Editorial: Toxic Safety Supervision in National Park Service

Do David Bernhardt, the newly Senate-confirmed Secretary of the U.S. Department of the Interior, and Rob Wallace, the just-nominated Assistant Secretary of the Interior for Fish, Wildlife and Parks, or Danny Smith the Acting Director for National Park Service (NPS) have the slightest clue as to what has been going on at Point Reyes National Seashore (PRNS)?  Recent events reveal that  they don’t.  Is NPS at Point Reyes  working overtime to make certain they never find out?

Muldoon, NPS co-chair of Safety Leadership Council reappointed despite questionable safety track record.                                                                                                In a 28 March 2019 e-mail to all NPS employees, Acting NPS Director Smith re-appointed Cecily Muldoon, Superintendent, PRNS, to a second term on the NPS Safety Leadership Council (SLC) where she will serve as Co-Director.  Initially formed in 2007 by then-NPS Director Mary Bomar, it was implemented under NPS  Executive Order #50, which expressly states,  “We hold that the safety and health of our employees, concessioner employees and other Federal, state and local stakeholders….to be a core value of the NPS.”

The order sets forth that NPS managers across the country must “Meet or exceed all current applicable statutory, regulatory, and policy requirements”.  

Did Muldoon herself follow the safety guidelines she was appointed to implement?  Many of the requirements of the SLC fall under OSHA, (Occupational Safety and Health Administration) Department of Labor, EPA and other federal and state agencies, so one might expect that given her position on the Safety Council, that her supervision of PRNS employees and contractors “meets or exceeds  compliance with law, policy, and procedures.    It doesn’t.   Muldoon’s  actual track record is a long list and large collection of safety violations, safety problems and safety misconduct.  

Investigation by Cal EPA at Drakes Estero leads to referral of charges to Marin DA for prosecution.                                                                                                          For more than two years, the Russian River Times documented a whistleblower’s report of serial failures by NPS and its contractors to comply with NPS safety law, policy and procedures during removal of oyster racks from Drakes Estero (Point Reyes).  The whistleblower, a marine diver, filed a complaint with the California Department of Toxic Substances Control (DTSC) after he received chemical burns from exposure to hazardous wastes while working on the rack removal project.  In mid-2018, DTSC opened an investigation.  Last December, DTSC completed their work concluding that wide-spread mismanagement of toxic materials took place on the NPS project.  The Report, not yet public, was submitted to Lori Frugoli, the Marin County District Attorney.  It recommends prosecution for more than 20 violations of law, some criminal, against the NPS contractors.   

Whistleblower recovers back pay and contractor fined by OSHA                     Previously, the Russian River Times reported on other violations of law on the same NPS project.   Contract violations, investigated by the US Department of Labor concluded the whistleblower and others  were  shorted on pay and that  significant safety violations occurred.  That same whistleblower, with assistance from the  Foundation for Fair Contracting (FFC), received a settlement restoring his rightful pay.  In addition, in December 2016, shortly after the whistleblower was fired, the contractor on the Drakes Estero Project was fined for OSHA safety violations.

No bid contracts can be “totally non-transparent” and subject to abuse.                     The FFC’s Bryan Berthiaume recently discussed with the Russian River Times a growing list of problems with no-bid and non-competitive contacts awarded by the Federal Government.  The long list of safety violations at Point Reyes came from a no-bid, non-competitive contract.   Berthiaume also told the RR Times  that his organization is  actively following another scandal involving this same NPS contract.  The California State Contractor’s Licensing Board investigation of the Drake’s Estero rack removal contractor regarding serious violations of personnel requirements for holding their license.  He also stated, generally,  that the proliferation of contracts issued without competitive bidding continues to become a real scandal, and renders much government contracting totally non-transparent.  This has certainly proved the case in the RR Times investigation, which has been unable to trace the handling and fate of some 1300 tons, or approximately 76 truckloads, of contaminated sediment identified in the original NPS engineering Report for this project, despite  repeated requests to NPS.

According to Berthiaume, “ we’re seeing a lot of problems with many case of near total lack of supervision of some contractors, especially in the under $4-5 million range.  Being perceived as a ‘compliant’ contractor on these issues can lead to multiple contract awards and too often becomes ‘the gift of public money that keeps on giving’. While FFC’s work is involved mostly with labor and contracting terms, we see a huge problem on some  contracts with the issuing agencies failure to not only assure compliance with labor law and safety law, but also environmental issues or even basic compliance with contract terms, as is the case in working with the whistleblower in the Drake’s Estero matter.  This is not a partisan issue and it’s going to take Congress having a serious look at how DOI and other agencies really handle their contracts to even start to fix it.”

City of San Francisco complains to Superintendent Muldoon over lack of concern for public safety                                                                                                               Upholding NPS policy  on public safety also appeared low on Muldoon’s priorities when she was temporary Acting Superintendent of the Golden Gate National Recreational Area (GGNRA), after she approved a protest permit for a group and its members who were known to be violent  in Portland, Seattle and Charlottesville. In an angry August 15, 2017 letter from then SF Mayor the late Edwin M. Lee, and Supervisor (now Mayor) London Breed,  declared, “This permit has been granted without the necessary contingencies to protect the safety of the public and the assumption that the City of San Francisco will expend our resources to diffuse the situation”.

Safety violations, issues and concerns – a long list of them – are the hallmarks of Muldoon’s management at Point Reyes.  NPS reports on toxics were withheld from the Corps of Engineers and subcontractor employees but not contractors. (direct worker notification of the presence of toxics is required by DOL law and OSHA regulations).  Toxic wood waste and sediment were handled in a manner in direct violation of California law, not to mention contract terms.  This allowed substantial time and financial savings for the contractor.  Tons of sediment, which NPS’ own Environmental Site Assessment (ESA) said was contaminated, are unaccounted for.  Complaints about workplace safety violations were ignored.  FOIA requests about safety issues have been ignored, manipulated or not answered. 

Real safety and fact-based environmental leadership needed at NPS.             Muldoon’s re-appointment to the NPS Safety Leadership Council hardly inspires confidence inside NPS or for visitors to our National Parks.  Under her leadership, the Wilderness at Point Reyes mismanaged toxic materials, some of which are still present on the public beaches at Drakes Estero.    The NPS Director  and the senior leadership at the Interior Department need to put a bright light on Superintendent’s record at Point Reyes. NPS needs more compliance with law, policy and procedures, not a growing stack of violations.   Secretary Bernhard, the new Assistant Secretary for Fish, Wildlife and Parks, Rob Wallace and Acting Director, NPS, Danny Smith need to find out what’s really going on at Point Reyes.  Senator Murkowski, as Chair, the Senate Energy Committee and Congressman, Raul Grijalva, as Chair, House Natural Resources Committee need to put the same spotlight on NPS adherence to law, policy and procedure. Point Reyes is a good place to start illuminating the real quality of leadership.

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Toxic Threat to Parks and People

Two-year old whistleblower reports of toxic pollution by National Park Service contractors lead to California Department of Toxic Substance Control criminal referral to Marin County DA

The culmination of a decades long battle by the National Park Service (NPS) to eliminate an historic oyster farm at Point Reyes National Seashore resulted in the $4-plus million Drakes Estero Restoration Project, funded by National Park Service and the National Parks Foundation with monies for the Park Service Centennial celebration.  Instead of protecting the rich environmental diversity of Drake’s Estero, NPS allowed contractor shortcuts and permit violations to spread fragments of toxic materials across the Estero public access area, with toxic levels described in a NPS-funded study conducted prior to the project as being “through the roof”. Non-enforcement of contract and permit conditions resulted in apparent major savings to the contractors while scattered hundreds of tons of toxic sediment throughout the Estero resulting in major violations of not only the California law governing handling of toxic substances, but federal CWA (Clean Water Act ) violations as well.

Whistleblower fired after reporting safety and environmental violations

On  November 2016, Matt Zugsberger, a diver on the NPS Drakes Estero restoration project, was fired after reporting  numerous safety and environmental violations by NPS and their contractors to Park Service officials, including Dr. Ben Becker, Chief Scientist at Point Reyes responsible for the project. When NPS failed to respond, on December 16, 2016, Zugsberger then filed a toxic spill report with the California Governor’s Office of Emergency Response.  

Directly copied from the on-line document, the summary section states:

Description:RP (Reporting Party) States: Worked for subcontractor at Drakes Estero, Reyes National Seashore dismantling oyster racks. The work involves removing piles of wood treated with CCA (Chromated Copper Arsenate and Creosote. The work is not being done in an environmentally correct way which is resulting in the release of an unknown amount of the chemicals to the waterway, surrounding vegetation and marine sanctuary. The release is on-going, the next part of the project is scheduled for dredging. There is no dredge permit. RP says responsible party is aware of environmental impact. There is one (1) injury to the RP who sustained chemical burns. 

DTSC Criminal Investigation confirms whistleblowers claims about toxic materials

Two years later, all of whistleblower’s allegations were confirmed in an investigation just completed by California’s Department of Toxic Substance Control (DTSC) as well as Court documents in Zugsberger’s  case against the NPS contractors. The DTSC Office of Criminal Investigation forwarded a long list of criminal violations to the Marin County DA for prosecution. The Russian River Times has documented many of the events in question with numerous photos, including aerial images showing large areas of toxic waste illegally placed directly on the Estero shore.  These photos, in conjunction with other images and documents obtained under the Freedom of Information Act, show violations of laws on waste handling which fall under the jurisdiction of DTSC.  They also show  violations of the Clean Water Act and permits granted by other Federal and State agencies. 

img_1903DTSC evidence bags with toxic oyster rack fragments retrieved from contractor work site.  The name of the person collecting the samples at the site of the former oyster farm has been redacted at the request of DTSC staff to protect the privacy of its investigators.  (Russian River Times photograph)

Zugsberger faults the many agencies and officials that “looked the other way” 

Asked to comment on the DTSC findings, Zugsberger was voluble in his anger at the long delay and the sheer number of government agencies and individuals who simply looked the other way and did nothing. “If you look at my toxic spill report, and the e-mail of the same date reporting it to Point Reyes Seashore Superintendent Cecily Muldoon, 31 individuals and government agencies knew about it….I got one call back from one Federal official who sounded  concerned, especially when I told them of the prior knowledge of toxic materials, but there was no follow-up.  DTSC launched its investigation only after I contacted them directly in mid-2018,  and they responded in a professional way”.

Asked about what happens next, Zugsberger says he has yet to receive a copy of the final DTSC report, but his attorneys are in contact with the Marin County District Attorney regarding his specific legal victim’s rights in such matters. He continues to follow up with the other agencies with whom he has filed reports.  “My job was to remove the oyster racks safely and in accordance with the permits and best management practices, based on my 15 years of experience as a commercial diver.  Now that my Dec 2016 spill report to the California Governors Office of Emergency Response has been validated by the DTSC investigation, I want to find out why so many of the people and agencies I contacted, phoned and e-mailed failed to do anything.  As a former Marine, I can tell them their job is to follow the regulations and enforce the law and protect the citizens who pay them.”

As this article went to press, DTSC spokesmen confirmed that the Marin County District Attorney was sent their Report, but the investigation was still open and they could not provide further information.  Repeated attempts to contact Marin Deputy District Attorney Perez  were not answered.

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Editorial: Slow Journalism in Drakes Estero

 What the Park Service did in the Drakes Estero Restoration Project vs. law, policy, procedure and permits

It is now two years since whistleblower Matt Zugsberger, a diver on the National Park Service (NPS) Drakes Estero project, approached the Russian River Times. He reported that NPS and its contractor’s  violations of law, policy and procedures had resulted in management and project failure, spreading toxic materials throughout the estero.  The project was the last act of NPS decades-long fight to close the historic oyster farm.  He claimed there was significant harm to the environment from spreading of toxic material that has also caused him major health problems. After reporting his concerns to NPS and to TL Peterson and its subcontractor Galindo construction, he was told to shut up.  He filed complaint with the Department of the Interior, OSHA and other agencies and was subsequently fired.  He then documented his concerns in a January 2017 letter to the Interior Secretary Jewell, asking for an independent investigation.  The letter was never answered. The Russian River Times coverage of the facts behind the mismanagement of the Drakes Estero Restoration Project recalls Jonathan Swift’s 1710 essay on “The Art of Political Lying”, wherein he concludes,”Falsehood flies, and truth comes limping after it….So how far has the truth limped in the previous 24 months?  

 From the very beginning, it has been a slow and tedious task to extract facts concerning the Drakes Estero Restoration project, but most of Zugsberger’s claims of spreading toxic material throughout the Estero, violation of environmental law, safety regulations, exposure to toxics, and failure to meet contract terms along with violation of labor laws now affirmed by Federal investigation. The State of California has undertaken an ongoing criminal investigation of the contractors. The actions that the Park Service and its contractors should have taken, both prior to and during the project and in obtaining the permits have become evident.  In the most recent court action, the contractor was compelled to pay for Zugsberger’s support and medical care necessitated by his exposure to toxics material from the restoration project, as well as correcting his pay.  His lawsuit against the contractors continues. 

NPS identified some 3,100 tons of waste but only accounted for 1,800 tons

  The NPS numbers don’t add up. They don’t add up with what NPS said in their U.S. Army Corps of Engineers (USACE) Permit application or their own engineering report or told the the public. The Park Service told the press that they disposed of some 1800 tons of toxic wood waste and oyster shells and debris.  Pages 13-18 of the April 2015 NPS commissioned final engineering report identifies the waste as being slightly less than 1 million pounds of wood waste that the NPS own Environmental Site Assessment (ESA) identified as highly toxic material and also recommended that the sediment should be tested.  The report also identifies approximately 2.78 million pounds to shellfish and 2.7 million pounds of mud inadvertently removed with the oyster shells. The NPS Permit Application to the U.S. Army Corps of Engineers (USACE) dated 4 April 2015, the National Park Service filled in the following in the blocks for material to be dredged:  STRUCTURE: “95 rack structures, 500 tons of lumber REMOVED” and OTHER: ”1 acre of oyster tubes, bags and strings REMOVED”. In the block entitled SOIL/DIRT/SILT/SAND/MUD, NPS makes no mention mention made of the 2.7 million pounds of toxic mud co-mingled with the oyster shells and debris as identified in the engineering report, but  dismisses it as “incidental to removal operations”  Does NPS really consider 1,344 tons of untested toxic waste ‘incidental’?

76 Truckloads

According to manifests obtained from NPS, the contractors required some 76 semi-trailer loads to remove the estimated 1,383 tons of oyster shells to the local Redwood Landfill.  To account for the nearly identical missing amount of ‘incidental’ contaminated marine mud, which the NPS was told by multiple sources was subject to contamination from heavy metals leached from the rack materials, would take approximately the same number of trucks. So where did it go and does the NPS consider the USACE permit form categories of SOIL/DIRT/SAND/MUD as being environmentally important? 

To put matters in relative terms, on 5 March, 2008, the oyster farmer experienced a failure of an old buried power line and the next day, in consultation with PG&E, obtained a Marin County permit to replace the defective wire. Almost immediately after start of work, National Park Service and California Coastal Commission personnel showed up unannounced on site to stop the work, claiming it was “unpermitted development” and subject to fine.  The amount of dirt moved from the 12 inch wide by 18 inch deep by 80 foot long trench was less than 5 cubic yards, or the approximate volume as two pick-up trucks.  On one hand, NPS is unbothered by tons of unaccounted for contaminated waste.  On the other hand NPS becomes bureaucratically unhinged over a small pile of dirt that was moved and put back in the same place How does NPS explain this extreme double standard?

NPS Procedures and Permits: An expert opinion

To gain a professional perspective on procedures, the Russian River Times spoke with Don Searles of Dredging Specialists, an expert in the field with international experience and a 35 year history in the industry, both as a contractor, dredge designer, and consultant.  He was somewhat incredulous that neither the Park Service, the engineering firm or the contractor had insisted that the sediment be tested.  He quoted the Standard Handbook for Civil Engineers, which states, “It is extremely important that owners, and design professionals recognize that cost savings which reduce the quality of geotechnical services may purchase liability several orders of magnitude greater than their initial savings”  Searles was equally surprised that NPS had sought and obtained a USACE NWP27 restoration permit, the least restrictive of all permits, given the presence of old treated wood pilings, and the fact that the Estero is federally designated as “essential fish habitat” within a wilderness area. If the presence of toxics had been revealed on the  application, it would have required a far more comprehensive and technical NWP 38 ‘Cleanup of Hazardous and Toxic Waste’ permit. 

Searles also said that if the NPS and the contractors knew of the presence of toxic materials, as shown in earlier Russian River Times reporting  yet failed to notify USACE “serious hanky panky was going on” Additionally, USACE has told the Russian River Times that it was not notified of the many changes in the best management practices specified in the permit, especially the elimination of the sediment curtains.  The permit states that USACE must be notified of all such changes. This is particularly significant given the missing approximate 76 truckloads of sediment and the presence of Essential Fish Habitat in a Wilderness Area.  The USACE permit imposes Special Conditions, the most significant being:  “All standard Best Management Practices (BMP’s) shall be implemented to prevent the movement of sediment downstream.  No debris, silt, sand, bark, slash, sawdust, cement, concrete washing, petroleum products, or other earthen material shall be allowed to enter into or be placed where it may be washed by rainfall or runoff into the waterways”.

Spreading toxic sediment in the Estero

Several locals reported massive clouds of sediment spreading into the estero during the dredging process.  Searles was asked if the elimination of the sediment curtains could be responsible for spreading the approximately 76 truckloads (1,334 tons) of sediment contaminated by leaching toxic metals from the treated wood throughout the estero.  He stated that with the use of sieve type bucket mentioned in the Engineering Report, “Any appreciable current would spread the dredging spoils downstream.” and went on to state: “elimination of the placing the sediment curtains and handling the waste in proper containers  (as called for in the NPS project descriptions) would result in big time and cost savings for the contractors.”   It is also important to note that NPS, early in the restoration project changed the line item for waste disposal from accounting every load to a fixed price item which wold have required that NPS account for every truckload removed from the estero, as required by NPS policy for tracking toxic material from origin to ultimate disposal.

Screen Shot 2018-12-19 at 8.06.54 AM

Sieve Bucket on excavator spills sediment back into Drakes Estero as it strains out oyster shells and debris.  Image taken from National Park Service Video

Misleading the Public and the Community

NPS  has a well-documented history of being unbound by law, policy and procedure according to Earl Devaney, the highly regarded Interior Department Inspector General stated in a formal report to Congress.  Ironically, Devaney submitted this Report in  2008 at the very start of the NPS discredited effort to shutter the historic oyster farm at Drakes Estero.   The war against the oyster farmer started with a lie, with Don Neubacher, then Point Reyes National Seashore Superintendent being quoted in the February 23, 2006 Point Reyes Light as saying, “From our perspective, Congress told us what to do and we are doing it.” The original legislators who created the National Seashore Wilderness Act,  Representative Pete McCloskey, co-author of the Endangered Species Act, and John Burton stated in a letter to DOI Secretary Salazar was that the presence of the oyster farm was consistent with the Act and Congressional intent was that the oyster farm stay.

Distorting, misquoting and concealing science and data.

Many misleading and deceptive claims would follow, one example of which was the highly emotional claim of massive harm to seal pups.  All of these claims appear to be ideologically or politically motivated, rather than driven by facts.  Attempting to put its thumbs on the scale of science and create justifications for its actions, NPS has often tripped itself up.  In a May 2007 presentation to the Marin County Board of Supervisors, NPS claimed there was a massive loss of seal pups caused by disturbances from the oyster farm.  Their own data , which itself turned out to be grossly exaggerated and of questionable veracity, showed that, over an extensive period, NPS attributed significantly less than 1% of the disturbances to the oyster farm, while the vast majority were from park visitors, kayakers and natural causes, not the oyster farm.  A subsequent three year NPS hidden camera program, concealed from the National Academy of Sciences investigation panel and others, revealed no disturbances from the oyster farm. None of the several other hypothesis of harm would be sustained by fact.  It ended up that the final justification for eradicating the oyster farm and ‘restoring’ the estero was harm to eelgrass, which is indeed a critical part of the environment. 

A million dollars an acre for restoration or toxic dumping?

However, when the Russian River Times looked at the NPS data, the maximum benefit that the $4.5 million dollar ‘restoration’ project would achieve was less than 1% of the existing eel grass coverage, which had, according to NPS studies, increased from 386 acres in 1991 to 740 acres in 2007.  The maximum benefit from the ‘restoration’ would be approximately 4.1 acres, which, given the large annual changes in coverage, would make it essentially impossible to scientifically demonstrate a net positive environmental benefit, if any, for the project.  In a similar manner, the RR Times investigation of toxics in the estero began with seeking the underlying facts as stated in NPS documents, many of which were not made available to the public, but uncovered in our investigation. Essentially, the public has paid over a million dollars an acre for no realistically measurable benefit while NPS’ own data and reports indicate they may well have spread 75 trailer loads of toxic material across the estero,  the very wilderness that they claimed their actions and multi-million dollar campaign to eliminate the historic oyster farm were designed to ‘restore’.

Responsibility

When NPS filed for the project permit with the Corps of Engineers, with its mandatory compliance with the Clean Water Act, especially Section 404 regarding dredging, they knowingly and willfully withheld explicit knowledge that toxic and hazardous waste was present.  The permit also requires notification and approval from related government regulatory bodies. When NPS provided a public accounting of the tonnage removed, more than 1,344 tons of contaminated waste were not accounted for.  NPS mismanaged the $4M no bid contract.  They allowed Drakes Estero, a 2,000 acre body of water, home to harbor seals and eelgrass to be contaminated by toxic and hazardous waste.  The NPS contractors turned their back on safety requirements causing the project diver’s body sustain burns and chemical toxicity (and then fired him when he filed complaints).  When Zugsberger wrote Secretary of the Interior, Sally Jewell, in January 2017, the letter, which requested an independent investigation, was ignored and never answered.

The signature block on the USACE permit application is signed by NPS scientist Ben Becker as authorized agent for Point Reyes National Seashore Superintendent Cecily Muldoon.  U.S.C. Section 1001 provides that: Whoever, in any manner within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals, or covers up any trick, scheme, or disguises a material fact or makes any false, fictitious or fraudulent statements or representations or makes or uses any false writing or document knowing same to contain any false, fictitious or fraudulent statements or entry, shall be fined not more than $10,000 or imprisoned not more than five years or both”.  Russian River Times has been unable to find indication that NPS honored any of these requirements such as the disclosure of the prior knowledge of the presence of toxics either in the NEPA documents, permit applications to USACE or any of the other federal, state and local government entities involved.  The Russian River Times requested proof of any such notifications from NPS well over a year ago. There has been no response.

It seems clear that NPS was intent on merely ‘checking off the boxes’ to get the quickest, simplest, least intrusive permit possible, rather than providing the protections required by law, policy and procedures. Yet NPS has spent millions on trying to justify their actions, including National Academy of Science reviews, peer review of the subsequently abandoned multi-million dollar EIS, not to mention extensive litigation and what must be a huge amount of staff time.  The NPS has never accounted for the total expenditure. Comparing the costs of similar EIS reports, the multiple NAS reports, the DOI/Atkins peer review of the EIS and the $4.5 million dollar restoration project, the total is likely well in excess of $15 million, but the public will never know without an accounting.

 As DOI IG Devaney said on page 5 of his 13 Sept 2006 Report to DOI Energy and Resources Subcommittee,  “Numerous OIG reports, which have chronicled such things as complex efforts to hide the true nature of agreements with outside parties; intricate deviations from statutory, regulatory and policy requirements to reach a predetermined end; palpable procurement irregularities; massive project collapses…….”   Consider the past decade of NPS senior management ethics violations, over a decade of covering up sexual harrassment and hostile work places, and contract abuse.  Many of these events were subject to Congressional hearings, yet Devaneys words from over a decade ago are even more telling today. 

  

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Criminal Investigation of Toxics on NPS Drakes Estero Project

Published in current print edition as News Flash  (Received as the current issue went to press.)

California Department of Toxic Substance Control Inspects  Drakes Estero

On 20 August, 2018,  three scientists from Criminal Division of CAL EPA’s Department of Toxic Substance Control (DTSC) scientists came to Drakes Estero, site of the Point Reyes NPS Oyster Rack Removal Project.  They were  accompanied by Matthew Zugsberger, a diver on the project who reported  safety violations and who also received  chemical burns from exposure to toxics, and made allegations of safety and environmental violations to federal officials as well as the Russian River Times.

Multiple agencies knew of issues in late 2016

Shortly after the project began, according to Zugsberger, “I  told my superiors and NPS personnel of my concerns. The contractor told me to “shut the f…k up”.  I reported my concerns to the Department of Interior Inspector General, who referred my complaint back to NPS to investigate itself.  I complained to the Labor Department and OSHA and was then fired. On 15 December 2016, I filed a California Hazardous Material Spill Report which was apparently  circulated to several federal and state agencies, but I received no response, except from Cal Fish and Game, who later said NPS told them there were no toxics present. In January 2017, I then wrote a detailed letter to then-Interior Secretary Sally Jewell but received no response.”

NPS knew of toxic material before project started

Zugsberger went on to state, “Based on my initial experiences and subsequent discoveries and documents, I filed a complaint with the DTSC.  One of the major facts uncovered was that NPS was aware of the presence of toxic materials before filing National Environmental Protection Act (NEPA) documents with the various permitting agencies.  I had asked that the reporter for the Russian River Times join the site visit and make their photographs and FOIA information available to DTSC.”

Site visit reveals presence of highly contaminated material

During the site visit, the Russian River Times observed the scientists using a high tech hand held scanner to test the numerous treated wood fragments and other debris remaining on the site, even after the contractor had regraded the area upon completion of the project.  The device used is an X-Ray Fluorescent (XRF) scanner that uses a focused X-ray beam. XRF scanning is use in a wide range of applications from lead in children’s toys, to electronics waste, as well contaminated soil.  Several of the samples showed very high levels of toxics but DTSC stated scanned tests must be confirmed by direct laboratory testing of the samples.

 NPS needs to be held responsible

According to Zugsberger, after he met with DTSC officials last Friday, a criminal investigation is now underway. They told him the had completed the lab testing, but could not release the data because of the ongoing criminal investigation.  “I’m glad that DTSC is doing their job, and investigating  my allegations.  Park Service officials and scientists who allowed this to happen need to be held  responsible.  I hope that Park Superintendent Muldoon is forced to explain why she signed  formal environmental review (NEPA) documents which claimed no toxics were present while samples taken by her own staff for an NPS Environmental Site Assessment revealed  high levels of toxics , with some “through the roof”

(The RR Times will continue its investigation for next month’s issue and will make further postings and photographs at www.RussianRiverTimes.Wordpress.Com 

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No-Bid Contracts, Toxic Waste and Drakes Estero

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.

Portion of fire map at epa.maps.arcgis.com

Portion of the EPA prepared interactive map used by all the State, Federal and local agencies involved to help keep residents up to date on their homes and facilitate an environmentally safe recovery. The map can be accessed here . Be sure to scroll down through all the maps, which can even be searched by individual address

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

  1. 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. 
  1. 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. 
  1. 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.
  1. 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 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.

Skoff Truck

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.

 

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 public records for the Sonoma Fire reveal the degree of transparency and the necessity for public records of ‘cradle-to-grave’ custody to track 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

 

 

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They’re Either FOIA or Against Ya

Timely and honest access to data and reliable information from our government is vital to our democracy.  Enshrined in Federal law, the Freedom of Information Act gives the public broad access to the records of Federal departments and agencies.  It was signed into law more than a half century ago by Lyndon Johnson, appropriately on the 4th of July, 1966.  Its importance is best summarized by Johnson himself in his speech at the signing ceremony.

“This legislation springs from  one of our most essential principals: A democracy works best when the people have all the information that the security of the Nation permits.  No one should be able to pull curtains of secrecy around decisions which can be revealed without injury to the public interest…..I have always believed that freedom of information is so vital that only the national security, not the desires of public officials or private citizens, should determine when it must be restricted.

The Freedom of Information Act: An Essential Pillar of Democracy                               To journalists, the Act, or more commonly ‘FOIA’, is a vital tool in reporting on the national interest, but perhaps more so to those working to protect their own community. However, many departments and agencies have learned that to undermine the legal mandate, all they have to do is deny or delay a request until after the national media moves on, thus avoiding further public scrutiny.  In such cases, small local papers are at an advantage. When a government agencies actions are deceitful and ongoing harm to the local community results, they and their reporters can just go on digging, for years if necessary.

NPS Misrepresentations Revealed by FOIA Requests                                                            In the case of Drakes Estero, the more we dig and the longer we cover the fight to remove the historic oyster farm and the subsequent ‘restoration’ project, the more we learn that the NPS is continuing in a pattern of  falsifying, selectively editing and withholding crucial data not only from the community, but in permit applications to other Federal and State agencies.  FOIA documents recently obtained by the Russian River Times establish that Point Reyes National Seashore Superintendent Cecily Muldoon signed critical project permitting documents in spite of the fact that she had earlier been informed of dangerously high levels of toxic material associated with the removal of the oyster racks from Drakes Estero

It is now beyond question that NPS suppressed critical information to obtain Federal and State permits for the restoration project. A recently obtained string of e-mails, addressed to Muldoon, NPS Project Manager Ben Becker and other NPS staff, show certified lab test results of material associated with the oyster rack structures contained dangerous levels of copper and arsenic preservatives which exceeded mandatory reporting levels, as well as levels of volatile organics present in wood preservatives which were stated to be “off the charts”.  The test results were reported on 22 Dec 2015 by the consultant preparing the Environmental Site Assessment discussed in previous Russian River Times coverage.

Information Withheld on Permit Applications                                                                 Some two month later, NPS submitted final documents to the US Army Corps of Engineers (USACE) and other state and federal agencies to obtain permits for the ‘restoration’ project. None of these reports contained any reference to the toxic materials, and some even went so far as to claim that toxic material was no longer present.  Most critically, on 29 February 2016 Superintendent Muldoon signed a National Environmental Policy Act (NEPA) Categorical Exclusion Form, necessary to avoid full NEPA environmental impact studies.  It discusses  the presence of some 250,000 board feet of lumber contained in the old oyster racks without ever citing the results of the Environmental Site Assessment and the high levels of toxicity.

This information was withheld from documents submitted to the Corps of Engineers, as confirmed in their response to a FOIA request.  They stated that they received no documents on toxicity or significant changes impacting the project, both required by the permit. The ESA and toxic test results were not submitted in applications to any of the other permitting agencies.  It is clearly demonstrable that NPS willfully withheld critical documentation and ignored Federal and State disclosure requirements.

Whistleblower Filed Separate FOIA Requests With Multiple Agencies                    Whistleblower Matt Zugsberger, a contract employee hired for the underwater work on the restoration project, was fired when he complained that NPS and its contractors were not following safety requirements, were violating many of the contract conditions including the environmental safeguards and cheating him and other workers out of their rightful earnings.  These charges were substantiated by the Labor Department and OSHA and fines were levied against the contractor.

He submitted detailed complaints concerning NPS violations to other government agencies and made FOIA information requests to all the Federal agencies involved in his case.  Because of chemical injuries he received, he asked for specific information on toxic tests and disposal of the materials. It is now clear from comparing information provided to him by other agencies vs. information provided by NPS that their personnel were willfully withholding information requested  by both Zugsberger and the Russian River Times.

Importantly, the NPS continues in its failure to respond to many of the specific items in FOIA requests regarding the toxic material. Questions concerning the testing, handling and disposition  are still unanswered, which may prove significant considering Zugsberger’s claims that he heard discussions that the waste was being trucked to various sites including islands in the Sacramento Delta rather than to landfills licensed to accept it. He also claims that in conversations with truckers hauling the wood from the oyster racks they stated they did not need to comply with regulations for hauling toxic waste.

The Cost of Ideology Based Management by NPS                                                               What happens when NPS and other government agencies are allowed to function in an ideogical free-fire zone, believing their own noble mythology and accountable to no one to follow law, policy and procedures? Let’s ignore the very real expense of damage to the community, loss of jobs, loss of trust in government, withholding information and distorting public surveys and all the other damage they have done and just consider the taxpayer’s money that NPS has spent in Drakes Estero to make it ‘wilderness’.

Millions Spent With No Cost/Benefit Analysis                                                                         In addition to the $4.5 million spent on the current restoration fiasco, over the past decade NPS had already spent more millions on studies both by itself and other agencies like the National Academy of Sciences, DOI OIG investigations. It has spent large sums on various outside consultants, including a very expensive Environmental Impact Study on the future of the oyster farm. The EIS was abandoned before it was ever finalized, submitted to the EPA as required, subject to a 30 day comment period and requiring a Secretarial Record of Decision.

The Government Accounting Office recently reported to Congress that there is virtually no tracking of total EIS costs, such as staff time, legal expenses and such but notes that overall contractor payments on a complex EIS average some $6 million. Based on other similar government programs, it is an entirely reasonable guess that the all inclusive taxpayer costs to shut down the oyster farm could run between $20-30 million, plus the most recent $4.5 million for the single source/no bid Estero restoration contract.

NPS claims of damage from oyster sedimentation, harm to harbor seals, excessive noise and a sequence of other supposed harbingers of harm put forward as the necessity for removal of the oyster farm were all discredited and abandoned along with the multi million dollar EIS

What is the Current Justification for this Massive Expenditure?                                   The current justification seems to be ‘saving’ wilderness with eelgrass. Looking at the numbers, the NPS/California Coastal Commission, submitted as part of the project permit requirements, calculates the potential increase in the eel grass coverage to an amazing two decimal place accuracy at 1.31 acres.  National Academy of Sciences reports on the estero determined that in 2007, there were 740 acres of eel grass coverage in the estero, and it was healthy, having been increasing at rate of some 25 acres per year. In fact, eel grass coverage had doubled between 1991 and 2007 while the oyster farm was still in operation.

In statistical terms this means that the claimed potential effects of less than one fifth of a percent of increase in coverage will be overwhelmed by the natural annual change so impacts on the overall Estero environment will be so small as to be immeasurable.  Cost/Benefit analysis? Taxpayers millions spent by an agency that says it has budget issues, all in in pursuit of a myth of ‘wilderness’ which has virtually nothing to do with the preservation of the truly wild.

The Legacy of the Administration of NPS Superintendent Jarvis.                                        A pattern of behavior developed under Jon Jarvis, the disgraced former NPS director from 2009-2016.  When confronted, NPS goes through a cycle of dismissal, delay, denial and deceit.  The Jarvis legacy explains not only the decade of misconduct at Drake’s Estero, but the host of other NPS scandals including sexual harassment at the Grand Canyon and Yosemite, revealed at three congressional oversight hearings in 2015-16, the Effigy Indian Mound contracting scandal in Indiana and others.  Nor should we overlook Jarvis’ own book publishing scandal that lead to his removal from the role of NPS chief ethics officer.  All these were exposed during the Jarvis tenure, some of which had been covered up for years despite numerous responsible NPS employees risking their careers by submitting multiple complaints to NPS senior management and the Interior Department Inspector General.

How Could This Happen?                                                                                                                   If you want to understand how NPS management could let such events occur over and over again, the reasons are well documented in the recent book by former NPS investigator and life-long Park Service employee Paul Berkowitz.  It’s entitled ‘Legacy of the Yosemite Mafia: the Ranger Image and Noble Cause Corruption’.  You can read the National Parks Traveler review here:  https://www.nationalparkstraveler.org/review/2017/07%E2%80%8B/legacy-yosemite-mafia-ranger-image-and-noble-cause-corruption-national-park-service                                           NPS senior employees simply believe that they are above the law and their perception of the Park Service mission justifies behavior that violates law, policy and procedures in pursuit of ideological goals of their own choosing, not to mention while often benefitting themselves.

The Danger of NPS Myths.                                                                                                        Myths are dangerous, and can have expensive consequences   to our communities, far beyond just dollars.   President John F Kennedy put it best in his 1962 speech at the Yale University commencement:

The great enemy of the truth is very often not the lie—deliberate, contrived and dishonest, but the myth—persistent, persuasive and unrealistic.  Too often, we hold fast to the cliches of our forebears, We subject all facts to a prefabricated set of interpretations. We enjoy the comfort of opinion without the discomfort of thought.

Last week was the 54th anniversary of President Kennedy’s death.  With his telling words in mind, there are today dozens of Federal, State and local Departments, Agencies and Offices who need to ask themselves if it is safe and wise to ever trust the word of NPS management.  There are lots of very persistent and discomforting facts about NPS management and the culture that perpetuates them.  Key positions that oversee NPS such as the NPS Directorship and the Assistant Secretary for Fish, Wildlife and Parks lie vacant.  Secretary Zinke and the new administration need to appoint individuals who are capable and willing to forcefully address the pressing need to hold NPS and its management fully accountable to law, policy and procedures while serving equally and honestly all the groups and communities and visitors who share the wonderful heritage of our National Parks

 

Footnote;  The title of this piece is recycled from a decade old op-ed about filing FOIA’s and Data Quality Act requests about Drakes Estero.  Jon Jarvis, then head of NPS Western Region responsible for Point Reyes National Seashore, simply ignored them.

 

 

 

 

 

 

 

 

 

 

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National Park Service concealed high levels of toxic material in Drakes Estero project

Critical information withheld from US Army Corps of Engineers permit applications and NEPA documents.

There are new developments in the Russian River Times ongoing investigation of National Park Service (NPS) misconduct in Drakes Estero.

After their controversial decade-long battle to close a local oyster farm, NPS began a program to remove the historical oyster racks to achieve ‘wilderness.’ In late 2015, one of the first steps was to complete the Drakes Estero Restoration Project preliminary engineering studies.  Among other tasks, that study included testing removal methods for oyster rack pilings.

Engineering study and permit applications started with no toxicity tests                    At the same time, NPS also began to obtain required Clean Water Act and other permits from the US Army Corps of Engineers as well as approvals from other State and Federal agencies. While the permitting process unfolded, NPS then decided to commission an independent ‘Environmental Site Assessment Report’, whose purpose was to “…evaluate potential environmental liabilities.” The Report concluded that there were long term risks from extremely high concentrations of hazardous materials in the oyster rack’s structure which leach into sediments. This key report, heretofore unreleased, was not posted with other project documents on the NPS web site.  It was uncovered in a recent FOIA (Freedom of Information Act) request, as part of the RR Times coverage of multiple claims against NPS made by whistleblower Matt Zugsberger, working as the diver for a project subcontractor.

Results of toxicity test confirm whistleblower’s claims of exposure to toxics             In the past several months, Zugsberger’s claims, one-by-one, have been substantiated and upheld. His initial claims of safety and pay violations in the $4.5 million Drakes Estero ‘restoration’ project were upheld by the issuance of Occupational Safety and Health Administration (OSHA) citations against the NPS project and its contractors and a Labor Department ruling requiring shorted back wages to be paid.

The newly released NPS Report validates the whistleblower’s claims of toxic waste mismanagement which caused toxic material to be released into the Estero and caused Zugsberger to sustain chemical burns on his lower body. The Environmental Site Assessment report contains test results show very high levels of toxic wood preservative materials.   The results classify the oyster rack material as hazardous waste. The reported level of toxicity constitutes a ‘REC’ or… “Recognized Environmental Condition”, defined by the national standards for a Phase 1 Environmental Site Assessment as “…the presence or likely presence of any hazardous substances ior petroleum products in, on, or at a property (1) due to any release to the environment (2) under conditions indicative of a release to the environment or (3) under conditions that impose a material threat of future release to the environment.”

The report includes photographs of an NPS employee, (identified in the text of the report NPS Chief Scientist at Point Reyes, Dr. Ben Becker, who served as Project Manager) taking samples from the racks on 8 December 2016, as well as an image of the cresosote film on the surface of the water. Despite the same Environmental Site Assessment Report, Dr. Becker, in an NPS 25 January 2016 Environmental Screening Form for the project, ignored report findings and claimed to have run NOAA fisheries models that showed the oyster rack material was safe.

Park Superintendent signs critical NEPA filing: No mention of toxics                             A month later, NPS Seashore Superintendent, Cicely Muldoon, approved the 25 February 2016 NEPA Categorical Exclusion form in which reference to the toxic materials were excluded. This misleading NEPA document was submitted to US Army Corps of Engineers and other State and Federal agencies.  Records obtained from specific FOIA requests to the Corps reveal that NPS did not submit any reports documenting toxic material and failed to disclose their existence in the permit applications, as required by the permitting process.

NPS pattern of withholding critical data and hiding reports.                                        This type of NPS malfeasance repeats a pattern in Drakes Estero that has done huge economic damage not only to the local community, but has cost the taxpayers millions of dollars in ‘studies’, which, when they fail to support policy decisions, are suppressed. Prime examples of this irresponsible conduct can be found in the earlier RR Times coverage, including abandonment of a multi-million dollar Environmental Impact Statement which substituted sounds of souped up 2-stroke jet skis for 20 horsepower, 4-stroke outboards on the oyster boats and concealment of three years of exculpatory ‘hidden camera’ photographs which showed no seal disturbances or Marine Mammal Act violations by the oyster company, despite NPS fabricated claims to the contrary. The photos were withheld from a National Academy of Sciences investigation conducted at the request of Senator Feinstein, who was concerned about NPS misuse of science.

Some of the same NPS personnel who today suppress reports about toxic materials were previously censured in the findings of Secretarial-ordered investigation of concealment of secret spy cameras installed by Point Reyes staff. Then and now, NPS does not want the citizens of West Marin, the Bay Area, the State or the rest of the Nation to know what they are doing or how NPS is conducting itself.

NPS coverup of toxic dumping only revealed after  State of Arizona suit.                Concealment of illegal acts is unfortunately common at NPS. In 1985, divers discovered that worn out toxic lead acid batteries were routinely being dumped into the Colorado River water at Glen Canyon by Del Web employees, who were contracted to run the Glen Canyon marina. NPS finally put Del Web on notice in 1988. The matter was only resolved after word of the dumping leaked out and the Arizona State Attorney General filed civil and criminal charges, later settled by guilty pleas to a felony charge by Del Web corporation, and their successor ARA, along with combined fines of well over a million dollars.

Retired NPS investigator Paul Berkowitz, author of two books detailing NPS misconduct, revealed that State investigators documented claims of obstruction, lying, destroying evidence and pressuring subordinate staff by NPS management.

During its 2016 centennial year, NPS celebration was overshadowed by multiple Congressional Oversight hearings and other congressional inquiries on sexual harassment and toxic work environments.  In addition, revelations of widespread destruction of Indian artifacts in illegal construction projects were unearthed by PEER (Public Employees for Environmental Responsibility)  Together, these investigations documented a massive failure of NPS management under then-NPS Director Jon Jarvis, himself the subject of an ethics scandal.

Grand Canyon sexual harassment scandal first reported to NPS in 2004.                  NPS investigator Berkowitz, back in 2004 and again in 2006, was responsible for the first reports of the Grand Canyon sexual harassment and toxic work environments to senior NPS management and Department of the Interior Inspector General (IG) , detailing the need for a fully independent DOI investigation. In 2014 thirteen current and former NPS employees came forward and co-signed a complaint sent directly to the Secretary of the Interior.  The resulting IG investigation confirmed the claims and accusations which emboldened others in Yellowstone, Yosemite and Canaveral National Seashore to report litany of abuse, leading to 2016 hearings by the U.S. House Committee on Oversight and Government Reform that darkened the Park Centennial celebrations.

Is this time different?                                                                                                                       Matt Zugsberger, the whistleblower in the NPS Drakes Estero restoration project, followed the NPS chain of command with his complaints. He was immediately fired. As a result, he pursued the same course of action which led to the 2016 House Oversight hearings, taking his case directly to the Secretary of the Interior. The important point is that without whistleblowers like Zugsberger and the Grand Canyon 13, bringing matters to the attention of Congress and the public, there is virtually no hope of meaningful reform to a corrupt and dysfunctional NPS management.

Zugsberger charged NPS with safety violations and was upheld. He charged them with cheating worker pay and the Department of Labor upheld his claim. He also charged NPS with polluting Drakes Estero and mismanaging toxic materials. NPS documents now show that he was correct. It remains to be seen if his revelations and those of other NPS whistleblowers will finally have a lasting effect and eventually force Congress to save our National Parks from NPS corrupt, venial and profligate management.

Posted in Coastal Ecology, environmental regulation, Oyster Farm, Uncategorized | Tagged , , , , , , , , , | 1 Comment