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.

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Health Care and the Economy: 2007 Revisited

Nearly a decade ago, the Russian River Times published an article on health care, which we have re-published below, in which we looked at the state of US health care using facts and analysis from The World Economic Forum, CRS Report to Congress ‘US Health Care Spending: Comparison with Other OEDC Countries’ and references from a 2005 article in ‘Health Affairs’ entitled ‘Illness and Injury as Contributors to Bankruptcy’.   Then Harvard Professor, now Senator Elizabeth Warren was one of the authors.   Keep in mind that this article was written at the same time as the sub-prime mortgage debacle and the start of the ‘Great Recession of 2008’.  Now, Congress is juggling something that impacts even more people and as much as 16.6% of Gross Domestic Product with little if any consideration of the facts and history, which we can look at thanks to the Kaiser Foundation.  Medical Bankruptcies?  Pre- Existing Conditions?  Unrestrained insurance companies? What can possibly go wrong?  Here’s the article.

Author: John Hulls

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OH, CANADA:  Medical bankruptcy affect 2 million people per year in US…in Canada… ZERO

Do health care and banking statistics describe our government? The World Economic Forum Competitive Report assesses the twelve critical factors influencing business, ranging from quality of government, education, infrastructure, and health to finance, including bank stability. The stability table lists Canada first, the U.S. in 40th place, tied with Lithuania, Botswana and, surprisingly, Germany. In life expectancy, Canada ranks 5th, while the US ranks 29th.  Does this mean that there is a direct correlation between the quality of a country’s banking system and the quality of its citizen’s health care? Maybe, but consider the stats on education and other factors that improve the citizen well being and you find solid indications that a country that runs its banking, educational and financial systems in a stable manner to benefit its individual rather than corporate citizens is more likely to produce an effective health care plan that gives greater longevity and better health outcomes at lower cost.

Another major source of information on the health care issue is the Congressional Research Service 2007 report for Congress entitled ‘U.S. health-care costs: Comparisons with other OECD Countries.’ It is clear that participants at the recent ‘town hall’ meetings, (including some members of Congress) have not familiarized themselves with the information in this document, an impartial comparison of the current U.S. system. Most striking is Figure 1 on p.3, showing the relative spending of each country, and how much is public vs. private: 44.7% of health care costs in the U.S. are federally funded, vs. 69.8% in Canada. Figure 1 shows the huge percentage of costs associated with private payments in the United States. Figure 20, equally graphically shows why. The U.S. is second on health administration and insurance costs per capita at well over four times the OECD average of $104, and dwarfs the Canadian costs of $131.

Perhaps the anti-health-reform town hall participants can identify at which point the level of federal expenditures justifies scribbling Hitler mustaches on pictures of national leaders, or Grassley and his fellow Republicans could point out where 44.7% federal health funding (U.S.) and 69.8% (Canada), the whole thing breaks down and becomes socialism and Marxism. The problem is not Granny getting unplugged by the federal government but getting Moms and Dads and children getting plugged into good health care. The most telling statistic? People and their dependents forced into bankruptcy by medical costs.

Canada-0, Great Britain–0, Japan-0 France-0 (the list goes on)

United States- 2 million per year, including 700,000 children.

Want to know how well private insurance worked? 75% of the people filing bankruptcy had health insurance at the start of the illness that caused the bankruptcy. The Harvard Medical School article, published in Health Affairs cites the early Romans law allowing creditors to sell debtors piece by piece in the public market if they couldn’t pay their bills. Our government seems to have dropped this idea for Wall Street and the financial community, perhaps the cause of our lousy bank-stability rating, while keeping laws almost as harsh for its citizens struck by catastrophic illness.

Health admin and ins. costs

Health Care Spending per capita 2004

 

 

 

 

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A Decade of NPS Deceit in Drake’s Estero

The value of local news….

A decade of NPS history just repeated itself in Drake’s Estero, and unless Interior Secretary Zinke takes decisive action to root out the entire toxic NPS management culture, we can look forward to a further decade of cover-ups, ethics scandals, sexual harassment and an agency that considers itself above the law and accountable to no one, least of all our local community. Asked to editorialize on the RR Times reporting on NPS and Drakes Estero, I recalled the circumstance when we wrote the “About” page for the then-new website. Tess Elliot, editor of the local Point Reyes Light, wrote a 2009 article for the Nation entitled ‘Scientific Integrity Lost on America’s Parks’ documenting why the Interior Secretary needed to clean up the NPS mess surrounding new National Park Service Director, Jon Jarvis, then poised for Senate approval. The article detailed how Jarvis, in his role as head of NPS Pacific West region had lied to local government and “demonstrated contempt for “truth, transparency and scientific integrity”.

Years later, here the community is again, with a new Secretary of the Interior, awaiting the appointment and Senate approval of a new NPS chief. Last time, the NPS old boy’s club PR machine and beltway politicking overcame objections to Jarvis, an already flawed candidate. Who will Zinke turn to for his sources of information this time? Many people responded to Elliot’s ‘Nation’ article, including our RRT editor who wrote about the role of the local press. “We provide an absolutely critical journalistic function, especially when reporting on local stories that have direct relationship to national issues. Reporting on the concerns of local citizenry, local papers have the luxury of continuing to report on an issue. As editor, I get immediate feedback about the real concerns of my readers–at the post office, at the grocery store and when I deliver papers (admittedly a less glamorous aspect of the rural editor’s job). Continued local concern enables us to cover issues in great detail and over time in a manner simply not possible in the major daily press.”

While NPS scandals were hot topics last year, the ever-shrinking news cycle hides the true arc of the story. Local papers create an important record by covering stories like Drakes Estero over its entire history, from the first revelations to the last oyster harvested in December of 2014 and the subsequent NPS behavior, not only for their own communities but to define a history founded in reality rather than soundbites. The first revelation: NPS was deliberately misleading the community, distorting science and rewriting history to support an entirely ideologically-based  attack designed to cast a well-respected local family, the Lunnys, as environmental criminals and remove their historic Drake’s Bay Oyster Company (DBOC). Over a decade, I have documented the NPS lies, both sins of commission and omission. In many ways, what happened is a microcosm of reasons the Federal government and its agencies have eroded so much of the public trust.

It is axiomatic to a functioning democracy that citizens must be able to trust that government employees, from Washington on down, will speak the truth and follow the law, policy and procedures that govern their jobs. That didn’t happen for the citizens of West Marin. In February of 2006, Don Neubacher, then Superintendent for Point Reyes National Seashore, told the local Press that Congress prevented him from renewing the lease for Drakes Bay Oyster Company. Not true, just the first of more than a decade of lies, documented first with the Point Reyes Light, where I was a columnist, later with the Russian River Times. You may recall Neubacher’s sudden resignation from NPS following last year’s congressional hearings on hostile workplaces and sexual harassment. Retired NPS director Jon Jarvis, disgraced in his own NPS ethics scandal, was also a key player in the smearing of the Lunny family.

NPS vs. the oyster farm and the community.  

In 2006-2007, one of the first revelations was that Point Reyes National Seashore scientists had knowingly misrepresented a US Geographic Service scientist, claiming that his research showed the oyster farm to be the major cause of sediment in the Estero. I wrote a column for the Point Reyes Light entitled “They are Either FOIA or against YA,” essentially accusing the NPS of deliberate lies. Before doing so, I called Dr. Brian Scrag,  now retired, of the Poynter Center for the Ethics and American Institutions at Indiana University, an expert on ethics in institutions and research. The Institute was founded with a grant from famed newspaper man Nelson Poynter, who endowed the Institute to study the causes for declining public trust in government and societal structures.

I asked Dr. Schrag, in light of NPS’ failure to comply with FOIA and Data Quality Act, if it was reasonable, based on my reporting experiences so far, to expect Department of the Interior and Congressional oversight committees to force the Department of the Interior and the NPS to follow their own rules, regulations and scientific procedures. Asked for a quote for my 2007 article, he stated: “Some have charged that under the current administration government scientific research has become politicized. What is worrisome, if that happens, is that the normal checks and balances of scientific research can be compromised.” The claims of NPS’ scientists lying about research in Drakes Estero were confirmed by DOI Inspector Devaney’s October 2008 Semi-Annual Report to Congress, where the section on the National Park Service was entitled, “NPS Scientist Misrepresents Research.” Under Jarvis, the NPS promoted that scientist to a senior position overseeing marine research.

A most damaging lie was the claim first made to a May 2007 meeting of the Marin County Board of Supervisors by Don Neubacher, former Point Reyes Seashore superintendent and key player in the Yosemite scandal, that DBOC was causing a massive loss of hundreds of seal pups. This was patently untrue, and attempts to erase this lie show the Jarvis administration obsession with wiping out all memory of the oyster farm. A secret camera program, designed to ‘prove’ seal harm from DBOC, showed the exact opposite and was hidden from the DOI IG, the National Academy of Sciences and the Marine Mammal Commission. After being caught with the secret photos, NPS claimed that an independent scientists’ retained by NPS to review of the previously concealed photographic evidence concluded oyster boats caused seal disturbances.  But in 2015, Newsweek reporter Michael Ames revealed that the scientists’ report was altered to show that disturbances had been caused by the oyster boats

It is worth quoting a few lines directly from Ames report: “In 2012, with the end of the farm’s lease approaching, the DOI ordered the USGS to complete a definitive study of the seal photographs. Stewart, a respected 37-year veteran in the field, was called in as an independent authority to determine whether the photos were sufficient for scientific research and whether, after years of internal recrimination at DOI and the Park Service over the issue, DBOC boats had disturbed the creatures. On May 3, 2012, Stewart filed his reports, determining there were no disturbances attributable to the oyster farm’s boats. (There was one case, however, where a curious kayaker caused several seals to flush into the water.) But when the USGS published its final report that November, Stewart discovered that his findings had been altered and that the study reached conclusions his research directly contradicted. “It’s clear that what I provided to them and what they produced were different conclusions and different values,” says Stewart. “In science, you shouldn’t do that.”  Lacking any respect for the law and ethics, NPS included the false data in documents provided to Department of Justice lawyers, who quoted it in their arguments against DBOC in the federal court case. The Jarvis/NPS pattern of withholding information, altering reports and editing history to cover lies and falsehoods is pervasive.

The Russian River Times thought that the oyster-farm story was over until a whistleblower  contacted the paper revealing serious environmental, safety and payroll violations in the 2016/17 $4 million dollar Estero Restoration project. A FOIA request confirmed that the NPS had withheld information on toxic waste from permitting agencies and flagrantly violated regulations on handling toxic material. The FOIA material revealed that Jarvis had received a Nov 29, 2017 DOI OIG memorandum that showed, among other significant issues, that NPS had classified the waste to be removed in the Estero as toxic, containing heavy metals. It also stated that the whistleblower had followed the correct protocols in his complaint regarding salary and safety, both upheld subsequently by the Department of Labor, and OSHA.  The DOI memo returned the investigation to NPS control, giving it 90 days to complete its investigation and respond to the IG. The deadline was the end of February, yet as of mid-April, a DOI IG investigator in contact with the whistleblower claimed that NPS had yet to respond. If the Department of the Interior can’t get a straight story from NPS, what chance does the victim of an NPS smear campaign to get a response from NPS?

This NPS behavior was very much evident in Drakes Estero. In 2007, after a meeting between Senator Feinstein, local officials, Mary Bomar, (then NPS director), Kevin Lunny  and others, the NPS was forced to withdraw a report on Drakes Estero because of scientific error.  This meeting lead to a 2009, National Academy of Science report on NPS scientific  studies which stated  “NPS selectively presented, over-interpreted, or misrepresented the available (as of 2007) scientific information on potential impacts of the oyster mariculture operation” and essentially denied all Jarvis’ (then NPS regional director)  claims of significant harm from DBOC. Jarvis initially said that ‘mistakes had been made’ and also  claimed that the NAS report would be used to improve management.’  Instead he made statements to the Press that essentially reinstated all of the claims. DBOC’s Kevin Lunny wrote two letters to Jarvis, asking that he define the unidentified ‘mistakes’ in the first report, and after Jarvis reinstatement of the falsehoods, a second Dec 31, 2009 letter pointing out the falsehoods in Jarvis actions and demanding an explanation.  The Russian River Times has obtained Lunny’s permission to publish both letters.

Jarvis and NPS have, to date, ignored the OIG’s 29 Nov 2016 IG memorandum, ironically addressed to Jarvis shortly before his resignation from NPS. A pattern emerges, as if from a hidden NPS playbook designed to attack and destroy, rather than correct and resolve. The Park Service never responded and never retracted their claims that Lunny was an environmental criminal who caused the death of seal pups and threatened the Estero itself. Reading the letters, one can imagine how they felt under this onslaught, especially when Lunny recalls Neubacher and the NPS’ lawyer’s  comments to him that “the Park Service pays for our attorneys.” In an recent RRT article I referred to the Jarvis’/NPS’ strategy of ‘Defer, Delay, Deny, Misdirect and Bury’ at last year’s Congressional hearings, which commented on multiple appearances by senior NPS officials with little or no evidence of change.

What happened in Drakes Estero prevails throughout NPS, given the long list of scandals breaking into the national news from Yosemite to Yellowstone, Canaveral to the Grand Canyon and elsewhere.  It will continue unless DOI imposes a complete housecleaning of the NPS inbred, closed culture.  It speaks volumes about the NPS’ ‘good old boy’ network, as commented upon in the Southern Utah/St. George Independent, that John Reynolds, father of the current acting NPS chief Mike Reynolds, was the official who gave Jarvis his first park superintendent job. New DOI chief Zinke should understand that the problems of sexual harassment, bogus science and a hostile workplace are not isolated problems but result directly from a culture that holds itself unique, unaccountable and above the law.

Consider the complaint of sexual harassment in the Grand Canyon, one of the subjects of last year’s congressional hearings, first reported to the DOI IG in 2004, as documented in former NPS Special Investigator Paul Berkowitz latest book on the NPS which also cites a 2003 statement by then DOI IG Earl Devaney: “Mr. Chairman, and members of the Committee, I have served in the Federal Government for a little over 32 years, and I have never seen an organization more unwilling to accept constructive criticism or embrace new ideas than the National Park Service. Their culture is to fight fiercely to protect the status quo and reject any idea that is not their own.” Secretary Zinke, the Russian River Times wishes you every success in restoring the nationwide damage NPS management has done to what famed conservationist and writer Wallace Stegner called “America’s Best Idea”

Written by Russian River Times contributing editor John Hulls

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NPS to the Lunny Family: We don’t have to tell you anything

The Russian River Times posted these letters with permission from the Lunny family and are referenced in the subsequent editorial. We are looking at this type of post in conjunction with our other reporting as a way to  use the web to show directly how news can impact our local residents. Sometimes it is best to give space to the voices of the people impacted by government actions to tell the tale. These two letters serve as a valuable example of how some government agencies, in their arrogance, ignore law, policy, procedure and facts yet feel they have no need to even respond to the citizens whose life they impact. Continue reading

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