D.A. Launches 'Enforcement Action' into MRC but Makes No Mention of 10-Month Investigation into Community Warning System Failure

MRC's failure to notify community, officials of Thanksgiving release was basis for county's referral to D.A., refusal to conduct its own investigation; D.A. sidesteps issue in vague announcement

As the one-year anniversary nears of the Nov. 24-25 “spent catalyst” release by the Martinez Refining Co., the Martinez community appears no closer to getting a definitive answer to the central question from the accident that spewed at least 20 tons of toxic dust on surrounding neighborhoods — why the Contra Costa County Community Warning System was not activated to alert residents and public health officials, and whether MRC violated the law in failing to do so.

A media release sent out by the District Attorney’s Office on Thursday about its investigation into the incident made no mention of MRC’s failure to activate the warning system — despite the fact that the failure to notify was the primary reason Contra Costa Health Services referred the matter to the D.A.’s Office for review in the first place.

In the immediate aftermath of the release that left many in the community unknowingly exposed to airborne dust laden with heavy metals over the Thanksgiving holiday weekend, county health officials slammed MRC for the notification failure and vowed to conduct a transparent, community-involved investigation into why it occurred.

But after handing the issue off to the D.A.’s Office, Contra Costa Health forbade the independent contractor hired to investigate the root cause of the release from studying the notification failure, saying it was under the purview of the D.A.’s Office. (When specifically asked by this newsletter whether its investigation precluded such an independent investigation, the D.A.’s Office gave no indication that it did.)

When the D.A. finally issued a statement Thursday following a nearly year-long investigation that started back in January, it sidestepped the failure-to-notify question altogether and provided no information on what specific charges, if any, will ultimately be filed against MRC.

Rather, it and the Bay Area Air Quality Management District (BAAQMD) announced a vague “joint civil enforcement action” also involving Contra Costa Health and California Fish and Wildlife into unspecified “enforcement claims” stemming from the Nov. 24-25 release, as well as other unspecified claims. There was no explanation of what exactly its investigation over the past 10 months has yielded or why this “joint action” was not initiated when it accepted the referral in January.

The D.A.’s Office had previously said that it was investigating two alleged violations by MRC related to the spent catalyst accident, neither of which was addressed in Thursday’s statement:

1.) California Health and Safety Code, Section 25510(a) – “Failure to report a release or threatened release of a hazardous material to the unified program agency and Cal OES (Office of Emergency Services).”

2.) Contra Costa County Ordinance Title 10 Section 1014-4.006(a) – Prohibited Discharge – “Release of illicit discharges to the county stormwater system.”

Oddly, the statement makes no mention of the original basis for the referral by Contra Costa Health asking the D.A. specifically to investigate MRC’s failure to notify the county of the release. The statement from District Attorney Diana Becton indicates that BAAQMD is leading this new joint enforcement action with the D.A.’s Office; yet, BAAQMD has no jurisdiction over, or official role in, the county’s Community Warning System and was not the agency that initially asked for the D.A.’s investigation.

“The goal of this joint effort with the Air District is to achieve a resolution that ensures environmental compliance, and to rebuild and foster a safer community for the residents of Martinez,” Becton said.

“We welcome the opportunity to work collaboratively with the Contra Costa County District Attorney’s Office as we take a comprehensive approach to ensure MRC’s compliance with all air quality regulations,” said Alexander Crockett, chief counsel of the Air District, in the statement.

BAAQMD’s air quality regulations, however, are not the same thing as regulations governing the county’s Community Warning System (CWS), which is unique to Contra Costa County and designed to alert the community and public health officials to hazardous materials releases and other emergency situations to determine risks to, and safeguard, public health.

Why BAAQMD would even need to partner with the D.A. on a civil enforcement action into a refinery accident is another oddity of the D.A.’s statement. BAAQMD has enforcement powers over air quality violations already and routinely issues fines for accidents such as the one last Thanksgiving. The D.A. traditionally tackles criminal prosecutions, yet Thursday’s announcement mentioned nothing about potential criminal charges and specifically noted that this was a civil matter.

In response to an email to the D.A.’s Office on Friday seeking clarity on these questions, spokesperson Ted Asregadoo said: “Currently, I’m not authorized to do any follow up Q&A about this joint civil enforcement action at this time.”

In terms of the question about the Community Warning System failure that was the original basis for the referral to the D.A.’s Office and not mentioned in the D.A.’s statement, Asregadoo referred me to this excerpt from the press release:

This joint civil action will involve multiple agencies, including the Air District, Department of Fish and Wildlife, and Contra Costa County Health. These agencies have referred notices of violation and enforcement referrals against the Martinez Refining Company. This will include enforcement claims stemming from a 2022 release that occurred during the Thanksgiving holiday, as well as additional enforcement claims. It is a collaborative effort to enforce the law and ensure public safety.

Contra Costa Health Executive Director Anna Roth specifically addressed MRC’s failure to activate the warning system in a statement last December calling for an independent investigation into the incident, saying that her agency would “work with residents of Martinez, city leaders and the facility on a transparent investigation into why that did not happen in this case."

But Contra Costa Health officials backtracked on that commitment after the D.A.’s Office accepted their request to pursue possible legal action against MRC, saying the failure to notify was now in its hands.

When asked in an email exchange whether the D.A.’s announcement of this new action would change the county’s position on refusing to conduct an independent investigation into the CWS failure, county Supervisor John Gioia reiterated his previous statement that the Board of Supervisors ad-hoc committee on the Industrial Safety Ordinance/Community Warning System, which consists of himself and Supervisor Federal Glover, would look into any relevant issues pertaining to the operation of the CWS “once the DA investigation is complete. Nothing has changed in this regard.”

He also reiterated his view that the D.A. investigation is “criminal” in nature, despite the fact that the D.A.’s statement Thursday only referenced “civil enforcement.”

MRC said in its own root cause analysis released back in February that it did not activate the warning system on Thanksgiving night, as it is required to within 15 minutes of detecting a hazardous release, because it was unaware that spent catalyst dust had drifted into the community. But left unanswered has been the question of whether the release should have or could have been detected by MRC staff; whether staff should have at least known about the possibility of the release, based on the “opacity event” in its fluid catalytic cracking unit that night; and whether the county regulations governing the CWS required it to activate the system even if there was no absolute proof of a release.

As part of the corrective actions MRC announced after its own root cause analysis, the refinery said it would in the future preemptively activate the CWS in such an event even without actual evidence of a release.

While CC Health says it can’t investigate the CWS failure because of the D.A.’s role, it seems to have no problem undertaking an independent investigation into other aspects of the incident despite the D.A.’s statement on Thursday announcing a broad enforcement action not limited to the CWS issue.

At a previous meeting, the MRC Oversight Committee overseeing the independent investigation into the root cause of the accident left open the possibility that the independent contractor, Scott Berger and Associates, could address whether MRC had the ability to detect the release as part of its work, even as it’s prevented from directly addressing the failure to notify the community and health authorities through the warning system.

Contra Costa Health, in response to a review I requested earlier this year of other major refinery accidents since the advent of the CWS in the mid-1990s, said the spent catalyst release was the first documented case of a major refinery accident where the warning system was not activated. There have been several other releases over the years involving spent catalyst and other dust materials from the MRC refinery, which until 2020 was owned and operated by Shell.

Meanwhile, Contra Costa Health’s Hazardous Materials Program in September posted the findings of a special safety audit it conducted after the Thanksgiving accident of the fluid catalytic cracking unit responsible for the spent catalyst release. It found no regulatory deficiencies in the unit’s operations as they pertain to the county’s Industrial Safety Ordinance, and identified “two opportunities for enhancement.”

Despite Contra Costa Health officials’ public statements in the aftermath of the release slamming the refinery’s failure to notify them and the community as “unacceptable” and referring the matter to the D.A. for potential prosecution, the department’s own safety audit report seemed to validate MRC’s explanation as to why it didn’t activate the warning system:

Immediately after the catalyst was released into the community, MRC was unaware any release occurred and did not notify any emergency responders of the release.

Further, questions about the level of communication between MRC and county hazardous materials officials, and whether the refinery and county took adequate steps in the aftermath of the Nov. 24-25 release to address any systemic problems in the operation of the CWS, came into focus in July, when there was another CWS hiccup related to a less-significant coke dust release. According to its report on the incident, MRC officials twice tried to reach county hazmat staff by calling a general information landline number before activating the CWS more than an hour after the release occurred.

Children were attending a summer program at Las Juntas Elementary School a few blocks from the refinery when the release occurred, and the Martinez school district reported finding coke dust on campus. The district was not alerted to the release until roughly four hours after it occurred. When it did learn of the release and dust, it kept the children indoors for the remainder of the day.

In a report to the Martinez City Council about a week after that event, county Deputy Health Director Matt Kaufmann said the health department had been unable to retrieve the voicemail MRC had said it left reporting the release before the CWS was activated, sending out automated alerts to appropriate agencies. The revelation led Councilman Satinder Malhi to ask Kaufmann whether he had given MRC officials his cellphone number upon visiting the refinery in the wake of the incident.

Kaufmann said CC Health had shared with MRC the proper phone numbers to call in an emergency.

In other news…

• Martinez voters will be asked in March to convert the city clerk position from an elected to an appointed role, after the City Council voted Wednesday to put the matter on the ballot for the primary election. If approved by voters, there will be no city clerk election in November 2024, when it would be normally scheduled. Martinez is among only a handful of cities in the county that still elects its city clerk, who performs primarily a ceremonial role while the actual duties of the City Clerk’s Office are performed by an assistant city clerk and support staff.

• The Contra Costa Community College District, which is headquartered in Martinez, has chosen Mojdeh Mehdizadeh as its 10th permanent chancellor.  The district’s Governing Board is expected to approve Mehdizadeh’s contract at its Dec. 13 meeting. She has been serving as interim chancellor for the district since February 2022. She began her own education at Diablo Valley College before earning bachelor’s and master’s degrees at San Francisco State University and Cal State East Bay, respectively.

• Police Chief Andrew White told the council Wednesday that the city is planning a community evacuation drill that is tentatively scheduled for next June. The city and partner agencies are in the process of selecting a location for the drill and developing other details. The drill itself is expected to last about four hours. It will not be a citywide drill but targeted in a hillside area that is vulnerable to wildfire threats.

• City Manager Michael Chandler said the Martinez Refining Co. has proposed sponsoring a downtown cleanup event that would take place before the end of the year. Details and logistics about the proposed event are being worked out, with a public announcement to follow.