CalTrans’ Toxic Cover-Up?

Let's start with penta. A pesticide and wood preservative that timber companies applied liberally at mill sites from the 1960s until it was banned from most uses in 1987, penta (or pentachlorophenol -- PCP) is a notorious toxic carcinogen. It harms the kidney, liver, blood, and lungs, as well as the nervous, reproductive, digestive, and immune systems, causing cancer and birth defects. And it breaks down into perhaps the most deadly chemical known to humankind: 2,3,7,8-TCDD, Dioxin.

Dioxins are a group of chlorinated compounds that are an unwanted byproduct of the manufacture of chemicals, especially pesticides and wood preservatives, as well as of combustion processes such as incineration. Dioxin is shorthand for the deadliest form of these compounds. It is extremely long-lived. It bioaccumulates in the tissues of fish. It biomagnifies (ie, becomes more deadly) as it moves up the food chain.

Due to background exposure rates, Dioxin is present in at least very trace amounts in every mother's breast milk. Suffice it to say that the last thing any mother or child, or other person, or other creature, needs is to have Dioxin dumped into their watershed in large quantities.

In the pre-dawn hours of August 18th, CalTrans contractor DeSilva Gates Corporation sent a fleet of dump trucks and excavators into formerly one of Mendocino County's largest sawmills, the now-abandoned Apache Mill, located three miles north of Willits. The site is currently owned by Mendocino Forest Products Company, a division of Mendocino Redwood Company. The mill was previously operated by the multi-national corporation Louisiana Pacific, which was at the leading edge of the aforementioned “better living through chemistry” whereby drenching of wood products with PCP was the unregulated norm.

The CalTrans/DeSilva Gates excavators began removing three hillsides, one of which was likely the site of one of the three former log decks on the 56.5 acre property, to dump on the northern Little Lake wetlands. The dumping took place at the site of the ecologically calamitous northern interchange area of Big Orange’s Willits bypass, which is being built upon a massive berm up to 30 feet high and 200 feet wide – thus, the need for massive amounts of soil.

The soil hauling blitz involved an estimated 70 dump trucks, mostly with 20-yard soil hauling capacities. The trucks dumped their loads on the wetlands at a rate of roughly one per minute.

The use of the mill site for dumping was unannounced and a closely held secret. It caught by surprise even people who have monitored the Willits Bypass permitting process for years.

Notably, thousands of wick drains had just been installed in the area where the dumping took place, which are designed to bring water out of the land beneath the soil.

The dumping took place for eight days in total. It then hit a snag. In sourcing soil from the mill site, Caltrans didn't bother with following the law. In this case, neither did the County of Mendocino. County Planner John Speka had granted Big Orange the permit to conduct the excavation and filling based on the 1974 Surface Mining and Reclamation Act (SMARA). But SMARA clearly spells out a requirement that an environmental impact report be filed in such cases, which Caltrans had not done.

The Willits Environmental Center and another non-profit, Keep the Code, sued to stop the operation. On August 28th, the day Mendocino County Superior Court Judge Cindy Mayfield was slated to consider the lawsuit, the County yanked the permit. The office of County Counsel Janine Nadel apparently realized in advance they would lose the case if it made it into Judge Mayfield's court.

And that's when an attempt to establish a real accounting of what took place began.

The Bypass project's tenacious opponents soon discovered Caltrans had never adequately tested the mill soil for toxins. Instead, the agency was relying on two extremely inadequate studies of chemicals present in the mill site's soil. Big Orange's decision-makers had not bothered to provide either of these to regulatory agencies in advance.

In the most recent case, Caltrans contracted with TestAmerica Laboratories of Pleasanton to conduct a study of the site that was completed on March 15, 2013 (only a few days before the California Highway Patrol used an absurdly disproportionate mobilization of personnel and equipment to dislodge the small and primarily elderly, if fairly well coordinated, group that had blocked the beginning of construction for several weeks). The study indicates elevated level of mercury, arsenic, chromium 6 (the infamous Erin Brockovich-affiliated chemical) and various other dangerous toxins in the soil at the site. The study failed to test for Dioxin.

The study is horribly flawed. It takes a needle-in-a-haystack approach. The study took small samples from an extremely large amount of soil. It is unclear if Caltrans and DeSilva Gates used soil from the areas where the samples were taken; it does not seem as though Caltrans officials know this either. In addition, the study's language does not make it clear where the soil samples were conducted.

Caltrans' regional public relations man, Phil Frisbie, Jr., went on record regarding the results of this test.

“The results from one of these samples indicated high elevated levels of chromium. Soil at this location was not used for our project. Other samples at the site tested positive for diesel fuel. Further research revealed that rotting wood debris can cause a false positive for this test, and since the site was previously a lumber mill, and the levels detected were low, soil from that area of site was determined to be acceptable for use.”

Frisbie, Jr. avoids addressing mercury, arsenic, dioxin, and the rest in this statement.

Areas where dioxin has been used have resulted in massive cancer clusters and animal die-offs. To cite a nearby example, in 1967, rain washed penta from a sawmill yard into the Mad River, which flows north of Arcata, and killed 30,000 fish overnight due to exposure to both penta and Dioxin.

The Fort Bragg Mill site of Georgia Pacific has been studied ______. — Fill Frisbie

In October, I asked for Frisbie, Jr. to clarify Caltrans' position regarding the matter of its likely toxification of the Little Lake wetlands with deadly chemicals. My third question to Frisbie centered around Dioxin specifically. After researching the topic for several days, Frisbie, Jr. got back to me.

"While gathering together the details to answer you third question I decided to make it into a blog post so everyone could benefit from it," he informed me.

That blog post, which constitutes Caltrans' only significant official statement on the topic, is located here: http://willitsbypass.wordpress.com/2013/10/03/information-about-soil-removed-from-former-mill-site-for-willits-bypass-project/

"Caltrans and its contractors have ensured that soil removed from a former lumber mill, currently owned by Mendocino Forest Products, is free from contamination that would make it unsuitable for fill at the Willits Bypass Project," Frisbie, Jr. starts off in his post. "During an environmental assessment conducted in 2008, PCP and other chlorinated phenols associated with potential use of wood treatment chemicals were not detected. Limited detections of dioxins were identified in soil but in relatively low concentrations compared to applicable regulatory screening criteria. Caltrans is not aware of any activities which have occurred on the site since 2008 which would have changed the conclusions of the environmental assessment.

"Additional soil testing was performed in March of 2013. The soil was tested for compaction properties and for basic contaminants. One test sample tested high in chromium, and soil was not removed near that location. Some samples tested positive for diesel fuel, but in such a low concentration that it did not rule out its use."

Again, however, the March 2013 study would never pass the laugh test in a remotely sane world. So let's turn to the 2007 study [Frisbie, Jr. incorrectly said it was conducted in 2008] that Caltrans cites.

To comply with environmental regulations concerning the clean-up of old mill sites, Mendocino Forest Products [ie, the Fisher Family] hired the biggest environmental consulting firm in the world, Geomatrix Consulting, to report on the presence of chemicals at the Apache Mill. A subsidiary of Europe's largest engineering company, Amec PLC, Geomatrix has offices in 10 states coast to coast and in Canada.

Amec PLC, which netted $4.5 billion in revenue in 2012, is described on its web site as “a focused supplier of consultancy, engineering and project management services to its customers in the world's oil and gas, mining, clean energy, environment and infrastructure markets.”

Meanwhile, Geomatrix's web site boasts of the company's work on “many high-profile Bay Area construction projects.” For instance, Geomatrix was one of the companies Caltrans contracted in 2004 to conduct a retrofit of its much-maligned eastern span of the Oakland-San Francisco Bay Bridge, which closed last year after it was found to be structurally unsound, leading to widespread renunciations of Caltrans' incompetence and culture of unaccountability.

The study explored the release of petroleum hydrocarbons into soil and groundwater at the site, which happened in August 2000, the hydrocarbons residues in the soil from this spill, potential historical usage of PCB and dioxins; and potential presence of PCBs in the “on-site transformer.”

The study does attempt to allay concern about the potential that PCBs and dioxins are present on the site, concluding – despite the historical evidence that PCBs were commonly used throughout Louisians Pacific mill sites – that the “probability that wood surface treatment chemicals were used at the Site appears to be low.” How did the study arrive at this conclusion? The main way was to interview a few former managers of the mill site, who said they did not remember PCB's being used under their watch.

Contrary, though, to Frisbie, Jr.'s attempt to say that the Geomatrix study establishes that dioxins are present at the site only in low concentrations, the study actually reads as follows: “Focused testing should be performed to support the conclusion that these chemicals were never used at the Site.”

An overview of what this sort of “focused testing” might look like comes courtesy of Mendocino County's own staff hydrologist, Dennis Slota, whose office incidentally is located in the very Mendocino County Planning Department that originally approved Caltrans' soil hauling permit. On December 4th, Slota sent a letter to John Speka, who had authored that illicit permit, providing his analysis of the use of Apache Mill material in the Little Lake wetlands. In the more than 20 years the Willits Bypass has limped its way through the regulatory process, Slota's letter may be the least wishy-washy single page of prose a regulator has yet put on record.

“The [Apache Mill soil] is proposed to be used as fill in a sensitive wetlands area which also hosts the longest Coho run in the State of California,” Slota notes. “Placing contaminated soil in this area could result in catastrophic damage that may be impractical to remedy after the fact.”

Slota goes on to provide a protocol for evaluating whether the fill is harmful to the watershed, and the people and animals who rely on it, none of which Geomatrix did. He writes,

“Using this industrial fill in sensitive wetlands should require the following.

1. An extensive assessment of the types of hazardous/toxic materials potentially used at this site as well as an estimate of the amounts of substances used and the time frame of use. Documentation should be sought for how toxic/hazardous substances were disposed of by the various owners.

2. An assessment should be made for the potential of illegal disposal of other substances not necessarily related to mill activities by any of the previous owners.

3. Develop[ment of] a hazardous material sampling protocol to document that all borrow material is devoid of hazardous or toxic substances to aquatic and terrestrial wildlife.

4. The structural suitability of the proposed fill material must also be assessed.”

 

Regulatory Response?

At this point, let's take the relevant environmental laws seriously for a moment. It's not necessarily a good habit to get into; the agencies that are allegedly charged with enforcing these laws have a demonstrable pattern whereby they only the laws stringently against people who are relatively powerless. Caltrans, on the other hand, fails to take the laws seriously -- and why not? Those with enough wealth, power, and connections -- Caltrans, the wine industry, and the like -- largely get a free pass.

In this case, not only did the hauling of fill violate the Surface Mining and Reclamation Act, as the Willits Environmental Center and Keep the Code pointed out in their lawsuit, it also violated CalTrans’ own permit with the Regional Water Quality Control Board: the 401 Permit.

Condition 47 of this permit states: “All imported fill material shall be clean and free of pollutants. All fill material shall be imported from a source that has the appropriate environmental clearances and permits. The reuse of low-level contaminated solids as fill on-site shall be performed in accordance with all State and Federal policies and established guidelines and must be submitted to the Regional Water Board for review and concurrence.”

Neither CalTrans nor its contractors submitted their fill hauling plan to the Regional Water Board for review.

The fill hauling also violated Chapter 5, p. 161 of CalTrans Draft EIR/EIS os 2002: “Any borrow site used to provide fill for the project other than the designated site (Oil Well Hill) will be analyzed and submitted for review in advance by the resource agencies.”

Under such circumstances, the Water Board staff could have quite straightforwardly used their authority to issue a cease and desist order to keep more fill from piling on the contaminated fill. They could have used their power to alert other agencies as to the filling process and secure their support in taking an enforcement action. They could have, for the first time since the Willits Bypass' conception, truly taken the laws they preside over seriously.

Instead, Caltrans and DeSilva Gates began applying fill from the southern portion of Caltrans' Bypass lands, on a hillside directly across from where The Warbler's tree sit took place, directly on top of the potentially highly deadly fill already on the wetlands, and the Water Board did nothing to stop them. This process took place from September 3rd through roughly October 15th.

Under pressure from Willits citizens, the Water Board did require that Caltrans conduct a study of the chemical composition of the fill that has already been dumped. On September 19th, Water Board Executive Officer Matthias St. John of the Water Board's Santa Rosa office sent Caltrans a detailed document that “requires information about fill material and construction water used on the Highway 101 Willits Bypass Project.”

The fill was applied directly on top of thousands of wick drains in the southernmost area of the northern interchange, which is almost entirely wetland. The wick drains are designed to bring water out of the land underneath the fill. As I personally witnessed when I occupied one of two machines that install the wick drains for 12 days this past summer, there is a system that connects the drains and funnels the water out to the edge of the fill into a ditch that drains directly into local creeks. This same system is capable of transporting any water leaching from the fill with whatever contaminants the fill contains directly into the waterways.

Caltrans and DeSilva Gates conducted the testing required by the Water Board in the last month. The testing consisted of taking a soil sample from every 5,000 cubic yards of fill (the equivalent of 250 20-yard dump trucks) and testing it for a range of contaminants, including Dioxins and heavy metals. In other words, it was the needle-in-a-haystack method. Given the distance between the samples, those who carried out the tests were virtually guaranteed not to find anything. The level of contamination they discovered is considered to be a safe level.

 

A Lesson in Power Dynamics

As the trucks hauling soil to conduct Caltrans' toxic cover-up of Little Lake rumbled across the streets of Willits this past September, many people stood up against them. In a few cases, people put their bodies on the line to stop the patently illegal hauling and have since reaped serious legal repercussions for them courtesy of Mendocino County's increasingly punitive district attorney, C. David Eyster.

On September 5th and September 11th, a Willits resident and co-owner of a local music store, who goes by “Feather,” and a Ukiah resident who goes by “Earthworm,” locked down to dump trucks hauling soil to fill in the wetlands using metal lock boxes. This action effectively stopped the trucks, and all other traffic behind them.

In the first case, these brave individuals locked down at the intsersection of Commercial Ave. And Highway 101. California Highway Patrol Lt. Mesa threatened to arrest them under felony car-jacking charges and threw in that he would only charge them under an infraction if they released, as a quid quo pro. They released.

In the second case, they locked down at the so-called “Gate 6” that Caltrans uses to drive in and out of the wetlands on the north end of Little Lake Valley. They remained locked down the entire night, for eight and a half hours. They finally released voluntarily when the sun came up and the overnight soil hauling work shift had ended.

On September 16th, my good friend and housemate Lucy Neely of Ukiah and Peggy Backup of Redwood Valley locked down to a fill hauling truck in the area near the Haehl Creek interchange where FlatIron/DeSilva Gates was excavating the hillside to dump on wetlands. The lock-down lasted about two hours. Because it took place in a section of road that all trucks hauling fill have to pass through, it immobilized all trucks hauling fill through Little Lake Valley for nearly 90 minutes, at which point DeSilva Gates was able to sculpt the hillside so as to create a new leg of the road.

In each of these cases, we have local residents who wanted to prevent the illegal and catastrophic dumping of soil upon soil that is likely contaminated with some of the most deadly carcinogens known to humans in the figurative “kidneys” of Little Lake Valley, its wetlands. These wetlands are connected to six major creeks that run throughout the entire valley. Mendocino County, the State of California, and the US federal government (most directly by way of the Army Corps of Engineers, which regulates wetlands in the US) had all endorsed or otherwise been complicit in creating this public health catastrophe. Legal action had failed to stop it.

The four people who locked down to stop the fill hauling did so after every possible legal recourse had been exhausted, after the regulatory agencies involved have demonstrated time and again in the course of several years that they will fail to act, after the Mendocino County Supervisors failed to act.

It should be noted that save for Mendocino County Supervisor Johnny Pinches, who showed up at Willits City Council meeting over the summer and made a statement to the effect that it was his idea for Caltrans and DeSilva to use the fill from the Apache site, other local officials had been publicly silent on this subject.

Yet, these four people were harshly prosecuted to the Mendocino County District Attorney. They were all charged with some combination of resisting arrest and trespassing. The DA levied criminal restitution charges against them, which included roughly $29,000 in the case of Neely and Backup, merely for having delayed the operation of trucks for a few hours.

Neely and Backup each settled for a $7,000 cap on restitution, 200 hours of probation, and an order to stay away from the Willits Bypass. “Feather” and “Earthworm” settled for similar terms. In other words, all four of them will have to pony up money to Caltrans, which is the so-called “victim” cited as part of the criminal restitution stipulation, while Caltrans is likely allowed to continue plundering Little Lake Valley, including the continued dumping of fill upon toxic, potentially Dioxin-laced fill.

No restitution is required of Caltrans for flagrantly breaking the law. No accountability. It is an object lesson regarding the systemic power dynamics that have enabled Caltrans so far to build the illegal, horribly destructive, and entirely unnecessary Willits Bypass.

Contact Will Parrish at wparrish@riseup.net.