Martinez Refinery Investigation Stalled by Impasse Over Confidentiality Issues

Consultant can't begin probe into root cause of "spent catalyst" release until dispute over disclosure of MRC business operations is resolved; MVSD searches for new board member; July 4 festivities

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By Tom Lochner

A consultant for the Contra Costa County Health Services Department is "ready and eager" to begin an independent investigation into what caused a "spent catalyst" release at the Martinez Refining Co. beginning on Thanksgiving night that spewed 20 to 24 tons of dust laden with toxic heavy metals onto surrounding communities. But the consultant, Scott Berger and Associates, is still waiting for the refinery's OK to get started.

What's holding things up is the refinery's concerns about confidentiality, Berger told the county-led MRC Oversight Committee on Thursday, noting that he had received an initial draft non-disclosure agreement from MRC before the last committee meeting on June 8.

"Unfortunately, the draft agreement …. basically prevented us from disclosing anything to the committee without prior approval of MRC, which, as I understood it anyway, was against the mission of this committee and the way that the Industrial Safety Ordinance was put together," Berger said. "But we were assured …. that this was sort of an aberration, and that we would get a better non-disclosure agreement from MRC.

"About a week later, we did receive another draft," Berger continued. "Unfortunately, this one was even more restrictive than the previous one."

He added that he had urged MRC and the county to resolve the apparent impasse.

"We need to be able to discuss, with this committee anyway, things that might be confidential, and do that in an open and free manner," Berger said.

The county counsel has been working with MRC's counsel regarding this exact issue, said CC Deputy Health Services Director Matt Kaufmann, adding, "I think we're a bit frustrated."

"The county's Industrial Safety Ordinance does require the county to protect confidential business information and trade secrets," Kaufmann said. "We do that daily. … This is sort of business as usual. …  We don't see the need for a (non-)disclosure agreement, quite frankly."

Scott Berger and Associates, as the agent of the county, is also bound by the ISO and its confidentiality provisions, Kaufmann added.

Ken Axe, the MRC representative on the oversight committee, said: "Access to information is not an issue." Rather, he said, the disclosure of confidential business information and trade secrets is the issue.

There is a problem with disclosure of some information to the committee, Axe said, "because this committee is not the county." And the committee includes members of the public.

Committee member Tony Semenza pointed to recent history as a possible guide to get the process moving.

"This is not new," Semenza said, noting that there was a similar issue some years ago after a fire at the Chevron refinery in Richmond; that issue eventually got resolved.

"So I think there's a roadmap there," Semenza said. "Why don't we just go and get that roadmap and follow that roadmap?"

According to Kim McCarl, communications and government affairs officer for Contra Costa Health, oversight committees were used in response to two major incidents at Chevron in Richmond: a 2021 Wharf Oil Spill, when a consultant was hired to review the root cause analysis done by Chevron; and the 2012 Chevron Crude Unit fire, after which the oversight committee hired a consultant to perform a safety evaluation and safety culture review.

"We're just ready and eager to get going," said Berger, the consultant. "As soon as we get the agreement done, the timeline that we put together should be good."

If some of the public comments expressed near the end of Thursday's meeting are any indication, then the refinery has some work to do to gain Martinez residents' confidence.

"It feels like these are stalling tactics by the refinery," said Jillian Elliott, a member of the community group Healthy Martinez, which was formed after the Thanksgiving night accident to push for refinery accountability. "It's important, seven months out, that we actually get to the root cause of this.

"We don't have the trust that we're going to be told the truth,” Elliott continued. "It's absolutely essential that the confidentiality agreement be signed and that the investigation can be done."

Another commenter, Kathy Petricca, said the information so far received "really leaves a bad taste in our mouths."

"We may have thought that MRC and PBF (MRC's corporate parent) were not wanting to be accountable, and this is the playbook that they're following," Petricca said. "I really feel that they should assess more clearly the public's feelings about what they have done, and what they need to do to correct it."

Thursday’s oversight committee meeting can be viewed at the following link:

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One issue that CC Health and the MRC oversight committee will not be tackling is the refinery's failure to report the Nov. 24-25 incident to authorities, which normally would have activated the Community Warning System. That failure is being looked into by the Contra Costa District Attorney's Office for legal violations, but some residents have questioned why this should preclude CC Health from investigating the matter further.

A request for comment directed Friday afternoon to the Contra Costa D.A.'s office, asking, among other questions, whether there is anything in the law that would prohibit the county and its consultant to investigate the refinery's failure to notify in parallel with the D.A.'s investigation, was not immediately addressed. An automatic email reply from a spokesman for the D.A. said the spokesman would be out of the office until July 5.

Editor’s note by Craig Lazzeretti: Check back in the coming days for a fuller story on the county’s decision not to address MRC’s failure to notify the public/activate the Community Warning System as part of the oversight committee’s root cause analysis. I will reserve making fuller comments on this decision until the D.A.’s office has a chance to weigh in, but, as a 25-year neighbor of the refinery who can see and hear its operations from my home on a daily basis, I was outspoken in my disappointment and frustration with this announcement both in my public comments at Thursday’s oversight committee meeting and follow-up discussions Friday with county health officials. I have believed from the beginning that the failure to activate the Community Warning System in response to this incident (apparently the first time such a thing has ever happened in a major refinery accident) is the most serious issue and unresolved question stemming from the spent catalyst release. A community-involved, independent investigation that does not address that central question, and whether any improvements are warranted in the operation of the CWS and requirements and training of refinery personnel, will not ultimately serve the public interest and advance the cause of safety for our community and accountability for the failures that occurred last Thanksgiving night and the following day. As a neighbor of the refinery, I am much less interested in whether the D.A. files charges against MRC for this lapse than I am in ensuring that the county and MRC have the correct protocols, procedures and training and communication requirements in place to ensure it doesn’t happen again.

The following items are written by Craig Lazzeretti

Mt. View Sanitary District continues search for new board member

The Mt. View Sanitary District, which generated significant public debate earlier this year over its proposal for steep rate increases to fund infrastructure upgrades and other financial demands, continues the search for a new board member to fill the seat vacated by Melody LaBella in April.

The five-member board has been functioning with only four directors since LaBella’s resignation as it awaits a qualified candidate to step forward and apply for the seat.

Anyone who lives in the district’s service area is invited to apply by filling out a statement of interest at the following link: https://www.mvsd.org/vacancy-on-district-board-of-directors

Fourth of July celebration is Tuesday

The annual Martinez Fourth of July parade and celebration will be held Tuesday beginning at 10 a.m. along Main Street. Interestingly, the event is being sponsored by the Martinez Refining Company, which continues its efforts to build goodwill in the community, even as its operations and commitment to accountability and transparency for the spent catalyst release come under continued scrutiny for the reasons noted earlier in this post. More information about Tuesday’s festivities can be found here: https://downtownmartinez.org/4th-of-july-parade

The city will host the annual fireworks show at the marina Tuesday night beginning around 9 p.m. Facing budget challenges, the city is funding this year’s show with $74,000 in funds it received from the American Rescue Plan Act that was passed by Congress and signed into law by President Biden in early 2021. More information on the fireworks show can be found here: https://www.cityofmartinez.org/departments/recreation/events-permits/4th-of-july-fireworks-show