By Thomas K. Pendergast

Demolition of the abandoned Police Credit Union building at 2550 Irving St. will proceed despite neighborhood concerns about further spreading a toxic chemical linked to cancer.

The lot it sits on is slated for construction of a 90-unit, seven-story “affordable housing” development.

Although a demolition permit was issued last November by the SF Planning Department, the Mid-Sunset Neighborhood Association (MSNA) appealed, asking for additional testing during the demolition to monitor the carcinogen tetrachloroethylene, also known as perchloroethylene (PCE). On Feb. 22, the SF Board of Appeals denied the association’s appeal with a 3-2 vote.

Complicating the issue is the California state law popularly known as SB-35, championed by State Senator Scott Wiener, which amends the government code to require local government entities to streamline the approval of certain housing projects by skipping the usual process of the California Environmental Quality Act (CEQA) and removing the need for Conditional Use Authorizations.

“It comes down to fear, fear that people are going to get cancer,” Board President Rick Swig said at the hearing. “And it comes down to laws that are in place, made by the State of California. I would like to move this forward but not at the risk of the community.

“The neighborhood wants it properly tested. That seems to be the bottom line. They want a site-management program that is not ambiguous, and they want it to be tested on an ongoing basis.”

Both this lot and the property across the street had dry cleaning businesses on them in the past, which use chemicals containing PCEs. Although it is suspected these were the original sources of the chemical, so far testing of the sandy soil underneath them has not found the exact location of where the chemical is now vaporizing up from and into surrounding neighborhood homes.

Don Moore, an environmental consultant working pro-bono for the MSNA, said the PCE vapors going into surrounding homes is a “serious health risk.”

“This is a residential setting with decades of exposure to PCE,” Moore told the Board. “The demolition process really offers the best and last opportunity to address this significant data gap to inform decisions moving forward. It’s a serious health risk to existing residents adjacent to this.”

Attorney Charles “CJ” Higley of the law firm Farella, Braun and Martel, representing the developers, the Tenderloin Neighborhood Development Corporation (TNDC), said the demolition permit was issued in connection to an SB-35 project.

“SB-35 projects are exempt from environmental review, but the state law also imposes significant limitations on a city’s ability to deny permits that implement SB-35 projects,” Higley said. “SB-35 very explicitly says that a City shall issue permits, including demolition permits, to implement SB-35 projects so long as the permit application is consistent with the project approved by the Planning Department in its initial determination of eligibility. A city’s review of such permit applications shall not inhibit, chill or preclude development.”

Higley pointed out that the City may be in a tough spot.

“Overturning (demolition permit approval) in this appeal would violate state law and put the City in legal jeopardy,” he said

“I do think that SB-35 ties our hands,” Vice President Jose Lopez said. “The agencies across the City that have worked on this, in addition to the (California) DTSC (Department of Toxic Substances Control) have told us that it’s safe to proceed, that the demolition will not be prohibitive of further testing, or remediation, that the site in question does not have indications of being the source of the contamination.

“I think, with those things in mind, I’m not sure how honoring the appeal is really a realistic option before us,” Lopez said.

Commissioner John Trasviña, however, was not persuaded.

“We’re being told, ‘SB-35 period,’ and the neighbors are being told ‘just put your head in the sand.’ Well, not this sand and not until we know what’s in there,” Trasviña said. “It will be the densest concentration of housing in the Sunset District, and it is a dangerous area because we don’t know otherwise at this point. We have a moral duty to the health and safety of members of all our communities, including the people who are going to live there.

“We also know that the (vapor) plumes go back and forth across that entire area. So, I’m not comforted by some of the aspects of the plans.”

Commissioner Alex Lemberg joined Trasviña in his skepticism.

“Despite all of the testimony to the contrary, I’m still not entirely convinced that we should not impose some amount of condition on this permit,” Lemberg said. “I think what the appellants are asking for is extremely limited and extremely reasonable. I would certainly be in support of a motion that imposes the very limited conditions that have been proposed here tonight.

“I’m convinced that the residents of the new 2550 Irving will be protected from PCE contamination. I’m not convinced that the neighbors will be.”

Commissioner J.R. Eppler had a more nuanced view of the situation.

“SB-35 does not take this out of our hands. It simply says that we have to use a very limited scope of review,” Eppler said. “I think that we have been very diligent in trying to determine whether or not we have a scope of review to exercise here.”

Through the process of the discussion with the DTSC “we have come to the understanding that there is a site plan,” he said. “There’s a commitment to strengthen elements of that site plan to meet, perhaps, deficiencies in what the neighborhood would want. There will be vapor dust monitoring at the fence line. There has been examination of I think it was 40 samples, on site. There will be more of that going on throughout the process.

“You can’t have proof of safety. Proof of safety doesn’t exist. You cannot prove that negative. We can measure it and that measurement is going to have error bars on it. We don’t know if it’s higher or lower, but we have a good guess of where it is. And if it’s below a certain number we have to be able to accept it and move on.”

Eppler said the issue for the Board is whether the permit was properly issued by the Planning Department. If they think the permit could have been issued better, they could then impose additional conditions.

“But we have to look to say whether that condition is something that would be applied on other permits at the time, and it’s not,” he said. “That gets us back to the SB-35 land and that’s what handcuffs us from doing what we would normally do because in other circumstances this permit would have come across exactly the same way.”

Eppler said the environmental concerns have been adequately addressed by the DTSC.

“I don’t think that we have the ability to impose any other conditions on the permit holder, as a result of the state law. And that’s an unintended consequence. That’s something that may need to be reviewed and re-legislated if this is a problem but that’s, unfortunately, the law that binds us at this time.”

Whit Smith of the DTSC told the board they would continue to monitor the site for evidence of PCEs during the demolition.

“If we find issues, we will be collecting samples, but as to an additional round of investigation, I’m not sure whether the community members will be satisfied with one more incremental investigation. It’s hard to understand what incremental investigation scope would satisfy all parties,” Smith said.

President Swig said the question is, “Will more testing help to address the locals’ concerns?”

“But what is the value of one life? Is it worth the time? Is it worth the testing? This is what we have to ask ourselves here,” Swig said.

In the end, Swig, Lopez and Eppler voted to deny the appeal, while Lemberg and Trasviña voted to support it.