sher/Strom-Martin law on toxic substance levels seemed to absolutely require that the dirt mountain on China Basin Channel be put into an expensive Class 1 hazardous waste landfill.

And there was another environmental law that appeared to require Class 1 disposal of the dirt.

Title 22 of the California Code of Regulations says that waste containing water-soluble lead above certain levels has to be hauled to a Class 1 landfill.

And the lead in the Giants soil could indeed dissolve in water. The Giants soil, it would later turn out, tested at more than 60 times the state standard for water-soluble lead.

The Giants seemed to have no way out. The Sher/Strom-Martin bill made the nonsoluble lead in the dirt Class 1 material. Application of Title 22 made the dirt into Class 1 material, too.

If the mountain at the ballpark were considered hazardous waste, the Giants would have to spend upward of $1 million to haul 18,000 cubic yards of dirt either to East Carbon, Utah, or to Kettlemen City or Buttonwillow, near Bakersfield, the locations of the nearest Class 1 facilities.

But the Giants thought they had found a loophole. The loophole is called reclassification.

Under the reclassification process, if state scientists decide that what might ordinarily be deemed toxic waste will not be a danger to wildlife or humans, the material can be "reclassified" as nonhazardous and disposed of, at a greatly reduced price, at a Class 2 facility.

On Jan. 29, the Giants sent samples of their dirt to the state Department of Toxic Substance Control and asked for such a reclassification. The Giants wanted an exemption from environmental law that would allow the team to do one of two things: take all 27,000 tons of the stadium dirt to a Class 2 waste facility, or place the dirt under a parking lot the team planned to build across China Basin Channel from the new ballpark.

The Giants' samples landed on the desk of Kimi Klein, Ph.D., a toxicologist in the DTSC waste evaluation unit, on Jan. 29. On Feb. 10, she sent DTSC staffers to collect their own samples.

She conducted the standard test on the samples, called a WET test, and she came back with results that showed the waste contained approximately 63 times the state standard for water-soluble lead.

Klein says she followed procedure and conducted two additional tests. She conducted a test called the TCLP, and still the waste came up as too hazardous to go anywhere but a Class 1 facility.

She then conducted a new test, one that environmentalists and environmental consultants I've talked to have never heard of. A test, it seems, without a name.

I asked Dr. Klein what the test was called, and she said, "It's called the alternative test to determine the ..."

She paused, and then continued, "... to determine the solubility, no, the leachability of lead in ..."

She stopped.
"It's just called the alternative test," she said finally.
So, I asked, is the new test generally accepted in the environmental or scientific communities?

"I don't know," Dr. Klein answered.
And who, I inquired, developed it?
"I don't know," she answered.

In the end, then, based on one test without a proper name -- a test that has been around for only two or three years -- the Giants' lead-laced dirt mountain was "reclassified" into a substance that would not leach lead when moistened, and that could, therefore, be dumped in an ordinary landfill.

It was a remarkable turnaround -- and it happened remarkably quickly. Other recent reclassification requests have taken from six months to two years to be processed. The Giants' reclassification request was approved just 16 days after DTSC gathered its samples.

"It wouldn't surprise me if it was a rapid decision," Dr. Klein said. "The Giants were asking for a very rapid decision. The Giants definitely communicated that to us."

Klein denied that she felt pressured to come to a favorable conclusion for the Giants.

But a source in DTSC who asked not to be named said Klein had shared with him and others a feeling that she had been unduly pressured to find a way to allow the Giants to take their dirt to a Class 2 facility.

"There was pressure brought to bear; that's as simple as it gets," said the high-ranking DTSC staffer. "The Giants wanted the project to move forward, and Willie Brown had it on his plate. There were unseen forces brought to bear on line staff."

On Feb. 26, Kimi Klein was writing a letter to the Giants' general counsel, Jack Bair, telling him that the team could take its now formerly toxic soil to Altamont. Her phone rang. It was Steve Bloom, the chairman of the Sierra Club's San Francisco Bay chapter hazardous waste committee. Bloom, an affable fellow with a deep knowledge of environmental law, had not been too worried about the Giants' reclassification request.

Even if DTSC were to rationalize its way around the soluble-lead provisions of Title 22, there was still the new Sher/Strom-Martin law, now part of the state Health and Safety Code.

So Bloom was surprised to find out that Klein was approving the reclassification. He asked her about the Sher/Strom-Martin law. And, Bloom says, she thanked him for reminding her about the new law. She added a sentence at the end of her letter.

"The representative sampling which was performed on the waste indicates that it is subject to the provisions of Section 25157.8 California Health and Safety Code. This section mandates specific requirements before lead-contaminated materials containing greater than 350 milligrams per kilogram may be disposed of in California," her letter reads.

In her own, bureaucratic way, Klein was telling the Giants that they may have avoided the requirements of Title 22, but they still had to follow the Sher/Strom-Martin law.

But trucks -- whole convoys of them -- started rolling out of the new Giants stadium site, heading to the Altamont landfill on the same day Klein's letter was received. All through the weekend and two more days, trucks came, loaded up with toxic soil, and hauled it to Altamont.

Meanwhile, DTSC staffers were calling the Sierra Club offices in Sacramento and telling the environmental group that the Giants' reclassification approval was very fishy. It was rushed, they said. It violated the Sher/Strom-Martin law. And DTSC staffers say they'd learned that the Giants had ordered trucks for the haul to Altamont at least a week before the approval came down from DTSC. The situation smacked of a fix.

Almost simultaneously Bloom was calling his counterparts in Sacramento and saying the same things. He too had heard about the trucks being ordered early. Bonnie Holms-Gen, a lobbyist with the Sierra Club, called Jody Sparks and Sparks called everyone she could get ahold of in DTSC.

"Jody was a bitch," she said of herself.
She reminded Deputy Director Bob Borzelleri of the Sher/Strom-Martin requirements.

Borzelleri called Robert Stephens, a deputy director who oversees the hazardous waste division, and he reviewed the reclassification order and the science backing it up.

This is where things get murky.
Borzelleri said in an interview that Stephens discovered Klein had mistakenly applied a federal hazardous waste regulation regarding water-soluble lead, instead of the lower California standard. He told me the screw-up happened because one scientist, Christopher Marxen, had gone on jury duty before he finished the tests and when Klein took over she applied the wrong standard.

But Klein said in an interview that Marxen did not begin jury duty until the tests were all done and the reclassification order was granted. And she was emphatic that she did not apply the wrong lead standard. She went on to say that no one in upper management had communicated to her why they overturned her decision, one which she still stands by as good science.

On March 2, after one-third of the Giants' toxic earth was laid down as a cover over garbage at Altamont, where it was exposed to the wind, DTSC sent a second letter to Bair, this one revoking the reclassification. The letter was faxed at 4 p.m. Eyewitnesses were calling DTSC and complaining that trucks were rolling to Altamont at 5:30 p.m., according to DTSC spokesman Frank Simpson.

Somehow, the Giants obtained a letter of apology out of Stephens on March 3. The letter accepted all the blame for the "mistake" in allowing the Giants to truck their toxic dirt to a Class 2, nontoxic facility. The team also received a pronouncement from DTSC that the lead mound did not pose any risk to people who worked or lived nearby the ballpark construction site.

Drawing on the first letter, the Giants drafted a press release that would set the tone for the media coverage. The whole mess was the result of a bureaucratic boo-boo. DTSC had admitted it. It wasn't the Giants' fault. The press ate it up and repeated it.

The second letter found its way to the Health Department, and its director, a Willie Brown appointee, Dr. Mitchell Katz, signed a press release repeating the DTSC assertion that the dirt posed no health threat. The media dutifully repeated the press release's main points almost verbatim.

Instead of questioning the Giants, the local newspapers and other media outlets acted as surrogate spokespeople for the team.

KTVU Channel 2 is a part owner of the Giants. The San Francisco Examiner recently entered into a joint news-gathering agreement with KTVU. KNBR radio is also a part owner of the Giants. And Giants Executive Vice President Larry Baer, who heads up the corporate entity building the new ballpark, the China Basin Ballpark Corp., pulled a four-year tenure at KPIX-TV Channel 5 in the late '80s.

These and other news outlets repeated the Giants' simple version of events faithfully.

The coverage was as unquestioning as it was illogical. On the one hand, state regulators were so incompetent they could not choose the proper standard for testing toxic materials. But on the other hand, the regulators were the voice of absolute truth when they proclaimed that the Giants' dirt mountain posed no threat to public health or the environment.

Last week was a triumph in damage control for the San Francisco Giants. I heartily congratulate them on a week of expert work.

Even if bamboozling San Francisco's permanently bamboozled press is not particularly challenging work.

Others were not so happily predisposed toward the Giants.
Scott Haggerty, an Alameda County supervisor whose district covers the Altamont landfill, was hopping mad -- at both the state and the Giants. "I'm pissed," he said in an interview. "As far as I am concerned we now have a hazardous waste site in Altamont."

Haggerty is now calling for hearings into the matter at the Alameda County Board of Supervisors. He suspects that political pressure brought to bear by the Giants and San Francisco officials might have played a part in the rush to judgment by DTSC. "I can't say I haven't thought about that," he said.

He's not alone in thinking that way. Supervisor Tom Ammiano has called for his own hearings in San Francisco this week. Asked what he thought of the surprisingly quick decision by DTSC he said, "[The Giants] are very well connected, aren't they?"

The suspicion that political pressure could have been brought to bear on DTSC is not an unreasonable one. Democratic Gov. Gray Davis is an old ally of Willie Brown. And Davis has already appointed his own director of the California Environmental Protection Agency, the department under which DTSC falls.

But don't expect the real manner in which the Giants and their political patrons exerted pressure on DTSC to be revealed anytime soon. Those doings appear to have already been buried underneath fear and God knows what else.

But as Haggerty and Ammiano prepare to hold their respective hearings, one thing is clear: The Giants will have to, at the very least, rebut some serious charges of wrongdoing.

Steve Bloom from the Sierra Club has his own opinions about how serious those charges might be:

"They had the trucks to haul the dirt arranged days in advance [of the DTSC decision]. They knew a decision was coming, and they knew what the decision was beforehand. They did the hauling in a flaming hurry, because they knew they had a legal problem. They wanted to get as much of the pile out of there before anyone found out.

"The [Sher/Strom-Martin] law carries criminal penalties. What would you call what they did? What would that be? A criminal conspiracy? I think so."

George Cothran (gcothran@sfweekly.com) can be reached at SF Weekly, 185 Berry, Suite 3800, San Francisco,

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