More corruptive acts in the decade long battle to close the historic oyster farm in Drake’s Estero
The Russian River Times (RR Times) has obtained photographs and samples from the National Park Service (NPS) Drake’s Estero ‘Restoration’ project site where the toxic wood waste from the removal of the old oyster racks from the former oyster company were brought ashore. The photos and samples show gross violations of the conditions mandated for the NPS project approval by the U.S. Army Corps of Engineers (USACE) and other agencies. They also document a complete disregard for state and federal regulations governing the handling of toxic wood wastes, dredging bottom lands and a host of other environmental safeguards.
Concurrently, the NPS released over a thousand pages of documents that, when compared with documents submitted to obtain the project’s permits, show a disturbing pattern of a federal agency that believes it can do as it pleases and answers to no one, least of all the local community, the State of California, or the U.S. Army Corps of Engineers and is not reticent in bullying other agencies to get its way. In Point Reyes, NPS has a long history of selectively editing and withholding information from other agencies, not only its own material, but information received from other agencies prior to the start of a project. This is clearly shown in the recently released documents.
NPS knew of toxic materials prior to commencing project planning
On 29 November 2016, then-NPS Director, Jon Jarvis, was directed by the Interior Department’s Inspector General (IG) to investigate detailed complaints about worker safety, worker compensation and the improper containment of toxic material into Drake’s Estero. RR Times readers will recall that Jarvis, then Western Regional NPS Director, was the main NPS instigator in the battle to remove the oyster farm, dating back over a decade, which led to numerous investigations by, among others, National Academy of Sciences (NAS), the Interior Department’s Solicitor’s Office and Marine Mammal Commission (MMC), none of whom found the claimed harm from the Drake’s Estero oyster farm operation.
NPS documents and reports appended to the IG’s November memorandum to Jarvis reveal that NPS officials knew about the presence of toxic material in the oyster racks slated for removal from tests performed prior to the award of the restoration contract. According to Jack Williams, NPS Construction Management Representative for the Drake’s Estero project, NPS performed screening tests on the materials to be recovered, and determined that the material was hazardous, stating that “…arsenic, chromium and creosol (a toxic disinfectant component of creosote) were identified in NPS’s testing.”
Despite the tests showing the presence of toxic metals and creosote, the only mention in the NPS permit-application environmental documents submitted to USACE and others is a claim in the water-quality section of the February 2015 NPS EFS (Environmental Screening Form), which asserts that they ran a NMFS (National Marine Fisheries Service) computer program model showing that all of the toxics had leached out of the wood. It fails to state that actual tests were performed by NPS, contradicting the claims that there were no heavy metals or wood preservative in the oyster racks and pilings.
NPS knew of threats to fish habitat and steelhead and coho salmon
None of these threats are mentioned in their permit applications to USACE or consultations with NMFS. NPS committed to following BMPs (Best Management Practices) yet withheld from USACE and others that it knew of threats to water quality, essential fish habitat and endangered steelhead and coho salmon well before the start of the Drake’s Estero Restoration project.
In 2011, the DOI commissioned Atkins Inc. to peer review the NPS’ controversial DEIS (Draft Environmental Impact Report) on the Drake’s Estero special-use permit and the potential closure of the oyster farm. In it, the Atkins report clearly identifies the threats to EFH (Essential fish habitat) and endangered steelhead and coho salmon. These fish are extremely sensitive to toxicity from the material in oyster racks, pilings and surrounding sediment. The report notes that tests and permits would be required for the removal of the oyster racks and pilings.
The Atkins report made several recommendations including stating that “Review the scientific studies in NOAA Fisheries – Southwest Region (2009) to develop the same level of analytical detail presented for other water quality impacts in the DEIS. Conduct the detailed analytical approach in the ESA and EFH consultation efforts that are reported as underway for the DEIS and will be required for the U.S. Army Corps of Engineers (USACE) permitting process as noted in the DEIS” (emphasis added). The NPS committed to following the specified NOAA BMPs (Best Management Practices), including in its NEPA required Categorical Exclusion form submission to USACE, yet there is no indication that they did so, either in the removal of the toxic material from the Estero, control of sediment, or in its subsequent handling or disposal.
The NOAA report referenced by Atkins, ‘The Use of Treated Wood Products in Aquatic Environments’ is used by USACE and other permitting agencies as the guiding document for Best Management Practices (BMPs) It states that the NMFS leaching models that NPS cites, while useful, are not adequate without local site testing. More importantly, it shows that the toxic material can leach into the sediment, impacting areas over two meters from the wood. Most critically, it states in the Demolition BMPs’ section that sediments adjacent to the project should be analyzed. The NPS required conformance with BMPs, including specifically sediments, in its NEPA required Categorical Exclusion form submission to USACE
NPS eliminated environmental safeguards without approval
The project plans submitted by NPS to USACE and other called for lumber from the oyster racks and pilings to be placed directly into containers on the barge, and transferred to containers on land prior to shipment to a Class 1 landfill, eliminating any risk to groundwater, as specified in the contract. Instead, the contractor piled both treated lumber and dredged debris directly on the ground, in clear violation of State and Federal requirements. The USACE permit requires notification of any change in the project, the USACE states they have no record of allowing any such changes.
Unloading site for dredged material showing depressed area with sediment and crushed waste with piles of dredged wood fragments to the left of excavator. Compare with Press Democrat photo of operations, taken from hill behind estero to see location relative to the shore of the Estero (see link in following paragraph.)
The image shows water-saturated wood waste, along with other debris (stacked to the left of the excavator) allowed to drain directly onto the ground, then apparently crushed to reduce volume for shipping, practices banned by both Federal and State regulations. This has created a muddy, saucer-shaped depression covered with dredged sediment, fragments of wood and crushed plastic tubes. The area covered is almost an acre, only a few feet from the shores of the Estero. A 12 April 2017 photo from the Santa Rosa Press Democrat website, taken during operations, shows water draining from the saturated toxic wood waste in the dark pile on the right of the image, ponding in the depression and draining towards the Estero. http://www.pressdemocrat.com/news/6876346-181/drakes-estero-cleanup-in-point?artslide=0
Federal and State rules and regulations, included in the NPS permit-applications material, place strict requirements for handling, storing and shipping toxic material, including storage only on impervious barriers, protection from weather and proper collection and disposal. In addition, the material must be reported and tracked in an unbroken chain of custody from origin to ultimate disposal. The RR Times has not yet been able to determine whether required testing was performed, has not yet obtained the shipping and disposal records, nor determined whether such mandated records and documents were even kept.
NPS changed contract, abandons waste disposal supervision
On 13 July, Jack Williams , mentioned above for his statement about the presence of toxics, states: “We should discuss the ‘Debris Removal’ bid prior to our meeting with the Contractor Pre-con. As currently awarded, we will need a mechanism to track hours or there could be future debates and potential for claims.” Jason Longshore, contract officer replies: “Also, to follow up on the debris removal, we can easily change that to a lump sum if that helps the process. It is a firm fixed-price contract, so regardless of quantities, they are owed that much.” The contract change on the $1.29 million line item was signed by the prime contractor, T.L. Petersen on 16 Dec 2016, months after debris removal began.
Contract specifications contradict permit environmental documentation
The restoration contract, which was not submitted with the permit application documents also contains the only specific reference to the toxic nature of the wood waste. As previously discussed the presence of toxic metal is not mentioned in any of the environmental documents submitted in permit applications. The contract contradicts the permit applications and states that, as part of an earlier report, “ samples were taken from rack materials and 6 of the 7 samples showed positive for creosote. The demolished material will need to be taken to a Class 1 landfill.”(emphasis added)
NPS makes misleading and non-credible statements to ABC TV Channel 7
In a recent statement to ABC Channel 7 TV in San Francisco, the Park Service spokesman, responding to whistleblower claims of OSHA safety violations and environmental problems, stated that “the contractor corrected these findings immediately. OSHA did not make any findings with respect to the handling and disposal of treated lumber,” adding that “all methods relating to the project work were permitted and approved by regulatory agencies.” This statement is an attempt to mislead, as OSHA does not regulate toxic waste disposal. The statement about permitting defies credulity as, for example, NPS own photos show many of the violations, including toxic material placed on unprotected soil in clear violation of federal Resource Conservation and Recovery Act regulations as well as California Department of Toxic Substance Control regulations.
NPS has also stalled for months on its response to the DOI IG. In the previously mentioned 29 Nov memorandum to then NPS Director Jarvis, the DOI, after a cursory examination of a detailed complaint that made serious accusations regarding worker safety and environmental protection, turned the investigation back to NPS to investigate itself. The memorandum states that the NPS official assigned to investigate this matter should complete and return an Accountability form within 90 days of the receipt of the 29 Nov Memorandum. It is now well over five months since the memorandum was issued. The whistleblower was told that in discussions with the IG investigator that NPS has so far refused to comply, despite multiple requests.
Defer, Delay, Deny, Misdirect and Bury