License to spill
Was contractor’s river dump a flagrant violation of environmental law or an example of bureaucratic overkill?
Why can’t Sacramento County get one of its major contractors to follow environmental laws?
That’s the question that arises following claims by county officials that MCM Construction Inc, the primary contractor on the Watt Avenue Bridge widening project, illegally pumped thousands of gallons of chemically treated water into the American River last month.
According to county documents, the contractor ignored specific instructions from a county inspector not to dump polluted water into the river, sparking an investigation by state water regulators into the behavior of the contractor and the county.
The contractor indignantly denies that it has done anything wrong, claiming work on the bridge has been unnecessarily hampered by environmental red tape. Yet regulators say the contractor clearly violated the law and has been uncooperative with the investigation into the incident.
And county officials note this isn’t the first time they’ve had problems with this contractor … on this very same project.
The spill occurred, according to documents from the county Department of Transportation, during work that the contractor was doing in the river on the substructure of the bridge.
According to a memo written by county construction supervisor Kim Grigsby to his superiors, he witnessed a supervising employee for MCM Construction pumping water that had been treated with hydrochloric acid out of a work area on the site and into the river—despite several requests by Grigsby that the water be disposed of under guidelines set by the state Regional Water Quality Control Board. The memo also says that the employee refused even to talk to Grigsby on two separate occasions, and at one point he simply drove off.
The procedure required under the county’s permit with the state board requires that such water be pumped into a holding tank and then dumped in a sanitary sewer manhole for treatment later.
The MCM employee had been using muriatic acid, a product that is essentially hydrochloric acid that has been dissolved in water, and is commonly used in swimming pools to lower the pH of water. In this case, the water on the site had a high pH because it seeped into a work area that contained new concrete. In total, the county believes nearly 18,000 gallons of the water were illegally pumped into the American River.
MCM defended its employees’ actions, and complained that it was only following the industry standard. Furthermore, they say the water was properly treated and posed no threat to any organisms in the river.County officials, however, strongly reject the notion that MCM is being unfairly picked on. The alleged violation was “certainly not the industry standard,” according to Cecelia Jensen, storm water program manager with the county Department of Water Resources. In fact, said Jensen, it is the contractor who seems to be ignoring standards: “It appears as though this contractor routinely disregards environmental compliance laws.” Standard practice or not, county officials say they are bound by no less than three separate permits from the state that make the contractor’s action illegal, and the county legally responsible.
“We were shocked,” said Dean Blank, senior civil engineer with the county Department of Transportation, referring to the contractor’s apparent disregard of repeated instructions. “The contractor had been clearly advised and directed to do otherwise.”
The state board is investigating the actions of both the contractor and the county in this. It could potentially levy tens of thousands of dollars in fines. But MCM Construction vice president Harry McGovern bristled at the notion that any fines or penalties would be leveled at his company.
For one thing, he said that he does not believe that the total amount of the spill was anywhere near the 18,000 gallons the county claims.
“This was no big spill. It was a few gallons,” said McGovern. He added that he was not at the site, and had no first-hand knowledge of what happened that day.
Furthermore, he believes that water treated with muriatic acid, given the small amounts released, shouldn’t harm anything living in the river. McGovern said the water discharged was just as benign as the water in one’s backyard swimming pool.
“You see, the people who are supposedly in charge of water quality control believe that the water in your swimming pool would be detrimental to fish. Why would that be, if you can let your kid swim in it?” said McGovern.
When asked whether he believed fish would thrive in one’s backyard swimming pool, McGovern replied, “No. But I don’t think it would hurt them either. I don’t really know.”
The county has hired an outside environmental consultant to investigate what the environmental impact may have been. According to Brian Laurenson with the environmental consultant Larry Walker Associates, the spill may indeed have been benign.
“Based on my back-of-the-envelope assessment, it probably wasn’t that bad,” said Laurenson. But whether fish died or not is a moot point to the state water board.
“It’s not the impact that we’re unhappy about. It is the fact of this discharge,” said Bill Marshall with the Regional Water Quality Control Board, adding, “We need people to understand that they shouldn’t be just dropping stuff in the American River.”
Marshall said that the board is paying particularly close attention this time, because this isn’t the first time there have been problems with this project, and this contractor. In January of this year, the RWQCB slapped the county with a $100,000 fine for not having the proper permits and because the project allowed sediment into the American River. The contractor was not asked to pay any of the fine.
Of that $100,000, half was paid out of the county transportation budget, and another $50,000 was to be spent on “supplemental environmental projects,” including some signs designating local urban creeks and some public service announcements that would air on local television to promote more awareness about area waterways. County official say they were not given a deadline, but that the education projects are nearing completion.
Tom Zlotkowski, who heads the county Department of Transportation, said he hopes that if there are to be penalties in the latest incident it is the contractor, and not the county, that gets hit this time.
He noted that the county immediately told the board of the violation, and told the contractor to remove the responsible employee from any work in the river, which was done.
“I hope that after they look at all the information, that they will indemnify us to a certain extent,” he said. “We’ve provided plenty of direction. We’ve done everything but follow [the contractor] around with a camera.”
The county does have the authority to sanction the contractor itself. The county Department of Water Resources could levy a fine, and even bring criminal charges against the contractor. Maximum civil penalties would be $5,000 for each violation found. Criminal penalties could include $1,000, six months in jail, or both. So far, however, Water Resources has not pursued any sanctions.
If the county or state do attempt to issue sanctions against the contractor, they may be in for a fight.
“It could become a legal matter,” said McGovern, insisting that MCM has done nothing wrong. “But I don’t want to sue the county. I think reasonable people can get this resolved.”
Why would the county stick with a contractor that allegedly disregards directions, and gets the county in trouble with the state?
MCM is a major player in the construction industry, locally and nationwide. The North Highlands-based firm ranks among the largest construction companies in the country and has been doing business with the county for nearly 25 years. Given the preeminence of MCM as a major contractor in the area, and the county as an important client, the two appear to be stuck with each other.
McGovern said that no matter how onerous MCM found the environmental rules imposed on the project, that the contractor could not afford to lose the project. Likewise, he doesn’t believe that the county, no matter how frustrated by being fined by state water regulators because of problems with the project, would look for someone else to finish the job.
“I don’t believe they would ever do that,” said McGovern.
He’s probably right. Transportation director Zlotkowski agreed that it was unlikely the county would show MCM the door: “I don’t think at this point it would do anybody any good.”
Still, he expressed frustration that the company has at times been “uncooperative.”
“We don’t want to slow down construction,” said Zlotkowski. “But we don’t want to be dictated to by the contractor.”
Not being dictated to may prove costly. McGovern said that the permit requirements are far too stringent because of the extra time and money it takes to pump wastewater into storage tanks and haul them off the site. Time is lost filling the tanks and driving them to the county sewer, and McGovern said his company doesn’t have enough of the tanks to do what is being asked.
“It’s made this job almost impossible to get done,” said McGovern.
He added that this part of the project was likely to cost significantly more than was originally thought. In the interview with SN&R, McGovern initially said the requirements would cost $500,000 to $1 million, then rethought his answer and said several hundred thousand dollars.
It remains to be seen whether following the rules results in costs overruns, or whether the county and MCM can even agree on what the rules are. County officials have said that they are particularly sensitive right now about this project because it is unusual to have work going on in the American River, and because they know they are being watched closely by the state.
But despite the finger pointing over who did what and when, McGovern said work has continued smoothly since the incident last month.
“I don’t want your readers to get the impression that there is a problem,” said McGovern. “This has been corrected. There isn’t anything going on that is a problem.”