CUSD Forensic Audit of San Juan Hills High School

On Thursday, 12/18, I attended a meeting at the Ed Center to discuss the SJHHS forensic audit initiated by the CUSD Board. This meeting occurred just two hours before the widely-publicized meeting of the Board that included an evaluation of the Superintendent. While the mood in the meeting was calm, it was clear that some participants were preoccupied with the larger meeting that was to follow.

Accompanied by another parent, the purpose of the meeting was to introduce the auditor-investigators and establish a line of communication. Members of the community have collected a large volume of information -- perhaps more information than exists at CUSD. We discussed this information and offered to share it. In part, it's the same information you see in these pages and the related group website.

Most of our discussion focused on the scope of the upcoming investigation. I urged the auditors to focus on areas of the SJHHS project that might yield financial claims for CUSD against the developer (Whispering Hills LLC), or project contractors (e.g., the environmental firm and the architect). Political blame can be handled by others (including me, sure enough), but the District should focus on money.

The complaint filed with the California Attorney General outlines more than $10 million in questionable expenditures. At the end of our meeting, we pointed to that complaint as a road map for detailed investigation and volunteered our full support. Read more!

Update: Assignment and Assumption of Development Agreement for Whispering Hills

The San Juan Capistrano City Council met on Tuesday night to consider the request to approve assignment of the Whispering Hills Development Agreement to a new entity called Rancho San Juan Development LLC. The Council did not approve the request when a motion by Councilman Hribar failed for lack of a second from any other member.

Council did pass a voice motion to reconsider the request at Council's next meeting on January 20, 2009.

Written comments were supplied to Council by me and by the developer. The developer's letter is evidence that the sole purpose of the requested assignment is to shield the new "member", Woodbridge, from past liability. One can speculate that there is some year-end tax structuring involved as well, though the letter is silent on this point.

Ellen Addonizio, President of the CUSD Board of Trustees, spoke as a private citizen and requested that the City allow time for CUSD Trustees to look into the transfer.

Sue Palazzo, a member of the CUSD Board of Trustees was also present in the audience.

I spoke briefly to draw Council's attention to my letter and to remind them that the Development Agreement was just one element of a complex set of agreements pertaining to Whispering Hills. I suggested that the public interest would be served by delaying consideration of the matter for a reasonable period of time to allow consideration of all of the developer obligations, including those obligations to the County of Orange and the school district. I closed by expressing my support for seeing the Whispering Hills development be completed as planned, assuming the public's interest is respected.

A representative of Woodbridge also spoke and urged the Council to approve the assignment, in fact stating the City was obligated to deal with the request "within 30 days". The City Attorney disputed this statement, at which point the matter appeared to be decided.

Comments from the dais provide a few insights. Apparently, the relationship between the City and CUSD is not warm. In fact, one council member spoke of being "blown off" and "ignored" by the school district in the past. In another case, it was noted that CUSD used its governmental authority to override City land use restrictions on the San Juan Hills High School site. Apparently, this was viewed as being a heavy-handed and contrary to public will expressed in a ballot measure.

It is clear that CUSD leadership has some fence-mending to do with this Council.

Time is short for the school district to act to protect any claims it may have against Whispering Hills. The City is, strictly speaking, not a party in the relationship between CUSD and the developer and it may not unreasonably thwart the transfer of the Development Agreement.

However, Councilman Allevato did raise the issue that the County of Orange is a third party beneficiary under the Development Agreement. Is the County aware of the impending transfer? Read more!

Assignment and Assumption of Development Agreement for Whispering Hills Estates

On the Tuesday agenda, the San Juan Capistrano City Council is being asked for a second time to approve an assignment of vested rights and obligations set forth in an agreement between the City and Whispering Hills LLC to a new legal entity. The original Agreement was executed in July of 2005 and became effective on August 19, 2005.

In his Agenda Report, City Attorney Omar Sandoval indicates that the new entity, Rancho San Juan Development, LLC, is a “wholly owned” company formed by Whispering Hills LLC. This representation is being made by a City employee instead of the applicant owner. As such, it should be set aside. I urge the Council to consider the broader implications of this request.

Sandoval’s Report goes on to state that Section 4.2 of the Development Agreement provides, “that Whispering Hills LLC may assign any of its rights under the Development Agreement, subject to the prior written consent of the City, which consent shall not be unreasonably withheld.”

This is an incomplete characterization of Section 4.2. The actual language of that section is:

Assignments.

The rights and obligations of Owner under this Agreement may be assigned in writing in whole or in part as part of an assignment of all or a portion of the Property. Any assignment shall be subject to the provisions of the Agreement, and to the prior written consent of the City, which shall not be unreasonably withheld. During the Term, any assignee shall have those rights, benefits and obligations of Owner under this Agreement as expressly assigned with respect to the portion of the property owned by assignee. Immediately upon delivery by Owner to the City of the assignee’s written assumption of Owner’s rights and obligations under this Agreement with respect to any portions of the Property being assigned, Owner shall be released from all obligations as to any portions of the Property so assigned.

The italic format has been added by me to draw attention to text to be discussed below...

“...and obligations”

Any agreement involves obligations on the part of both parties. Sadoval’s Report fails to mention the obligations without which the Development Agreement would not exist.

“...in writing, in whole or in part as part of an assignment of all or a portion of the Property”.

The applicant owner has provided no evidence to the City of a sale other assignment of property appurtenant to the Agreement. This is a basic requirement for assignment to occur.

“...expressly assigned with respect to the portion of the property owned by assignee”.

Again, there is no evidence offered that the assignee owns any part of the subject property.

“... Immediately upon delivery by Owner to the City of the assignee’s written assumption of Owner’s rights and obligations under this Agreement with respect to any portions of the Property being assigned, Owner shall be released from all obligations as to any portions of the Property so assigned.”

Again, the portions of the property are not specified. But more importantly, does it not make sense that the City determine whether the obligations of the owner assignee have been fulfilled during its tenure as a party to the Agreement?

I request that City staff be instructed perform a detailed analysis of Owner obligations under the project FEIR, including the EIR amendment, CDP 04-01, TTM 16634, GPA-04-01, RZ04-05 and any other land use entitlements to determine Owner’s compliance before granting the requested assignment.

I request that the applicant be requested by the City to provide written details of the real property transaction that qualifies the requested assignment under the terms of section 4.2 of the Development Agreement, for consideration by Council the next time this request is heard.

___________________________


The subject Development Agreement contains two significant clauses that should be carefully considered by Council:

In paragraph 1.2, Interest of Owner, describing the underlying real property, the following appears:

“...and 34 acres of which real property are located in the unincorporated area of the County but within the City’s Sphere of Influence.” (capitalization from the original text).

In paragraph 10.12, the following appears:

“Third Party Beneficiary. The County of Orange is a Third Party Beneficiary of this Development Agreement pursuant to Section 6.8 herein.”

At section 6.8, a detailed “Public Benefits to and Easement Agreement with the County of Orange Relating to Avenida La Pata and Trail Improvements” appears. Multiple obligations on the part of Owner and County are documented.

Clearly, original Development Agreement pertained to areas outside of, but adjacent to the City, within the City’s “Sphere of Influence”. In fact, it was the City Planning Commission that championed the County’s interests in the original Agreement (see Matthews / Tomlinson correspondence, May 2002). It remains a matter of interest to the City whether these obligations to the County have been fulfilled.

I request that the applicant be requested by the City to provide written clearance from the County of Orange as evidence that Owner’s obligations set forth in the Development Agreement have been met. City staff should be instructed to independently confirm the evidence provided by the applicant.

___________________________


In paragraph 1.3, Intent of the Parties, this appears:

“The development of the Project is intended to implement specific land uses, provide public infrastructure and generate revenues to the City, all in promotion of the health, safety and general welfare of residents of the City."

Similar language is used throughout the Agreement. It is obvious to anyone that this intent has not been yet accomplished by the Agreement.

I request that the applicant be requested by the City to provide written evidence of the financial capability of the Assignee to fulfill the remaining obligations encompassed by the Development Agreement.

I request that the applicant be requested by the City to provide a project schedule that demonstrates the feasibility that the project be completed within the remaining term of the Development Agreement.

___________________________

The Assignment and Assumption of Development Agreement attached to the Agenda item raises a number of troublesome issues:

Paragraph 1, “...right, title and interest”

This document is not an assignment of title in real property. It is not suitable for that purpose. There is no evidence of a necessary transfer of title in the real property.

This same erroneous language appears in City’s consent document attached.

Paragraph 2 and 3, cross indemnification of Assignee and Assignor

This document should contain indemnification for the City, a reasonable condition of granting the assignment. Neglect of obligations by Whispering Hills LLC that are unknown to the Assignee could result in a future claim against the City for negligent enforcement of the Agreement and City codes. Even a claim of fraud or conspiracy involving the Assignor and the City could be constructed. The assignment agreement should indemnify the City against such claims.

Similar indemnification should be provided to the County of Orange.

Paragraph 7, Successors and Assigns: Entire Agreement

The explicit language of this paragraph states that, “the Assumption Agreement constitutes the entire understanding among the parties with respect to the subject matter hereof.” This is deficient language in light of the absence of evidence that any real property is being transferred to the Assignee.

Signature Page

I want to draw Council’s attention to the fact that the two “sides” of this agreement are identical, except for the insertion of a new corporation at the top of the Assignee. The same officers have signed for both parties (neither Grant or McGowan are listed as owners). Thus, without hearing from the actual owners of Whispering Hills, LLC and Rancho San Juan Development, LLC, the City has no way to determine whether the assignment is even valid based on this document.

I request that the applicant be requested by the City to insert indemnification for the City into the Assignment and Assumption Development Agreement.

I request that the applicant be requested by the City to provide more complete documentation of the requested assignment in the Assignment and Assumption Development Agreement.

___________________________


A “Cooperative Agreement”, dated May 20, 2003 (Agreement No. D03-044) exists between Capistrano Unified School District, Whispering Hills, LLC and the County of Orange pertaining to obligations arising from the use of La Pata Avenue (“LANDFILL ROAD”) the school and the new residential development. This Agreement creates numerous obligations on the part of the applicant, including:

Whispering Hills, LLC (and CUSD) agreed to indemnify the County of Orange against claims arising from “loss or damage of persons or property” arising from use of La Pata Avenue.

Whispering Hills, LLC (and CUSD) agreed not to cause or permit toxic or hazardous materials to contaminate La Pata Avenue.

Whispering Hills, LLC (and CUSD) agreed to maintain specific forms of liability insurance and name the County as “also insured”, to cover liability arising from use of La Pata Avenue.

Whispering Hills, LLC agreed to provide numerous pieces of documentary evidence pertaining to the “as-built” improvements to La Pata Avenue, to maintain performance bonds, to file completion documentation, and to comply with various regulatory “flow-down” requirements.

I request that the applicant be requested by the City to provide evidence of satisfactory completion, release or reassignment of its obligations to County under the Cooperative Agreement dated May 20, 2003, and any successor or similar agreements.

I request that the applicant be requested by the City to provide evidence of agreement by CUSD that Whispering Hills, LLC be relieved of its mutual obligations under the Cooperative Agreement, or that a substitute party acceptable to CUSD has been bound contractually to the mutual obligations toward County.

___________________________

I think these are all reasonable requests to make of the applicant. In particular, I think it is incumbent upon the City to provide notification to the County and CUSD, and allow each party time to respond, make inquiries of the applicant, and process whatever replacement agreements are necessary to protect the interest of the public in this assignment. Read more!

"Routine Maintenance" of Fuel Pipelines

On November 25, an 8-inch Sunoco high pressure transmission pipeline similar to the one that runs through Orange County, crosses four "creeks" (i.e., seasonal rivers), and passes near San Juan Hills High School, ruptured in Pennsylvania while a valve was being serviced by the pipeline operator. At least 7,500 gallons of gasoline escaped. There was no fire.

There is an interesting photograph taken after the incident showing the gasoline vapor cloud rising into the air (from WTAE video):



A week after this photo, the restaurant pictured could not be opened due to excessive gasoline fumes.

Here's a related story describing the attempts to clean-up after the incident.

Here's the original story that ran on the day of the rupture.

As this article is written, Kinder-Morgan is out on La Pata in San Juan Capistrano doing maintenance on the 16-inch pipeline check valve above San Juan Hills High School. This work has been underway for more than a week.

Did anyone else notice? Has anyone been notified? Read more!

Transfer of Whispering Hills Development Agreement?

On September 18, the San Juan Capistrano City Council was presented with a request to assign the previously approved Development Agreement between the City and Whispering Hills LLC to a new partnership called Rancho San Juan Development LLC.

You can see a few other details of the City Council discussion at The Capistrano Dispatch, Beyond the Blackboard (blog).

Why should this be necessary? After all, the item placed before the Council says that Rancho is "wholly owned" by Whispering Hills LLC, so what is the point of such a transaction?

There could be several possibilities:

1. The future sale of Rancho San Juan Development LLC may be contemplated. The buyer of the entity would then be shielded from any past claims involving Whispering Hills LLC, having purchased a fresh and clean asset consisting of the land and the agreement to develop it. Of course, this leaves anyone with a claim (e.g., Capistrano Unified School District), holding an empty bag!

2. Whispering Hills LLC might be trying to transfer ownership of this property without triggering a property tax reappraisal by the County of Orange. The property was originally acquired for about $8000 per acre. By the time it was sold to CUSD, the "price" had escalated to $1,040,000 per acre, even though no development agreement existed at the time. However, more than a year after the sale to the school district, the City did approve the Development Agreement making the land significantly more valuable today compared to the purchase price. Merely selling the land will trigger a reappraisal and taxes would go up! However, it is actually the Development Agreement that makes the land valuable and transferring the Development Agreement will not get the attention of the Tax Collector. Neat trick! Sell the rights in the Agreement for $ millions and then sell the land itself at an artificially depressed price (under the cover of depressed market for such property).

3. Yet another possible motivation for this transfer would be to isolate the new owner from the messy property line dispute that exists between CUSD and Whispering Hills LLC, along with the related Attorney General's investigation. There are several areas where SJHHS has been built on land owned by Whispering Hills LLC, and these areas of dispute may cloud title to the property.

4. Another possibility is that the owners of Whispering Hills LLC are intent on terminating their obligations under the Development Agreement. This could easily be accomplished by transferring the Agreement to a new entity that would then simply allow the Agreement to expire (or through bankruptcy, the new entity would just disappear). This scenario seems far-fetched, unless the cost of the owner's obligations under the Development Agreement have grown to exceed the value of the Agreement itself, or the owners believe that the Development Agreement will expire before there would be any interest in actually developing the property.

Take your pick. No matter what happens, the community will be affected. The City of San Juan Capistrano has bent over backwards to accommodate this developer. Along the way, CUSD was simply raped (there is no more apt term for it). Now we are asked again not to "unreasonably withhold" permission for this developer to play his games.

The City should demand a full explanation for this transfer. It should demand an assurance that the transfer of the Agreement and the property occur together. It would not be "unreasonable" to re-open the Development Agreement itself as a condition of obtaining the City's consent to the transfer.

The City may be the only public agency that is in a position to ensure that the school district and County taxpayers are not being made victims by this transaction. Read more!

Complaint to CA Attorney General Jerry Brown

The OC Register carries an article online this evening describing a formal complaint submitted to the California Attorney General Jerry Brown about the San Juan Hills High School site selection and acquisition.

The Capistrano Dispatch posted a related article online.

The attachments referred to in the complaint are available from the Wayne Tate's office (listed in the letterhead). Read more!

OC District Attorney Summarizes

In a nine page letter to CUSD Trustees and Superintendent, the OCDA has touched on the legal and procedural issues that arise from the San Juan Hills High School site decisions. A summary of the basic problem in this site decision is provided:

On May 9, 2008, less than two months later, this office sent another letter to CUSD notifying it that it was not in compliance with applicable Education Code regulations in the erection of athletic facilities at its San Juan Hills High School, in proximity to an operating pipeline transmitting flammable fluids under high pressure. The letter pointed out that although CUSD was in possession of evidence of the existence of the pipeline in 2001, two years before it purchased the site, it failed to conduct a risk analysis until 2004, a year after the purchase. The consequent report, finding no appreciable risk turned out to be flawed in that it was based on inaccurate and incorrect information.

This office advised CUSD of the flawed report and the resultant failure to comply with applicable Education code Regulations before referring the matter to the state Department of Education for further review and action. We also pointed out in that letter that, paradoxically, CUSD had declined the acquisition of a nearby site (reportedly less costly) on the basis that a similar pipeline ran through it, when in fact that pipeline had been abandoned and was not in use, a condition which a reasonably diligent inquiry should have disclosed. (Although not yet the subject of a complaint to this office, the reason for this and in fact the entire process governing the acquisition of the San Juan Hills site is a matter that the new Board majority may wish to thoroughly investigate in addition to the issue involving the pipeline.)

I concur. The entire original process by which CUSD acquired the SJHHS site should be investigated. A formal complaint regarding the site acquisition process is necessary to trigger an investigation. Read more!

Community Prepared for Pipeline Incident?

Much has been made of the San Juan Hills High School site and the ability of CUSD to to respond to a nearby incident on the 16-inch liquid fuel pipeline. Of course, if such an incident were to occur, the school would be assisted by agencies and resources from the surrounding community. But what of the readiness of the community itself?

This question is of more than passing interest in our area since the three three major rivers (San Juan Creek, Trabuco Creek and Verdugo Creek) cross the pipeline just upstream from the cities San Juan Capistrano, Capistrano Beach and Dana Point. Portions of Laguna Niguel, and Mission Viejo are also affected.


A pipeline rupture and fuel spill into any of these creeks or their tributaries has the potential to spread disaster over a wide area. In the 1988 Bellingham incident, gasoline flowed more than a mile downstream from the point of pipeline rupture and then ignited.


At locations where the fuel pipeline crosses a river, the normal practice is to bury the pipeline deep below the riverbed. For example, at the San Juan Creek crossing, the pipeline was buried 8 to 15 feet below the riverbed that existed at the time of installation in 1988 (this according to authoritative Kinder-Morgan alignment drawings that I have examined). Of course, seasonal erosion of these natural riverbeds is a consideration. The erosive action of river water and threat to the pipeline are exceedingly small, corresponding to unusual storm flows that are both rare and obvious to the pipeline operator when they occur. Thus, the prospect that a pipeline would rupture through action of a river itself is small.

A larger risk is the potential for a pipeline rupture in areas that drain directly into one of these rivers along the path provided for storm water. Damage from digging, an earthquake, or even a railroad accident can result in release of fuel. A flaw in the pipeline itself, corrosion, and improper operation of the pipeline are other potentials. Fuel that escapes will flow downhill along natural water courses and storm drains into the creeks.

Are our community agencies prepared to respond to a report of fuel flowing in one of these creeks? The Orange County Fire Authority has past experience with one such an event, in 1988 when gasoline spilled from a pipeline and flowed down San Diego Creek in Tustin and Irvine. Fortunately, there was no ignition and the Fire Authority performed well in containing the spill in a sparsely-populated industrial area before it reached the Upper Newport Bay. I am told that two of firefighters were permanently disabled as a result of exposure to gasoline fumes as a result of this incident.

It is noteworthy that this incident occurred in an area that was largely undeveloped at the time. The same incident, if it would occur today, would require that large tracts of homes, movie theaters, medical facilities, multi-floor condominiums and office buildings be evacuated. In 1988, the incident was barely mentioned in the newspaper. Today, it would be a disaster of major proportions, with a significantly greater potential for ignition and loss of life.

If the Fire Authority is prepared, our cities appear to be less so. In fact, they appear to be downright uninformed! For example, my inquires at the City of San Juan Capistrano planning and engineering offices produced blank stares. While SJC has an emergency response plan for a whole variety of events from nuclear accidents to tsunamis, there is no mention of the fuel pipeline. The City of Mission Viejo appears to be no better off. I can find no mention of the pipeline in their disaster response plans.

No city appears to possess the maps that have been created by the pipeline operator, Kinder-Morgan, that describe where fuel would flow in the event of a rupture. The Pipeline and Hazardous Material Safety Administration has designated most of Orange County to be a "High Consequence Area" with regard to this pipeline, yet the cities and the county do not acknowledge this risk.

We can can gain from the experience of others. In this regard, a "lessons learned" presentation by the Bellingham, WA Fire Chief is enlightening. The presentation makes it clear that response to a pipeline incident must be carefully coordinated. It is also outlines the potential that a much greater loss of life might have occurred among those who responded, but for luck and quick reactions of a few who realized that they were dealing with a deadly unknown and pulled-back from the immediate area just before the ignition.

Land Use Planning

CUSD was required to consider the risk to SJHHS because it is subject to provisions of Title 5 in the California Code that regulate school construction adjacent to liquid fuel and natural gas pipelines. But other facilities such as private schools, hospitals, convalescent facilities, pre-schools, etc., can (and are) inappropriately located in areas near dangerous pipelines. The location of these activities are regulated by cities and county through land-use plans. So far as can be determined, no city in our area has incorporated the presence of pipelines into their land-use planning. The county also has nothing.

Responsible land-use planning must incorporate the principal that no facility that houses large numbers of people, or that would require assistance in evacuation should be located in an area or along a path that could be directly threatened by a pipeline rupture. In response to a rupture of a liquid fuel or natural gas pipeline, no assistance in evacuation can be provided in areas that are threatened by gas or vapor clouds, or that are located inside the wider radius of exposure to blast or thermal radiation in the event there is a detonation or fire. People in these areas must be able to move to safety without outside assistance.

All the way back in 1990, following the train wreck and subsequent pipeline disaster in San Bernardino, the National Transportation Safety Board wrote a Safety Recommendation to the Mayor of that city. The letter stated:

Although the City of San Bernardino had developed a general plan for land use, which was the framework for decisions by the City on the use of its land for the protection of residents from natural and man-caused hazards, the use of land in proximity to mainline railroads or high pressure pipelines was not addressed in the general plan or in subsequent revisions to the plan. The Safety Board believes that city and county officials should take into account the location of railroads and high pressure pipelines when developing a general plan for land use.

The letter goes on to issue a specific "priority recommendation" that the city make such amendments to its general plan. Almost two decades later, one wonders how this recommendation has been ignored by so many (including the City of San Bernardino). Perhaps the siren song of real estate developers is simply too strong for our local elected leaders?

Back in San Juan Capistrano, we also have to consider a high-pressure natural gas transmission line that runs right through the center of town:


This Southern California Gas facility enters San Juan Capistrano from the north across the street from J Serra Catholic High School, passes nearby the Saddleback Valley Christian School and the adjacent Silverado Senior Living (Alzheimer's) facility, through the densely populated Villas complex and then into the heart of the historic area. As it continues southbound under Alipaz, it passes 900 feet from Kinoshita Elementary School and Marco Forster Middle School before joining the path of the creek and continuing into Dana Point.

Historically, this facility has been located on "the wrong side of the tracks", so to speak. The areas threatened by it were mostly open space and farmland, with a few exceptions. However, over the past two decades, this area has developed dramatically and all of the aforementioned facilities have been permitted to be built in close proximity to this risk because the land-use plan for the City of San Juan Capistrano is silent.

In 2004, the National Academy of Sciences issued a report that provides considerable guidance to communities: Transmission Pipelines and Land-Use: A Risk-Informed Approach. It is recommended reading for our local leaders.
Read more!

How a Democracy Allocates Risk

Last evening, a few of us got a stark lesson in how our democratic institutions deal with risk to the public. In this instance, the subject was the risk posed by the fuel pipeline adjacent to SJHHS.

A workshop was scheduled for 5 PM, a very inconvenient time for most people. Predictably, the turnout was light -- about a dozen members of the public were on hand, along with two dozen district staff, and the district Trustees.

From the outset, this workshop was rigged by Superintendent and staff to produce the desired outcome: approval of their new Pipeline Safety Hazard Assessment. The technique used to obtain this approval was venerable and time-honored, "Keep asking until you get the desired answer."

No new information has become available since the evening two weeks ago when these same Trustees refused to approve the Assessment. Everyone is aware that a technical disagreement exists between CUSD's expert, Dr. Fitzgerald, and another expert, Richard Kuprewicz, yet no effort was made to involve Kuprewicz or any other expert in the workshop.

The resulting discussion was meaningless. There was one expert in the room, a technical dispute, and no way to resolve it since there was nobody qualified to question the one expert.

For my part, I urged the Trustees to consider why they were being asked for their approval. Mr. Carter earlier extorted the Trustees when he stated that CDE would "sooner or later" demand that CUSD return the state money expended to construct SJHHS unless approval was forthcoming. I suggested that if the Trustees were satisfied with Dr. Fitzgerald's Assessment despite the existing technical dispute, they should vote to approve it. On the other hand, if they felt the need to be better informed, they were obligated to demand additional information. I suggested peer review of the report would be one way of obtaining more information.

In his own way, Mr. Carter urged the Trustees to approve the Assessment because he wanted it resolved "before school opened" on September 2. In the same breath, he admitted that issues related to EMF and land ownership would prevent re-opening of the affected athletic field at the school.

A number of parents urged the Trustees to "move on", stating that they were "satisfied" with the report.

Finally, CUSD's attorney Mr. Bergman, provided the Trustees with an incomplete and misleading description of their personal legal obligation and potential liability under the Government Code. He omitted the obligation to make reasonably informed decisions, something that might be questioned under these circumstances.

Without resolving the technical dispute, without discussion of the recent revisions in the Assessment, and without consideration of a single mitigation strategy, this workshop set the stage for the eventual approval of the Assessment later in the evening.

Does the fuel pipeline pose a risk to SJHHS?

In my opinion, we will never know the answer to this question. Trustees were persuaded to certify the safety of the school on the basis of one Assessment. That Assessment concludes that there was "no risk", but of course, this conclusion is based on certain assumptions. Did anyone seriously challenge these assumptions? Yes, they were seriously challenged but Trustees chose to pay no attention.

After formally approving the Assessment, a couple of Trustees did express the desire to obtain a peer review of Dr. Fitzgerald's work. But one Trustee, Ms. Bryson, commented that such a review would be "very costly", though she had no basis for making the statement.

So in the end, we conclude that democracy allocates risk to the public on the basis of expedience and cost. Those of us who thought otherwise were wasting our time. Read more!

Orchestrated Chaos and Broken Commitment

There is considerable speculation that CUSD staff may have submitted the new pipeline safety analysis to the California Department of Education (CDE) before it was approved by the CUSD Board. A document has come my way that appears to confirm this.

This e-mail thread also provides insight into thinking of CUSD staff regarding safety. In fact, I see no mention of it.

The document further supports that fact that Dr. Fitzgerald's appearance at the August 11 Board meeting was unexpected.

"She will be out of town tomorrow through the weekend to attend [redacted] services and wasn't planning on returning Monday unless we specifically need her to attend the meeting. While she has graciously offered to attend, I think it would be unreasonable to ask her to cut short a family trip of this nature. We would have to let her know today if we need her there."

How easily something so innocent becomes so political in the absence of an explanation from those involved!

Notice, if you will, that Dr. Fitzgerald's response to Trustees, dated July 31, was not actually sent to Trustees until August 6. Why would staff delay delivering this information to Trustees?

Lastly, a critical piece of information has not surfaced:

"Also, Greg is preparing a memo for you regarding liability questions which were raised previously."

Where is this memo?

If it was provided to Trustees in closed session, it may be a Brown Act violation. If not, I would call on CUSD to publish this memo on their website alongside the analysis.

I recall that Mr. Carter and Mr. Bergman promised that this entire subject would be handled "transparently", and in "public session". What happened to this commitment? Read more!

Transparency? Information Vacuum Leads to Misunderstandings

As one who raised the pipeline as an issue and has subsequently come across other questions concerning SJHHS, I attended the Board meeting on August 11, to hear what the Board would decide to do with information in their possession, including information that I provided.

It was indeed unfortunate that Dr. Fitzgerald was personally inconvenienced to appear at the meeting. Her presence was entirely unexpected. Board members were told by senior District staff before the meeting that she would not be present.

Once Mr. Carter took the resolution to approve the pipeline analysis "off the table", introduced Dr. Fitzgerald, and suggested discussion only, "to give the Trustees time to consider new information", it was clear that Dr. Fitzgerald's presence was entirely unnecessary and unfortunate waste of her time.

It is not surprising that the Trustees had almost no questions for her. Three Trustees, Christenson, Maddox and Palazzo, had already submitted written questions to Dr. Fitzgerald that were answered in her July 31 memo (on the CUSD website). What all the Trustees knew was that another qualified expert had submitted statements to Trustees that directly contradicted Ms. Fitzgerald's answers.

This contradictory "new" information was compelling enough to get the attention of everyone involved, motivating Mr. Carter to withdraw the resolution of approval. His statement that "the Trustees" need more time was a bit off the mark. It seems more likely that he was motivated by the desire not to see the resolution and study rejected for a second time. This was a prudent move.

Everyone needs more time to consider this whole subject, and we need all available information to do so.

Too bad, but most of the audience was completely clueless about what transpired. The atmosphere was so tense that neither the Superintendent or the Trustees bothered to explain what they were doing.

CUSD took public comment on their website concerning the pipeline study during the past month. None of this material has been published. Senior district staff and Trustees received advance information from me, and from an independent expert, that raised questions regarding the direction of CUSD's pipeline study. None of this information has published. Is this the transparent process that was promised to parents when this discussion started?

Does the school district not have a duty to inform people of the questions related to the SJHHS site?

Many of SJHHS parents who were in the audience at the Board meeting probably thought that the Board’s failure to approve the pipeline analysis would result in pressure to close the school. Why?. These issues were raised long before school adjourned in June (the issues have existed since 2003), yet the 2007-8 school term was allowed to end normally.

When CUSD considers all the SJHHS site issues, a great opportunity exists to forge a corrective plan that everyone would regard as safe, protect the public's $155 million investment, and create a great school site. However, the continuing negative reaction of uninformed SJHHS “supporters” who view this question through a political prism is delaying the day that the issues will addressed and resolved.

In other words, who wants to support San Juan Hills High School?

Shall we continue to wait for CUSD to address pipelines, power lines, property lines, and site size? Shall we continue to standby as they engage in inept negotiations with the owner of the surrounding property?

These issues have existed since 2003, and they remain unresolved yet today. We should all be telling the CUSD Board that five years is long enough to get it right. Read more!

Update4: Pipeline Rupture in Illinois on 8/10/2008

A 20-inch pipeline carrying crude oil from Illinois to Kentucky ruptured sometime Sunday morning. There was no fire. Latest estimates put the amount of oil that has escaped at 5000 bbl (210,000 gallons). The pipeline is owned by Marathon Oil Co.

Robert Calmus, a spokesman for Marathon stated that the pipeline was shut down as quickly as monitors indicated there had been a sudden drop in pressure. "Of course there was some residual pressure in the line," Calmus said. "Our emergency response team is on the scene, and we're still assessing the situation."

Residual pressure? Somebody should inform Mr. Calmus that our expert says that such pressure doesn't exist.

The Evansville Courier & Press carries a brief article on the incident.

The same newspaper offered an update today.

In a later update, the newspaper reports that the EPA has dispatched investigators to the site of the rupture. Additional details are contained in a new article.

In a follow-up, the newspaper reports on the broader implication of the incident. Find the article here.

On October 4, 2008, a newspaper reports that the original estimate of the amount of oil lost during the pipeline breach have been significantly revised upward. See the latest here. Read more!

Outside Review Questions Validity of CUSD Study

In preparation for the Board meeting on Monday night, CUSD Trustees have been provided a memo containing responses to their questions concerning the pipeline adjacent to San Juan Hills High School. This memo was prepared in response to questions posed by CUSD Trustees after receiving Pipeline Safety Hazard Assessment prepared by Dr. Fitzgerald, of The Planning Center.

The following review of Dr. Fitzgerald's memo was prepared by Richard Kuprewicz, President of Accufacts, Inc. Mr. Kuprewicz is an internationally recognized expert in the field of pipeline safety. He was not paid for his review.

Mr. Kuprewicz wrote on Sat, 9 Aug 2008 11:43:33 -0400:

I have had an opportunity to review the memorandum to Superintendent Carter, Greg Bergman, Ron Lebs, dated July 31, 2008 and have the following general observations related to pipelines and the San Juan Hills High School. In a previous email I indicated that too many engineers and pipeline operators do not understand the unique dynamics that can be associated with transmission pipeline releases. Again, my purpose is not to alarm but to insure that informed and prudent decisions related to pipeline risk management are made concerning this very difficult situation. One sure sign of problems associated with very poor risk management approaches is the violation of the physical laws of science governing sound pipeline management and engineering practices, such as those identified below, rebutting some of the observations from the above 7/31/08 memorandum:

Explosive Vapor in the Atmosphere

The statement “Explosion of vapors in the open atmosphere cannot occur under the conditions present at the site.” is in all probability in serious error. While the specific conditions of the site that would prevent explosion are not identified in the memorandum, all forms of hydrocarbons, especially hydrocarbon mixtures, can explode or detonate, even in open fields, under the conditions related to many transmission pipeline releases, especially ruptures. It is a myth reflecting much inexperience, that hydrocarbon releases cannot explosively detonate in the “open,” and cannot generate serious overpressure in such situations. Many models fail to properly capture the critical factors that can result in detonation of pipeline hydrocarbon releases in such unconfined environments. The good news is that blast overpressure forces generated in the open that can be lethal, dissipate with distance quickly. As a result, high heat flux radiation associated with combustion following detonation usually controls the maximum size of the potential impact zone and mortality.

Please note that liquid hydrocarbon pipeline rupture releases are inappropriately modeled by pool or flash fires given the very high turbulence, aerosoling of the liquid, and extreme mixing associated with these very high mass rate releases. The assumption to model a gasoline release as if it where hexane, does not properly capture the release and detonation characteristics of a pipeline release which is moving a highly complex mixture of hydrocarbon compounds such as that in gasoline.

Risk of Asphyxiation

The memorandum statement “There is no risk of asphyxiation with a release from the pipeline in the open atmosphere” is in error. Hydrocarbon release, especially high rate releases from this product pipeline can generate large volumes of heavier than air hydrocarbon vapors which will flow like water settling into low spots displacing air. For individuals in such low spots, death by asphyxiation is a bona fide risk as has been well demonstrated by other pipeline releases with asphyxiation fatalities for individuals located in the “open.”

Danger to Evacuation Routes

The memorandum comment that “there is no conceivable way that fuel could flow onto the school site,” appears to not sync with the terrain and location of the school and surrounding infrastructure as well as previous documents that have been provided regarding this matter. Vapor release of heavier than air-fuel mixtures will quickly flow wherever gravity will take them. It appears that the analysis is ignoring or missing the large vapor generation. Ruptures are highly turbulent aerosoled events. Given the rapid dynamics of such releases, while emergency response plans are needed, no credit should be taken in risk management for emergency responder or other human field responder interaction, as usually such actions come too late to mitigate consequences given the rapid release dynamics. All too often I have observed that crediting emergency response in risk management approaches is a sure sign that the risk approach is fatality flawed!

Sustained Fire

A pipeline rupture explosion followed by fire (or if one is lucky, just a fire event) will not be a fire from a burning pool of liquid generating vapor from “evaporation.” Ruptures are highly turbulent releases of many hundreds of tons of fuel boosting vapor generation from aerosoling in a relatively short period of time. Detonation and or ignition generate tremendously high heat radiation flux and thermal dosages associated with very high mortality. This mortality is especially sensitive for unsheltered individuals such as those who may be in school open fields who will be least likely to survive upon receiving such extreme thermal dosages.

It should be also noted that pipeline hydrocarbon releases do not need an outside ignition source such as a flame to initiate combustion as such releases can generate their own source of ignition (e.g., from static electricity or rock sparking).

Increased Fuel Flow Due to Fluid Compression & Line Packing

All hydrocarbon liquids are compressible in the pressure ranges operated by transmission pipelines and yes the bulk modulus (which is the inverse of compressibility) is indeed approximately 200,000 psi for gasoline. Compressibility must be taken into consideration in all pipeline operations especially as it relates to rupture impact as release rates are substantially increased over pumping capacity because of this factor. While I do not know what position or experience is reflected in Mr. Morones of KM not knowing the term line pack in liquid pipelines, this term is readily used in hydrocarbon liquid pipeline pressure transient analysis/application, pipeline safety design, as well as failure/release dynamics.

Transient effects associated with hydrocarbon compressibility can easily render liquid pipeline leak detection “moot and ineffective” during the critical time or early stages of pipeline failure. Failure to properly account for compressibility/line unpacking seriously extends the time for remote determination and response at a time when system release rates are at their highest, well beyond pump capacity. Failure of KM to understand compressibility and line pack effects raises serious questions and concerns about the stated or implied capability of the KM leak detection system to determine a leak, especially a rupture, within 5 minutes of an event. On liquid pipeline systems 5 minutes is a very short time to pickup signals, determine, and then react to such possible release indicators, even rupture.

Circumstances Under Which Fuel Might Reach the School Site

A closer evaluation of the pipeline, the terrain, and the school are called for, in which realistic release volumes and surface flow characteristics and patterns (especially for vapor) as a function of time are properly stated and evaluated to confirm whether the memorandum statement “there is no physical way for product to reach and flow onto the school.” is valid.

I find very confusing the comment in the memorandum, in reply apparently to Mr. Christensen’s comments, “Nevertheless, the period of time assumed for shutdown of the pumps is not considered in the “worst case” scenario, which is based on liquid in the pipeline flowing for an indefinite period of time reaching the storm drain, and flowing beneath the school site.” We find no evidence in previous documents that support this claim. In fact given the limitations and technical errors imposed by critical assumptions in these previous studies and this memorandum, the validity and conclusions of these previous risk analysis reports should be called into serious question.

These comments raise serious questions regarding the value of materials being supplied to CUSD Trustees. Read more!

Picture Book Pipeline Failure

For those of you that complain that my comments on pipelines are too technical, here is the picture book version of a serious accident. This occurred in Bellingham, WA during 1999, on a 16-inch fuel pipeline that is nearly identical to the one passing near SJHHS. When it was over, three young bystanders were dead.



Details of this incident are available at numerous places online, and here.


This photo depicts the section of the pipeline that ruptured at Bellingham. External damage to the pipe as a result of excavation that occurred years before the accident contributed to this failure. Some of the damage is clearly visible on either side of the point of rupture. Read more!

Mitigation vs. Disaster Response

It appears to be a rather common mistake made around CUSD these days. During the last Board meeting, Mr. Bergman and Mr. Carter made a great deal of the fact that CUSD would respond promptly in the event that fuel were to escape from the Kinder Morgan pipeline adjacent to SJHHS. I've previously commented on this error in Pipeline Common Sense (at para. 8), stating that actions taken after an incident are not risk mitigation. Instead, they are incident response, or disaster response.

Actual risk mitigation consists of steps taken before an incident that are designed to reduce the potential affects of known risk. So far, no mitigation whatsoever has been proposed.

Non-experts such as Mr. Bergman and Mr. Carter may be excused for this common error. However, it is disappointing to see Ms. Fitzgerald commit the same blunder. In her memo responding to Trustees, she wrote the following response to a question from Mrs. Palazzo:

As discussed during the presentation, one mitigation measure would be to have the local CUPA agency or Orange County Fire Authority contact SJHHS and the District in the event that a rupture or leak occurred from the pipeline. Since the only scenario by which product could impact the school site is if vapors and/or product got into the storm drain and traveled beneath the school site, another potential mitigation measure would be that upon notification of a break in the pipeline, one of the engineers at the high school would go to the storm drain and install straw waddles or some similar type of barrier to prevent product from entering the storm drain. A permanent berm or dike could not be located around the storm drain because it would prevent stormwater runoff from rainfall events from entering the drain and thereby cause flooding.

Obviously, a telephone call notifying the school that fuel has escaped would come some time after the occurrence. As such, this constitutes a response to an emergency situation. It is not a step taken to mitigate risk.

It is even more incredible that Ms. Fitzgerald would propose that one of the "engineers" at the high school would be sent into the area of leaking fuel to install straw waddles, presumably to absorb the fuel. Would Ms. Fitzgerald herself be willing to perform this task? Does she know a category of CUSD staff that is trained for suicide missions?

The last sentence of Ms. Fitzgerald's response appears to deal with actual risk mitigation, presumably something suggested by Mrs. Palazzo. However, in dismissing the matter, Ms. Fitzgerald is stating that the only place where fuel flow might be diverted is at the storm drains. This is a very narrow minded view of the options available. Read more!

Consultant Response to Maddox is Faulty and Misleading - Gasoline is Compressible

Ms. Fitzgerald wrote in her July 31, memo to CUSD Trustees at paragraph 5:

Liquids are considered to be incompressible fluids. Therefore, increased fuel flow by fluid compression is not possible. The bulk modulus of gasoline is approximately 200,000 psig; therefore, to get just a 1% increase in volume, the pressure would need to be increased by an additional 2,000 psi above what the current operating pressure of the pipeline is.

Please understand that I’m not a hydraulic engineer. However, only a few minutes of research is needed to dispense with this argument.

First, while liquids are relatively incompressible compared to gases, they are not “incompressible”. In fact, there is quite a difference between the compressibility of gasoline compared to, say, water. The term “bulk modulus” is used to describe the “stiffness” of a fluid. Gasoline has a bulk modulus of 190,000 psig. The bulk modulus of water is between 310,000 psig and 340,000 psig, depending on salinity.

Thus, gasoline is not as “stiff” as water and a certain amount of pressure applied to gasoline will reduce its volume more than the same pressure will reduce an equal volume of water. Conclusion: liquids are compressible. This contradicts Ms. Fitzgerald’s main statement.

Next, the compressibility of a fluid is not a linear function. An uncompressed fluid (at 0 psig, atmospheric pressure) is easily compressed a small amount. However, it takes an increasing larger amount of effort to achieve more compression. The effort to go from 0 psig to 1 psig is far less than is required to go from 10 psig to 11 psig, and so on. In fact, the function is hyperbolic.

The Kinder-Morgan pipeline operates at 1400 psig. The volume of gasoline under consideration in the pipeline is a fluid cylinder that is at least 24 miles in length and 16-inches in diameter (considering only the section up to the high school).

The “increase in volume” discussed by Ms. Fitzgerald misses the point entirely. Her disingenuous argument obscures the actual danger.

In a pipeline rupture, the enormous energy that has been expended to compress Ms. Fitzgerald’s “incompressible” fluid is released instantaneously. The entire 24+ mile cylinder of fuel (plus more beyond the point of rupture) will “relax” back to atmospheric pressure, increasing in volume as it does so. During this process, any obstruction (e.g., earth) at the site of the rupture will literally be “blown away” and a geyser of aerosol gasoline will rise into the air.

As the fluid in the pipeline returns to atmospheric pressure, it must escape from the pipe because with relaxed compression, it occupies a larger space (or volume) than the container (the pipeline) that previously held it. At the point of rupture, the rate of fuel escape will be dramatically higher than the nominal flow rate of the closed pipeline past the same location. Given the length of the pipeline, this accelerated release will continue for some time until all of the fuel has returned to atmospheric pressure.

Ms. Fitzgerald then makes this statement:

...therefore, to get just a 1% increase in volume, the pressure would need to be increased by an additional 2,000 psi above what the current operating pressure of the pipeline is.

This is way off subject; so far off, in fact, that it is difficult to accept as a mistake. The volume differential that is of interest is the difference between that of the pipeline payload compressed to 1400 psig (normal pipeline operations) compared to that same payload at atmospheric pressure (during a rupture). This would be far more than 1% and the volume under consideration (24 miles x 16 inches) is immense.

Given this error, Ms. Fitzgerald should also reconsider her response to Mr. Maddox in paragraph 6. Maybe she spoke to the wrong person at Kinder-Morgan? Read more!

Flawed Response to Trustee Inquiries re Pipeline

Everyone should be aware that consideration of the SJHHS pipeline issue appears on the Board agenda next week.

The CUSD website now contains a memo from district's consultant, Ms. Fitzgerald in which she responds to inquires from some of our Trustees regarding her pipeline report. Of course, this report was prepared after a conference call with CUSD's attorney, Mr. Bergman. You should read her memo and then consider the following...

The second paragraph of Ms. Fitzgerald’s report states:

There is no risk of asphyxiation with a release from the pipeline in the open atmosphere. Death from asphyxiation can occur when workers enter chemical tanks, pipelines, manholes, and other confined spaces without taking proper precautions.

On page 11, “Injuries”, the National Transportation Safety Board (NTSB) report provides this description of the injuries resulting from the pipeline release in Bellingham, WA in 1999:

A police officer patrolling the accident area was alerted by residents that two boys needed medical assistance. The police officer immediately called for the assistance of a Bellingham Fire Department medic unit. The two 10-year-old boys were taken by ambulance from the 1900 block of Iowa Street to St. Joseph Hospital in Bellingham. Hospital staff stabilized them before each patient was flown by helicopter to the burn unit of Harborview Medical Center in Seattle. Each boy had received extensive second and third degree thermal burn injuries of the head, trunk, and extremities (80 to 90 percent total body surface area). Both boys died on June 11, 1999.

The body of an 18-year-old man was found in Whatcom Creek by members of the Bellingham Mountain Search and Rescue team. Bellingham Police Department investigators arrived at the creek and documented the body as having been found partially submerged near the north bank of Whatcom Creek. According to the Whatcom County medical examiner, cause of death was chemical asphyxia from hydrocarbon inhalation poisoning. The death certificate does mention inhalation of hydrocarbons (gasoline) but states the cause of death as “asphyxia due to fresh water drowning.” The autopsy report notes that the victim was most likely “overcome by volatile hydrocarbon fumes, lost consciousness, and died from hypoxia by freshwater drowning.”

Eight other individuals transported themselves to the hospital with minor inhalation injuries.

I cannot imagine how Ms. Fitzgerald could make such a serious mistake. The NTSB is the Federal agency responsible for investigation of transmission pipeline incidents. Every word of their report is carefully considered and reviewed.

The fuel released in the Bellingham accident was unleaded gasoline.

I will have more complete comments regarding Ms. Fitzgerald’s memo before the meeting. Please check back. Read more!

Where School Spending is the Priority -- Not Schools!

Each year, the California Department of Education is heavily lobbied by an organization known as the Coalition for Adequate School Housing (affectionately known as C.A.S.H., or simply "cash" by its membership).

The members of this private lobbying group are school districts and the school employees that deal with facility matters throughout California. The group also invites contractors, architects, environmental firms, geologists, lawyers, and others involved in construction of public schools to join. The average membership fee is just over $500 per year per individual or organization.

The State of California barely keeps an eye on such lobbying groups. However, State records show that C.A.S.H. reports lobbying two departments of state government, the Office of Public School Construction (OPSC) being one of them. They spend about $0.5 million per year on such activities. A lot of this money originates from public agencies and public agency employees.

The obvious question one might ask is why a public agency such as a school district would spend money to lobby a department of state government such as CDE/OPSC? Assuming that departments merely implement policy established by the Legislature, this seems improper. But apparently, it is not illegal even if it should be.

What does C.A.S.H. have to do with CUSD and San Juan Hills High School?

Among other things, Dave Doomey, former Deputy Superintendent in charge Facilities, was the President of C.A.S.H. during the period when SJHHS was developed. The membership of the C.A.S.H. included all of CUSD's lawyers, engineers, architects, construction companies, and environmental firms. While C.A.S.H. does not publish its membership list (it is available to members only), one can infer these memberships from the various presentations made at C.A.S.H. conferences involving the employees of these companies.

Even today, CUSD's law firm, Bergman & Dacey, is a member of C.A.S.H. The Planning Center, responsible for preparation of the new Pipeline Safety Hazard Analysis is also a member (as was Wilson Geotechnical, authors of the original defective analysis).

If you don't think that the C.A.S.H. affiliation has some influence over the work and decisions of the members, just consider the following presentation made at a recent C.A.S.H. conference. The author of this presentation was responsible for the original review of the SJHHS site application!

Read more!

Dept of Education Declared SJHHS Site is Deficient

If you make the time to wander around San Juan Hills High School as I have, you will come away with the feeling that the site is crowded and small. And once all the "land not owned", setback issues, and portable classrooms are resolved, usable space will be even less. You would think that $150 million would buy a large facility, especially in a remote and unimproved area such as this. How did this happen?

The California Department of Education (CDE) has a standard for the size of public high schools. This standard is used by CDE to evaluate applications for school approval and matching funds for school construction. We are repeatedly told by CUSD officials that SJHHS is "approved by CDE". But how can it be that this school is only 75% of the required minimum size?

The CDE standard requires 67 acres of land for the 2691 student enrollment planned by CUSD and yet the school itself consists of only 50.3 acres -- and not all of this area is usable.

Credit: SJHHS ASB.

CUSD accomplished this trick by doing the site development process backwards. They bought the land, designed the school, and even started construction before obtaining approval from the state. CUSD was committed to the site -- in fact, they owned it and construction was underway -- before it was approved. In the application for approval CUSD set the projected enrollment of the school at a very low figure that made it appear that the school would comply with the state standard. The state was tricked!

CUSD kept all this a secret, in case anyone locally might question why they needed to build the school at all.

Within hours of obtaining CDE approval, CUSD announced the true plan for enrollment in revised documents. The state was quick to react, issuing an "Supersede Site Approval" letter only two weeks after issuing the original approval. This second approval letter stated that the site is deficient.

The property approved for acquisition and/or use is 50.33 gross acres of which 50.33 are usable for school purposes. This represents 75.12% of the California Department of Education's recommended master plan site size of 67 acres as contained in the California Department of Education's Guide to School Site Analysis and Development (2000).

Unfortunately, by the time this was written nobody was paying attention.

CDE then went on to recommend financial support and the State Allocation Board approved $65 million in matching funds. Why was the subterfuge tolerated? Whose interest was protected? Answers to these questions will require an investigation. However, documents already obtained by Public Records Act request paint a picture of strong dissent among CDE staff regarding SJHHS, including serious concerns about the size of the site, the pipeline, the power lines, and the excessive costs associated with landscaping and street improvements. Without actually addressing any of these questions, senior CDE staff intervened and issued the approval.

It is interesting to note that one dissenting CDE staff member, a person with more knowledge of the actual site conditions than anyone and whose name is printed on the signature block of the Site Approval letter, never signed either version of the document. Instead, her "signature" was provided by others.

This now explains the installation of portable classrooms at a brand-new school. CDE could not approve construction of permanent classrooms in excess of those required to serve the original false enrollment plan. The portables were added afterward to make up the difference between the fake plan and the actual need.

Why did CUSD do it? The answer is found at the school itself. It is obvious that an additional 17 acres of land is not available at this location. This site would have been abandoned because it is too small, had site approval been sought before becoming committed to the project.

SJHHS remains too small for projected enrollment yet today, and conditions surrounding the site threaten to make it smaller still. Read more!

Additional Violation of State Law at SJHHS

CUSD appears to be violating state law that requires separation of the school from adjacent high voltage electrical transmission lines. A 230,000 volt SCE line brings electricity from San Onofre Nuclear Generating Station into Orange County along the eastern side of the new $150 million high school. At the northeast corner of the campus, CUSD has extended an athletic field into the area that is too close to these overhead wires.



A 150 foot separation from power lines of this type is required - CCR Title 5, Section 14010(c). The separation is measured from the "edge of the school site, joint use facility, or area regularly accessible to students" to the edge of the power line right-of-way (not the wires or towers). CUSD staff are certainly aware of this requirement since they did not purchase the land in the area of the required setback.

Nevertheless, this photo clearly illustrates that the athletic field has been extended on to the private property adjacent to the power lines and the school perimeter fence and landscaping are well beyond the property line. I have personally confirmed the status of this private property in a conversation with the owner.

There is a procedure under which the CUSD Trustees could have requested that the State Superintendent of Instruction issue an exemption from the required setback. CUSD is certainly aware of this procedure since they used it to gain an exemption from setback requirements for a smaller 138,000 volt power line on the southern edge of the campus. However, no request was ever made for this larger line and no exemption was ever issued.

Incidentally, these exemptions are not normally granted by the state Superintendent for a new school site. This may explain how the current circumstances came to exist.

During the past school year, students and staff conducted PE activities in this area. The field is routinely used for soccer and football practice. This appears to be a willful and flagrant violation of the law.

Will CUSD continue to use of this area in the coming school year? How many areas of this school campus will have to be closed and made off-limits before it is brought into compliance with the law? How much of the school will remain usable afterward? Read more!

Authoritative Study on Pipeline Control Contradicts CUSD Analysis

The analysis and conclusion in CUSD's latest pipeline study is perched upon an exceedingly optimistic estimate of the amount of fuel that could flow from a ruptured or leaking pipeline. It is argued that the pipeline would be shutoff, perhaps automatically, in less than five minutes following detection of a leak. Nobody that I’ve contacted believes this to be realistic.

An authoritative source on this subject is the National Transportation Safety Board (NTSB). In 2005, NTSB issued a study on this very subject. Here is the study abstract:

In the pipeline industry, Supervisory Control and Data Acquisition (SCADA) systems are used to collect data from pipeline sensors in real time and display these data to humans who monitor the data from remote sites and remotely operate pipeline control equipment. This National Transportation Safety Board study was designed to examine how pipeline companies use SCADA systems to monitor and record operating data and to evaluate the role of SCADA systems in leak detection. The number of hazardous liquid accidents investigated by the Safety Board in which leaks went undetected after indications of a leak on the SCADA interface was the impetus for this study.

The full study is quite readable. If you take the time to look it over, you will conclude that the leak estimates in CUSD's latest study are quite unrealistic. Unfortunately, to gain this knowledge, you’ll have to accept “SCADA” into your vocabulary, along with a few other similarly obscure acronyms!

If enough fuel leaks from the nearby segment of pipeline, it will flow to the school, under the school, and it will disrupt the La Pata rescue and evacuation route. There is no physical impediment to prevent fuel from reaching the school site. The NTSB study is filled with examples of leaks that went undetected for an hour or more, and several instances in which pipeline operators restarted pumps after automatic controls had shutdown a pipeline due to an actual leak.

If the technical jargon is just too much to follow, please keep this one fact in mind: Fuel flows through this pipeline at a rate of 4200 gallons per minute (that's $17,640 per minute, at the price I paid this morning)! Read more!

Are You Listening? Why not Speak?

It is wonderful to contribute to the demise of the monopoly on communication that has so long existed with regard to the affairs of the Capistrano Unified School District.

For years, CUSD has offered one truth through its "professional" public relations, "Superintendent's Weekly Update", the newsletters, e-mail distribution lists and the controlled format of Board meetings. Now, the discussion has become more democratic. Hopefully, it can also become more productive.

The Capistrano Dispatch has launched, "Beyond the Blackboard". Yet they are not afraid to point people over here for a narrow source of news regarding CUSD. I'm appreciative!

Another big development is the online presence of Ken Maddox, a new Trustee. Ken's online commentary is a breath of fresh air. Regardless of your view of Ken and his election, we all should applaud his willingness to lay out his viewpoint for all to consider. Checkout his thoughts on the Board meeting scheduled for August 11.

Everyone should join the conversation. After all, it's "public education." Read more!

$150 Million Doesn't Buy Much at CUSD

Last week, CUSD began installation of portable classrooms on its brand-new $150 million high school. With all of the brilliant capacity planning that went into this site, it is now evident that almost half the classrooms on campus were planned to be in so-called "relocatable" buildings.

Whether these buildings are able to provide any margin of safety for the occupants is a question worth asking. Between the fuel pipeline, the storm drains (connected to the drains under these classrooms), the EMF from adjacent 230 KV transmission lines, and god knows what else, there is cause for concern.

Studies conducted for the California Department of Education have shown that portable classrooms are less expensive to install, but cost more to maintain over the long term than permanent structures. Given this fact, can there be any logic in using portable buildings as a permanent fixture of a school?



Pictures Read more!

Pipeline Safety - Human Factors

One factor not considered in the CUSD pipeline risk analysis is the background of the pipeline operator, Kinder Morgan. The K-M people locally have been quite helpful and cooperative with me in my efforts to inform myself. Nevertheless, K-M is a large firm. Operation of any business or a pipeline is merely a human endeavor, subject to human failing. The character and quality of such undertakings is thus subjective, except in situations where the law is broken...

In 2005, K-M plead guilty to multiple felonies and paid millions of dollars in fines in connection with a spill of diesel fuel into the Suisun Marsh in Solono County. The company was placed on three years of probation that has apparently just ended.

You need only read the first two paragraphs of this document to understand what happened:

1. On or about April 27, 2004, at 6:27 p.m. Defendant noticed an abnormal pressure drop in a pipeline owned and operated by Defendant, which lead to the discharge of diesel, a petroleum product, into the waters of the United States in Solano County, California. Defendant shut down the pipeline and began an inspection of the pipeline. On April 28, 2004, at 12:19 p.m., after conducting additional inspections, Defendant began a pressure test of the pipeline by injecting more diesel, or petroleum products, into the pipeline. Defendant stopped pumping at 12:40 p.m. after an aerial crew noticed two areas of discoloration in the Suisun Marsh in Solano County.

2. On April 27, and April 28, 2004, Defendant failed to notify the required authorities of any release or threatened release of diesel into the environment prior to 2: 35 p.m. on April 28, 2004. The People have filed a Complaint against Defendant in the above-captioned action for alleged violations of the Government Code, the Water Code, and the Fish and Game Code resulting from the Defendant’s conduct and alleged failures to act on April 27, and April 28, 2004.

The pipeline involved in this incident is very similar to the pipeline passing by SJHHS.

On July 24, 2007, a K-M pipeline in British Columbia was struck by an excavator and discharged crude oil under high pressure. While K-M does not seem to be at fault in rupturing the pipeline, they did not act promptly to stop the flow of oil.

The video of the accident is interesting. Keep in mind as you view it that the material that is escaping is crude oil. It is pumped under less pressure than distilled fuels, and it is far less likely to catch fire. Had this been a gasoline pipeline, all of the people shown in this video would be in grave danger.



In November 2004, during construction of a water main for the East Bay Municipal Utility District, a backhoe hit a K-M 10-inch high-pressure gasoline pipeline. The explosion killed five men and injured four others.

K-M paid $15 million to resolve criminal and civil charges related the incident (California v. KMGP Services Co., Cal. Super. Ct., Nos. 01-132885-5, N07-1598, 9/21/07). KMPG Services also plead no contest to six felony violations of worker safety regulations under California Labor Code Section 6425. The plea agreement causes the company to be placed on probation for two years and to hire an auditor to evaluate the implementation of pipeline safety procedures required by federal regulators. K-M, its affiliated companies, and insurers have paid over $69 million to victims, families of victims, and other persons claiming injury from the explosion.

Video shot by ABC News several hours after the accident is here:



It is worth noting that this incident occurred next to an occupied high school. No students or staff were in the vicinity of the fire, but school staff were among the first contacted by those fleeing the incident.

The California State Fire Marshal investigated this accident and issued a Final Report that found that:

1. Kinder Morgan did not properly mark the location of the LS-16 petroleum pipeline as required by the company’s damage prevention program and as required by Section 4216 of the California Government Code. Specifically, Kinder Morgan did not mark the approximate location of their pipeline to within 24 inches of either side of the exterior surface of the subsurface location at KM Station 447+90 to Station 448+18 (EBMUD Station ±100+15). This is a violation of CFR 49, Part 195.442(a) which states: “each operator of a buried pipeline must carry out, in accordance with this section, a written program to prevent damage to that pipeline from excavation activities. Period of violation: September 28, 2004 - November 9, 2004 (42 days)

2. Kinder Morgan staff/agents did not follow the company’s line locating procedures. Specifically, Section 4.2 of Chapter 4 in Kinder Morgan’s Maintenance Manual (Line Locating) states: “Prior to beginning any maintenance work or excavation work, the location of the pipeline shall be reviewed by the local Line Rider or other Company representative and verified by drawings and a pipeline locating device.” A Kinder Morgan representative was present on November 2, 2004, and thereafter, to observe benching operations. However, he did not review and verify by the use of drawings and pipeline locating devices that the location of the pipeline was correctly marked.

On July 15, 2004, the U.S. Department of Transportation Pipeline and Hazardous Materials Safety Administration (PHMSA) alleged violations of certain federal regulations in connection with K-M’s pipeline integrity management program, as a result of inspections of facilities in Orange, CA and Doraville, GA. Two years later, K-M, a final order was issued and K-M subsequently sought further clarification of the order. The final outcome of this matter unclear.

On August 26, 2005, the PHMSA issued a corrective action order instructing K-M to make a comprehensive effort to address “integrity threats” along the pipelines of its Pacific Operation which includes the pipeline adjacent to SJHHS. Almost a year later, on April 10, 2006, a consent decree was announced that required K-M to conduct third-party independent review of its operations, and to restructure its internal pipeline inspection programs. This a order will require K-M to spend approximately $50 million over a five year period.

Any operation of the scale of K-M has inevitable problems. It is important to keep them in perspective. Also, regulators like PHMSA exist to regulate and District Attorneys exist to bring lawsuits. These actions bring to light issues that might not otherwise receive public attention and that we can independently assess. Read more!

Outside Review of Revised Pipeline Analysis

Late last week, I forwarded a copy of the draft Pipeline Safety Hazard Assessment to Richard Kuprewicz. He is a pipeline engineer who has worked with the City of Bellingham, WA and with the Pipeline Safety Trust. Mr. Kuprewicz is often quoted on pipeline matters in the press and has extensive experience in this field. You can gain appreciation of his background by simply entering his name in a search engine such as Google.

Mr. Kuprewicz’s comments are reproduced below. In reading this material, keep in mind that he has no first-hand knowledge of the the SJHHS site and his comments are based on his first reading of the July 16 draft. Also, he was not paid for his comments.

I have completed a quick review of the attached draft and have the following general comments which are by no means meant to be limited to all the problems or serious mischaracterization associated in this draft report.

I do not know if it is the pipeline inexperience of the “professional engineer” or the fact that she must follow a “goofed” guideline protocol defined by the CDE risk assessment method that creates a very poor risk assessment concerning transmission pipelines based on the many false technical assumptions or related misinformation that apparently biases the outcome. I’ll let you be the judge on this matter. Some quick general comments.

1) While this report is “stamped” by a professional engineer the fact remains that concerning pipelines there is no such animal as a profession engineering stamp for pipeline engineers. Risk assessment and pipeline design, operation, maintenance, failure dynamics, responses, and siting issues are highly specialized fields and not many companies or government agencies or individuals bring the unique system experience required to qualify to be true experts in this field. A review of the pipeline regulations and pipeline codes will clearly indicate that experience in this area takes precedence. The stamp Is an illusionary safety that the attorneys and insurance companies can neutralize if it had to come to that extreme.

2) The report fails to adequately present or properly discuss the much higher release rate dynamics associated with liquid transmission pipeline rupture of a highly compressed fluid. For a 16 inch pipeline operating at a pressure near 1425 psig you can bet that the release rate will be well beyond 10,000 Bbls/hr until the pump energy and line pack effect dissipate (this can take quite some time). Note that this rate increase release volume, depending on SCADA operation recognition and reaction time, can easily exceed the volume associated with pipeline drain down which brings to question why 5 minutes was chosen for rupture detection and pump shutdown. It is my extensive experience that 5 minutes is a very fast reaction time and no information is provided in the report to verify such an optimistic reaction will occur during a rupture on this pipeline segment. A plot of the amount of tonnage of fuel released over time taking into effect the transient hydraulic effects will make this rupture mass release point. I’ll let you take a guess as to how many microseconds a rupture release will take to blow to the surface and form a very large and turbulent vapor cloud. I am not here to scare folks just to be sure people are making informed decisions based on facts and sound science

3) I’d be real careful about overstating the safety associated with integrity management regulations as many pipeline companies are still on a learning curve. Note also that KM is under a CAO or settlement with PHMSA as a result of numerous pipeline failures that apparently their west coast integrity management program missed.

4) It is unclear whether all the girth welds in the KM pipeline in this area were inspected. Note that federal regulation at the time of this construction (1986?) did not require all girth welds to be inspected. KM could clear this important matter up quickly by stating that they did indeed radiograph all girth welds and ideally still have the records of such important construction inspections. Girth weld failures associated with land or earthquake tend to manifest themselves as rupture releases.

5) It is stated that “The CDE protocol relies on an annual frequency of pipeline failure based on historical data collected from the Office of Pipeline Safety (OPS) Hazardous Liquid Pipeline Accident Database.” There is insufficient evidence to verify that the assumed pipeline failure probability of 1.3 x 10-3 is appropriate for this segment of the KM pipeline. This value/determination is very leveraging to the risk assessment conclusion. There are many problems with the OPS database – one of them being that false or erroneous reports made to this database cannot be corrected by OPS. There are other serious problems with this protocol utilizing history to predict future pipeline operations. Know of any pipeline operator that is still running his pipeline like he was 1 year, 5 years ago, or ten years ago?

6) It is stated in page 7 under ‘Human Error” that “Past pipeline accidents that were caused by third party damage but compounded by human error (e.g., the Bellingham pipeline accident in 1999) resulted ...” This is an error of fact in the report related to Bellingham and underscores more of the problems probably associated with the OPS database. The primary failure initiator for the Bellingham rupture has never been publicly disclosed and I am not permitted to disclose that evidence. I can, however, speak up when others are not being truthful or have mischaracterized the cause of this terrible tragedy. The NTSB report wisely mentions that third party damage “contributed” to the Bellingham failure. Somewhere in this risk assessment report for this KM pipeline I read that they have some remote operated valves that close in one minute – now that gets my attention on a 16 inch liquid pipeline operating close to 6000 Bbls/hr! KM had better have very competent transient pressure hydraulic modeling engineers on this pipeline segment who know what they are doing!

7) One last comment on the assessment’s observation that hydrocarbon vapor mixtures in the open can’t explode. Such poor observations demonstrate very poor experience with hydrocarbon mixture releases and emergency response (such as gasoline) even in the open.

Anyway, I think I have made my point. California may be trying to make progress in school siting around pipelines, but let’s all try to avoid an illusion of safety that poor risk assessment approaches can create. The illusion of safety can cause groups of very smart people to do incredible stupid, even reckless decisions that can drive to serious failures.

In my opinion, comments such as these make it clear that our school Board should not rely on a single opinion regarding the risk of the pipeline. Other experts like Mr. Kuprewicz should be retained on behalf of the Board to raise the appropriate questions and extend Ms. Fitzgerald's analysis to consider practical steps that would mitigate risk to students and staff in the area of the school. Read more!