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A review of California Occupational Safety and Health (Cal-OSHA) documents relating to the temporary closing of Kimes Morris Construction’s Hayward building renovation site for asbestos violations two years ago reveals that another Berkeley businessman was cited in the violation as well. 

At the same time, an Oakland Cal-OSHA inspector who brought the charges against the Berkeley contractors cast doubt on assertions by the contractors’ attorney that the violations were unintentional. 

An appeal by Berkeley-based Kimes Morris Construction Company of 17 violations of Cal-OSHA regulations is pending before the Cal-OSHA Appeals Board. 

“There are only two explanations,” said Cal-OSHA Associate Industrial Hygienist Garrett Brown. “Either they are the densest guys in the world and don’t know that asbestos removal is a health hazard while everybody else does—or else they were trying to cut corners and pull something off.” 

Renovations on a 1948-era commercial building on Foothill Boulevard in Hayward were shut down by Cal-OSHA, the Bay Area Air Quality Management District, and the Hayward Building Department in January of 2002 when it was discovered that Kimes Morris workers were illegally disposing of asbestos-laced ceiling tiles in an open dumpster next to the building.  

Work on the building was afterwards completed after Kimes Morris hired a licensed asbestos removal company to finish the job. Kimes Morris has admitted committing the violations, but said through their attorney that it did not know any asbestos was present in the building. 

Inhalation of asbestos fibers—even for short periods of time—is considered by most experts to be an extreme health hazard, leading to possible lung cancer and other cancers of the chest and abdomen. State law requires asbestos removal under strict health guidelines, including wetting down of the asbestos material and the wearing of surgical masks by workers. In addition, it should only be disposed of in sealed containers in order to prevent the public from breathing the airborne fibers. Cal-OSHA records show that none of these precautions were taken by the Kimes Morris workers at the Hayward site. 

While Andrew Kimes reportedly told Cal-OSHA officials that the ceiling on the Hayward building had been “worked wet,” a summary of the Cal-OSHA findings reported that “[o]f the interviewed employees only one said that, on one occasion, water was used in the demolition/renovation work. All the other employees stated unequivocally that no water was used on site. 

The Hayward Building Department confirmed that water to the building was shut off in January 2001 and, as of meter readings taken in December 2001, no water had been drawn on site during 2001 [the period in which the renovations took place].” 

Cal-OSHA also documents show that the Hayward building was originally purchased in January of 2001 by Richard Fishman and David Strykowski. Fishman is President of RAF Mortgage company in Berkeley, which specializes in construction loans. 

In 2002, Strykowski listed his business address as RAF Mortgage, and Cal-OSHA personnel identify him as a construction contractor. In October of 2001, Strykowski sold his 50 percent interest in the Hayward property to Coastal View Associates, a holding company owned by Kimes Morris owners Andrew Kimes and James Morris. 

Strykowski was not connected to the property when the asbestos removal violations were committed. 

The Kimes Morris renovation began shortly after the purchase. 

In January of 2001, the United Commercial Bank conducted a Phase One Environmental Site Assessment of the Hayward property for Fishman, which revealed that “Due to the age of the subject property buildings, there is a potential that asbestos-containing materials (ACMs) are present. … For buildings constructed prior to 1980, [federal law] states that all thermal system insulation … and surface materials must be designated as ‘presumed asbestos-containing material’ unless proven otherwise through sampling in accordance with the standards of the Asbestos Hazard Emergency Response Act.” 

According to Kimes Morris attorney Fred Walter, Fishman testified at the Cal-OSHA appeals hearing that he never looked at the report and never gave it to Kimes Morris. Fishman was cited by Cal-OSHA and fined $350 for failure to “determine the presence of asbestos in the structure prior to the initiation of construction activities.” Fishman did not appeal his citation or fine. 

Cal-OSHA inspector Brown said it doesn’t matter whether Fishman showed the Phase One report to Kimes and Morris. “They should have known it already, from the age of the building. And they had already contracted out for similar asbestos removal at the Artech Building in Berkeley the same year.” 

Cal-OSHA documents show that Kimes Morris contracted with an environmental company to determine if asbestos was present in the exterior of the building where an awning was to be demolished, but failed to conduct a similar asbestos survey in the interior of the building. 

“I think they did it [that way] because they were in a hurry,” Cal-OSHA inspector Brown said. “Construction is a cutthroat business. Companies bid low, and then some of them try to cut the costs. Unfortunately, when they cut costs, the people who suffered were the workers. And in this case, any of the Hayward public that was exposed to the loose fibers in the dumpster.”