No-Bid Contracts, Toxic Waste and Drakes Estero

[ March 2017 NPS photo showing truck loading wood from oyster racks, samples of which were classified as hazardous waste. The photo shows numerous violations of law and regulations and permits regarding handling of the material. The trucking contractor was told nothing about the toxic nature of the material, as reported to NPS and its contractors in the previously revealed Environmental Site Assessment report prepared for Point Reyes National Seashore. ]


What do Drakes Estero, Hunter’s Point, and the Sonoma Fires have in common? Each shares toxic waste and contractor behavior. Each reveals the widely divergent patterns in which government agencies protect or fail to protect the public and the environment. The Drakes Estero and the Hunter’s Point contamination issues involve whistleblowers working for contractors, the mismanagement of toxic waste, agency lack of transparency, and outright deception. In Drakes Estero, critical data was repeatedly withheld from other government permitting agencies, facts only revealed by results from Freedom of Information Act (FOIA) requests.

Sonoma Fires show how to work together to do it right. The Sonoma Fire Recovery showed how to do it right, with cooperation between California’s Department of Toxic Substance Control and a wide range of State, Local and Federal agencies and contractors. They expeditiously classified, tracked and disposed of 1.5 million tons of waste from 6,583 sites, sorted out and disposed of toxic waste, transported by licensed haulers to approved sites appropriate to protect the public and the environment, all in a completely transparent manner.

Lessons learned in a decade of reporting on Drakes Estero. The Russian River Times has reported for almost a decade on NPS’ fight to shut down a historic Drake’s Estero oyster farm, revealing a pattern of hiding data and documents, misrepresentation and non-responsiveness. The fight became public in May 2007, with then NPS Point Reyes Superintendent, Don Neubacher, lied to the Marin Board of Supervisors about massive loss of seal pups. It continued in Senator Feinstein’s battle with NPS Western Region Director and now retired NPS Director Jon Jarvis over NPS falsified science. Feinstein cited NPS substituting the sound data from a souped-up jet ski for the modern four-stroke 20-HP oyster boat in a $2-million Environmental Impact Statement (EIS) which the Secretary and NPS abandoned. Secretary Ken Salazar relied on ad hoc, made-up reasons to terminate the historic oyster company lease.

FOIA responses slow rolled. FOIA legislation was signed into law on 4 July 1967 to promote government transparency (as discussed in a previous Russian River Times article). Since then many Federal agencies, including NPS, have learned to use FOIA provisions as a delaying tactic. In the current environment, simply delaying for a couple of news cycles will vanish even critical issues. FOIA itself became a delaying tactic, obfuscating timely access, or, in some cases concealing that documents required by law were never prepared in the first place.

Persistence and Multiple FOIAs to multiple agencies finally bring results A key piece of information obtained was an NPS report prepared for the Drakes Estero rack-removal project called the Environmental Site Assessment (ESA). It detailed Dec 2015 tests of toxic levels in the oyster rack wood being removed as high as 7,000 percent higher than the level at which the waste is categorized as hazardous waste.

This and subsequent FOIA releases covering thousands of pages of documents finally reveal a linked chain of critical pieces of information concealed from not only local residents, but other government regulatory agencies tasked with protecting the public and the environment

Park Service questions costs and handling for hazardous waste. In a December 2015 e-mail sent to NPS Point Reyes Superintendent, Cecily Muldoon and others, an NPS official observed that Environmental Site Assessment contractor reported very high heavy metal levels ‘as expected,’ and ‘off the chart’ SVOC (semi-volatile organic compounds) levels. The e-mail states: “Needless to say, we’ll need to know how this will affect handling precautions, if any, and disposal methods and costs. Sounding like a potential expensive discovery”. These discussions show that NPS was aware of the risks of highly toxic material being released into a Magnusson-Stevenson Act designated Federal Critical Fish Habitat located within the very wilderness area they were claiming to protect.

Contractor states Hazardous Waste Management manifests (required by EPA and Cal. Department of Toxic Substance Control) are not required. In the minutes of the project Progress Meeting for 9 August 2016, item 6 states: “Hazmat manifest preparation: Earnest (Wilson/Project Manager for contractor TL Peterson) explained that EPA hazmat manifests are not required”. This contractor statement is false and misrepresents EPA and Cal DSTC legal and regulatory requirements. The minutes then state: “Peterson will submit application to Altamont Landfill for approval of waste material and Altamont will track all quantities disposed at the landfill.” This requirement was ignored or NPS is continuing to withhold these reports.

Contract for Debris Removal changed from Unit Price to Lump Sum. The NPS minutes for 16 August 2016 state: “Jason (Longshore NPS contract officer) will be preparing a modification to revise CLIN#3 (contract line item number 3/Debris Removal) to a lump sum price. (Follow–up – Longshore).” Note that with this contract change, NPS abandoned the legally and NPS policy mandated “cradle-to-grave” recording and tracking of truckloads of contaminated waste being removed from the Estero. The amendment was signed in 6 December 2016.

Contractor refuses to release records on waste disposal plan. In a 10 April, response to an NPS FOIA office request to release information on contractors planning and reporting, TL Peterson Company stated: “… TL Peterson has spent years and tens of thousands of dollars developing a professional, competitive, and flawless quality control plan and waste management plan. TL Peterson would consider data in these documents to be trade secrets and not be released to anyone…”. Legally-mandated toxic waste management reporting, according to the NPS contractor and accepted by NPS is now a “trade secret”.

The above facts are of considerable significance regarding hazardous waste. At the DTSC’s presentation on Sonoma fire cleanup, it was noted that all hazardous waste shipments must be reported on an EPA-approved manifest form, available to the public. DSTC states the legal requirements which also cover treated wood waste in California, are as follows:

“A hazardous waste manifest must accompany most hazardous waste is shipped off site. The Uniform Hazardous Waste Manifest is the shipping document that travels with hazardous waste from the point of generation, through transportation, to the final treatment, storage, and disposal facility (TSDF). Each party in the chain of shipping, including the generator, signs and keeps one of the manifest copies, creating a “cradle-to-grave” tracking of the hazardous waste EPA registration numbers are needed by all parties on the manifest. Hazardous Waste Transporters in California must be registered with the Department of Toxic Substances Control.”

The cited manifests are precisely the documents that Point Reyes National Seashore refused to release. Almost a year ago, the Russian River Times made requests for the manifests showing who was responsible as waste generator, who transported it and where it all went. We also requested documents and records relating to Federal, State law and NPS policy compliance on toxic and treated wood waste material disposal. NPS, at Point Reyes, repeatedly stone-walled document requests. They have delayed or ignored repeated requests for on-site records reviews and interviews.

FOIA’d project meeting minutes confirm other whistleblower claims. The most recent FOIA-obtained list of Project Progress meeting documents, referenced above, confirms yet another of the claims by whistleblower, Matt Zugsberger, who first contacted the Russian River Times in January of 2017. He claimed, among other things, that TL Peterson, the NPS contractor and its subcontractor, Galindo Construction, who later fired him, were not following environmental safeguards mandated by the contract. One example: In the 6 September 2016 Progress Meeting minutes, it states that invasive species removed by the excavator were falling off the deck of the barge and going back into the Estero, rather than being placed in an appropriate container as stated in NPS permit applications. Revelation of this fact raise further concerns regarding Zugsberger’s statements regarding contractors having discussions of waste being hauled to the Sacramento Delta.

NPS own photos document affirm violations NPS allowed the contractor to hide the manifests, which only account for a portion of the hazardous material, based on claiming that what are in fact public documents are the contractor’s proprietary information In an accidental release of information not requested in our FOIAs, the NPS sent us a series of their photographs, many showing illegal behavior such large piles of treated wood waste placed directly on the ground to drain and a slurry of sediment and crushed wood being placed in a truck. The photos are dated well after the prime contractor reports to NPS reveal all the wood from the racks had been removed.

FOIAs and Toxic Waste at Hunter’s Point. Sometimes, larger organizations with legal support to apply to Federal Court to compel FOIA compliance have quicker success. In the case of radioactive waste at Hunter’s Point Naval Shipyard, PEER (Washington, DC-based Public Employees for Environmental Responsibility) obtained the data, documents and reports only after demanding that the Navy and EPA disclose them to the public. Whistleblowers provided PEER with detailed information regarding “extensive data manipulation, falsification, and other efforts to minimize evidence of soil contamination.” As PEER Director Jeff Ruch put it recently: “One of things that make these findings so remarkable is that the Navy was on notice for years that it had a major data meltdown on its hands yet is still trying to cook the books. Of course, neither the Navy or the EPA revealed any of this. It took a laser-targeted PEER freedom of information act request to achieve disclosure.”

The Hunter’s Point situation mirrors NPS and Drakes Estero inasmuch as the Department of the Interior was fully aware of wholesale management breakdowns within NPS at the national level ranging from sexual harassment, a toxic workplace environment and contracting scandals, many of which were revealed by whistleblowers. An ethics scandal even scorched Jon Jarvis, the Obama Administration’s embattled NPS Director.

NPS must release all relevant contract and permit compliance records. The Russian River Times continues to work with both FOIA requests, and follow up on a colleague’s analysis of the reviews of the Federal spending database, showing that TL Peterson received 274 contracts and supplemental funding worth $67 million in contracts and $98 million in base and options funding for fiscal years 2010-2018. A significant number of these contracts were done for NPS under provisions for no-bid sole source 8a contracts set aside for minority and women-owned businesses. A February 2008 DOI IG report addresses problems with such matters in a report entitled ‘Sole Source Contracting: Culture of Expediency Curtails Competition in Department of Interior Contracting’ which includes specific discussions of the abuse of 8a provisions and the need to hold contract managers accountable.

NPS must obey NEPA, not weaponized it. As the late Marin Supervisor Charlie McGlashan observed prophetically at a Board of Supervisor’s May 2007 hearing on NPS misconduct at Drakes Estero and their attempts to shut down the historic oyster farm: “I don’t want to see you use NEPA (National Environmental Protection Act) as a delaying tactic in order to shut down the business…..But I’ve seen them (the provisions of the Act) abused and used to torture people.” That was 11 years ago. Last week, in Washington, DC, the House Natural Resources Committee held a hearing on the abuse – the weaponizing – of environmental reviews. In 2015, the same congressional committee received testimony detailing how NPS ‘weaponized’ the environmental review in Drakes Estero, making McGlasghan’s prophetic warning all the more important, but begging the question as to whether, in reality, Congress has the power to make rogue agencies comply with the law.

What is the Park Service trying to hide? The records for the Sonoma Fire reveal the degree of transparency and the necessity for public records of ‘cradle-to-grave’ custody that ensures legal and regulatory compliance by NPS and its contractors, protection of public health, environment and worker safety., Point Reyes National Seashore and NPS contracting officials must assure the same degree of openness. They can start with the public release of all documents, data, reports and other information relating to compliance with California and EPA law regarding the testing, fate and transport of the entire 1700 tons of waste Point Reyes National Seashore told the press they removed from Drakes Estero. Just follow the law.


By: John Hulls, Contributing Editor, Russian River Times