The Voluntary Cleanup Agreement and the cleanup that never happened

After the demolition of the old Encanto Gas Holder facility in Lemon Grove, after the initial complaints by residents of Lemon Grove anad Encanto about the odor, asbestos dust, and eventual storm runoff deposits being left in the Encanto Branch of Chollas Creek, SDG&E needed some relief.

In the middle of 2001, SDG&E had finally found a state agency that had not heard of the Encanto Gas Holder, one which had not received any official information on that site from the City Attorney of San Diego, the District Attorney of the County of San Diego, the County Department of Environmental Health, the County Air Pollution Control District (APCD), the California Highway Patrol, or the Regional Water Quality Control Board.

SDG&E found its safe harbor at the California Department of Toxic Substance Control (DTSC).

In August of 2001, Sempra Energy's environmental and safety director signed a voluntary cleanup agreement (VCA) with DTSC regarding the SDG&E Encanto Gas Holder site in Lemon Grove. According to that agreement, its purpose was to conduct a preliminary endangerment study of the nearly 16 acre lot, so that a "no further action" letter would be issued about the site (VCA Purpose paragraph 1.4).

Under the VCA, DTSC as a state agency would not actually take samples at the site. This task was left to the VCA proponent, SDG&E. On testing by DTSC, it was determined that precisely zero samples contained any trace amounts of friable asbestos, out of some 300+ samples collected by SDG&E and passed on to DTSC.

There is a local resident who swears that all of the air sample collectors were only mounted on the fenceline, facing away from the gas holder site.

Something that was never tested was any storm drain runoff material left in Chollas Creek. The reason offered by a DTSC specialist to residents was that such off-site testing was prohibited by the terms of the VCA (par. 3.1).

No testing was done of anything not within the perimeter fenceline at the Encanto Gas Holder site. As for the white crust of storm runoff material in the federally-protected creek, the same DTSC specialist told us that it probably came from the brake linings of trains and tolleys passing by on the Orange Line... but in any case, it was said to curious residents that testing any of it was outside the scope of its VCA with SDG&E.

(I'm no forensic historian, but I have yet to find a single instance of such a thing in the entire annals of American railways... or anybody else's railways, for that matter.)

There was a funny incident that occurred after the VCA was signed by Sempra Energy for the proponent SDG&E.

In November of 2001, the Regional Water Quality Control District issued a violation notice for the Encanto Gas Holder site regarding storm water discharges into the Encanto Branch of Chollas Creek. Only weeks later, the same agency issued a formal enforcement letter requesting information on the substances in that discharge.

No official response to the formal enforcement letter has been found by this writer to date.

It is my suspicion that Water Quality Control was told to take a hike and keep its pie-hole shut during the investigative stages of the VCA. I can't prove it, unless the unanswered formal enforcement letter of December 2001 proves it.

Under the VCA, Ms. Jackie McHugh was the contact person for SDG&E (par. 3.3).

In 2004, McHugh received the "no further action" letter from DTSC, based on the test results of the SDG&E-supplied samples. As a result, no actual cleanup of the site has taken place since APCD and EPA inspectors were able to scoop up friable asbestos by the handfuls for testing in early 2001 (and no, none of the APCD or EPA samples were part of the SDG&E-supplied samples under the VCA).

(Clarification: a demolition contractor employee testified last year that three days were spent policing up chunks of pipe stripping waste material before it could be pulverized by construction vehicles driving across the site, in apparent compliance with the on-site findings of regulated asbestos containing material [RACM] by the last set of local APCD and federal EPA inspectors to visit the site. At the same time, there are no related EPA, DOT, OSHA or other agency-compliant paper trails concerning the lawful handling, transport, or disposal of any stripped RACM at the site or at any authorized hazardous material disposal site anywhere in the country... or at least it didn't surface during the trial. If it did, the jury didn't buy it.)

In 2006, SDG&E environmental director Jacqueline McHugh was indicted in the federal environmental crimes matter of United States v. SDG&E. SDG&E itself was also charged with "fraud/false statements to government inspectors" and later found guilty of that and a handful of other related charges; McHugh was the only defendant found not guilty, but there is a government appeal pending of defendants' granted motion for a new trial.

At least one charge against McHugh had been dismissed without prejudice, presumably leaving her open for a reinstatement of the charge later at the government's discretion.

None of the facts surrounding the reaching of or conduct during the DTSC-SDG&E VCA were at issue during the US v. SDG&E trial over asbestos abatement at the gas holder site...

...but if anyone believes there was a change of heart in its environmental methodology by SDG&E between the dismantling of the old Encanto Gas Holder site and its voluntary cleanup agreement only months later, then perhaps I could interest you in your very own full ownership of the Tijuana Border Crossing for a very reasonable price...


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