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A new front has opened up in the fight for environmental justice in the asbestos-dusted Bayview–Hunters Point community, this time featuring a Nation of Islam–affiliated nonprofit that’s using Proposition 65 — California’s "right to know" law — to force Lennar Corp. to take responsibility for what activists say is a failure to provide clear and reasonable warning that thousands of Californians are being exposed to asbestos on a daily basis in Bayview–Hunters Point.
It’s a creative use of the 21-year-old law to promote environmental justice.
On Aug. 2, the Center for Self-Improvement and Community Development, which runs the Muhammad University of Islam school next to the Parcel A work site, filed suit individually, and on behalf of the public, against Lennar Corp., Lennar Homes of California, Lennar Communities, Lennar BVHP, Lennar Associates Management, and Lennar’s subcontractor, Gordon N. Ball.
At issue is the alleged failure of Lennar and its subcontractor to notify the surrounding community of exposures to asbestos dust during the 16 months that an entire hilltop has been graded on Parcel A of the Hunters Point Shipyard in preparation for developing a 1,500-unit condominium complex.
The suit contends that Lennar and Ball engaged in construction site activities, including grading, scraping, and excavation of materials containing asbestos as well as storage and transportation of materials off site, and continues to engage in these activities without first providing "the adjacent community and persons working at the site with toxic health hazard warnings under California’s ‘right to know’ law."
Enacted in 1986, Prop. 65 was intended to protect California citizens and the state’s drinking water sources "from hazardous chemicals and to inform [citizens] about exposure to any such chemicals." As such, it requires the state to maintain lists of hazardous chemicals and requires businesses to provide a "clear and reasonable warning" before exposing individuals to any of these listed chemicals.
But though asbestos has been listed as a carcinogen since 1987 and has been subject to Prop. 65’s warning requirements since 1988, Minister Christopher Muhammad, who heads the school, claims he first learned that asbestos was in Lennar’s Parcel A construction dust six months after grading began in 2006 —and two months after Lennar admitted to the city that its air monitoring equipment hadn’t been working.
"I did not know that the dust contained asbestos until a young worker, Christopher Carpenter, blew the whistle in October 2006, the same day he got fired from the site after asking the crew to stop digging on account of the dust being too heavy," Muhammad told the Guardian. He recalled how Carpenter visited the school, worried it hadn’t been notified after he saw children playing right next to Lennar’s site.
"The dust clouds were so thick during the summer of 2006, they were like minitornadoes on the hill, which is surrounded by water, so the wind swirls upwards," Muhammad said. He noted that the baseball courts, classroom windows, and jungle gym are 10 feet from a chain link fence that is the only thing separating Lennar’s site from the school, and noted that a Boys and Girls Club, a public housing project, and many residences lie in close proximity to Parcel A, whose dust was seen drifting across the entire neighborhood.
There’s a strong case here: there’s no doubt that the construction project was generating asbestos dust — and still may be. The suit seeks to prohibit Lennar and Ball from engaging in construction activities or any other work at the site "without first providing clear and reasonable warnings to each exposed person residing, working, or visiting the adjacent community and to workers at the site regarding asbestos exposures."
Enforcing Prop. 65 is the responsibility of the state attorney general, the local district attorney, or the city attorney, but as attorney Andrew Packard told us, the law also allows private entities to sue.
Matt Dorsey, spokesperson for City Attorney Dennis Herrera, said the office is "keeping an eye on the situation, including this private effort, and would take it very seriously if a determination is made that a case of action exists in favor of the city."
Comments, ideas, and submissions for Green City, the Guardian‘s weekly environmental column, can be sent to news@sfbg.com.