Why the D.A.'s Investigation into MRC is Taking So Long, and Why There is No End in Sight

District Attorney, which launched probe in January into refinery's failure to report "spent catalyst" release, says it needs results of ongoing BAAQMD investigation to make decision; Dutch Bros. opens

In early January, Contra Costa Health Services asked the District Attorney’s Office to consider taking legal action against the Martinez Refining Co. for failing to activate the Community Warning System (CWS) and notify health authorities of the Thanksgiving night “spent catalyst” release that spewed at least 20 tons of toxic dust into the community.

In response to an inquiry from me, the D.A.’s Office clarified this week why the investigation is taking so long. Unfortunately, there is no indication it will wrap up anytime soon as the D.A. awaits more information from the Bay Area Air Quality Management District (BAAQMD).

D.A. spokesperson Ted Asregadoo emailed a statement from the District Attorney’s Office that read in part:

The Bay Area Air Quality Management District has referred for enforcement action the Air District Notices of Violation (“NOVs”) to the District Attorney’s Office. We are currently awaiting the completion of the Air District’s investigative report supporting the NOVs – which will also be reviewed for a charging decision.

I followed up with the air district on the status of that report and received the following response Wednesday from spokesperson Tina Landis:

Our investigation is still ongoing and we have at this time 29 violations that will be referred to the DA after we complete our investigation. There is no time limit in which the Air District is required to complete an investigation. The Air District is performing a thorough review of the facts (that led up to the catalyst release).

In other words, the question of whether MRC violated any laws that warrant prosecution remains in limbo for the foreseeable future. And that means the question of why the failure occurred, and what needs to happen to prevent such a failure from occurring again, also remains in limbo for the foreseeable future, because the county has said it will not independently investigate the matter until the D.A. acts (MRC claimed in its own root cause analysis completed in early February that it didn’t activate the warning system because it didn’t detect the release when it occurred, and that it has changed its procedures to preemptively activate the system whenever it experiences what’s known as an “opacity event”).

CC Health has prohibited the consultant hired to conduct an independent “root cause” analysis of the incident from exploring the Community Warning System notification failure — apparently the only time such a failure has occurred during a major refinery accident — claiming that it would potentially compromise the D.A.’s probe (an argument I rebutted in detail in this post).

Meanwhile, concerns about timely notification of refinery accidents have continued. There was a delayed activation of the Community Warning System during a less-significant coke dust release on July 11, in which the refinery says it initially tried to reach Contra Costa Health Services hazardous materials staff twice by phone (once leaving a voicemail) before activating the system at 10:21 a.m.; the release started around 8:52 a.m. The refinery apparently tried to call the health department’s general information telephone line to make the report.

The investigation into that incident is also ongoing, with no indication of when additional information will be released to the public. MRC issued a required 30-day report on the release Aug. 8 in which it said it had no “no additional information” to provide on the circumstances of the incident beyond what it had provided in its 72-hour report. The reports can be found at this link: https://cchealth.org/hazmat/

Contra Costa Health had said in a July 14 email to community members that the Aug. 10 MRC Oversight Committee meeting would include an informational update on the coke dust release. That did not occur.

The question of why MRC personnel tried to reach county hazardous materials officials by landline phone instead of immediately sending out automated alerts through the CWS also remains unanswered. A little over a week after the incident, CC Health Deputy Director Matt Kaufmann told the Martinez City Council that the health department had been unable to retrieve the voicemail that MRC reportedly left.

CC Health’s July 14 email to the community also said the D.A. would provide an update on the status of the MRC spent catalyst investigation at the Aug. 10 oversight meeting. That also did not occur.

Asregadoo said the D.A.’s Office had initially agreed to provide the update but changed its mind after reviewing State Bar guidelines about commenting on ongoing investigations. According to the D.A. Office’s statement:

While we can confirm that the District Attorney’s Office has received and is reviewing a referral from the Contra Costa Health Services Hazardous Materials Programs alleging two violations, the State Bar of California prohibits a member of the Bar who is participating in an investigation or litigation from making any pre-filing statements that have a likelihood of materially prejudicing a case.

The two violations under review are:

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.”

For what it’s worth, I responded to Asregadoo that it made little sense to me why the D.A.’s Office couldn’t have at least attended the meeting to say the same things that it did in its statement to me about the status of the investigation. In a formal complaint with CC Health’s ombudsman, I also questioned why, after telling the community that there would be these updates in its July 14 email update on the coke dust release, Contra Costa Health did not issue any follow-up communication about the change of plans, or address the matters at the oversight meeting.

Ombudsman Michael Kent emailed me the following response:

Obviously, it was a mistake that the community was not notified ahead of time of the fact that there would not be an update by the D.A. at the August 10, 2023 Oversight committee meeting. And from my discussions with the Director of the Hazardous Materials Program, Nicole Heath, the failure to put an update on the coke dust release on the agenda was an internal failure of communication. The problem could have also been corrected by an announcement at the meeting itself as to the reasons why neither item was put on the published agenda, but unfortunately that didn't happen either. 

Kent also defended the department’s decision not to address the CWS spent catalyst failure in the independent investigation while the D.A.’s investigation is ongoing, saying that he believes it “makes sense and is a reasonable approach.” He noted that the investigation will be able to take “into account potential failures to detect and mitigate the release” while acknowledging that the hired consultant, Scott Berger and Associates, was “asked not to look at the actual notification issue itself.” 

I replied by restating my belief that this approach is “endangering my community's safety by preventing an essential and necessary independent investigation into why the Community Warning System failed on Thanksgiving night,” noting that the problems with CWS notification during the July 11 coke dust release “only further undermines public trust in the ability of the system to keep my community safe.”

As questions about the operation of the Community Warning System linger, it’s also worth noting that there is a lengthy history of public frustration with the system stemming from notification delays and other hiccups during past incidents, including a major 2012 fire at the Chevron refinery in Richmond. In 2016, former Richmond Mayor Tom Butt was quoted as saying the following in this KQED article:

"By my count, the Community Warning System, which has been operating (if you can call it that) since the mid 1990s, has never actually worked the way it was intended. Some of that is on those responsible for reporting or activating it. Much of it is due to flaws in the system design and management."

Tony Semenza, executive director of the Contra Costa Community Awareness and Emergency Response (CARE) group, which has worked closely with the county on the development and implementation of the CWS since the early 1990s, said he believes much of the past criticism “has come mostly from officials who never took the time to really understand how the system works.” He said concerns about delayed phone notifications during past incidents have been addressed by “making improvements to allow the system to contact cellphones directly in the affected area.”

Until recently, only Level 3 CWS alerts (the most serious level, where health impacts are anticipated for the general population) triggered direct phone or text alerts to residents registered for them. The county recently decided to expand phone alerts to Level 2 incidents, where health impacts are anticipated for sensitive groups only. If the CWS had been activated as it should have been for the Nov. 24-25 spent catalyst incident, county officials said it would have qualified as a Level 2 incident. Under the communication protocols in place at the time, there would not have been direct phone alerts, only alerts through social media and other internet platforms; but hazmat crews also would have been able to respond immediately to the accident and begin an investigation to fully gauge health risks. CC Health said it only learned of the release through media accounts two days after it began.

Meanwhile, Hawaii’s Community Warning System has come under attack by those who say it failed to adequately notify the residents of Lahaina, including the failure to activate sirens, before a wildfire destroyed the Maui town last week and killed over 100 residents. Hawaii claims to operate the “largest single integrated Outdoor Siren Warning System for Public Safety in the world.”

County Supervisor John Gioia reiterated in an email to me this week that he and fellow Supervisor Federal Glover will take up the Thanksgiving night CWS failure through the Board of Supervisors’ Industrial Safety Ordinance/Community Warning System Ad Hoc Committee once the D.A. finishes its investigation. He also said that they “will be discussing the general issue of the CWS system protocols at an upcoming meeting.” I reiterated to him my view that an internal county review of the CWS failure after the D.A. makes a decision (which could still be many months away) is not the same as an independent, community-involved investigation led by an outside contractor, as has been the case for the soil “risk assessment” and “root cause” analysis aspects of this incident. What made the Thanksgiving night release unique and most troubling, in my opinion, was not the accident itself (there have been similar and more serious accidents at the refinery over the years) but that there was no notification through the Community Warning System.

Given that that there is no indication that the county will conduct a transparent, independent investigation into the CWS failure in the foreseeable future, if ever, I submitted a detailed public records request to CC Health earlier this week seeking any and all correspondence and documentation shared between the department and MRC regarding operation of the CWS from the date PBF Energy assumed ownership of the refinery in early 2020 to Aug. 14, 2023.

At this point, I am most interested in learning what level of ongoing communication occurs between the department’s hazardous materials division and industrial facilities on a regular, ongoing basis about responsibilities and obligations in operating the CWS (particularly when ownership of a facility changes hands); what sort of training is expected or required of refinery personnel in CWS operations; what drills (tabletop and live) the county and industrial facilities conduct on activating the CWS under various emergency scenarios; and anything else that speaks to the level of preparation the refinery personnel working on Thanksgiving night and July 11 had for activating the CWS properly and quickly. I would have much preferred to see these questions dealt with through the transparent, community-involved process that our community was originally promised, when CC Health Chief Executive Officer Anna Roth said in a Dec. 14 news release, “We will work with residents of Martinez, city leaders and the facility on a transparent investigation into why (timely notification of the incident) did not happen in this case." But given the course of action that the county has taken on the matter, I will do the best I can to shed light on the central unanswered questions from last November’s accident and keep you posted on what I learn.

Commission, Board vacancies

The Contra Costa County Hazardous Materials Commission is seeking applicants for two open alternate seats.

The commission is a voluntary body appointed by the county Board of Supervisors that makes policy recommendations to the board and county staff regarding hazardous materials and hazardous waste, including the types of refinery issues that have been front and center since last Thanksgiving.

According to a CC Health news release:

Applicants must live or work in Contra Costa, have a demonstrated interest in hazardous materials issues, an understanding and commitment to the principles of environmental justice as defined in county policy, and be able to attend monthly meetings as needed. Candidates for the Environmental Organization Alternate seat should represent an environmental organization to which they belong.

Applications are available from Michael Kent, the executive assistant to the commission, at 1-925-250-3227 or mkent@cchealth.org, or from the Clerk of the Board at 1025 Escobar St., First Floor, in Martinez.

Applications may be submitted by email or by mailing them to the clerk of the board. An online application form is also available at contracosta.ca.gov/3418/Appointed-Bodies-Committees-Commissions.

The deadline to apply is Aug. 31. Interviews for qualified applicants will take place between 10 a.m. and 12 p.m. on Sept. 8.

Meanwhile, the Mt. View Sanitary District continues its long search for a person to fill the vacancy on its board, which came open in May when Melody LaBella resigned her seat. More information on the role and how to apply is available at https://www.mvsd.org/vacancy-on-district-board-of-directors

And on a lighter note…

Expect some traffic jams on Alhambra Avenue on Friday when the long-awaited and highly anticipated Dutch Bros. coffee shop opens at the old Wendy’s location (3455 Alhambra Ave).

In addition to providing a caffeine jolt for residents, the store should provide a financial jolt to the Martinez Unified School District, which owns the land on which it is located and will finally start generating some rent revenue again after years of trying to find a tenant.

Superintendent Helen Rossi said at this week’s school board meeting that she dropped by the store as the final preparations were being made and got a sneak preview of its menu, which she found a bit overwhelming. “I was like, ‘I don’t even know what language you are speaking,’” she said.

I’m not sure whether the coffee shop will be as big of a hit with Alhambra High students walking to and from school as Wendy’s was, but at least they will now have a business on that side of the street that they can legally enter (the Embarc cannabis dispensary is next door).

Here’s a link for more info: https://www.kron4.com/news/bay-area/dutch-bros-opens-new-location-in-east-bay/