Toxic Grounds

Groundwater beneath the Rosedale Highway refinery is saturated with toxic chemicals leaked or spilled on the property over the last 20 years, some of it pooling dangerously close to two public drinking supplies including the Kern River.

But until recently, the state agency tasked with protecting our groundwater has not formally acted to get the messes cleaned up -- no fines and no enforced deadlines.

Instead, the Central Valley Regional Water Quality Control Board has relied on voluntary cleanup measures by the refinery's various owners. Over the last two years, though, the only cleanup effort under way has ground nearly to a halt. Still, the board hasn't acted.

When new contamination showed up in June, the water board did issue a formal cleanup order to the refinery's new owner, Big West of California, a subsidiary of Flying J. But prompt action has not been past practice at the water board. And the recent order does not address most of the contamination.

That may change after state Sen. Dean Florez, D-Shafter, was asked by a reporter what he thought of the situation.

Florez got in touch with the board and said Thursday he's preparing a letter asking state Attorney General Jerry Brown to get involved.

Also Thursday, the water board said it was preparing to send a formal action notice in the next couple of days to Shell, the company responsible for the past contamination.

"We've given up on the water board," Florez said. "They're a paper tiger."

Others share that perception.

"The Central Valley water board does not enforce any rules or fine anyone," said Tom Frantz, chairman of Association of Irritated Residents, a local environmental group, who has dealt with the water board on other cases of contamination. "This situation at the refinery is not an exception. It's a glaring fault."

The spills

Shell is responsible for cleaning up past pollution under an agreement reached when it sold the refinery to Flying J in 2005. It runs three treatment systems on the property. But one has been shut down since the sale and pockets of polluted water have gone untreated.

Letters between the Central Valley water board and Shell show how ineffective the board has been at getting Shell to move on the pollution.

* The water board never knew that Shell, when it sold the refinery, planned to shut down a soil cleanup effort. The agency found out during a routine site visit in May.

Shell said it verbally discussed the system deactivation with water board staff. The company said it deactivated the system because, when the refinery sold, it needed to build its own power source.

* After the shutdown, Shell, not the water board, set the deadlines for restarting the system. It missed all three. The most recent deadline for constructing a power source was July. But the system remains off and last week, the company said the new one is still several months out.

* The water board has repeatedly asked Shell to propose cleanup plans for contaminated areas of the property. Shell initially downplayed the need to focus on those areas. The company finally agreed to conduct a study after the water board cited Shell's own data, which showed the amount of groundwater contamination was increasing in some places.

Papering the problem

Water board officials say bare-bones staffing precludes them from making Shell pick up the pace.

A state audit in the late 1980s showed the office should have 66 staffers, said Bert Van Voris, a supervising engineer there.

At the time it had about 34. Staffing rose to approximately 60 in the 1990s, Van Voris said, but that has dwindled to about 50 today. Some staffers are responsible for as many as 20 to 30 sites.

Issuing fines for missed deadlines or taking systems offline requires completing detailed paperwork and, in the case of a legal challenge, staff time in court, Van Voris said. So, he said, the office writes letters.

"It's a matter of focusing on your priorities," Van Voris said. "Staff has so many other projects, which ones do you focus on?"

Progress may be slow but it's happening, said Russell Wall, a senior engineer at the Fresno office. Shell has finally agreed to study whether further remediation is needed by Dec. 1. The company also expects to have the deactivated cleanup system running by then.

"Maybe it's not as fast as we prefer," Walls said, "but they are moving forward."

Partly clean

Shell maintains it's doing all it can to restart the cleanup system.

"We take our environmental responsibility seriously and are committed to mitigate issues for which we are responsible," said spokesman Stan Mays.

Building a new power source has cost the company $3 million and been held up by factors beyond its control, he said. They include needing to rebid the project and waiting for the city of Bakersfield to grant an easement.

Mays pointed out two other, effective systems are running. One has cleaned up MTBE in one part of the property so well it has been scaled back and the rest should be remediated in a few years.

He declined to explain why the company didn't act sooner to look into other areas of contamination as the water board requested, saying: "We will continue to work with regulators until they say the job is complete."

Business friendly

The regional water board has been accused of inaction in the past.

It happened in 2001 when prominent local farmer Fred Starrh sued Aera Energy, an oil company owned by Shell and Exxon Mobil, for knowingly allowing 600 million barrels of oily wastewater to pollute groundwater used for irrigation.

Starrh attorney Michael Stump said the water board knew what Aera did but didn't order the company to stop.

Letters from the water board to Aera were "a constant stream of talking about doing something and never doing it, threatening to do something and never doing it," Stump said.

Aera argued it did no damage because the water was too salty for irrigation. Starrh Farms said it was good enough when mixed with California Aqueduct water.

Regional water board officials said Starrh wouldn't turn over information needed for them to act and because of lack of staff, they needed to focus on keeping clean clearly usable water.

A jury sided with Starrh Farms and awarded it $7 million.

"The water board never fines anybody, especially anyone affiliated with an oil company or a refinery," Stump said. "It really is beyond explanation."

Van Voris, a board supervising engineer in Fresno, said his agency does not give preferential treatment to certain industries.

"Actually, some of us would relish a good fight (with the oil companies)," he said. "But again, you've got to prioritize."

Kern County Deputy District Attorney John Mitchell said his dealings with the water board have been varied.

Mitchell praised the board for its actions in 2005 when Goyenetche Dairy near Shafter dumped liquefied manure on the Buttonwillow Ecological Preserve, home to endangered plants and animals. The water board investigated and turned over the case to the Kern County District Attorney's office. The dairy had to pay $127,000 in restitution and penalties.

But when Mitchell was mounting a 1995 case against an oil company, the water board didn't want to get involved.

He was prosecuting nearby Sunland Refinery, which was accused of numerous air violations that led to the death of a passing motorist. The vehicle exploded due to fumes that wafted onto the roadway.

Mitchell discovered the water board had been writing letters to the refinery for more than 10 years regarding groundwater violations that hadn't been addressed.

The polluted water wasn't responsible for the explosion, but Mitchell asked the water board if he should include the violations in his case against the refinery. The water board declined, Mitchell said, saying that since the explosion the refinery was being more responsive.

"It was almost comical," Mitchell said. "(The water board) said, 'We've been trying to get these guys' attention and now they're starting to respond to our letters, so we'll take it from here.'"

"The water board at that time was trying to be business-friendly, so I let it go."

In a settlement with the refinery, Mitchell included orders for Sunland to comply with the water board's requests anyway. The refinery no longer exists but a groundwater cleanup system still operates at the site, he said.

Prior to the Goyenetche case, Mitchell said, that was how dealings with the water board went.

"We had cases where the water board refused to show up for depositions or trials unless they were paid in advance," he said. "It wasn't just a matter of non-cooperation, it was almost hostility."