Group Files Lawsuit Against DWR Over Oroville Dam Asbestos Records

By Dan Bacher | June 9, 2017 |  

AquAlliance, a Chico-based environment group, has filed a lawsuit with Judge Timothy M. Frawley in Sacramento Superior Court alleging the California Department of Water Resources (DWR) has broken state law by failing to release records regarding the Oroville Dam spillway crisis.

The litigation takes place as construction crews hired by DWR’s prime contractor Kiewit Infrastructure West Company continue work on the spillways. In the past two weeks, Kiewit has focused on removing the lower 2,000 feet, or lower chute, of the gated flood control spillway, also known as the main spillway, according to DWR. Kiewit is using excavators and controlled blasting to demolish the concrete slabs and walls of the lower chute.

On April 19 , 2017, the group filed a Public Records Act (PRA) request to DWR to release records that explicitly pertained to asbestos, a known carcinogen. The asbestos was uncovered by the break in the main spillway and then further eroded by the massive releases of water from the spillway, made necessary by the near-failure of the emergency spillway, according to Barbara Vlamis, AquAlliance’s Executive Director.

Asbestos is the name for a group of minerals with thin fibers, known for their heat and fire-resistance properties, that are found naturally in rock and soil. Asbestos has been used in products, such as insulation for pipes, floor tiles, building materials, and in vehicle brakes and clutches. It can cause mesothelioma cancer and is banned by more than 50 countries.

Vlamis said AquAlliance has been concerned about the extent of the asbestos material and how it did or will impact workers, Oroville residents, and aquatic species, including the Feather River’s salmon and steelhead runs.

In response to the request, DWR released nine documents, but none of these included any pertinent emails, according to Vlamis. When questioned further, DWR claimed that there are no more responsive records and that all responsive e-mails are protected under attorney-client privilege.

AquAlliance, represented by Paul Nicholas Boylan, Esq., disagrees with DWR and is asking the court to enforce the PRA and release the records.

“DWR’s culture is bound by secrecy to protect its image and its very slanted focus, which is to maximize water exports to its contractors,” stated Vlamis. “AquAlliance strongly believes that the public’s right to know is essential in a democracy and legally enforceable, something we are happy to take on.”

The complaint states: “Respondent has denied and continues to deny Petitioner’s request for access to and copies of the records at issue, thereby violating Petitioner’s constitutional, statutory, regulatory and common law rights to examine the records Respondent is withholding. In response, Petitioner now seeks a writ of mandate, declaratory and injunctive relief.”

“This is not a one shot deal for us,” added Vlamis. “We’re in court now for Public Records Act request from 2015 over water transfers. This lawsuit will most likely help us in that case also.”

In a press release in March, DWR first revealed that naturally-occurring asbestos had been found in rock formations and the air near the main spillway. Agency officials claimed the asbestos posed minimal risk to workers and the local community — and increased dust control operations at the site.

California Natural Resources Agency officials declined to comment on AquAlliance’s suit.

The Oroville Dam and Spillway disaster drew national and international media attention beginning in February after the Department of Water Resources and other authorities ordered the evacuation of over 188,000 residents of Butte, Yuba and Sutter counties after officials feared the imminent failure of the auxiliary spillway.

Environmentalists and public trust advocates believe the crisis was completely avoidable. State officials and the Federal Energy Regulatory Commission (FERC) ignored a previous warning in 2005 by Friends of the River, the Sierra Club and the South Yuba River Citizens League that the emergency spillway is not armored (concrete reinforced) and extensive erosion would take place if the emergency spillway was used. (http://www.dailykos.com/stories/2017/2/13/1633388/-Delta-Legislators-Respond-to-Alarming-Oroville-Dam-Fiasco)

Many have criticized Governor Jerry Brown and former Governor Arnold Schwarzenegger for focusing their energy and money on promoting the controversial water bond and Delta Tunnels, rather than repairing and fixing existing infrastructure such as the Oroville Dam spillway, at the behest of corporate agribusiness interests and the Metropolitan Water District.

The latest refusal by DWR to release documents occurs within the larger context of the penchant for secrecy in government by both the Schwarzenegger and Brown administrations. This lack of transparency has characterized the Delta Vision, Bay Delta Conservation Plan and California WaterFix plans to build the Delta Tunnels, as well as the privately funded Marine Life Protection Act (MLPA) Initiative to create so-called “marine protected areas” in California. More information is available here.