Berkeley Asphalt, owned by Lehigh Hanson, a multinational corporation based in Texas, has been out of compliance with court-mandated stipulations to control its toxic emissions for over 20 years. For current UC Berkeley students, that pollution has been ongoing for most, or even all of their lives.
A 1999 legal settlement agreement that mandated covering asphalt loaded into trucks and enclosing and venting emissions from asphalt loading areas, among other measures, was thought a hard-won victory at the time by neighbors who could not find redress from the city of Berkeley nor the Bay Area Air Quality Management District, or BAAQMD. Both of those entities regulate Berkeley Asphalt’s facility and have the power to inspect, monitor and grant or revoke permits for the facility. Yet neither entity has provided required relief from the noxious fumes that have affected backyards, schoolyards, playgrounds, neighborhoods and parks for decades.
The city of Berkeley claims commitments to public health, equity, inclusion and the environment. Yet it allows a polluter whose emissions contain carcinogens and other dangerous toxins to operate in West Berkeley, one of its most vulnerable neighborhoods, in violation of court-mandated pollution controls. The most affected neighborhoods are some of the oldest residential districts in Berkeley, with houses that predate industry there, and residents that are some of the most disadvantaged and susceptible to compound health risks. The city’s own Health Status Reports continue to identify West Berkeley as having the greatest incidence of asthma rates.
The mayor, Berkeley City Council, city manager, interim director of planning and development and toxics management division have all been made aware of Berkeley Asphalt’s continued violation of mandated pollution controls. In October 2020, the city and BAAQMD began to receive hundreds of new complaints in a widening city radius when emissions grew even stronger and more frequent.
Emissions continued despite four notices of violation from BAAQMD starting in December 2020, and one from the city of Berkeley in January 2021. When citizens asked for an update from the city of Berkeley, they were told in February 2021 that the city was drafting a warning of a possible citation — a warning that was already constituted in its notice of violation a month prior — and that the plant was going to be allowed to continue to operate and pollute in the meantime.
Berkeley Asphalt has submitted plans for new pollution control equipment, but the community maintains concerns about the conflict of interest and adequacy of the polluter’s plans without expert outside inspection, review and recommendations. These concerns are justified by more than 20 years of ineffective pollution controls, lack of enforcement and botched inspections. The community has repeatedly requested expert third-party inspection, review and recommendations. The community, the city, BAAQMD and the facility would all benefit from outside expertise to resolve this issue.
Concerned Berkeley residents informed city and air district officials about a more promising precedent established by the city of Irvine, which is facing a similar pollution problem from an asphalt plant there. Irvine has partnered with its citizens in a six-prong approach which includes: air sampling, health risk assessment, site audits, permit review, public notification and participation and legal action to ensure its citizens and its public environs are being adequately protected.
Why should Berkeley residents continue to worry about their families’ health and constantly monitor and inform about failed measures and facility issues at the asphalt plant? Why should the city accept only self-reporting and self-regulation from Berkeley Asphalt when it accrues multiple notices of violation instead of more frequent independent confirmation and third-party consultation on best practices for pollution control? Why should Berkeley’s less advantaged neighborhoods be forced to wait for more than 20 years for the city to suspend the use permit of a company that operates illegally?
Lehigh Hanson’s companies have incurred multiple million-dollar fines and have been sued in multiple states and cities for Clean Air Act violations and lack of pollution controls. Berkeley residents expect their city to be aware of the effects and track record of the industries they house and to institute regulatory, scientific and legal actions to protect citizens’ health just as other cities have. Yet, Berkeley citizens have discovered that their city representatives have signed off on documents claiming enclosure measures are in place at Lehigh Hanson’s Berkeley plant that visibly are not there.
The city can and should begin a use permit revocation process which it can cease if and when Berkeley Asphalt comes into strict compliance and truly abates its emissions and odors. More importantly, the city must partner with its long disadvantaged residents, demonstrate a genuine commitment to environmental health and equitable public policy and take a page from the city of Irvine “to maintain a community where people can live, work and play in an environment that is safe.”
Please sign the petition and write to your City Councilmember to advocate for comprehensive enforcement of pollution laws and settlements at Berkeley Asphalt, expert third-party recommendation of pollution control measures, targeted air pollution monitoring and suspension of polluting operations until fixed. Learn more and sign up for updates via our website.
Pear Michaels and Mike Perlmutter are community organizers with Clean Air Berkeley.