To: Donald A. Johnson, Assistant Secretary
Local Programs Coordiantion
California Environmental Protection Agency
From: L A Wood October 4, 2001

Re: Differential Enforcement and Berkeley's Certified Unified Program Agency (CUPA)

Dear Mr. Johnson and Mr. O'Connor:

Several weeks ago, I contacted your office (CAL EPA) and spoke briefly with Mr. Matz of your staff regarding my concerns over differential enforcement practices and our local Certified Unified Program Agency (CUPA).

To help put this into so context, you should know that our CUPA in Berkeley is somewhat unique. Most local CUPA programs have no community involvement, or very little. In Berkeley, CUPA activities include public education with some civilian commission review and oversight. My own involvement in local government environmental protection and compliance spans a decade, well before the creation of the statewide CUPA program.

During these ten years, I have complained on many occasions about the city's unequal enforcement, especially when afforded to its own physical operations and projects, and to other large institutions and businesses. I've enclosed a newspaper editorial written this year regarding Public Works to give you some sense of the ongoing public discussion. (See attachment 1.)

Several months ago, in response to my informal complaints to Mr. Al-Hadithy, Berkeley's CUPA director, I was encouraged to sit down with the city manager and staff to discuss my concerns. In addition, staff suggested that a subcommittee of the city's Community Environmental Advisory Commission (CEAC), of which I am vice chair, also convene for this same purpose. I was heartened that there was a willingness to talk about enforcement practices, though I was quite dubious about the administrative staff's desire to make any real changes, given the political nature of this problem.

However, from these meetings, a history of the issue of enforcement was drafted. (See attachment 2.) I think it will be very helpful in giving you background to my complaint. The City of Berkeley's initial response was that of denial and then the admission of some problems. These discussions ended with various ideas being offered to staff for the improvement of enforcement

Unfortunately, little has changed with regard to my initial complaints to the City of Berkeley concerning enforcement. I am still troubled to see that some businesses are hauled off to the DA and others are not. The most recent action against a small company in Berkeley, Jettco, is a prime example of the selective enforcement practices. Jettco was punished while the City of Berkeley continues to allow entities such as Bayer, the Berkeley Repertory Theater, the school district, and its own Public Works Department to be out of compliance. Needless to say, this raises serious legal and ethical questions. Who gets referred to the DA in Berkeley? Who in Berkeley decides?

You are I am sure aware that next year the state has scheduled an audit of Berkeley's CUPA and this month the Toxics Management is scheduled to complete its internal audit. Neither audit will even begin to investigate the issues surrounding Berkeley's differential enforcement of environmental protection and compliance. I therefore formally request that your office(s) conduct an independent, external audit of enforcement in the City of Berkeley and address the questions raised about Berkeley's CUPA and its enforcement activities.

Finally, I want you to understand that I file this complaint with your office(s) not as a Berkeley commissioner, but as a private citizen. I hope to have an opportunity to discuss these matters with your agency(s) and to aid in your review. (510) 644-CITY.

cc: Nabil Al-Hadithy, Berkeley CUPA Director Weldon Rucker, City Manager, City of Berkeley Mayor and Members of the Berkeley City Council Larry Matz, CAL EPA

Attachment 1: "Corp yard still noisy, polluting", Berkeley Daily Planet, June 2, 2001 Attachment 2: CEAC communication to Weldon Rucker, City Manager, July 16, 2001