Independent Investigation into Refinery Accident Won't Address Failure to Activate Community Warning System, Notify Health Authorities
County probe will look at cause of spent catalyst release but not failure to inform community; city moves forward with creating its own warning system; a commentary by Craig Lazzeretti
Editor’s note: A commentary by Craig Lazzeretti can be found below the following post on the county’s decision not to address the failure to activate the Community Warning System as part of the independent investigation into the Thanksgiving night “spent catalyst” release from the Martinez Refining Company.
By Tom Lochner and Craig Lazzeretti
Part of the most recent Martinez Refining Co. Oversight Committee meeting focused on what will not, rather than what will, be part of the county-led independent investigation of the Thanksgiving night "spent catalyst" release – notably, the refinery's failure to notify Contra Costa health authorities and activate the Community Warning System.
The failure — apparently the first time such a thing has happened in a major refinery accident since the advent of the CWS in the early 1990s — is being looked into by the Contra Costa District Attorney's Office, but some residents question why that should preclude the oversight committee and the consultant hired to investigate the incident from also addressing the matter.
"In this incident investigation — root cause analysis — we will not be looking at that failure (to notify) because that is part of the District Attorney's investigation," Contra Costa Health Services (CCH) Hazardous Materials Program Director Nicole Heath said shortly after the start of the June 29 MRC Oversight Committee meeting.
Meanwhile, the city of Martinez is on its own track to beef up communications with residents on hazardous incidents such as the spent catalyst release. Martinez Mayor Brianne Zorn said Friday the city is planning to implement its own community warning system that will enable it to communicate directly with residents about hazardous incidents outside the county’s system. The city-based system, called Rave, is expected to come up for discussion at the July 19 City Council meeting.
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The Nov. 24 release, which lasted into the early morning of Nov. 25, spewed some 20 to 24 tons of metal-laden dust onto surrounding communities, leading to widespread complaints by residents, including of respiratory problems. The refinery says it did not detect the release when it occurred and only learned about it from residents the following day, Nov. 25. CCH says it learned about the release from media accounts on Nov. 26, two days after the incident began.
A toxicology consultant, TRC, hired by CCH recently studied soil samples in Martinez and surrounding communities as far as Benicia, Hercules and El Sobrante taken many months after the release. Based on TRC's study, CCH said last month that the Nov. 24 release did not increase risk of exposure to hazardous metals in local soils.
Meanwhile, another consultant hired by CCH, Scott Berger and Associates, was, as of last week, waiting for the green light to study the causes and circumstances of the incident itself, pending the signing of a non-disclosure agreement with the refinery related to confidential business information and trade secrets.
But the refinery's failure to notify authorities of the spent catalyst release will not be part of the CCH-Berger investigation, a decision that appears at odds with a statement made by CCH Chief Executive Officer Anna Roth in December when the agency recommended an “independent, community-involved” investigation into the incident. She said at that time that timely notification from facilities to incidents such as the Thanksgiving night release were essential to her agency's ability to protect the health of the community.
"Our Hazardous Materials team responds quickly to these notices to ensure people have the information they need, when they need it, to take protective actions," Roth said in the Dec. 14 press release, adding:
"We will work with residents of Martinez, city leaders and the facility on a transparent investigation into why that did not happen in this case."
The full press release, headlined “Contra Costa Health Recommends Independent Investigation into Martinez Refinery Release,” can be read by clicking this link.
CCH Communications and Government Affairs Officer Kim McCarl and CCH Deputy Director Matt Kaufmann addressed the apparent change of heart during a telephone interview on June 30. They said that under the county’s Industrial Safety Ordinance, once CC Health referred the matter to the District Attorney’s Office, it is in the D.A.'s hands, and that any evidence regarding the failure to notify that might be uncovered thereafter by CC Health could not be used by the D.A.
They likened the situation to a police investigation — where once police refer a matter to the District Attorney, it's in the D.A.'s hands.
Thus, Kaufmann and McCarl said, the investigation by CCH into the root cause of the catalyst release, on one hand, and the D.A.'s investigation into the failure to notify under applicable rules and regulations, on the other hand, are being conducted on parallel tracks by different agencies.
If the D.A. had chosen not to take the case, CCH would still have administrative authority, Kaufmann said. On the other hand, if CCH were to continue to investigate the failure to notify, that could tie the D.A.'s hands, and, under the ISO, none of what CCH might uncover could then be used by the D.A. in enforcement actions, Kaufmann said.
A D.A. spokesperson did not specifically address a question by Martinez News and Views about whether the county’s independent investigation could still address the failure to notify issue without compromising the D.A.’s own review, stating in an email: “If there’s new information about the release of the spent catalyst on Thanksgiving weekend in 2022, our office will certainly receive that information for review.”
When asked whether MRC believes the failure to notify should be investigated as part of the county’s independent root cause analysis, refinery spokesman Brandon Matson replied that he was unable to comment because “your question is specific to ongoing investigations.” He added that “within weeks of the incident, we had already updated our response procedures to require our shift teams to promptly issue a Community Warning System (CWS) notification and conduct community monitoring during opacity events, even if the potential for community impact is unlikely.”
Opacity is effectively a measurement of refinery emissions that refers to how much light is being blocked by particles coming out of the refinery’s carbon monoxide boiler stacks.
One question that remains fuzzy, however, is to what degree the investigation will vet MRC’s claim that it had no way to know the release had occurred prior to being informed by community members who found the dust in their neighborhoods the following day.
Michael Kent, the ombudsman for CCH’s Hazardous Materials Division, asked during the oversight meeting whether Berger would be able to investigate the question of whether the refinery had the capability to detect the release when it occurred through its operating systems and equipment.
Heath initially responded that “it’s very hard to say what the root cause analysis is going to look at and not look at” before clarifying that “detection and any sort of alarms that would alert somebody that something is occurring in the system would most definitely need to be part of” the analysis.
Berger chimed in that if the investigation revealed that a refinery detection system failed to mitigate the release, “that would come up, but we’ve been asked not to look at the actual notification (of the release to the public and health authorities).”
During public comment, Jillian Elliott of the local refinery accountability group Healthy Martinez pointed to a similar incident in 2001 at the same Catalytic Cracking Unit at the refinery, then owned by Equilon (Shell), in which refinery managers activated the Community Warning System as required.
“I think it’s important to understand what’s different from that (2001) incident versus the one around Thanksgiving,” she said. “Is it competency of the management? Is it the equipment failed even further? I think those are questions a lot of us have because this is not the first time (such an) accident has happened.
“A similar accident can happen at any time, and we don’t have the trust that we’re going to be told the truth.”
The full video of the June 29 MRC Oversight Committee meeting can be viewed at this link:
Regardless of what answers come to light on why the county’s Community Warning System was not activated for the spent catalyst release, the city is moving forward with its own efforts to communicate emergencies directly with its residents. Zorn has made improved communication with the public a top priority in the wake of the frustration voiced by residents about the lack of timely notifications after the spent catalyst release and a major flaring event that occurred at MRC a couple weeks later.
"It is important that when incidents occur, city leadership can communicate with residents so they can make informed decisions for their own health," Zorn said Friday. "That is why we at the city of Martinez are moving forward with a city-specific community warning system that is administered by city staff to keep the Martinez community informed, healthy and safe.
"Our city leadership understands how valuable timely notifications would have been during the Thanksgiving night catalyst release. A city-specific notification system will provide an avenue for communication with our residents during low-level incidents, such as refinery flaring events, where the (Contra Costa County) Community Warning System would not have contacted residents directly."
At Zorn's urging, the city earlier this year unilaterally decided to expand notifications of "Level 2" alerts to include text messages to residents who have phone numbers registered with the county Community Warning System. Previously, under the county's protocols, direct notifications to residents were limited to more serious "Level 3" incidents, with communication for Level 1 and 2 incidents limited to website and social media posts. The county has since also moved to incorporate direct text message and/or email notifications for all "Level 2" incidents, with the option to also utilize phone calls when warranted for such events.
The Board of Supervisors Industrial Safety Ordinance/Community Warning System Ad Hoc Committee discussed these changes at the end of its April 20 meeting. The video link is below:
Commentary by Craig Lazzeretti
In how many ways does this decision not to conduct a transparent, independent investigation into the Community Warning System (CWS) failure make no sense? Let’s count them.
What truly made the Thanksgiving night accident unique was not the release itself (there have been many similar, and more severe, refinery accidents over the years), but the refinery’s failure to notify authorities and activate the CWS (apparently the first time such a thing has ever happened for a major refinery accident since the system was adopted in the early 1990s). What kind of “community-involved” investigation into an accident leaves out the most unique and troubling element?
The District Attorney’s job is to identify violations of the law and to prosecute them as warranted. It’s not to determine the root causes of such violations and what measures need to be taken to prevent such violations from reoccurring. The county authorities responsible for creating and administering the rules governing the Community Warning System should be the ones to investigate why they weren’t followed in this case and what measures should be taken — by both the refinery and county — to prevent such a situation from reoccurring. And the public should be involved.
The fact an incident is under investigation by law enforcement authorities in no way precludes civil authorities from undertaking a parallel, transparent investigation into the same incident, particularly when the issue under investigation is of major public interest and community concern. Such investigations happen all the time. The most prominent recent example is the Jan. 6 Committee in Congress that investigated the insurrection at the Capitol, in the midst of multiple simultaneous criminal investigations into various aspects of the event that continue to this day.
As noted in the article above, Contra Costa Health clearly indicated to the public that the failure to notify authorities would be part of an independent, community-involved investigation in its own press release. Don’t take my word for it. Take the word of CCH Chief Executive Officer Anna Roth: "Our mission at CCH is to care for the health of our community. We can't meet that obligation without timely notification from a facility when an incident like this happens. Our Hazardous Materials team responds quickly to these notices to ensure people have the information they need, when they need it, to take protective actions. We will work with residents of Martinez, city leaders and the facility on a transparent investigation into why that did not happen in this case." Yeah, so much for that.
Contra Costa Health cites the following clause in the Industrial Safety Ordinance (ISO) as the reason that it cannot investigate the refinery’s failure to activate the Community Warning System. “No part of the conclusions, findings or recommendations of the root cause analysis conducted by the department or stationary source, or incident investigation conducted by the department, relating to any major chemical accident or release or the investigation thereof shall be admitted as evidence or used in any action or suit for damages arising out of any matter mentioned in such report.” But the clause simply states that its own conclusions from a root cause analysis cannot be used as evidence in legal actions; that has nothing to do with the ability of other agencies such as the District Attorney’s Office to conduct their own investigations and collect their own evidence for potential legal action. The D.A. is perfectly capable of conducting its own investigation into the matter and collecting its own evidence without the aid of this county-led civil investigation, something that is clearly happening given the amount of time that has already elapsed since CC Health referred the matter to the D.A. in January (let’s just hope it doesn’t take 2 1/2 years like the D.A.’s investigation did into a fatal police shooting that led to a criminal conviction after the officer in question remained on the force and killed someone else, a situation that was itself investigated in this recent Contra Costa County Civil Grand Jury report). And if any lawyer wants to credibly argue that this clause effectively prevents any transparency or public involvement into any county-led investigation where a refinery endangered public health by breaking the law, then the ISO that county leaders spend so much time holding up as a model for the rest of the country isn’t worth the paper it’s written on.
Contra Costa Health wants us to believe that it can’t investigate the Community Warning System failure because of the impact it might have on any legal action brought by the D.A. How, then, can it justify investigating as part of the Oversight Committee’s scope what role, if any, the use of a wet gas scrubber may have had in mitigating or preventing such an accident, given that the issue of wet gas scrubbers is central to a current lawsuit involving MRC and the Bay Area Air Quality Management District over a new emissions-reduction rule? If this isn’t cherry-picking the meaning of a clause to fit CCH’s own interests, I don’t know what is. Maybe MRC’s and the county’s crack lawyers can hash out that apparent inconsistency?
The WHOLE POINT of authorizing an independent investigation was to create a transparent, community-involved process of investigating an incident that had a major impact on the community, in part to prevent such an accident from happening again. There is nothing about the D.A.’s investigation into the failure to notify that is transparent or involves the community. CCH is basically saying that while the community has a right to be involved in discovering why 20 to 24 tons of toxic dust were released into the air starting on Thanksgiving night and what needs to be done to prevent it from happening again, it has NO RIGHT to be involved in learning why the Community Warning System that the county created and is responsible for administering was not activated and what may be needed to prevent that failure from happening again. If an independent investigation is important to identify corrective actions to prevent another spent catalyst release (as the county maintains), why is not an independent investigation needed to identify corrective actions to prevent another failure to activate the Community Warning System?
CC Health’s analogy to a police agency handing a criminal investigation over to the D.A. as the reason why it can’t discuss and investigate the Community Warning System failure further with the community is laughable. For one thing, police agencies divulge varying degrees of information on their investigations to the public all the time, both before and, at times, after a case is referred to the D.A., depending on the public interest involved. If new information on a police investigation comes to light after the case has been sent to the D.A., the police are able and expected to share that information with the public if it’s a matter of significant community concern. In my decades as a journalist, I recall several high-profile cases where the police continued to investigate the matter after making an arrest and sending a referral to the D.A., continuing to share information on their evidence with the public as warranted. Police have great latitude to share information related to their own investigations with the public as they see fit, independent of whatever decision a D.A. makes on the matter (and at times, they have publicly disagreed with a decision made by the D.A.). The county absolutely has the same ability in this case. As I pointed out earlier, civil authorities can and should investigate matters of significant public and community concern regardless of what law enforcement authorities are doing. The D.A. is not some all-knowing, all-powerful agency that gets to unilaterally decide what the public should know and if or when it should know it on matters that affect their health and well-being (given the abuses, misconduct and other failures we’ve seen in law enforcement agencies over the years, God help us if that were the case).
MRC addressed the failure to notify/activate the Community Warning System in its own root cause analysis, saying it lacked the “mechanism” necessary to detect the release. Why should the independent root cause analysis skip past a central issue that was addressed in MRC’s own report, particularly when the county has asked the D.A. to consider legal action against MRC for failing to do something in response to an incident that the refinery claims it didn’t know had happened? If Contra Costa Health is correct that MRC violated the law by not activating the Community Warning System, then MRC’s explanation that it had no way to detect/suspect the release is not credible. If MRC is correct that it had no way to detect the release, then CC Health had no basis for referring the matter to the D.A. (how do you charge a company for failing to respond to an emergency that it doesn’t know occurred?). What we have here is two strikingly different narratives about the failure to notify. Don’t the people of Martinez who found themselves breathing in this dust the day after Thanksgiving deserve to know who is telling the truth? (there’s no guarantee, or even likelihood, the D.A. will address theses questions publicly, or at all). And then there’s this revelation in MRC’s root cause report: “There were no community monitoring requirements during opacity events from the COB stacks.” Should there be? Wouldn’t that be a good question for this “community-involved” investigation and oversight committee to explore?
Contra Costa Health has said from the beginning that it is committed to transparency and accountability in investigating the issues related to this incident. If that’s the case, why does that commitment end at the one issue that it has direct control over and responsibility for (the Community Warning System)? Could it have anything to do with the revelation weeks after the release that even had the CWS operated as intended on Thanksgiving night, it would have registered only a “Level 2” incident, and therefore the CWS would not have sent out direct text messages, emails or phone calls to residents in the fallout zone, leaving many of them in the dark regardless (a reality that awakened city officials to the shortcomings of the CWS and prompted them to initiate their own protocols for informing the public of similar emergencies)? Perhaps county officials aren’t eager to endure such public scrutiny of a system they’ve touted as a model for others, particularly when such scrutiny shines a light on how woefully inadequate its notification procedures would have been on Thanksgiving night even had all gone as it should have?
A few additional thoughts: While the focus of and blame for this incident has rightly been on MRC from the beginning, county officials have themselves been guilty of no shortage of missteps and head-scratching decisions. For example:
Why did they wait more than three months after the incident to issue an official health advisory (referencing the “arrival of gardening season”) warning residents against eating fruits or vegetables from affected areas pending the results of soil testing? Resident gardeners were raising concerns about soil safety at public meetings attended by county health officials within weeks of the release, pointing out that some vegetables are harvested in the winter.
If this were a major chemical accident with potential long-term health consequences (as it led the public to believe), why did CC Health never bother to inform the Martinez Unified School District that it had visibly observed dust on a car parked in front of Martinez Junior High School two days after the release? (The school district superintendent only learned of the discovery by watching a City Council meeting video of a presentation on the dust fallout in March, when the dust at MJHS was discussed and pointed out prominently on a dispersal map). This showed either a callous disregard for the safety and well-being of Martinez schoolchildren, or it serves as evidence that county health authorities grossly exaggerated the potential long-term health impacts of the dust and caused unwarranted community alarm with their March health advisory. (I personally believe the long-term risks to the soil were overblown from the beginning, caused unnecessary public alarm, and distracted from the more serious questions resulting from the incident, namely the CWS failure/shortcomings that resulted in residents being left unaware of the accident and breathing in the dust.)
Once it became clear that there was uncertainty about the impact of the dust on residential and community gardens, CC Health should have immediately hired a toxicologist to conduct sampling of areas where the dust was visibly detected (such as the junior high school, where a community garden was operated) and provide immediate answers to the public. Instead, the agency dragged its feet for months on the question, unnecessarily wrapping it into the slow-moving independent oversight committee and leaving the community in limbo until results were at long last released five months after the accident. Not surprisingly, the results showed no ongoing health risks to the soil, but that was too late for the scores of gardeners who threw out who knows how much produce for no good reason.
Several of the community members initially chosen by Supervisor Federal Glover to sit on the Oversight Committee didn’t live in close proximity to the refinery and weren’t directly impacted by the release, which was effectively a slap in the face to those who were and applied to be on the committee. An additional community member (and neighbor of the refinery) was added to the committee in response to community complaints about this oversight.
It became clear in discussions about the shortcomings of the Community Warning System in the weeks and months that followed the release that even had the system worked correctly on Thanksgiving night, it would have been woefully inadequate in informing the community about what had happened. That’s because, as stated earlier, this accident wouldn’t have resulted in any direct notifications to residents via text messages, emails or phone calls. This shows that the CWS has been largely based on a flawed notion that social media and the local news media (what is still left of it) can be counted on to get the word out among the community about incidents such as this. News flash: Martinez, like many other cities in Contra Costa County, long ago became a news desert, and residents here long ago gave up on any expectation that the Bay Area media (including my former employer, the East Bay Times), can be counted on to keep our community apprised of issues affecting our safety and health in a timely, comprehensive manner. At the same time, county officials have grossly overestimated the role that social media can play in filling that gap (sites like Facebook and Twitter have lost their appeal and relevance for many as they’ve increasingly become toxic and unreliable platforms for sharing critical information). The fact of the matter is that the mainstream media all but ignored this accident for months after it occurred, and only parachuted in when CC Health served up their precious “clickbait” fodder in the form of the alarmist health advisory regarding possible soil contamination and eating fruits and vegetables in March, creating a false narrative that this incident was all about the soil when that was far from the case. Something to keep in mind the next time this comes up: The local, for-profit news media don’t care about our community and keeping it safe and healthy; what they care about is how they can profit off our misfortunes by serving up alarmist content that generates clicks by people who don’t live here and aren’t affected by these issues. “Local journalism” often is no longer about serving the best interests of communities such as Martinez; it’s about how to profit off our problems and misfortune.
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One way or another, the people of Martinez deserve to know why the Community Warning System failed in this incident, what its shortcomings were and are, and what, if anything, needs to happen to prevent such a failure from repeating itself. If the county refuses to undertake that process in a transparent, good-faith manner (which sadly now appears to be the case), then we need to avail ourselves of other options to hold everyone who has a role in administering the CWS accountable for learning and applying lessons from this incident. Public records need to be requested showing what communications took place between MRC and county officials about the operation of the CWS in the years and months leading up to this incident, and what training refinery personnel were required and expected to undergo in the operation of the CWS. Local leaders should put county health officials on the spot and demand they explain in a public forum who is telling the truth about the CWS failure (was MRC incapable of detecting the release, as it contends, or was there no excuse for the failure of refinery personnel to activate the system, as CC Health contends, or was this a gray area that the CWS never accounted for and needs to be fixed?).
The Contra Costa County Civil Grand Jury should step in and conduct its own independent investigation into the CWS and its operations in the wake of this incident and provide a public report with findings and recommendations for improvement that county officials will be required to respond to in a timely, transparent manner — given that they have no interest in doing so on their own.
MRC and Contra Costa County are partners when it comes to the operation of the Community Warning System, and they both have an obligation to engage the public in learning and applying lessons from the colossal failure that occurred last Thanksgiving. But instead, the people of Martinez are, in effect, being told by both to take their word for it that whatever needs to be fixed has been fixed, because they know best. In other words, “let the residents of Martinez eat cake” is the message we get when it comes to ensuring our safety through the Community Warning System. No need for any sort of independent, transparent and “community-involved” investigation to determine whether MRC’s “corrective action” is sufficient to prevent a repeat occurrence, or whether the county could possibly do more on its end to make the system more fail-safe and responsive to the community’s needs; the pure arrogance is at the same time both striking and appalling.
It’s a good thing that Mayor Zorn and the City Council are taking the initiative to create the city’s own warning system to compensate for the clear shortcomings of the county system. Given Contra Costa County’s arrogant refusal to engage the public in conducting a proper investigation into why its own system failed during the spent catalyst release, the sooner that the city of Martinez can implement its own system to protect the health and safety of our community, the better. As someone who’s lived in the shadow of this refinery for 25 years, I, for one, have had enough cake stuffed with obfuscations, contradictions and evasions from MRC and the county alike over the past six months. At this point, there’s little reason to hope that the county’s ongoing dog and pony show of an independent investigation is going to give us the answers we need and deserve about the most important issue stemming from this accident.
When government or industry refuses to hold itself accountable and learn lessons from failures and shortcomings, then it’s the responsibility of the public to do it for them. It’s time that we take matters into our own hands.