A friend in Ireland sent Fresh Air Vallejo this picture of Orcem’s parent company in Dublin, Ecocem. Is this what we want to expose Vallejo’s children to? The verified health hazards of living near a cement factory are well documented: “Occupational and environmental exposure to cement dust and their effects on human health is a leading respiratory health problem. Exposure to cement dust can cause various acute and chronic respiratory diseases including respiratory function impairment…” https://www.ncbi.
Who do Vallejo City Councilmembers Verder-Aliga, Malgapo, and Sunga think they work for? They directly and explicitly sacrificed the city’s interest for that of VMT/Orcem by deciding VMT/Orcem does not have to pay us the money they owe us!
We demand an explanation for this decision. These council members need to explain themselves. Now.
Here is the 1:30 video on the specific vote for you to see.
And here is a more detailed discussion:
Martin Gruber: How to go bankrupt
Who do Vallejo City Councilmembers Verder-Aliga, Malgapo, and Sunga think they’re working for? They have directly and explicitly sacrificed the city’s interest for that of Orcem/VMT, by deciding they don’t have to pay us the money they owe us and that it is OK for us to be footing the bill for work they are supposed to pay for.
What I witnessed at the city council was one of the stupidest things I have ever seen. At the June 1 meeting, the council had directed Orcem/VMT to work with the staff to produce a final project description and to agree to the delay of resolution of its appeal while the problems with the EIR are worked out. However, Verder-Aliga, who made the motion in question, evidently forgot that Orcem/VMT does not work for the city and cannot simply be ordered to do things. There must be an “or else what?” clause, specifying a consequence for non-compliance.
Well, Orcem/VMT pretty much blew off staff on the description and said they would “discuss” a tolling agreement. A tolling agreement is the conventional mechanism by which Orcem would consent to the delay in resolution of its appeal. The delay is in its interest, since there is as yet no final EIR, so if it were decided now, the decision would have to be no. But that doesn’t change the fact that Orcem has the right to a prompt resolution, and the city has liability for the delay. Since Orcem/VMT did not produce by deadline, staff had a 3 part recommendation for council:
• Kick the can down the road by giving them to August 25.
• Explicitly require a tolling agreement.
• Or else what if Orcem/VMT did not produce by the deadline, decide the appeal without the missing material.
Verder-Aliga asked to vote on these provisions separately, so they did. First one passed, giving Orcem/VMT more time. Then Miessner brought up that applicants had not kept up its payments to pay for the processing of the application. When questioned, staff pointed out that VMT was also behind on its rent. Miessner didn’t want to dip into the General Fund for expenses applicants were supposed to be paying, so she wanted this to be part of the tolling agreement resolution. Verder-Aliga countered that she wanted a vote just on the tolling agreement. Dew-Costa was absent, so 3-3 ties were possible. Verder-Aliga got her version voted on first: Tolling agreement, so applicants agree to delay of appeal, but applicants don’t have to pay its bills.
Is this a hard question? Should Orcem/VMT pay the city the money they owe or not?
Verder-Aliga, Malgapo, and Sunga thought not, so they voted for Verder-Aliga’s resolution, which failed, 3-3. Then Miessner got to have her version, which got the other three votes, and also failed. The result: Orcem/VMT doesn’t have to pay its bills, at least right now, and there is no tolling agreement, since neither version passed. So the city is spending all this time trying to get the FEIR certified so that the appeal can possibly be decided in applicants’ favor, but applicants have a right to timely resolution of its appeal. Now, we have a situation where applicants are causing delay, which generates liability for the city, because applicants have not consented to the delay they are causing. And why? Because half the city council thinks they shouldn’t pay the city money it owes us.
No wonder this town went bankrupt.
— Martin Gruber/Vallejo
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In my open letter to City Attorney Claudia Quintana dated January 5, 2016 (attached here), I expressed my concerns over the implications of this committee. Most of those concerns remain valid today, including the manner in which you violated the Brown Act, demonstrated impermissible pre-approval for this project, and undermined the City’s general plan update.
At the June 1st appeal hearing, Councilmember Sunga asked why the Mare Island Straits Economic Development Committee (MISEDC) was relevant. Hadn’t it been laid to rest by the “Cure and Correct” hearing of January 5, 2016? Your vote that night made MISEDC more relevant than ever.
In my testimony to Council the night before, I warned you of this: that your votes would move the issue of impermissible pre-approval for the project front and center. You invited Orcem to be part of MISEDC because your economic development plans for the Strait included heavy industry like the cement mill. Orcem agreed to be part of MISEDC to seize an illegal opportunity for ex parte communication and to make each of you part of their team. Orcem’s project was a regular part of your MISEDC agenda. They briefed you privately many times. You became their advocates as can be seen by MISEDC agendas and your own statements.
The bias that resulted cannot be cured. Claims of an open mind do not change the objective and conclusive evidence of your bias. You would have the public believe that the absence of four councilmembers at any single MISEDC meeting is determinative. You expect the people of Vallejo to believe that no MISEDC councilmember, the city manager, or other city staff ever updated then Mayor Davis on the progress, opportunities, and challenges faced by MISEDC or briefed him on the status of MISEDC’s work before he was a guest speaker at a MISEDC meeting?
Before MISEDC ever met, the city council created a Mare Island Economic Development Committee. The minor change in name and Council membership does not alter the fact that MISEDC was a standing council subcommittee with a very broad scope of work that would continue indefinitely: not an ad hoc committee. It was a clumsy and failed attempt to avoid the open meeting and public participation rules of the Brown Act.
You have the possibility to change that this Tuesday evening by your recusal. But if you do not, if you allow this project to move forward, you should expect intense and thorough examination into MISEDC and the roles you played in impermissible pre-approval, and how you flouted the Brown Act.
Here is why I believe this is so.
Your actions violated Vallejo Municipal Code Chapter 2.02.350, regarding appointments to committees and ad hoc subcommittees, as Mayor Davis stated, the city’s policy of setting a “gold standard” for public participation and collaborative government, as well as the intention and perhaps also the letter of the Brown Act.
You, along with our city manager, concealed from the community and your Council colleagues, the regular meetings of a group that behaved as a Council standing subcommittee that was actively supported by city staff, met at city facilities and that addressed and developed strategies for dredging the Mare Island Strait, economic development connected with Mare Island and support for the Vallejo Marine Terminal and Orcem cement mill. You appear not to have been concerned enough about those activities to have even discussed them with the City Attorney.
These actions violated the fundamental purposes of the Brown Act.
In 1953, the Brown Act declared the Legislature’s intent: “In enacting this chapter, the Legislature finds and declares that the public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the people’s business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly.” “The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.”
In November 2004, adopting Proposition 59 amending the California Constitution, the people adopted a public right of access to government information: “The people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.”
By far the most important provision of the Brown Act: “All meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency, except as otherwise provided in this chapter.”
Your maneuvers to prevent the public from attending and participating in a Council standing subcommittee’s meetings were plainly prohibited by the Brown Act. The Brown Act establishes the minimal legal standards for transparency and public participation. As a city claiming to be the “gold standard” in collaborative government, Vallejo’s public participation standards are considered to be far higher than the minimum requirements of the Brown Act.
Conflict with the General Plan Update:
Your “backroom” process to create a Mare Island waterfront, build irreversible council support for a cement mill, and develop a Mare Island Strait plan for Vallejo’s future was in direct contradiction to the city of Vallejo’s concurrent commitment to openness, community engagement and collaboration in the process followed in the adoption of Vallejo’s General Plan Update. In the General Plan Update process, Vallejo satisfied its “gold standard” policy for public participation and collaborative government.
A comparison of the two concurrent processes is critical for many reasons. Perhaps the most important is that both processes addressed the future of waterfront and Mare Island Strait development in Vallejo. One was open and achieved maximum community engagement- the General Plan Update process. The other was only open to select insiders, i.e., three councilmembers, our mayor and senior city staff who met secretly to establish and initiate implementation of policies and actions to control future uses along Vallejo’s waterfront, including the development of the Vallejo Marine Terminal and Orcem cement mill.
Misappropriating a standing committee of the City Council:
While you went out of your way to say that MISEDC was an unsanctioned ad hoc committee, the City Council actually planned a Mare Island Economic Development Committee, which was to include then-Councilmember Sampayan. Without his knowledge, he was removed from that committee and Councilmembers Dew-Costa and Verder-Aliga were added.
The committee name was changed from the Mare Island Economic Development Committee to the Mare Island Straits Economic Committee (MISEDC). But the change in name and membership did not alter its focus on economic development along the Mare Island Strait. The change in name and membership did not alter the level of city staff support or the use of city facilities for the regularly scheduled meetings.
MISEDC explicitly stated it was not a formal City Commission but rather defined itself as: “an ad hoc Citizens Committee of the City of Vallejo.” However, it’s actions showed otherwise. Your behavior proved this was not the case. A standing committee is one that meets regularly and indefinitely to take up big issues such as economic development and dredging affecting Mare Island. MISEDC was clearly an official Council standing subcommittee. Had it not been exposed, it would likely have continued to meet.
Violation of the Vallejo Charter’s Prohibition Against Council Interference with or Management of City Staff
Under the Vallejo City Charter section 503, titled Noninterference, members of the Council are specifically forbidden to deal with City employees directly “except for purpose of inquiry into the affairs of the City, and the conduct of any City department, office or agency…” All other contact is to go “solely through the City Manager and neither the Council or its members shall give orders to any officer or employee either publicly or privately…”
Councilmember Jess Malgapo routinely violated this provision of our charter as chair of the MISEDC. Documents show him repeatedly conscripting and directing staff to work on assignments for this committee. The Charter states: “Violation of the provisions of this section by a member of the Council shall be a misdemeanor, conviction of which shall immediately result in forfeiture of the office of the convicted member.”
Due Process / Basic Fairness and Impermissible pre-approval for VMT:
You added the Vallejo Marine Terminal and Orcem to MISEDC membership along with representatives of county, state and federal government and private interests seeking taxpayer funded dredging of the Mare Island Straits. You were fully aware that these two companies had an application pending with the City that would likely come before you for approval. Yet you met with them in secret for 19 months. In this respect your ex parte disclosures at the appeal hearings May 31st and June 1st were blatantly dishonest and incomplete, given Councilmember Malgapo’s endorsements of the project, each step of the way and the number of Orcem reports to MISEDC on its progress, as reflected in MISEDC agendas.
The people of Vallejo expect their elected representatives to attain the gold standard of avoiding the appearance of bias or improper ex parte communications. Why did VMT / Orcem want to be on MISEDC? Steve Bryan of Orcem has stated that their location would not require dredging, that there is a natural scouring effect there that makes dredging unnecessary. So it is reasonable to wonder why they would meet with a committee that was supposedly only concerned with dredging. It’s clear that the MISEDC needed VMT and Orcem’s operational numbers to interest the Army Corps of Engineers to reconsider dredging for the Mare Island Strait. Heavy industry at Mare Island has been something you support. Inclusion of VMT and Orcem in MISEDC allowed you to implement this objective. It’s equally clear VMT and Orcem were eager to and did ingratiate themselves to you, the likely decision makers for this project: to privately influence the council majority. Why would Orcem agree to serve on MISEDC, except to avail itself of the unlimited backroom opportunities for ex parte communication. No objective person can fail to see bias resulting from the formation and conduct of MISEDC. At the very least this has the appearance of bias. You became part of the VMT / Orcem team, which is precisely what they sought.
The League of California Cities publication, An Ounce of Prevention: Best Practices for Making Informed Land Use Decisions is a consensus of California’s best city attorneys, undoubtedly valued by our own City Attorney. It avers that a number of factors can undermine a participant’s faith in decisionmakers’ impartiality. These factors can provide a basis to challenge the agency’s decision. There can be serious doubt as to a person’s ability to be fair and impartial based on statements and conduct – ie., secretive meetings to which the applicants were invited and ALL possible dissenters were excluded. Personal animosities or loyalties. Strong feelings toward a party to the proceeding can also be a basis for charges of unlawful decision-maker bias. Decision-makers in quasi-judicial proceedings should avoid statements and actions that suggest that they have pre-judged a matter before receiving full information in the course of a hearing. It is important to keep in mind that the laws relating to decision-maker bias and conflicts of interest create minimum standards. “Decision-Makers Should Avoid Ex Parte Contacts. Decision-makers should avoid outside contacts that could support a claim of bias. If an ex parte contact occurs, the affected decision-maker should disclose the contact and the substance of the communication at the hearing prior to receipt of public testimony.”
In your power-point presentation to Congressman Mike Thompson on August 25, 2015 you stated that “The Vallejo Marine Terminal / Orcem America proposal has gained traction … an amazing project for Vallejo.”
The header of one of the MISEDC agendas stated the committee was “fully supported by the Vallejo City Council.” You, as leaders of the MISEDC represented yourselves to the Army Corps of Engineers to be authorized spokesmen of the city of Vallejo. MISEDC and its chair tasked Vallejo city staff with the drafting of a Section 216 letter seeking an Army Corps of Engineer’s dredging study of the Mare Island Straits.
Mayor Osby Davis was invited to speak at one meeting of the MISEDC, which Councilmember Verder-Aliga failed to attend. It seems inconceivable that Mayor Davis appeared before this committee with no knowledge of its goals, activities and purpose and that Councilmember Verder-Aliga just happened to be unavailable so that no quorum of Council was present that day. It is more reasonable to believe that Mayor Davis was well informed of the purposes of the group when he met with them and that Councilmember Verder-Aliga was asked not to attend to specifically side-step the Brown Act.
2. Staff concerns about supervision of its work and priorities in violation of the city charter’s prohibition against council interference with staff;
3. Misrepresentation of MISEDC’s authority to speak for the city of Vallejo without full council concurrence with its positions and goals;
4. Pre-approval of the Orcem
WHAT mill project before hearings on the draft EIR and project application;
5. Futile attempts to correct the concealment of the activities of MISEDC by misleading and incomplete disclosures buried in voluminous staff presentations;
6. Efforts to obtain after-the-fact approvals of MISEDC activities based on misleading and incomplete action items buried in voluminous staff reports as part of council packets;
7. Violation of Municipal Code and the Vallejo City Charter.
Donald E. Osborne
WHAT HAPPENED REGARDING THE VMT/ORCEM PROJECT AT CITY COUNCIL ON JUNE 1, 2017?
A resolution was introduced and passed by four city council members which requires city staff to meet with theVMT/Orce m applicants to develop a “stable, mutually-agreed- upon project description” and come back to council by July 15 with this new “project description.” January 2018 was given as the “drop-dead” decision date for this project.
WHAT WILL HAPPEN ON AND AFTER JULY 15, 2017?
The city and applicant will come back to city council with, or without, a “stable, mutually agreed-upon project description.” If the city and the applicant have resolved their issues and developed a “stable, mutually agreed-upon project description”, staff will proceed to complete a Final EIR and other documents to allow for possible certification and approval of the newly developed project. This process could take up to January 2018 if the EIR needs to be recirculated. If the city staff and applicants cannot create the new project description, the appeal will return to City Council for action on the appeal. The next steps for everyone will be understood after July 15.
WHAT CAN YOU DO NOW?
Stay Calm, and positive about our future. Stay respectful to those council members you don’t agree with.
We understand you are upset, so are we, but being reactive or negative only undoes the good work we are all doing to create a realistic, healthy future for Vallejo.
WRITE TO THE ALL COUNCIL MEMBERS ON THESE CONCERNS:
- The applicant needs to demonstrate true benefit to Vallejo. They are full of changing promises but give no concrete commitments on how they will benefit Vallejo.
- The applicant needs to verify exactly how this cement mill and terminal will not damage our air, water, and roads.
- The applicant needs to give Vallejo hard evidence that Vallejo will benefit economically with this business when all their initial economic reports show all the money made on this project leaving Vallejo.
- The applicants’ claim to provide jobs for Vallejoans needs to be a verifiable result reportable to city council.
- The city council needs to see a dedicated payment plan for repairing roads damaged by nearly 500 daily truck trips.
- City Council member email addresses:
1. REACH OUT TO YOUR NEIGHBORS and ask them if they know the future of a healthy Vallejo hangs in the balance. Use this site for background information
2. REACH OUT TO US if you want to help get the word out – if this project is approved, we have a cement mill on the waterfront for 65 years.
3. READ THE EXPERTS’ REPORT on why this is not the right business project for the proposed location off Lemon Street: http://www.cityofvallejo.net/common/pages/DisplayFile.aspx?itemId=6883243
SAY YES TO A HEALTHY VALLEJO.
SAY NO — LIKE THE EXPERTS WITH THE FACTS — TO VMT/ORCEM.Please share !
City Council voted 4:3 to punt the decision. Sadly, this is going to waste our tax dollars and staff time on trying to gather even more data on this ill-conceived project.
Fresh Air Vallejo’s Attorney writes a strong letter to the City of Vallejo stating that the VMT/Orcem appeal that was filed after the Planning Commission hearing in March is legally and factually wrong.
So, do we all still have to come to the May 30 & June 1 meetings? Yes.
Do we all still have to speak at those meetings and repeat what we said at the Planning Commission meeting? Yes.
We need to add our might behind our City Council so they feel supported to make the right decision and protect the people of Vallejo.
Below is a PDF of the letter.
Asthma. Cancer. Heart Disease. All caused by pollution. Vallejo is fighting the proposed cement plant and private port at the Sperry Mill site in a neighborhood already classified as a SB535 Disadvantaged Community. Zip code 94590 has shockingly high rates of air and ground water pollution. Let’s revitalize our Vallejo with real, healthy job growth that benefits everyone.
NBC has an in-depth look at how the Hunter’s Bayview neighborhood is under a pollution attack.
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On May 10, 2017, the powerful San Francisco-based International Longshore and Warehouse Union 10 announced its strong opposition to the proposed Orcem Cement Factory and Vallejo Marine Terminal.
The project was rejected by the Vallejo Planning Commission on March 6, 2017. The full Vallejo City Council is expected to vote on the plan at the pair of meetings, May 30 & June 1—starting early afternoon.
The President of ILWU Local 10, Edwin Ferris, was joined by other union members and people from the community, including representatives from Migrante Napa Solano, Supervisor for District 2, Monica Brown, and Peter Brooks, president Fresh Air Vallejo, at the briefing.
Both Ferris and Brooks released statements ahead of Wednesday’s press conference.
“ILWU Local 10 supports the citizens of Vallejo in their opposition to the proposed Vallejo Marine Terminal project. It would be quite irresponsible to support this proposed project at the expense of the health of the environment and the local community,” said Ferris.
“Shiploads of industrial waste from Asia and Mexico for the proposed Orcem cement factory and Vallejo Marine Terminal should never be unloaded on Vallejo’s waterfront so close to homes and a school. We are grateful the ILWU sees that the job numbers Orcem and VMT have tried to claim are grossly inflated for a project whose harm to Vallejo outweighs any possible benefit,” said Brooks.
The Redwood Chapter of the Sierra Club (Solano and Napa groups), Fresh Air Vallejo and other community groups all oppose the project, noting that it is an “environmental nightmare,” and would pose significant environmental problems and health dangers to nearby homes and school.