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August 8, 2006 > The strange case of the missing pages

The strange case of the missing pages

by Steve Warga

They weren't kidnapped, so no Amber Alert warning went out. They weren't missing at sea, so no one called search and rescue. And they weren't fugitives on the run, so no police agency issued an All Points Bulletin. Still, they were missing and it did take a former cop to track them down. When those missing four pages were finally produced after a California Public Records Act request, they told much the same story as the Bay Area Air Quality Management District (BAAQMD) told in their January 2005 memo. In that same story, we find the same characters, engaged in the same unusual conduct in pursuit of their plans to build and operate a massive composting facility off Andrade Road in the Sunol Valley.

It was at a contentious public hearing in May 2006 that Bob Wasserman, Fremont's mayor and former police chief, noticed a curious footnote to a two-page document he'd received as a member of the Alameda County Waste Management Authority (ACWMA) board of directors. The memo catching Wasserman's attention was dated May 22, 2006 and addressed to Brian Mathews, Senior Program Manager. It was written under California Integrated Waste Management Board (CIWMB) letterhead; its subject was the Final Environmental Impact Report (FEIR) submitted for review by ACWMA. The note catching the mayor's attention was at the bottom of the second page. It read, "2 of 6."

The former investigator's questions were simple to understand and should have been simple to answer. It was not so, however. According to the official minutes of that meeting, Wasserman addressed his questions to ACWMA executive director, Karen Smith. "There's four pages missing from that letter. Are you aware of that? Why don't we have those four pages?" Right away, Smith passed the buck. "I didn't provide you with those four pages, even the letter, so I don't know how you got the letter. Brian can respond to that letter."

Wasserman pressed his case with Mathews, "I want to say the four pages that are missing, as I understand it, contain very relevant data. And I want to know why they're missing." Mathews replied, "We called (CIWMB) about that, the director of Permitting and Enforcement, Mark DeBie. That was an error in the footnote. It was only a two-page letter, but they've used another letter that had been six pages long. They sent me a corrected letter that is only two pages long." Though he asked several more times, Wasserman never got past the stone-walling. He finally resorted to the Public Records Act and received the full document. As expected, those missing pages contained comments that reflected very badly on both the DEIR and FEIR produced by ACWMA. The information in those pages, withheld from the board, could well have been described as a "poison pill" that would kill Smith and Mathews cherished Sunol dump project.

Even so, when the ACWMA board finally received the full memo, distributed by Wasserman with the damning evidence, they still refused to kill the project. It would take a "no confidence" resolution several weeks later from the Alameda County Supervisors to nail the coffin shut. Odder still, the CIWMB memo, as originally drafted, contained nearly the same information as the BAAQMD memo of January 2005.

The missing pages noted a "lack of information and unclear details regarding the chosen type of composting process, odors and other air quality impacts from the proposed facility. . ." These comments were in response to the FEIR, the same document ACWMA expected to use to secure all the construction and operating permits required to turn ideas into reality. Referring to themselves as "Board," CIWMB recounted their first contact with ACWMA on this project "in 2004 for early consultation and assistance in preparing an EIR ..." At that time, "Board staff suggested in-vessel composting and composting in an enclosed building for maximum control of odor impacts from the proposed facility."

ACWMA staff's response to this critical advice was to change their proposed composting method to a modified version of unenclosed Aerated Static Piles (ASP). This consisted of open air piles of rotting garbage slowly decomposing into useful compost. This alone would have exposed nearby residents to potentially lethal odor and air hazards. But Smith and Mathews went even further by proposing to "turn" these putrid piles by "slicing off" the tops and depositing them into a new pile. One of their experts praised this plan at a public hearing in Sunol. However, when board member, Jennifer Hostermann of Pleasanton, asked for examples of other facilities using this technique, neither ACWMA staff, nor their expert could name even one. The CIWMB comment, contained in the missing pages: "As this is not common practice in ASP composting and creates additional odors, this issue needs to be clarified."

CIWMB went on to nearly echo the findings of BAAQMD regarding the collection of meteorological data "not representative" of the Andrade Road parcel. Regarding this complete lack of weather factors data, board staff concluded, "For this reason, analysis in the DEIR and FEIR is inadequate for the proposed project under CEQA." (This was a reference to the California Environmental Quality Act.) This same fault was identified in both the draft and the final EIR. What would the ACWMA board have done had their staff presented this information instead of trying to hide it under the guise of a four-page "typo" in that two-page memo?

Also in the missing pages, CIWMB found both the DEIR and FEIR did not "contain adequate analysis and detailed information" per California Code of Regulations, Title 14, sections 15120 and 15132. Section 15132 states that the FEIR "shall consist of ... (d) The responses of the Lead Agency to significant environmental points raised in the review and consultation process." As TCV reported in "The wayward wind" (August 1), ACWMA responded to some points raised in the review and consultation process of the DEIR by utterly defying those points and then by attempting to hide evidence of their conduct from their oversight board.

ACWMA attorney Clem Shute's own law firm prepared both the draft and final EIR, neither of which fully conformed to California law. Yet this same attorney stood before ACWMA board members and the public on May 24 in San Leandro and stated on the record, "I as your counsel cannot recommend certification of the FEIR." His reason for recommending against his own FEIR was "concerns about the wind data collection ..."

So ex-cop Wasserman, among several other board members, finally solved the mystery of the missing pages. It was no surprise that those missing pages painted an entirely different picture from that of the two-page piece dated May 22, 2006 which only briefly touched on the ASP question and then lightly dwelt on some concern over the nearly nonexistent odor complaint "process" proposed in Shute's FEIR. Unlike the six-page draft memo of May 4 with its scathing documentation of legal inadequacies, Mark DeBie's two-page fluff memo closed on this cheery note: "Board staff looks forward to working with the project proponent and Local Enforcement Agency to rectify these last few concerns with the proposed project before the beginning of the permit process."

He too seemed blissfully unaware that the FEIR was so totally inadequate that not one single permit would ever have been issued - legally - had ACWMA bothered to apply. At last check, DeBie still held his position as director of Permitting and Inspection Branch of the California Integrated Waste Management Board.

Next installment: One of those pesky details.

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