Drakes Estero project sparked investigations

06/29/2017

Numerous allegations made by a former employee tasked with helping remove the aquaculture debris and defunct oyster racks from Drakes Estero led the Department of the Interior’s Office of the Inspector General late last year to request the National Park Service to investigate the project.

Though the status of that probe is unclear, hundreds of pages of documents and private emails obtained through the Freedom of Information Act and passed along to the Light show that the park service steadfastly pushed back against the findings of another federal investigation—by the Department of Labor—into claims made by the diver, Matt Zugsberger, whose allegations center on the rate at which he was paid, the project’s safety protocols and environmental mitigation measures.

Documents show that the Labor Department found that the park and its contractors significantly mischaracterized and undercompensated Mr. Zugsberger’s work—and also that the department reversed its finding multiple times. Those reversals were made amid strong pressure from the park and the companies hired to complete the restoration project, T.L. Peterson and a subcontractor, Galindo Construction.

In March, the Department of Labor notified the park service and contractors that Mr. Zugsberger—who was fired from the job last November—must be paid roughly $20,000 in back wages. But it appears that the department later determined that the amount was too high, as Galindo wrote Mr. Zugsberger a check for just $6,000 this month and told the Light that this action had closed the investigation.

Though there may be no big win for Mr. Zugsberger, the investigations he prompted shed light on another problematic aspect of the Drakes Estero project: the disposal of the wooden racks that Mr. Zugsberger and his former coworkers dragged out of the waters.

The FOIA documents reveal troubling discrepancies in how the park service categorized the safety of the racks. In its private contract with T.L. Peterson, the park said lumber from the racks was contaminated with chemicals and required disposal at a “class I” landfill. Indeed, the contract allotted well over $1 million for the disposal.

Yet this newspaper found that the majority of the debris was taken to Redwood and Altamont Landfills, neither of which is a class I landfill facility. And even as park officials elsewhere claimed that all chemicals had leached out of the wood, Mr. Zugsberger reported that exposure to the lumber—which he helped pull up from the estero floor—left him with lasting burns.

The park service has not responded to numerous requests to comment on, or even confirm, an investigation into Mr. Zugsberger’s claims.

 

The rack removal

The Drakes Estero Restoration Project, slated for completion in March but finished in late May, was a $4 million endeavor to remove racks and other remnants from Drakes Bay Oyster Company, which was shuttered in 2014 after a legal battle with the federal government.

Drakes Estero, the confluence of five branching bays that opens to the Pacific, will soon be accessible to the public after nearly a year of weekly closures. The access road was opened late last month and water access to the estero will resume on June 30, following the annual closure for the harbor seal pupping season.

The park said the restoration project would entail using a mechanical excavator to remove five miles of racks weighing around 477 tons. The estero floor would also be dredged in order to remove bags, loose oysters, plastic gear and other debris.

In the end, the amount of debris removed was far greater: a whopping 1,900 tons, according to park spokesman John Golda. Of that, 600 tons were associated with the oyster racks themselves. Additionally, 2.3 acres were dredged, rather than the projected 1.5 acres.

The environmental guidelines for the project were outlined in the park’s National Environmental Policy Act categorical exclusion form, which evaluated the environmental and related social and economic effects of the plan. (This form is prepared to show that the project will not have a significant effect, and therefore does not require the more intensive preparation of an environmental impact statement or and environmental assessment.)

Nevertheless, the form stated that a variety of environmental mitigation measures would be taken, including minimizing impacts to eelgrass by using low-impact methods and equipment, as well as by not placing anchors near eelgrass and by working through the night when photosynthesis was not occurring. 

Other mitigation measures included maintaining a 100-yard distance from harbor seals, maintaining a spill response plan to preserve water quality and avoiding knocking the estero’s most pervasive invasive species, tunicate Didemnum, into the water. 

 

Divers’ allegations

Mr. Zugsberger, an experienced commercial diver and Upperlake resident, was hired to pull up wood and debris by hand from the estero floor, often bringing large quantities back up to a floating barge.

He worked from last August, when the project commenced, until he was fired on Nov. 14 by Galindo Construction. (Galindo subcontracted with T.L. Peterson, a Red Bluff company that has completed many projects for the park service in the past.) 

Mr. Zugsberger told the Light that when he took the job, he had assumed he would be paid as a diver—at a rate of $119 an hour—but pay stubs confirm that he was paid $46.80 per hour as a “group 7 laborer,” a type of construction worker classified under the Davis-Bacon Act. Yet the Occupational Safety and Health Administration definition for a diver includes using an air tank, which Mr. Zugsberger did for just one day, and was paid as a diver for that day.

He argues, however, he should have been paid as a diver every day, because he was free diving underwater and entering a “hyperbaric” state, or under pressure greater than that in the atmosphere.

A labor union that represents marine workers supported his argument in a letter to the Department of Labor written after the union’s president, Jim Johansen, visited the project site in late October last year.

Mr. Zugsberger believes he was terminated in retaliation for his complaints, though the Labor Department determined that he did not meet the requirements for its whistleblower protection program and Galindo has since obtained a restraining order against him over alleged threats he made to people working at the job site. 

 

Findings and reversals

Mr. Zugsberger is unable to comment due to ongoing litigation, but documents show that the Labor Department concurred in March that he should have been paid as a diver. Yet it reversed that decision several times, once finding that he should have been paid as a “pile driver”—a position involved in installing and removing piles driven into the ground and that earns between what a laborer and diver make—and once finding that the laborer’s wage was appropriate.

But on March 7, the Labor Department ordered that Mr. Zugsberger be paid roughly $20,000. In a letter to the park and the two contractors, the department said that $27,894 should be withheld from T.L. Peterson for payment to Mr. Zugsberger and another employee who worked with him in the water. (This employee was not involved in the allegation process and was not interviewed for this story.) 

Based on the amount owed, the Light concluded that Mr. Zugsberger’s pay had been upgraded to a diver’s wage and the other employee’s pay to a pile driver’s wage.

Yet ultimately, Mr. Zugsberger was paid on June 2 by Galindo Construction to make up the difference between the laborer’s rate he was paid, and that of a pile driver: $6,000. The employee who worked with Mr. Zugsberger and then replaced him once he left was also paid back wages, likely also to meet a pile driver’s rate.   

It’s unclear what changed the Department of Labor’s course, but the last document included in the batch of FOIA documents, from March 29, gives a clue. That document, a threatening email from Jason Longshore, the contracting officer for the park service, to the Labor Department investigator, reveals that the department retracted its March 7 order, then flip-flopped back to an order that Mr. Longshore disliked. 

“I guess I am baffled on you[r] recent decision to again reverse course on direction associated with wage rates at Drake’s Bay,” Mr. Longshore wrote to the investigator. “I assume the appeal process will take place.” (The park and two contractors are allowed to appeal the decision to an administrative review panel of the Labor Department.)

Mr. Longshore concluded the email, “In addition, I believe that the [Labor Department] has not conducted this investigation with any integrity or in an efficient manner. I will be reaching out to the [Inspector General] for guidance to determine if the [Labor Department] has followed proper procedures and request an audit of this case.”

Other documents show that the park service and both contractors pushed back repeatedly against the Labor Department, reinforcing that they had assigned him the correct rate of pay.

“The prime contractor and the park service had confirmed that his wage rate was a laborer and so we stood by that,” Lisa Galindo, the president of Galindo Construction, said. “We had to comply with the Labor Department’s ruling, but we disagree with it.”

Two park service officials in particular were in the hot seat during the Labor Department investigation: the project manager, Jack Williams, and Mr. Longshore, the contracting officer. Department interviews, emails between the two and other park officials, minutes from project meetings and other documents show both confirming that they had been investigating the issue since Mr. Zugsberger submitted complaints in October. They both continually argued he had been paid the correct rate.

The park service also faced pressure from the contractors not to raise Mr. Zugsberger’s pay rate. On Dec. 27, Mr. Williams described T.L. Peterson’s discontent with the possibility of raising the rate in an email to Mr. Longshore, citing that the project engineer “was very vocal about the [Labor Department] wage rate issue this morning…. He said it would be bad precedent for using pile driver deckhand classification. Also said the job was not bid at those rates.”

In subsequent emails, Mr. Williams and other park officials repeated the idea that changing the rate could “set a bad precedent.” 

Mr. Zugsberger explained the stakes in a conversation with the Light in February. “This isn’t just about this job at this point. That’s what no one seems to understand. If the [Department of Labor decides that Galindo was correct in paying me as a laborer, for] every diver in Northern California, their employers [could] technically force them to free dive and only pay them a laborer’s rate.”

What else was at stake? Had Mr. Zugsberger been improperly paid, the contract would need to have been amended to describe his duties as “marine construction” rather than “demolition.” That would have likely affected the wages of one other worker during the time Mr. Zugsberger was employed. The change would not have been drastic, nor profoundly expensive, but it would have required an admission that the contract was written incorrectly and that Mr. Zugsberger’s allegations were valid.

Interestingly, the park paid for a diving company after Mr. Zugsberger’s termination, though it was at a later stage of the project. Ms. Galindo seemed to think the use of divers had always been outlined in the scope of the work, just later on in the project’s timeline. Yet private documents reveal that the work contract was negotiated after Mr. Zugsberger was fired, and that M & M Diving contacted the park because its owner had a personal feud with Mr. Zugsberger. 

Delays on mandate to investigate

The delay in the Labor Department’s investigation, which began in October and concluded this month, appears to have delayed the park’s response to the Inspector General of the Interior Department, which gave the park 90 days to report back on Mr. Zugsberger’s allegations.

On Nov. 29, an Interior Department memorandum requested that the park service investigate Mr. Zugsberger’s labor and safety allegations. The memo was addressed to then-Director Jon Jarvis—who retired in early January—and stated that its Office of Inspector General “evaluated the information received from [Mr.] Zugsberger and determined he had followed the appropriate protocol, by reporting his wage rate concerns to Department of Labor and his safety concerns to OSHA.”

It continued, “Given the potential liability of NPS, on safety issues, the [Office of Inspector General] requests a response from NPS.” The park was tasked with accounting for the OSHA violation allegations directly with OSHA and documenting how the allegations would be addressed or why they were invalid. It was also required to provide supporting documentation to support Mr. Zugsberger’s pay and, if he wasn’t paid correctly, to “provide this office with documentation to show the appropriate wages were paid.”

Minutes from a meeting on the rack removal project dated Jan. 17 state that Mr. Longshore requested an extension due to delays in a final Labor Department decision. It is the most recent mention of an extension that the Light has. 

 

Safety violations

Galindo Construction was cited with at least nine violations after OSHA inspected the site last November in response to Mr. Zugsberger’s concerns about safety protocols. The violations included two pertaining to diving specifically: that Galindo “failed to provide the support of a dive team when an employee was conducting commercial diving activities. The employee was exposed to suffocation hazards.”

 The other detailed how Galindo had not conducted proper safety protocol prior to a diving operation; others revealed the lack of a bathroom on the barge (workers presumably used the estero), the absence of a guardrail on the barge, a lack of proper gear such as lifejackets and worker exposure to impalement hazards posed by pressurized, treated lumber containing nails.

Galindo was not fined because the violations were not determined to be willful. But they were deemed “serious,” meaning there “is a substantial probability that death or serious physical harm could result from a condition which exists,” according to OSHA standards.

According to Ms. Galindo, OSHA has since withdrawn the two citations pertaining to diving, and the public record indicates there was an informal settlement. Mr. Zugsberger believes the agency—as well as the Labor Department’s wage and hour division and whistleblower protection program—mishandled the case, and that his latest FOIA request may reveal more of the story.

 

Environmental allegations

In a letter to the Interior Department in January, Mr. Zugsberger claimed that contractors had not taken the environmental precautions stipulated in the park’s categorical exclusion form for the project. These included measures meant to protect harbor seals and eelgrass and limit the spread of an invasive tunicate.

The implications could be significant. The disturbance of harbor seals, damage to eelgrass and spread of the tunicate were cited in the park’s environmental impact statement on the oyster farm, which determined that the company was adversely impacting Drakes Estero.

In a previous conversation with the Light, Melanie Gunn, a seashore spokeswoman, defended the work, saying the park had been “onsite at Drakes Estero on a regular basis since the beginning of the restoration project to ensure compliance with permits and contracted scope of work.”

Several other agencies, including the Environmental Protection Agency, the National Marine Fisheries Service and the Regional Water Quality Control Board, met at Drakes Estero on Dec. 29 in response to Mr. Zugsberger’s complaints. Fred Hetzel, who oversaw the project for the water board, said at that time that they found nothing of concern and that the park was “doing better than expected.” The fisheries service directed questions about the project to the park, and the E.P.A. said the agency was there to provide dredging expertise in an advisory capacity to the water board, and therefore could not comment.

None of the agencies have revisited the site since then. Mr. Hetzel said that he has not yet received a final project report from the park.

 

Disposal of the wood

The chemical burns that Mr. Zugsberger reported to the Interior Department raised another set of environmental allegations.

The park’s contract with T.L. Peterson specifies that the wood waste was toxic and had to be hauled to a landfill authorized to dispose of class I waste—the highest classification of hazardous waste. 

Documents confirm that at least some park officials knew this to be true. Mr. Williams, the project manager, told the Labor Department that “NPS had performed a test of materials prior to [awarding the contract to T.L. Peterson] and determined the material was hazardous.” He stated that arsenic, chromium, and creosol were identified in the testing.

But Mr. Zugsberger said that when he reported the chemical burns, “both Galindo and the park said they had run models that showed all the toxins had leached out of the wood,” according to the Russian River Times, which has closely followed the story.

Furthermore, the park’s categorical exclusion form did not mention toxic wood waste or the need to dispose of it in a class 1 landfill. The form states that a total of 500 tons of aquaculture and marine debris would be removed, and that the park ran a National Marine Fisheries Service computer program model showing that all of the toxics had leached out of the wood.

Had the wood been listed as hazardous, the park would very likely have been compelled to undesrgo a more extensive permitting process.

The park’s webpage on the project recently noted that “recent testing showed the wood still held toxic materials (arsenic, zinc, copper, and a creosote-like substance), therefore this debris must go to a hazardous waste facility.”

Finally, and perhaps most perplexing, the park’s webpage for the project states that “the majority of the pressure treated wood and debris” was sent to Altamont Landfill, which it describes as class I. Park spokesman John Dell’Osso wrote in an email to the Light last week that 494 tons of wood debris went to Altamont and 1,254 tons went to Redwood, accounting for the vast majority of the waste.  

But Altamont, which is run by Waste Management, is not a class I landfill, but a class II landfill. Though it can accept some class I waste, including treated wood waste, the difference in classification is significant: class I offers the highest level of security for hazardous waste and can therefore be more expensive. The park’s contract lists the disposal of the waste as costing $1,299,000, out of the total $4 million for the project. 

Reached by phone last week, a representative for Waste Management said waste from Drakes Estero had been accepted at both Redwood and Altamont Landfills, but that it had been class II and III waste, listed as “rack material” and “oysters.” The representative said that T.L. Peterson had estimated that it was 600 tons before bringing it in, but she could not confirm the amount that was actually dropped off at the landfills.

Though the Light could not access the shipping information from T.L. Peterson before print time, the disposal of any of the wood waste at landfills that are not class I violates the stipulations of the contract between T.L. Peterson and the park service.