In January 2016, a temporary records retention specialist hired by the Bay Area Air Quality Management District discovered that flare reports chronicling air pollution for Chevron, Tesoro, Shell and the region’s other oil refineries had been discarded in a dumpster, according to a claim filed Tuesday and obtained by this newspaper.
Sarah Steele tried to save the pollution records, but the agency’s director of enforcement told her to let the records be destroyed, she claimed. It was but one allegation in an explosive legal claim that questions whether the watchdog agency assigned to monitor air pollution in the nine-county Bay Area was hiding important records from the public.
Over the last two years, Steele and her boss Michael Bachmann allege they repeatedly protested against the illegal destruction of public air quality and pollution records before they could be scanned, some of which were the subject of ongoing litigation. They allege they were thwarted by senior agency staff and legal counsel, and eventually fired. On Wednesday, at the Oakland law offices of one of their attorneys, whistleblowers Steele and Bachmann plan to detail their experiences at the San Francisco agency created in 1955 to reduce air pollution.
“This agency that has been tasked with the obligation of protecting the public must do everything it can to ensure the safety of the air we breathe,” said their attorney Eustace de St. Phalle. “If they are responsible for regulating the industry and enforcing air quality regulations, the only way to ensure that is good record keeping. We should never allow an agency to destroy records … in general, the policy should be to err on the side of retention.”
Steele and Bachmann filed the claim Tuesday with the state of California, a precursor to a lawsuit, asking for lost wages and emotional distress for wrongful termination and whistleblower retaliation.
A spokeswoman for the Air District denied the allegations Tuesday, saying an internal review found nothing improper was done.
“These allegations about missing records by Mr. Bachmann, a former employee, and Ms. Steele, a former temporary employee, are false,” said spokeswoman Kristine Roselius. “The allegations were first raised over a year ago and were thoroughly investigated by an outside law firm. The allegations were determined to be false and without merit. The Air District complies with all document retention requirements in state and federal law.”
Greg Karras, a scientist at Communities for a Better Environment, said if the allegations of improper records destruction are true, it would hamper the public’s right to know how the agency protects their health. He also pointed out that the district traditionally doesn’t disclose many records about pollution violations until after the matter has been settled.
“If the records were destroyed,” he said, “how can you find out after the fact whether a sweetheart deal was done?”
The record retention issue reared its head in 2015 when the Air District was preparing to move its headquarters and Bachmann, the head of information technology, was tasked with collection, inventory and storage of district records, including writing code to digitize public records. He hired Steele to help him move physical records and digitize them.
In August 2015, Bachmann was alerted by an employee that documents were being destroyed even though they were subject to a subpoena in current litigation involving Berkeley’s Pacific Steel Casting. That employee had managed to scan some of the documents and Bachmann saved them, the claim alleges.
The next month, Steele claims Chief Legal Counsel Brian Bunger, Legal Counsel Bill Guy and Director of Enforcement Wayne Kino approached her saying they wanted to destroy microfiche documents containing air quality violations. She claims she told them that would violate Air District policy and state law and she reported the request to Bachmann. Bachmann went to his boss who agreed that such records should be kept, according to the claim.
Bunger, Guy and Kino did not respond to requests for comment Tuesday.
By November 2015, Bachmann alerted senior Air District staff that staff members were throwing away records that the agency was required to maintain, including violations, flare reports and records involved in ongoing litigation. Bachmann alleges that Bunger told him it was better if staff destroyed those records and the district did not need to document what was dispatched.
“Mr. Bunger further told Mr. Bachmann that it could ‘hurt us’ if we have a record of what was destroyed,” the claim alleges.
In December 2015, Bachmann and Steele discovered several thousand deleted enforcement records, including notices of air quality standards, and several hundred deleted Air District executive communication records from the online database. District policy requires enforcement records be kept for the life of the facility plus seven years or 25 years, while executive correspondence is supposed to be permanent records, according to the claim.
That same month, the Air District launched its third party investigation, which found no wrongdoing. Steele and Bachmann allege the finding was “bogus.”
According to the claim, on Jan. 20, 2016, Steele found the discarded refinery flare reports in a dumpster. She alerted staff that she planned to inventory the records, however Kino told her not to inventory any enforcement division records. Nine days later, Steele alleges Bunger, Guy and Kino told her to put boxes of microfilm containing violation notices, settlements, asbestos records and thousands of citizens complaints against Bay Area facilities that had not been inventoried into an unsecured storage room. A few days later the records vanished, the claim alleges.
On Feb. 26, 2016, following the pair’s repeated complaints about records destruction, Bachmann was placed on administrative leave for violating the Air District’s vehicle use policy, and fired on Aug. 30, 2016. Steele was fired after the Air District said her temporary assignment was over. Both reasons were “blatantly false,” according to the claim.
David Snyder, the executive director of the First Amendment Coalition, said such allegations have been increasing with California’s patchwork of document retention laws.
“The destruction of records is a huge problem. If records are destroyed, the public can’t have access to them,” Snyder said. “We see this increasingly as a problem with agencies not maintaining their records as long as they should. It’s an issue that needs to be addressed.”
Staff writer Denis Cuff contributed to this report.
