A diver who worked for the company clearing out the remains of Drakes Bay Oyster Company has made serious allegations against both the company and the National Park Service concerning his payment, the job’s safety protocol, the project’s environmental impacts and more. Meanwhile, several agencies overseeing the rack removal project are pushing back against the allegations and the company hired to do the work has questioned the credibility of the diver, who was fired after filing his complaints.
Matthew Zugsberger, a former marine and professional diver who lives in Upperlake, sent a letter last month to the United States Department of the Interior and the National Park Foundation detailing his complaints. The letter, which followed up on an initial complaint filed in October, asked the Interior Department to conduct a comprehensive investigation.
It also recommended that all work be halted at Drakes Estero until proper health and site-specific training is undertaken and safety and environmental standards are established.
Yet the president of the company that hired him, Galindo Construction, questioned Mr. Zugsberger’s credibility. Reached by phone last month, Lisa Galindo called him a “liar” and urged the Light to “dig very deeply” into his allegations. She would not comment further, saying she was instructed to direct press calls to the park service.
In a statement, the outreach coordinator for the Point Reyes National Seashore, Melanie Gunn, said 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.”
She said staff from several other agencies, including the Environmental Protection Agency, the National Marine Fisheries Service and the Regional Water Quality Control Board, had also reviewed the operation. The fisheries service and the water board are among a host of agencies that issued permits for the rack removal project and which are involved in ongoing review and monitoring regarding its effects.
Fred Hetzel, who is overseeing the project for the water board, said representatives from the three agencies met at Drakes Estero on Dec. 29 in response to Mr. Zugsberger’s complaints. He said they found nothing “unexpected.”
According to Mr. Hetzel, the park project “will probably far exceed mitigation requirements” around eelgrass, which the park’s project description said would initially be cut back but later thrive with increased habitat. Removing the racks disturbs sediment in a “very minor way,” he said, but “overall the restoration will compensate for those losses.” He added that the park is “doing better than expected.”
As a result of the visit, the water board requested that the park submit additional information by Feb. 20, including a summary of the oyster racks that have been removed to date, visual sediment monitoring results and impacts to eelgrass during the removal activity. The water board also asked for the park to submit a schedule for cleaning up the remaining debris and for the monitoring of eelgrass after the project wraps up.
In an email to the Light, Brian Meux, a natural resource specialist for the fisheries service, directed questions about the project to the park. Michele Huitric from the E.P.A.’s public affairs office said the agency had gone on the site visit to provide dredging expertise merely in an advisory capacity to the water board, and therefore could not comment.
Mr. Zugsberger claims that Galindo Construction was unnecessarily damaging eelgrass and, “on occasion, ignoring approved routes, knowingly driving the boats through the eelgrass, [and] joking about it as it happened.”
He also claimed workers were blatantly disturbing harbor seals. He described how on at least two occasions, the team threw sandwich materials and food to seals off the backside of the barge.
In addition, he said the company was failing to prevent an invasive species, tunicate Didemnum, from re-entering the water once it was removed from racks, and that it had not used turbidity curtains—barriers that prevent silt or contaminates from spreading out in the water—when lifting out chemically treated wooden posts.
The chemicals Mr. Zugsberger contacted in the water were strong enough to give him lasting burns, he said.
Ms. Gunn said the park had received Mr. Zugsberger’s January letter and was in the process of reviewing it. Though the Interior Department informed Mr. Zugsberger that it had referred his case to the National Park Service, Ms. Gunn did not comment on whether an investigation was underway.
The Drakes Estero restoration project began last August. Slated for completion early this year, the park service and National Park Foundation devoted $4 million to the removal of over five miles of wooden oyster racks as well as other marine debris left behind by the oyster company.
The park hired T.L. Peterson, a Red Bluff-based company that has completed many projects for the park in the past, and the company subcontracted the work to Galindo, a Walnut Grove company that employed Mr. Zugsberger until Nov. 14, when it fired him.
Before he was let go, Mr. Zugsberger said he had not only expressed his concerns to the Interior Department, but also to his supervisor at Galindo, T.L. Peterson and the manager assigned to this project from the park, Jack Williams. Additionally, he had contacted the Occupational Safety and Health Administration and the Coast Guard regarding his safety and environmental concerns.
Though he thinks Galindo fired him as retaliation over his numerous complaints, Mr. Zugsberger’s termination letter states that he was fired on the basis that he did not show up for work and did not stay in communication about his whereabouts. Mr. Zugsberger acknowledges that his car broke down and he couldn’t get to work right before he was fired, but he disputes that he was not in touch with his employer.
The basis for his claims of environmental misconduct are the environmental rules of the project as outlined in the park’s National Environmental Policy Act Categorical Exclusion form. In that form, the park evaluated the environmental and related social and economic effects of the proposed rack removal and restoration project.
While not corroborated, the implications of his environmental allegations would be wide-ranging. 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.
Regarding his safety allegations, Mr. Zugsberger says that he was on a dive team with two other Galindo employees who were completely unprepared. In response to his concerns, the Occupational Safety and Health Administration inspected the site in November. To date, OSHA has issued at least nine citations to Galindo for violating the Occupational and Health Safety Act, including that “each dive team member did not have the necessary training or experience necessary to perform assigned tasks in a safe and healthful manner.”
Other citations included failing to provide the necessary safety procedures before divers entered the water, failing to provide employees with proper lifejackets and wet suits and exposing workers to impalement hazards posed by pressurized treated lumber with nails.
Galindo was not fined, and the misconduct was not determined to be willfull; however, Mr. Zugsberger is petitioning the agency to reassess this determination because he insists that, before the job began, he sent the company a diving safety manual that included OSHA standards.
As far as his concerns regarding pay, after he was fired, Mr. Zugsberger was assigned an investigator from the Department of Labor to determine whether Galindo had paid him fair wages. According to him, the investigator has yet to make a decision on his case due to a dispute with Galindo and the park, both of which defend the wage Mr. Zugsberger received.
“They’re dragging their feet,” Mr. Zugsberger said of the Department of Labor. “And they’re getting serious pushback from N.P.S. and the contractors.” He said the park service and Galindo are trying to influence the outcome of the labor investigation. It’s “become a full-on battle,” he said.
Though Mr. Zugsberger insists he should have been paid a premium rate as a diver, he was paid as a “group 7 laborer,” a type of construction worker classified under the Davis-Bacon Act that receives a lower pay. Although he doesn’t qualify as a diver by OSHA’s definition because he wasn’t using an air tank for this job, he argues he was effectively working as one because he was free diving underwater and entering a hyperbaric state.
The use of divers was clearly outlined in the park’s project goals and environmental considerations and constraints published in April 2015; however, Mr. Zugsberger assumes that T.L. Peterson and the park later decided not to allocate funds for divers, which can be hefty.
He also suspects that they illegally failed to report this modification to the project’s budget to the Army Corps of Engineers (which permitted the project), suggesting that the park was complicit in T.L. Peterson’s over-budgeting for the project.
The Light was unable to access the project’s preliminary engineering report to verify these claims.
“This isn’t just about this job at this point,” Mr. Zugsberger said. “That’s what no one seems to understand. If the [Department of Labor’s decision] goes against me, every diver in Northern California, their employers [could] technically force them to free dive and only pay them a laborer’s rate.”
Mr. Zugsberger’s union, which represents marine workers, wrote a letter to the Department of Labor supporting his argument, but it does not have a say in the case, since Galindo is not a union company.
If the Labor Department determines that he should indeed have been paid as a diver, he could receive around $20,000 to make up the difference in wages and the park’s monitoring of designated wages in the project budget could be questioned. But Galindo and T.L. Peterson could also appeal the decision.
If his allegations are proved false, Mr. Zugsberger estimates that he stands to lose upwards of $70,000 in the combined funds of the $20,000 in back pay, about $8,000 in per diem and $45,000 in potential compensation from the OSHA Whistleblower’s Protection Program. Mr. Zugsberger says the whistleblower’s program is currently investigating whether he was fired for filing complaints about the job.
And Mr. Zugsberger has yet another allegation against his employers: he expressed his concern with the Small Business Administration that T.L. Peterson contracted Galindo to take on too much of the job.
Unlike Galindo, T.L. Peterson is part of the 8(a) Business Development Program, a federal program that helps businesses owned by socially and economically disadvantaged people compete in the marketplace.
T.L. Peterson’s 8(a) business classification allowed the park to hire the company for the job directly through the Small Business Administration, without a public bidding process for the project.
Ms. Gunn said going through that program allowed the project to have a “timely start” in August 2016, following the harbor seal closure.
But the program also requires that companies do a minimum percentage of the work, a requirement Mr. Zugsberger believes wasn’t met.
For now, the park says the restoration project is on schedule to finish by the end of this month. A new diving company, MM Diving, Inc., is subcontracting for the project, Ms. Gunn said.
“Do I have a bone to pick about pay and all that? Yes,” Mr. Zugsberger said. “But I am also concerned about the environmental issues and the safety issues—this job was just done terribly all the way around. This is completely not typical of all the big jobs I’ve done throughout my life.”