This is another chapter in the never-ending story of National Park Service scandals at Drakes Estero, Point Reyes National Seashore which reveals NPS “threatening” emails, exposes NPS “pressure” against another Federal Agency, unmasks NPS “retaliation” against a NPS contractor-employee, delineates multiple NPS and Contractor “safety violations” and uncovers NPS “toxic waste mismanagement.”
…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.
* * * * *
Drakes Estero project sparked investigations
By Anna Guth
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 undergo 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.
© 2017 The Point Reyes Light – West Marin’s Pulitzer Prize-Winning Weekly. All Rights Reserved.
Drakes Bay Oyster Company & the National Park Service. Watch the video, "THE FRAMING OF AN OYSTER FARM" at http://vimeo.com/52331881 
2019-06-03 Muldoon’s Misconduct & the NPS
“Did Muldoon herself follow the safety guidelines she was appointed to implement? Muldoon’s actual track record is a long list and large collection of safety violations, safety problems and safety misconduct.”
* * * * *
“Muldoon’s re-appointment to the NPS Safety Leadership Council hardly inspires confidence inside NPS or for visitors to our National Parks. Under her leadership, the Wilderness at Point Reyes mismanaged toxic materials, some of which are still present on the public beaches at Drakes Estero. The NPS Director and the senior leadership at the Interior Department need to put a bright light on Superintendent’s record at Point Reyes. NPS needs more compliance with law, policy and procedures, not a growing stack of violations. Secretary Bernhard, the new Assistant Secretary for Fish, Wildlife and Parks, Rob Wallace and Acting Director, NPS, Danny Smith need to find out what’s really going on at Point Reyes.”
https://russianrivertimes.wordpress.com/2019/06/03/editorial-toxic-safety-supervision-in-national-park-service/
russianrivertimes
Editorial: Toxic Safety Supervision in National Park Service
Posted on June 3, 2019by russianrivertimes
Do David Bernhardt, the newly Senate-confirmed Secretary of the U.S. Department of the Interior, and Rob Wallace, the just-nominated Assistant Secretary of the Interior for Fish, Wildlife and Parks, or Danny Smith the Acting Director for National Park Service (NPS) have the slightest clue as to what has been going on at Point Reyes National Seashore (PRNS)? Recent events reveal that they don’t. Is NPS at Point Reyes working overtime to make certain they never find out?
Muldoon, NPS co-chair of Safety Leadership Council reappointed despite questionable safety track record
In a 28 March 2019 e-mail to all NPS employees, Acting NPS Director Smith re-appointed Cecily Muldoon, Superintendent, PRNS, to a second term on the NPS Safety Leadership Council (SLC) where she will serve as Co-Director. Initially formed in 2007 by then-NPS Director Mary Bomar, it was implemented under NPS Executive Order #50, which expressly states, “We hold that the safety and health of our employees, concessioner employees and other Federal, state and local stakeholders….to be a core value of the NPS.”
The order sets forth that NPS managers across the country must “Meet or exceed all current applicable statutory, regulatory, and policy requirements”.
Did Muldoon herself follow the safety guidelines she was appointed to implement? Many of the requirements of the SLC fall under OSHA, (Occupational Safety and Health Administration) Department of Labor, EPA and other federal and state agencies, so one might expect that given her position on the Safety Council, that her supervision of PRNS employees and contractors “meets or exceeds” compliance with law, policy, and procedures. It doesn’t. Muldoon’s actual track record is a long list and large collection of safety violations, safety problems and safety misconduct.
Investigation by Cal EPA at Drakes Estero leads to referral of charges to Marin DA for prosecution
For more than two years, the Russian River Times documented a whistleblower’s report of serial failures by NPS and its contractors to comply with NPS safety law, policy and procedures during removal of oyster racks from Drakes Estero (Point Reyes). The whistleblower, a marine diver, filed a complaint with the California Department of Toxic Substances Control (DTSC) after he received chemical burns from exposure to hazardous wastes while working on the rack removal project. In mid-2018, DTSC opened an investigation. Last December, DTSC completed their work concluding that wide-spread mismanagement of toxic materials took place on the NPS project. The Report, not yet public, was submitted to Lori Frugoli, the Marin County District Attorney. It recommends prosecution for more than 20 violations of law, some criminal, against the NPS contractors.
Whistleblower recovers back pay and contractor fined by OSHA
Previously, the Russian River Times reported on other violations of law on the same NPS project. Contract violations, investigated by the US Department of Labor concluded the whistleblower and others were shorted on pay and that significant safety violations occurred. That same whistleblower, with assistance from the Foundation for Fair Contracting (FFC), received a settlement restoring his rightful pay. In addition, in December 2016, shortly after the whistleblower was fired, the contractor on the Drakes Estero Project was fined for OSHA safety violations.
No bid contracts can be “totally non-transparent” and subject to abuse
The FFC’s Bryan Berthiaume recently discussed with the Russian River Times a growing list of problems with no-bid and non-competitive contacts awarded by the Federal Government. The long list of safety violations at Point Reyes came from a no-bid, non-competitive contract. Berthiaume also told the RR Times that his organization is actively following another scandal involving this same NPS contract. The California State Contractor’s Licensing Board investigation of the Drake’s Estero rack removal contractor regarding serious violations of personnel requirements for holding their license. He also stated, generally, that the proliferation of contracts issued without competitive bidding continues to become a real scandal, and renders much government contracting totally non-transparent. This has certainly proved the case in the RR Times investigation, which has been unable to trace the handling and fate of some 1300 tons, or approximately 76 truckloads, of contaminated sediment identified in the original NPS engineering Report for this project, despite repeated requests to NPS.
According to Berthiaume, “ we’re seeing a lot of problems with many case of near total lack of supervision of some contractors, especially in the under $4-5 million range. Being perceived as a ‘compliant’ contractor on these issues can lead to multiple contract awards and too often becomes ‘the gift of public money that keeps on giving’. While FFC’s work is involved mostly with labor and contracting terms, we see a huge problem on some contracts with the issuing agencies failure to not only assure compliance with labor law and safety law, but also environmental issues or even basic compliance with contract terms, as is the case in working with the whistleblower in the Drake’s Estero matter. This is not a partisan issue and it’s going to take Congress having a serious look at how DOI and other agencies really handle their contracts to even start to fix it.”
City of San Francisco complains to Superintendent Muldoon over lack of concern for public safety
Upholding NPS policy on public safety also appeared low on Muldoon’s priorities when she was temporary Acting Superintendent of the Golden Gate National Recreational Area (GGNRA), after she approved a protest permit for a group and its members who were known to be violent in Portland, Seattle and Charlottesville. In an angry August 15, 2017 letter from then SF Mayor the late Edwin M. Lee, and Supervisor (now Mayor) London Breed, declared, “This permit has been granted without the necessary contingencies to protect the safety of the public and the assumption that the City of San Francisco will expend our resources to diffuse the situation”.
Safety violations, issues and concerns – a long list of them – are the hallmarks of Muldoon’s management at Point Reyes. NPS reports on toxics were withheld from the Corps of Engineers and subcontractor employees but not contractors (direct worker notification of the presence of toxics is required by DOL law and OSHA regulations). Toxic wood waste and sediment were handled in a manner in direct violation of California law, not to mention contract terms. This allowed substantial time and financial savings for the contractor. Tons of sediment, which NPS’ own Environmental Site Assessment (ESA) said was contaminated, are unaccounted for. Complaints about workplace safety violations were ignored. FOIA requests about safety issues have been ignored, manipulated or not answered.
Real safety and fact-based environmental leadership needed at NPS
Muldoon’s re-appointment to the NPS Safety Leadership Council hardly inspires confidence inside NPS or for visitors to our National Parks. Under her leadership, the Wilderness at Point Reyes mismanaged toxic materials, some of which are still present on the public beaches at Drakes Estero. The NPS Director and the senior leadership at the Interior Department need to put a bright light on Superintendent’s record at Point Reyes. NPS needs more compliance with law, policy and procedures, not a growing stack of violations. Secretary Bernhard, the new Assistant Secretary for Fish, Wildlife and Parks, Rob Wallace and Acting Director, NPS, Danny Smith need to find out what’s really going on at Point Reyes. Senator Murkowski, as Chair, the Senate Energy Committee and Congressman, Raul Grijalva, as Chair, House Natural Resources Committee need to put the same spotlight on NPS adherence to law, policy and procedure. Point Reyes is a good place to start illuminating the real quality of leadership.
Share this:
Like this:
Posted by Jane Gyorgy on June 16, 2019
https://oysterzone.wordpress.com/2019/06/16/2019-06-03-muldoons-misconduct-the-nps/