Matt Potter 6:30 a.m., May 22
On October 16, defendants San Diego Gas & Electric Company (SDG&E) and Sempra Energy won their motion for summary judgment in the San Diego Superior Court Proposition 65 matter entitled Encanto Gas Holder Victims et al. v. SDG&E et al. The November 20 trial in the public interest at Hall of Justice Department C-60 before Judge Yuri Hofmann has been removed from the Court's calendar.
Judge Hofmann thanked plaintiffs without attorney for their “herculean effort” to oppose the SDG&E/Sempra Energy summary judgment motion, but plaintiffs' improperly presented evidence led to all foundation objections against that evidence being sustained by the Court. At that point, the Court found what remained of plaintiffs' arguments and conclusions in opposition to be merely unsupported speculation and ultimately ruled in favor of defendants.
An attorney for SDG&E and Sempra Energy insisted before the hearing that future asbestos cancer victims around the gas holder site still had the option of suing SDG&E and Sempra Energy once they had symptoms, but otherwise appeared confident that summary judgment would be in favor of the public utility and its corporate holding company in the Proposition 65 case. SDG&E, Sempra Energy and others were alleged to have failed to warn victims of exposure to abandoned asbestos waste materials and debris released from the demolition site from 2000 to the present.
Encanto and Lemon Grove residents within 500 feet of the demolition site first learned about the pipe wrap removal work in SDG&E letters sent in May and September 2000. A September 25 letter from Sempra Energy expanded the notification zone to 1000 feet and restated previous SDG&E claims that pre-work inspections by multiple county and municipal agencies meant that the work presented no threat to health and safety of the surrounding communities.
Daily passengers on the San Diego Trolley Orange Line report that neither SDG&E nor Sempra Energy have informed them of any asbestos-related work done at the gas holder site between the Encanto-62nd Street station and Massachusetts Street station in Lemon Grove. Looking down from Orange Line trolley cars, one can still detect the remains of crusty white storm water runoff residue that dried in the Encanto Branch creek bed adjacent to Imperial Avenue on and after March 22, 2009, over a decade since SDG&E testing first revealed the presence of asbestos at the site.
SDG&E's Encanto Gas Holder facility was first built in the 1950s and contained a nine-mile-long gas holder bottle constructed from asbestos-coated 30-inch diameter steel pipe. A sample of the pipe wrap from 1953 tested at 5-10% chrysotile asbestos, and a second pipe wrap sample from 1955 tested at 40-50% chrysotile asbestos. The two pipe wrap samples were sent by SDG&E contractor Ninyo & Moore for testing in 1999, according to Kabir Shefa of Design for Health testing laboratory. A pipe wrap sample from the gas holder site submitted by SDG&E to Shefa's Design for Health laboratory in 1998 had tested at 50-60% friable chrysotile asbestos.
In both sets of bulk sample test results from Design for Health, there are statements that contractors may use test results to show that materials do not contain asbestos of more than 1 % content under California regulations. Other existing state regulations require registration, site monitoring, and certification by owners of compliance with all applicable work standards on medium and large projects at over one tenth of one percent (0.1%) asbestos content.
In a related federal criminal matter, all government evidence of tests for asbestos were ruled inadmissible as not representative or otherwise in violation of previous District Court evidence rulings before Judge Dana M. Sabraw. As a result, the local United States Attorney's office has moved for a dismissal in the re-trial of United States of America v. SDG&E, despite the initial guilty verdicts against SDG&E and two individual defendants in 2007. The motion was granted by the District Court.
Before seeking the federal case dismissal after the inadmissible evidence ruling, prosecuting attorney Melanie Pierson of the local United States Department of Justice office thanked community members from Lemon Grove and the Encanto Heights area of Southeast San Diego for information leading to the initial 2006 federal grand jury indictment of SDG&E, IT Corporation project manager Kyle Rhuebottom, and two “Sempra Entities” employees on violations of the Clean Air Act's National Emission Standards for Hazardous Air Pollutants (NESHAP). The grand jury returned its indictment based on the improperly-contained asbestos abatement at the Encanto Gas Holder site in 2000-2001. Since that time, the Encanto Branch of Chollas Creek has been coated white each year with storm water runoff residue from the old gas holder site after moderate to heavy rains.
Nick Vent is the supervising inspector for the Hazardous Materials division of the County of San Diego Department of Environmental Health (DEH). In his 2009 civil matter deposition by defendants, Vent stated that as a 2001 first responder to Encanto and Lemon Grove complaints of dust, odor, and improper asbestos removal practices, his main concern was for asbestos byproducts that were released by the minimal containment of pipe wrap removal in 2000-2001. In his experience as an inspector, the physical action of high-speed abrasive pipe wrap removal at the site did produce large quantities of friable asbestos with threats of exposure to people in nearby homes.
Combined with the minimal containment work standard used by SDG&E, Sempra Energy, and main contractor IT Corporation, Vent stated that the production of high-speed abrasive asbestos dust and debris resulted in the issuance of DEH notices of violation under federal NESHAP standards. Although DEH requested all waste manifests from the site demolition, Vent reported that SDG&E failed to produce the required documentation that would have shown the proper legal disposal of nine large roll-off dumpsters of asbestos-containing waste material and debris. Vent also responded that he saw no daily site logs or other documented evidence that Sempra Energy's Jacquelyn McHugh, manager for environmental compliance and safety, ever actually took the time to inspect the site personally.
In her 2009 declaration, Jacquelyn McHugh stated that she had first-hand knowledge of all aspects of the site demolition project from 2000 to 2004, and was fully prepared to testify to that knowledge. McHugh was found not guilty during the 2007 federal criminal trial when evidence did not show she was present during multiple 2001 site inspections by County of San Diego Air Pollution Control District (APCD), inspections that led to numerous APCD notices of violation against SDG&E and its contractors.
Inspectors from both APCD and DEH have testified under oath that no site inspections by their agencies took place before September 25, 2000, mainly because those agencies were informed that the pipe wrap removal work was merely a “renovation”, not part of a site demolition project.
One EGHV v. SDG&E plaintiff is making Freedom of Information Act requests of the FBI for Nick Vent's 2001 inspection photographs that were shown as evidence in the 2007 federal criminal trial.
Bulk sample tests performed by Jill Brodwolf of JMR Environmental Services show that illegal levels of chrysotile asbestos debris from the gas holder site were found outside the fence line in March 2001, months after abrasive pipe wrap removal was halted at the site. The JMR findings came around the same time that the Regional Water Quality Control Board issued a notice of violation for unauthorized storm runoff discharges from the site into the Encanto Branch of Chollas Creek. From the amounts of storm runoff residue seen after standing water in the creek bed evaporates, one can only guess at the greater amount of contaminants flowing into San Diego Bay as it rained. Most recently, the City of San Diego sued SDG&E and other potentially responsible parties for bay contamination and cleanup costs, including the pollution of Chollas Creek as contaminants were dumped into the harbor.
In a letter to the California Department of Toxic Substance Control (DTSC) dated February 25, 2002, the mayor of Lemon Grove cited water quality violations as opposed to DTSC's subsequent handling of the gas holder matter that showed DTSC “working more for Sempra Energy than for the residents of Lemon Grove and San Diego....” DTSC later endorsed the 2004 preliminary endangerment assessment that cleared IT Corporation's work at the site, but DTSC did not explain the relationship between IT Corporation and Shaw Environmental & Infrastructure that cleared IT Corporation's management of the pipe stripping work, even though Shaw Environmental & Infrastructure was formerly IT Corporation before being sold to Shaw Group in IT Corporation's bankruptcy sale.
Throughout the 2007 federal trial, the lead attorney for SDG&E insisted there was no evidence that a single fiber of asbestos ever left the site. The off-site lab report exhibits for released asbestos debris from the Jill Brodwolf deposition directly contradict that, but in any case, defendants never reported any cleanup of released or abandoned asbestos debris beyond the site fence line, including any presumed asbestos containing waste material in the storm runoff residue at the bottom of Chollas Creek.
According to the Clean Air Act's NESHAP section 7412 of United Stated Code Title 42, a NESHAP enforcement action regarding the NESHAP standard of 1% friable asbestos must also include any more stringent state standards, such as the 0.1% asbestos content standards found in section 341.6 of California Code of Regulations Title 8. When applying the more stringent state standards, the results from JMR and Design for Health labs are several orders of magnitude greater than allowable limits for asbestos-related projects over 100 square feet in surface area.
In its order declaring that all of the government's sample results were inadmissible, the District Court did not address the exclusion of more stringent state standards in the 2007 NESHAP prosecution.
EGHV plaintiffs discovered that before work began at the gas holder site, Jacquelyn McHugh, Kyle Rhuebottom, and David “Willy” Williamson (who claimed to be a certified asbestos consultant while employed by SDG&E or Sempra Energy) agreed to use a CRC-Evans pipe stripping machine under minimal containment, despite objections of a concerned SDG&E or Sempra Energy employee who was later terminated in 2001. A major motive for the cut-rate asbestos removal was revealed in the 2003 SDG&E response to inquiries by Utility Consumers Action Network (UCAN) before the California Public Utilities Commission (CPUC), where SDG&E admitted that the book value of the nearly 16-acre gas holder property was less than $11,000 during a period of record real estate speculation.
Around the time pipe stripping work was taking place at the site in 2000, Sempra Energy was claiming to investors that by 2003, one third of Sempra Energy' revenues would be coming from unregulated activities. In the same 2000 annual statement to investors, Sempra Energy also claimed that it had the expertise to complete the most sophisticated energy trades for profit. Most of us remember this time period as the 2000 California power grid crisis of rolling blackouts caused by energy trading manipulations and Enron-led seminars on “gaming the system.” Sempra Energy's SDG&E has denied all involvement in any energy trading irregularities, despite its parent corporation claims to investors of seeking unregulated business as a stock selling point with specific mention of Sempra Energy expertise and sophistication in complex energy trades both in and outside California.
Of the annual income after expenses to Sempra Energy on $11 billion in gross revenues, about 40% is distributed to investors as quarterly dividend payments. Sempra Energy claims no liability against its revenues or net income for putting power lines underground. Sempra Energy claims no liability for SDG&E acts or omissions that led to any county wildfire.
For putting lines underground or otherwise correcting shortcomings on inspection of power lines and other defense preparedness activities under SDG&E's supervision, Sempra Energy spends just about nothing, every day.
Few dispute that SDG&E and Sempra Energy are alter egos of each other, but if greed has altered their egos, then this is a matter for stockholders to properly address, especially as the acts and omissions of SDG&E and Sempra Energy just might reduce those hefty quarterly dividend payments to investors who paid money for Sempra Energy stock.
Despite assurances from the San Diego City Attorney's office in 2001 regarding investigations by APCD and DEH for site violations, Encanto residents report that the 4th District council office has been totally silent on assisting resident asbestos exposure victims from the storm runoff debris found in the San Diego city limits downstream from the Lemon Grove gas holder site.
Regardless of that official inaction, plaintiffs in the Encanto Gas Holder Victims matter are archiving evidence if they or neighbors are later found to have asbestos-related illnesses after being exposed to released dust and debris from the gas holder site. According to the United States Environmental Protection Agency in 2006, victims can expect to see a rise on the incidence of asbestos-related lung cancer and other illnesses in the next decade or so. While hoping this does not happen, area residents are looking over information made available by FEMA's Emergency Management Institute on handling the matter as a multi-jurisdiction hazardous materials incident and in participating as stakeholders in local emergency management planning for future hazard mitigation.
A 2001 voluntary cleanup agreement between SDG&E and DTSC requires that SDG&E be responsible for hazardous material releases from the gas holder site even after changes in ownership, a site which the City of Lemon Grove has been recently promoting in public hearings for the proposed construction of 77 homes as the pending Citrus Heights Development. While labeled as a cleanup agreement, its only stated purpose was to clear SDG&E by having DTSC issue a “no further action” letter only if a preliminary endangerment assessment turned up no evidence of asbestos at the site. Under that agreement between SDG&E and DTSC, SDG&E may begin destroying documents and other evidence relating to the gas holder site starting in the summer of 2010, six years after DTSC issued its “no further action” letter regarding asbestos at the Encanto Gas Holder site.
According to previous statements by Michael Shames of UCAN, CPUC should deny SDG&E passing on any environmental compliance costs at the Encanto Gas Holder site to consumers, based on facts cited above as they related to the then-pending first trial in United States of America v. SDG&E.
In other matters, SDG&E was recently fined by CPUC for withholding information on its application for SDG&E's proposed Sunrise Powerlink line. While SDG&E admitted no liability, SDG&E's liability insurance carrier paid the $1 million CPUC assessment. More recently, CPUC added another $17 million for SDG&E's role in obstructing investigations into recent county wildfires, requiring an apology by SDG&E for investigatory obstruction. After CPUC's current rejection of SDG&E's proposal to cut power to county residents during high dry winds, SDG&E will be meeting on November 17 with County Supervisor Dianne Jacob and about 45 county water, school district and other stakeholder representatives as a prelude to CPUC-ordered mediation. Supervisor Jacob's reported comments in a recent San Diego Union-Tribune power-cutting article about not trusting SDG&E are enlightening. Finally, SDG&E is currently seeking rate increases from CPUC for the increased cost of generating electricity, a proposal that some media outlets describe as providing little or no incentive for consumers to conserve when paying more to use less electricity under SDG&E's proposed scheme.
I'm not calling it greedy, but if Sempra Energy can afford to pay out 35-40% of net income as dividends to stockholders on $11 billion in annual revenues while the rest of us are still dealing with the aftermath of the Crash of 2008, Sempra Energy is already wealthy enough to be the sole owner of SDG&E's vast income from billing power customers every day, and SDG&E already gets free electricity off the grid from more and more of us who generate too much of our own power, then why is it exactly that SDG&E needs a rate increase any time soon?
Shouldn't they have to put all of the power lines underground first?