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’?
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.
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’.
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.