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A prominent Berkeley contractor has been cited for 17 violations of California Division of Occupational Safety and Health (Cal-OSHA) regulations from their renovation of a Hayward commercial building, including the improper removal, handling, and dumping of asbestos material. 

If Kimes Morris Construction company does not win its appeal to the Cal-OSHA Appeals Board, it faces fines of nearly $36,000. 

A decision on the 15-year-old firm’s appeal, which was held during a three-day hearing before an Administrative Law Judge in Oakland earlier this month, is not expected for several weeks. 

Kimes Morris advertises itself as “developers and builders of commercial, residential and mixed-use community friendly buildings in the Berkeley area.” The Hayward building is part-owned by Coastal View Associates, a separate company owned by Kimes Morris owners Andrew Kimes and James Morris. 

An attorney representing Kimes Morris in the Cal-OSHA appeal said this week that the company had no prior knowledge of the presence of asbestos in the building, and said the contractors immediately corrected the problems as soon as they were brought to the company’s attention. 

“Kimes Morris regrets what happened out there,” said Attorney Fred Walter of the Walter Law Firm of Healdsburg, occupational safety and health law experts who represented Kimes Morris at the appeals board hearing. They have accepted that there was asbestos there, Walter said. “They have accepted all of the citations for asbestos exposure and the failure to [take proper precautions]. The one thing that they are adamantly set against is the allegation that what they did was deliberate. That’s not the way they’ve done business. That’s not the way they treat their workers. And they’re pissed off.” 

The asbestos removal violations, which Cal-OSHA inspectors said occurred in November and December, 2001, and early January, 2002, were discovered by landfill operators after Kimes Morris workers disposed of asbestos-laden building waste in a dumpster next to the building.  

Some of the violations involved failure by the company to provide workers with proper respiratory protection and failure to use cleanup methods that would keep asbestos dust from escaping into the air. Walter estimated that “10 or 12” workers were exposed to the asbestos without adequate protection for as short a period of “a few days” and as long as a month. The workers were regular Kimes Morris employees. 

The violations were originally reported to the Bay Area Air Quality Management District, which notified Cal-OSHA. After renovation of the building was shut down by Cal-OSHA in March of last year, Kimes Morris subcontracted the asbestos removal to a company specializing in that field, and renovations to the building have since been completed. 

The most damaging findings made by Cal-OSHA against Kimes Morris was that as part owner of the Hayward building, the contractors should have known about the presence of the asbestos before the renovations began. The other part-owner of the building, Richard A. Fishman, was informed of the presence of asbestos in an environmental survey released to him in January of 2001. 

Cal-OSHA inspectors also charged that Kimes Morris should have known how to properly handle asbestos removal because of the company’s past experience in demolition/renovation of a building containing asbestos. Kimes Morris was hired by Berkeley developer Patrick Kennedy’s Panoramic Interests company to tear down the building that paved the way for the Artech Building on Milvia Street. 

While admitting that the company violated asbestos safety regulations, Walter denied the charges that Kimes Morris knew about the presence of asbestos in the building and intentionally violated the regulations. 

Walter said that the allegation that Kimes Morris knew about both the regulations and the presence of asbestos and then willfully sent workers into a potentially dangerous situation is “almost laughable. They’re just making the assumption that somebody who’s been in any kind of construction for fifteen years will know what to do when you walk into a building of a particular age.” 

“More than 95 percent of [Kimes Morris’] work has been new construction,” Walter continued. “The remaining two to five percent has been in remodeling. They only contracted for the demolition of the building that was in place of where the Artech Building is now. They were advised by that demo contractor that they would have to do asbestos abatement there. They coordinated the [asbestos] abatement work, but it was all done administratively from their office. Kimes Morris arranged for an abatement contractor to go in and do the abatement [at the Milvia Street site]. They didn’t do the abatement themselves. The Hayward building was the first time that [Kimes Morris has] done demolition work themselves.” 

“Both Andy [Kimes] and Jim [Morris] saw the building [before it was renovated], but did not realize that there was a potential for asbestos. It didn’t cross their minds. They’re too new to demolition work to have appreciated the dangers their employees were facing. They went ahead and did the work. In the middle of it, there was discovered there was asbestos.” 

As for the January, 2001 environmental report given to the Hayward building’s co-owner, Richard Fishman, Walter said that Fishman testified at the appeals hearing that he “never cracked it, never looked at it, filed it away, and never mentioned it to anybody, including Jim [Kimes] and Andy [Morris] when they became partners in the building.” 

A statewide coalition on immigrant workers rights has charged Kimes Morris with discrimination against immigrant workers in the Hayward asbestos case, citing its allegation that all of the workers improperly exposed to the asbestos were Guatemalan and Mexican immigrants. 

“Immigrant workers get hired [all the time] to do the dirtiest jobs in our society...for minimal pay and with blatant disregard for their health and safety,” Antonio Belmonte, a spokesperson for Working Immigrant Safety and Health (WISH), said in a prepared press statement. “Employers take advantage of Latino workers like those who don’t speak English and are desperate for any work they can get.” Belmonte works in the Labor Occupational Health Program at UC Berkeley. 

Walter refuted the allegation that “these are a couple of white contractors making victims of immigrant workers. Andy Kimes is part-Indian. He spent ten years living in Costa Rica doing subsistence farming after he graduated from UCLA as an economics major. He speaks Spanish fluently. The employees who testified at the hearing all were earning between $18 and $24 an hour, and all were receiving Kaiser benefits from the company. So for Mr. Belmonte to imply that Kimes Morris is giving these people minimal pay and blatantly disregarding their health and safety is just a failure of his own to check his facts.” Walter said that while the employee pay on the Hayward building job was “a little bit below union scale, it ain’t peanuts.” 

Walter said that “part of the undercurrent of the decision by OSHA to cite this one citation as willful is the idea that [OSHA] jumped to the conclusion that Kimes Morris was taking advantage of Latino workers who don’t speak English, are desperate for work, and will do anything that the employer tells them to do. In truth, none of that applies to Kimes Morris Construction.” 

Breathing asbestos particles can cause mesothelioma, an invariably fatal form of lung cancer that can take decades to develop.