The crux of this matter is, that the city of Burlington seems to have "permitted" the Tinas Coma subdivision to occur on Burlington hill in apparently ignorance of the established facts that 1) there was an asbestos mining operation conducted on the subdivision site in at least the 1920s and 1930s, and perhaps as far as the 1960s or 1970s; 2) that the site still contains asbestos in quantities that are largely unknown. A secondary issue, discussed below, is that the city not only permitted the original development, but also further allowed subsequent road reconstruction and directly participated in that reconstruction, which included further significant and substantial disturbance of the geology of the hill, which is known to include "naturally occurring" asbestos. The thoughts that follow are not scientific at all, but hopefully will provide a broad outline of the prospect to pursue the objective.
The word "permitted" is quoted above because there is most recently some large indication that that the overall approval of the subdivision occurred haphazardly, and that the city of Burlington did not properly take the project through the approval process.
Approval of the original subdivision-Phase I. We have been investigating the approval of the subdivision ab initio because we have been somewhat amazed to be informed, through the deposition of the city planner, and otherwise through court pleadings, that the city had no knowledge of the asbestos mine or of the existence of so-called "naturally occurring" asbestos on the site. Our current findings indicate that the hill was divided into two sections. The Tinas Coma subdivision is located largely within one section. This it turns out, was the second of the two sections to be developed. With respect to it, the city was legally required to a full blown environmental review.
We have questions about the adequacy of that review, as discussed below. During discovery on the origins of the development of the Tinas Coma plat, the city has asserted that the first section of the subdivision-basically the westerly half of the hill-was developed before the city acquired jurisdiction of it through the annexation process. The city planner testified that the county was responsible for whatever activities occurred on that section.
We have found evidence which suggests exactly the opposite of this, that it was the city that administered the development of the first section, before Tinas Coma. In that administration, there was no environmental review. This is important for a number of reasons. One is that the initial actual development of the road to access the development occurred before the city required the environmental review for phase II of the project (Tinas Coma)-the city arguably failed to recognize the development encroachment. In that development, the developer began to conduct the extensive road building activities, including most importantly, the extensive rock extraction for the road construction. This extraction, becomes a theme here, as the city authorized the activity, thereby arguably allowing the disturbance of the otherwise dormant naturally occurring asbestos. In fact, it can be argued that the city allowed an activity far more extensive than the original mining itself.
A second reason why the non-approval of the original site development is important is that the city failed to protect others who would potentially be exposed to this hazard, including future home purchasers. This as you know implicates the duty argument.
The third reason why this is important relates to the powerful theme for this matter set out above, that the subdivision should not have been built. In other words, had the city followed the correct protocols, presumably, and required an appropriate geological study during this first phase of this development, before rock extraction began, one can argue that the mine activity and the potential presence of asbestos would have been discovered. Had it been discovered, presumably, an enormous series of asbestos related procedures should then have been required to allow the subdivision, if the developer could afford the additional cost, which according to our understanding would not be very likely.
A fourth reason why this is important relates to the credibility that the city might put on here. The testimony of Ms. Fleek (including specific statements in filed declarations) is incorrect and false. This means either she is incompetent or prone to make false statements. In either case, as a central witness, perhaps the central witness, she is subject to considerable impeachment. This credibility issue, it turns out, seems to permeate this entire set of facts, by the way.
Approval of the Tinas Coma subdivision -Phase II. The original plans for the development of the hill and surrounding property, from Property Investors LLC, called for phase I and phase II. Phase I was the development of the industrial park north of the hill. Phase II was Tinas Coma. The information we have available seems to indicate that Phase I was allowed only if the building areas there could be placed above the flood plain-the valley floor. To do this, we believe, the developer began illicitly extracting rock from the hill, that is, without appropriate governmental authority, as described above.
The second phase occurred after the city officially annexed the Tinas Coma plat. For this the city required a full environmental review. The city required two environmental studies with respect to geology. The first was a vegetation and wetland study. The second was a geological analysis of the rock composition for the proposed road only.
This involved taking "core" samples - from drilling -on the proposed road path to determine the suitability of such rock and earth for road construction. It did not involve other analysis of the strata of the hill, including the existence of asbestos. Incidentally, the report did find significant occurrences of a well-known host material for asbestos, Greenschist. To a trained eye, perhaps, this might have stood out. The report was not, however, made part of the EIS distributed to various regulatory agencies by the city, including the Department of Natural Resources, which maintained a directory of mines that included the "Asbestos-Talc Products of Washington" record. Arguably, had the report been included in the EIS as an exhibit, DNR may have picked up the problem and provided comment which, again, might have stopped the project in its tracks.
The city did require, as part of its development review, that an old dump site be abated. To do this, the city reviewed historical records going back to approximately 1950 documenting the use of the property as a dump. This would seem to contradict any argument by the city that it did not have any duty to look at prior uses of the property, especially as to the "old quarry", which is discussed below.
Road construction-Hillcrest Drive and secondary streets... After granting permission for the project, the developers began further construction of the access road, Hillcrest Drive. The road construction required extensive earth disturbance, involving hundreds of thousands of cubic yards of material. The road by necessity traversed the entire hill. Additionally, other secondary roads were installed that required more earth and rock extraction. This work was performed by the developer. During the extraction and road building, of course, the otherwise undisturbed geology was radically disturbed. In the meantime, much of the rock and earth extracted was largely redistributed throughout the road construction to serve as fill to support the road on the hill's steep slopes. We believe of course that this extraction and reuse of the rock and earth potentially contaminated the entire area.
Hillcrest Drive failure. When Hillcrest Drive was "completed" the developers dedicated it to public use, and the city accepted it for public use. Shortly thereafter, the city realized that the road was defective, as settling-type cracks began appearing in a series of locations, generally along the steepest hillsides. These indicated, generally speaking, that the road was collapsing of its own weight, more or less, and beginning to slide down the side of the hill. When the city realized this it began a colloquy with the developer in which it demanded that the developer fix the road. The developer vacillated in its response. Initially it indicated that the road was no longer the developer's problem because 1) it had been dedicated to the city and the city accepted it and 2) the warranty period from one the original primary contractor had expired.
The city and developer began to hire experts to explore the road failure problem and to begin to gauge costs that might be involved in correcting it. According to the city experts, the cost for the repair would likely be between $4 and $6 million. The parties seemed to agree that the correction would be a so-called "realignment" of the road which included moving the road bed back into the bedrock of the hill. This would eliminate the sloughing/slippage issue that was causing the cracking and collapse. This solution would include, additionally, moving the utilities in one road segment from the downhill to the uphill side of the new roadbed. Additionally, it was apparent that the project would require closing of the road sections while the repairs were occurring.
Contract rezone and settlement agreement. Though the developer balked at the idea that it would have to legally pay for the rebuild, the city had another argument in reserve, pertaining to what has come to be the Grandview site. The developer wanted the city to approve a contract rezone for the Grandview Property, allowing (as I understand) a more dense condominium project. At least in part to get that approval, the developer approached the city and offered a solution, namely, that it -the developer - would perform the rebuild if the city would agree to share the costs. The developer pitched that it could perform the repairs far more cheaply than any other contractor.
Following the completion of the rebuild, the city would issue permits for the condominium site as proposed by the developer.
The city, including specifically the city council, agreed. A written agreement to this effect was drafted by the city attorney and approved by the council. The agreement provided, inter alia, that:
1) The developer would be responsible for performing the work involved;
2) The developer would be responsible for securing all appropriate permits;
3) The city would oversee the project and ensure work occurred according to schedule and to appropriate building and construction standards;
4) The developer would secure specific casualty insurance, to the tune of several million dollars naming the city as an insured, to protect the city from claims related to the work;
5) The city would reimburse the developer 49% of all costs of the project, with invoicing occurring quarterly.
An anomaly of the agreement is that it referenced a specific repair for what was labelled the north segment of Hillcrest Drive; there were no plans then available for the other major failing segment of the road, what was referenced as the southeast segment.
Road rebuild-north segment & "Adoption of existing EIS" form... In the year of 2006, the city and developer began jointly developing plans to fix first the north segment of the failed roadway. They did this by regularly conducting meetings and conferring with one another about what was acceptable. The north segment included, once again, significant and radical alteration of the hillside through drilling, blasting and moving of massive amounts of earth and rock with heavy equipment-excavators, rock chippers and dump trucks that involved over a year to complete. This area, incidentally, is where the EPA tested and found asbestos.
In terms of permits, for this part of the project only, we have located only a single document that was prepared, a so-called "Adoption of Existing EIS". This is a boilerplate form found in the Washington Administrative Code. In this case it was prepared by Margaret Fleek, the current and then planning director for the city. In deposition, when asked why she prepared this document, she said to "document the file" or words to that effect. She did not explain why she was preparing the document. The document simply stated -for the north segment only-that the city was "adopting" the old EIS, from 1999. When asked why she felt this could be done without a new EIS, as the activities were more significant, she testified that this was just “more road building" which was described in the original EIS. She did not otherwise explain why she, as opposed to the developer, prepared this compliance document.
The original EIS was distributed to nearby property owners. The WAC rules provide that the "Adoption of Existing EIS" be distributed in a like manner. When asked if she had sent it to anyone she testified that it had been sent to the parties on the old distribution list. We have engaged in a selective search with the parties on the original mailing list.
None that we have inquired with, have any record of ever having received it.
In addition, no person within the Tinas Coma subdivision received any such notice; they were of course not on the original list because their homes had not been built.
We have inquired by request for admission as to whether the city or the developer secured any other permits or any other compliance documents with respect to any of the road repair work. Both indicate that no others were secured because "none was required". During her deposition, Ms. Fleek was asked why she had not prepared a second "Adoption of Existing EIS" for work on the southeast road rebuild. As I recall she either then claimed she did not need it, or she did not give a good answer.
There was no known notice to property owners on the hill of these activities.
The impetus of this information is, again, that had there not been a lax or relaxed atmosphere in place when this work was beginning, there would be a better chance to realize the facts about the asbestos mine and the potential asbestos contamination. Had the asbestos information come to light, the project might have been suspended.
Road rebuild –southeast segment... Without permitting, and arguably without too much of a plan, the city and the developer began working on the southeast segment of the road rebuild. They initially kept the road open but ultimately had to close it completely. The road closure, in the end, lasted about ten months. During that time, the same radical earth moving activities occurred as had on the north side. There was continuous heavy equipment activity taking the extracted rock and dirt to other locations on and off the hill. Despite the city's plans, the original design plans failed because, according to the city engineer, the rock proved to be different than what they thought they were getting into. Nonetheless, as the work was being performed, the city continued to work with the developer on various and constant decisions that were needed, and also to continue to pay its 49% share of the costs. Those costs included, incidentally, the developer buying back two development lots that were needed to move the road back into the bedrock of the hill. Ultimately, according to documents provide to us by the city, it paid the developer just under $1 million dollars for the rebuild work.
Total amount of earth movement. We had retained site engineers that have estimated the total amount of earth extracted from the hill by first the developers in the initial project installation and second during the road rebuild. That estimate is somewhere north of 500 thousand cubic yards. There were no controls in place at any time related to containment of asbestos.
Work on the condominium site since road rebuild. I am advised that following the conclusion of the road rebuild that Property Investors got approval to do site improvements on the condominium site, including alteration of the existing pit. Those alterations may have been substantial. A question that remains vague is what role the Grandview property had in past mining operations. By all accounts it is ''the old quarry", a point I need to come back to. In 1999, in personally writing the EIS, city planner Fleek wrote that it was contemplated that ''the old quarry" would eventually contain a "multi-family" structure, apparently contemplating the condominiums. She was asked about this in her deposition. She testified that she personally wrote and personally typed out the EIS statement with this reference. When asked what, if anything she thought about ''the old quarry" she said nothing, that it had always been referenced as the old quarry, so that is what she called it. When asked if she had done anything to investigate prior uses of the hill and the quarry. She testified that she did not.
Responses that we have received from the city, including specifically a declaration from the city planner, reveal, to some degree, the direction in which the city has tried to take this case. In anticipation of its responses to our motion, I argued that the city should have been aware of the asbestos issue in part because it had code on its books indicating that a mine is in a critical area, as defined by the city of Burlington critical areas ordinance.
In response to additional information I requested, the city submitted a declaration from the city planner, Margaret Fleek, which she states that there were no regulations in force in the city of Burlington that would address "redevelopment of former rock quarries or mining sites". She goes on to state, in the same paragraph, "no earlier ordinance addressed geologic hazards, or mining."
She is wrong about this, which raises the question of whether she is falsifying her testimony, or whether she just is pretending not to know. In fact, there was a prior version of the critical areas ordinance in place at the time. It was called an" interim" critical areas ordinance, but it was one nonetheless. We have studied that ordinance and it does make some reference to something called "geologically hazardous areas". She actually testified in her deposition that the hill was a critical area because of its steep slopes. However, there is express reference in old county and city ordinances to mines and quarries, that were in place prior to the 1999 EIS statement; as there is in the new one. The "new" one was adopted, by the way, in 2002, before the city performed the road reconstruction activity between 2006 and 2008, so one of my arguments would be that the new work was subject to the new ordinance, even though the city takes the position it was not.
What Margaret Fleek neglects to say in her declaration, is that there was a another provision in place at that time which I believe did address the need for her and the city to look into and investigate the "subsurface" conditions of the proposed subdivision site. I am attaching for your reference a copy of that segment of the Burlington municipal code, 16.08.050. You can see from the copy that it was enacted through an ordinance in 1992. I believe this code provision might be very important in assessing the viability of a broad negligence claim against the city concerning the approval of the subdivision. I believe this code provision might very well create an exception to the public duty doctrine under what is called the legislative intent exception. This brings me to my request for your erudite legal analysis.
There are cases that examine the liability of a city for approving a subdivision which later turns out to be a debacle, as we have here. In these cases, they provide insight into how we might approach our case. The first case is from the city of Kelso. In it, the city approved a subdivision that was prone to landslides. A great rain came and caused a number of the houses to settle and slide. A negligence claim was lodged against the city for approving the subdivision. The argument presented in the case was that the "failure to enforce" exception to the public duty doctrine applied. This is a restrictive doctrine, as indicated in the case. The court found that this exception did not apply because the statute that presumably created liability for the city allowed the city official involved broad discretion in overseeing development and approving or disapproving the subdivision. This was a statutory construction argument. In this case that the legislative intent exception was not raised.
An unpublished case from Division II, involves an analysis of both the failure to enforce exception to the public duty doctrine and the legislative intent exception. Again, the Court of Appeals rejected the claims of negligence. In particular, with respect to the legislative intent exception, the court ruled that the statute was not drafted in such a particular as to allow recovery for property damage. This was after the court determined that the group identified in the legislative intent exception here was narrower than had been in one or more of the prior cases where the application of this exception was rejected.
The question here is whether the Burlington subdivision statute takes us into the legislative intent exception. I think it does. One reason why is, that this exception does not appear to require any actual knowledge on behalf of any city official with respect to the asbestos. I think ultimately the best that we can say about the city and about the city planner is that she had knowledge certainly about the existence of the old quarry, which had been used as a mining operation. In my mind, existence of knowledge of the quarry mining operation, equates to existence of knowledge of some form of extraction activity which equates, in common sense, to some inquiry about what the activity may have been. During Ms. Fleek’s deposition, on this point, she essentially said nothing was checked or inspected.
Finally, with respect to this statute, it appears to specifically provide a level of protection to people who would be living in the subdivision later, well after the approval and improvements might occur. Further, the section is expressly restricted to “the health, safety or general welfare of persons or property in or near a proposed subdivision". It further goes on to say that any site that has these qualities "shall not be subdivided".
Although the map of contamination on Burlington Hill is still being drawn, the paper trail of culpability is clearly marked. We have uncovered volumes of internal memos, letters, and reports detailing that the City of Burlington’s well-established knowledge of the history of the mining activity on Burlington Hill, along with the eventual rediscovery of the asbestos in the soils, as being a health hazard; and its failure to share that knowledge with the homeowners of Burlington Hill, is clearly the City of Burlington’s choice.
During the occupational exposure years on Burlington Hill, asbestos fibers more than likely have been released through processes such as wind erosion cause by human disturbances, (especially under conditions when the soils were dry), and all during the construction activities over the last 15 years, and now going forward, the City of Burlington wants us to accept the notion that, the loggers, excavators, and the construction workers that were doing dangerous work on Burlington Hill, were willing to swallow a dose of environmental degradation for the sake of their jobs. . .
Hazard all comes with what one does, that’s why it would have been prudent, of Margaret Fleek the city planner, who had at least 4 years before Annexation and plat approval, to investigate and review county and state records, to have determined if Burlington Hill was in a flood plain, or was it a land fill, or was it mined for hazardous material; which all were the requirements under a EIS or SEPA review for critical and hazardous sites. Margaret Fleek, an experienced city planner should have completed this requirement.
Only now, 15 years later, the town's residents learning the painful truth, that we had an asbestos and talc mining operating on Burlington Hill, and Margaret Fleek the City of Burlington’s planner, knew that Burlington Hill was a rock Quarry Mining Operation; regardless of asbestos in the soil, and believed that it need not be disclosed.
She believe that there was nothing to tell, as she stated in a deposition:
“Just the story of Burlington Hill, we had a dump, and we had a rock quarry, the cross on the top. Story of Burlington Hill, that's all it is”.
As the EPA concludes in May of 2015, their last 5 years of cleanup in Libby Montana, one of this country’s worst environmental asbestos cleanup to date, we must also be reminded of El Dorado Hills California, and the North Ridge Estates in (a/k/a former Marine Recuperational Barracks) Klamath Falls, Klamath County, Oregon. The number one fact that the Burlington Hill development does not share with these major asbestos site locations, is they were all approved and developed prior to any laws governing environmental policies. But that’s not the case for the City of Burlington. In the year of 1999, when Margaret Fleek the city planner, presented to the Washington State Department of Ecology, the Burlington Hill EIS, and SEPA review application, (Unlike the other asbestos site locations previously mentioned) Washington State had required development laws in place, that were designed in protecting the citizens of this state, in other words, any and all people that would become associated with these locations, would know what was going on at all times, and would be given the proper disclosures so that a prudent person can decide if this location will make sense or not, as an investment, or if there is any health implications if one resides at these locations. Chapter 58.17 RCW: PLATS — SUBDIVISIONS, RCW 36.70A.170: Natural resource lands and critical areas, City of Burlington development requirement ordinances# 1191, 1220, 1274, 1438, 1495.
Libby Asbestos Site
Gold miners discovered vermiculite in Libby in 1881; in the 1920s the Zonolite Company formed and began mining the vermiculite. In 1963, W.R. Grace bought the Zonolite mining operations. The mine closed in 1990.While in operation, the Libby mine may have produced 80 percent of the world's supply of vermiculite. Vermiculite has been used in building insulation and as a soil conditioner. Unfortunately, the vermiculite from the Libby mine was contaminated with a toxic form of naturally-occurring amphibole asbestos. In December 1999 EPA began collecting samples—nearly 700—from air, soil, dust and insulation at homes and businesses. Indoor air sample results were released in January—first to property owners and then to the media and general public. EPA also moved immediately to locate areas in and near Libby that were likely to have high levels of contamination such as two former vermiculite processing facilities.
El Dorado Hills
May 21, 1962, the El Dorado County Board of Supervisors adopted Resolution #98-62 creating the El Dorado Hills Community Services District (CSD). The CSD is governed by a five-member elected Board of Directors and is the primary provider of parks and recreation services to residents of El Dorado Hills, in addition to a variety of other community services. In October 2004, EPA Region 9's superfund collected more than 450 air and soil samples in community areas of El Dorado Hills.
North Ridge Estates
The buildings at the Marine Recuperational Barracks were occupied from 1944–1946 by the military, followed by the Oregon Technology Institute (now called the Oregon Institute of Technology) until 1964. The property has been privately owned since 1966. From 1966 through the mid-1970s, property owners stripped the vacant buildings of salvageable materials such as copper and wood. According to former site workers, asbestos insulation was stripped from piping and boilers; metal was sold, and the insulation remained at the site. The property caretaker (from 1966 through 1979), who lived off-site, was often called to the site at night to respond to reports of vandalism. Most of the buildings were reportedly demolished in the mid- to late- 1970s; a few remaining buildings, including the auditorium and swimming pool, were demolished in the 1980s. The property was purchased in 1977 by MBK partnership, the present property developer. Klamath County approved subdivision plans, and construction of homes in the subdivision began in 1993.
The differences cited above between exposure in Libby, Montana, El Dorado Hills, North Ridge Estates, (a new location can be added to this list this year, which is a large site near an urban area in southern Nevada) and other NOA locations worldwide, and because of the limitations of studies, coming from our inexperienced local health department’s outcome data, the focus of evaluations should be a risk assessment method, that would assist in determining whether the exposures occurring in and around the Burlington Hill site could be a long term concern.
In summary, this review of scientific literature cited above, demonstrates NOA’s potential to cause asbestos-related disease and supports the concern about NOA exposure in and around the Burlington Hill development.
The City of Burlington’s choice, in neglecting to share the history of the old rock quarry mining operation, along with mandating a required Natural Resource Lands disclosure notice, to be signed and recorded, as per a 1,531 page Skagit County Wide Ordinance, recorded in July of the year 2000, (which was before the Burlington Hill plat was recorded) that one day, 15 years later, all the homeowners of Burlington Hill (as potential sellers), be legally required to disclose (what will appear as a covenant, or deed restriction upon the subject property, or that of the plat, that shall run with the land), this negative effect, to prospective home buyers wanting to live on Burlington Hill, now and in the future.
In closing, Burlington Hill is a subdivision that should not have been approved. The city should have figured out the information that we have gathered to date concerning the asbestos mine and the naturally occurring asbestos that otherwise existed throughout the subdivision site.