Toxic Trinity River site threatens workers
About 30 construction workers were exposed to hazardous materials in their work as part of the Panther Island project, and it all could have been avoided, the company's CEO said.
But as the agencies involved point fingers at each other over who is to blame for not telling the PennaGroup that the soil contained cancer-causing benzine, among other things, CEO Michael Evangelista-Ysasaga still waits for $2.9 million he said he's owed for cleaning up the mess in the area just east of downtown nearly eight years ago.
At the very least, Evangelista-Ysasaga said, the soil condition should have been included in the bid announcement. Instead, Evangelista-Ysasaga said he was told only after he pressed the issue.
That was after a construction supervisor alerted him when some of the workers began feeling nauseous and dizzy and he pulled them from the site. To date, none of the workers has suffered any illness, he said.
"This is what makes me so angry," Evangelista-Ysasaga said. "I sent my crews down in there relying on the government's word. They put us at risk. And now they're refusing to pay."
The project was part of the U.S. Army Corps of Engineers' ambitious $1.16 billion Trinity River Vision, more commonly known now as Panther Island. The flood-control and economic-development project includes a man-made island and a town lake. An outdoor venue near downtown already hosts concerts and festivals, with many revelers floating in the river during the events.
Since 2011, Evangelista-Ysasaga has gone back-and-forth with the Corps' Fort Worth District office over payment for his work on the project, near Samuels Avenue and at the south end of Fort Worth's Brennan Avenue Service Center and auto pound.
The Corps declined to answer questions about the soil and payments to the PennaGroup.
"We are in litigation posture with the PennaGroup," said Clay Church, spokesman in the Corps' Fort Worth district.
The money Evangelista-Ysasaga says he's owed is a pittance of what it could have been had he known about the contaminated soil ahead of time, he said. PennaGroup was paid $4.5 million, but the real cost of doing the work was closer to $7.5 million, he said.
Instead, Evangelista-Ysasaga said the Corps failed to disclose the contaminated soil in a trenching area they were going to work in and later took "adverse actions" against him by charging daily penalties for delays and withholding payments for six months when he said he started asking questions.
"If the government had disclosed hazardous waste on site, the cost of this project would have increased exponentially," Evangelista-Ysasaga said. "It was money that motivated them not to disclose hazardous waste at the time of the bid. The Corps wouldn’t give us a change order even though they promised to pay for the hazardous waste remediation."
Since then, PennaGroup has successfully completed numerous other contracts for the Army Corps and other government departments, he said. PennaGroup is on the list for work on President Donald Trump's proposed border wall, for example.
Church said it's the Corps' position that it was the responsibility of the Trinity River Vision Authority to tell the PennaGroup if there were issues with the soil.
Woody Frossard, the water district's environmental engineer, said he understood the city removed a leaking underground oil storage tank on the site long before the Corps' construction project started and the site was cleared by the Texas Commission on Environmental Quality for the Corps' work.
Frossard said he is not aware of any hazardous contamination at the site. There might be contamination, but at levels that are not a public hazard, he said.
"You can smell benzine, just like you do when you fill up your car," Frossard said.
But according to PennaGroup's weekly progress meeting report of Jan. 26, 2011, Evangelista-Ysasaga recorded that he discussed the soil matter with Frossard, who said the city had known about the condition for years.
The Corps has access to the city's land through a temporary construction easement issued to the water district in 2009, city records show. The water district, which paid no money for the easement, assigned the easement to the Corps, which hired PennaGroup.
PennaGroup was hired for a two-phase excavation project that involved widening an area along the West Fork of the river. On the south side of the river, the excavation made room for a wakeboard park.
The Trinity River Vision project was hatched many years ago, initially carrying a $435 million price tag. The project now spans 1,800 acres on the city's north and east sides. The river work and creation of channels will create the 800-acre Panther Island. Already, water enthusiasts canoe, kayak and use inner tubes in the water.
Voters are being asked on May 5 to decide whether the water district should issue $250 million in bonds to cover the remaining unfunded portion of the project, which involves the re-channeling of 1.5 miles of the Trinity River and the construction of flood gates and water storage areas.
In the project's second phase, awarded to PennaGroup in January 2010, excavation work on both sides of the river was to be done simultaneously.
On the north side, the contract also involved installing a box culvert the length of three football fields between two sections of an old landfill that had originally been an oil storage area and was capped in 1997.
It was during this work that Evangelista-Ysasaga said he had his first inkling something was amiss at the site. As part of the contract, he was required to plant grass along the berm for erosion control. The grass was lush and green for about a month, he said.
"Then it died," he said. Even after replanting, it died, he said.
The city of Fort Worth has long known about groundwater contamination seeping into the Trinity River at the south end of its Brennan Avenue Service Center, where oil refineries had used the land for at least a century. The city has spent millions to remove contaminated soil and leaking oil storage tanks on its property since the 1990s. The last tank was removed in the early 1990s, the city said.
A couple of years ago, groundwater monitoring indicated higher than acceptable levels of benzine and arsenic, triggering an environmental review. The contamination is impacting the surface waters of the Trinity River, the city said.
In January, the city told the Star-Telegram it is working with consultants on a solution to stop the contamination leaching into the river. It's likely going to cost millions of dollars and be one of the city's largest and more complicated environmental projects, city officials have said.
It was after that story that Evangelista-Ysasaga decided to talk about his allegations with the Corps.
Houston lawyer Bryant Banes, who specializes in government contracts and compliance, said he was hired by Evangelista-Ysasaga in December after talking with him for several months about his case. It's likely the case will end up before the Armed Services Board of Contracts Appeals, an independent body that hears post-award contract disputes, he said.
Banes said documents and the correspondence between Evangelista-Ysasaga and the Corps' contracting officer in Fort Worth show that the Corps targeted Evangelista-Ysasaga because he complained about the hazardous waste.
"They were trying to bankrupt him," Banes said. "He brought it to their attention about the hazardous waste out there. They can't take the position they didn't know. They just took advantage of him."
In March of 2010, the PennaGroup was given the go-ahead to start work on the south side of the river, but not the north side. Evangelista-Ysasaga said he was told it was because "a cleanup operation" was needed.
His company began working on the south side that April. At that time, Evangelista-Ysasaga said he noticed another contractor engaged in a "full-blown excavation operation" on the north side. In fact, workers were digging in a trench where PennaGroup was to put the box culvert.
Evangelista-Ysasaga said he asked about the ongoing work, but wasn't given an answer. At that time, and for six months, he asked whether the dirt the other contractor was moving was contaminated, the company's weekly project progress reports show. Representatives with the Corps were at those meetings.
When he received an answer, he said he was told "there is no issue."
PennaGroup was finally allowed on the north side on Nov. 10, 2010, but was not given additional time to complete their work. Instead, he said he was "threatened" with penalties if the job didn't get done on time.
PennaGroup's crews entered the trenched area on Dec. 17, 2010, detecting a strong smell of fuel. Some became nauseous and dizzy, Evangelista-Ysasaga said. On Dec. 20, a job superintendent sent him an email telling him that he told workers to stay out of the trenched area and reported the smell to a Corps inspector.
On Jan. 6, 2011, Armstrong Testing Labs, hired by Evangelista-Ysasaga, revealed the site was contaminated with hazardous petroleum hydrocarbons. Two weeks later, he again asked for soil testing results from the Corps, only to be told it didn't do any. Instead, the Corps said the city of Fort Worth's testing showed the materials were not hazardous.
A week later, the Corps changed its answer and admitted the city's testing did show contamination, Evangelista-Ysasaga said.
The Corps told him he had to remediate the contaminated soil and that meant finding a subcontractor who could do the work. In the end, PennaGroup removed 75,230 cubic yards of contaminated dirt. at a cost of about $2 million.
All along, however, the Corps continued to run the clock on the original contract, which placed an April 28 completion date. PennaGroup finished the work June 24, but a final Corps inspection puts the date at July 19, 2011.
PennaGroup was assessed $90,569 in penalties.
Evangelista-Ysasaga said it took his life's savings to cover the costs and fees of the added work. If he hadn't completed the project, Evangelista-Ysasaga said he would have been terminated for default, a black mark in government contracting.
"Every scoop out of the ground was costing me money," he said. "They came close to breaking us."
'They put us at risk'
Evangelista-Ysasaga immediately filed payment claims, and over four years he said he was asked for more evidence and told he didn't fill out paperwork correctly. In March 2015, Dallas-based construction consultants McCullough & Associates submitted an evaluation of delays and damages to the Corps on behalf of the PennaGroup.
Three months later, an officer admitted to the Corps' missteps and ruled PennaGroup's claims had merit. By that December, the Corps accepted liability, he said.
"Every time they tell us to go this way, and we do it, they'd tell us another way," Evangelista-Ysasaga said. "They nearly took us out."
PennaGroup was paid an additional $460,000 in April 2016. He continued to seek relief for the other monies, and in December he was paid another $320,000. Earlier this month he was told that's all he's getting.
But that's not enough, he said.
"I put my entire life's savings into this project to make it happen," Evangelista-Ysasaga said. "They've closed ranks and closed in and said 'we're not going to pay you another dime.'"