Willco Dump: Has Change of Heart Stalled Legal Action?

More than seven months after the state Department of Health Services asked the Los Angeles County district attorney to charge Caltrans and others with violating state law in the handling of toxic wastes at the Willco Dump in the City of Lynwood, no action has been taken.

Part of the reason is to be found in the change of district attorneys--from Robert Philibosian to Ira Reiner, who defeated Philibosian in last June’s primary election and took office Dec. 3.

Another reason is the complexity of the case, which involves many possible defendants, a variety of charges and the sticky question of whether one state agency--Health Services--can take legal action against another--the Department of Transportation (Caltrans).

Still another reason appears to be a puzzling change of heart on the part of the Department of Health Services.

Unusual Phone Call

Late last November, just before Reiner took office, Mike Delaney, the deputy district attorney in charge of the Willco Dump case, received an unusual phone call from Joel Moskowitz, state deputy director of health services in charge of the toxic substances control program.

Moskowitz told Delaney that he had just learned the district attorney was contemplating a prosecution of Caltrans and others for breaking the law while removing hazardous wastes from the dump, which is to be the site of a major interchange on the $1.6-billion Century Freeway.

“Moskowitz called me and said he thought it was inappropriate for one state agency to bring action against another,” Delaney said in an interview.

This surprised Delaney since it was the Los Angeles office of the toxic substances control division, part of the state health department, that had asked for the prosecution in the first place.

“This certainly did represent a change on their part,” Delaney said.

The deputy district attorney also said the call “raised the question of whether we could bring any action” against Caltrans or anyone else since state law “seems to require that the action be brought in the name of the attorney general or the Department of Health Services.”

Moskowitz, in an interview, said he originally had approved the filing of a complaint without realizing the result would be to pit one state agency against another.

He said the call to Delaney was “quite innocent and was intended to be helpful to them (the district attorney and his staff).”

“I told him to go ahead and sue Caltrans if he wanted to but we would not be the ‘named plaintiff,’ ” Moskowitz said. “It is not legally proper to have a case called ‘Department of Health Services versus Caltrans.’

“I told him, in my opinion, the case would be thrown out of court or, at the very least, would get bogged down” over the issue of whether one state agency could sue another, while the substantive charges were ignored.

Some people close to the case have suggested that the Moskowitz call was intended to relieve Gov. George Deukmejian’s Administration of the embarrassment of having one of its agencies sue another in an area--toxic waste removal--in which the governor is seeking to compile a record of achievement.

Moskowitz said there was no truth to such speculation.

“I’ll tell you I have never talked to any of my superiors about this case,” he said. “I was not under any pressure or influence from anyone.”

Whatever the reason for the call, it apparently served to further confuse and delay a case that already was proceeding at a snail’s pace through the district attorney’s office.

Public attention was first focused on the Willco Dump a year ago, when Caltrans announced plans to leave about 100,000 cubic yards of potentially hazardous wastes in the dump, cover them with a plastic membrane and then proceed with construction of the freeway interchange.

About two-thirds of the Willco material already had been excavated, but when hazardous wastes were found, the cost of the project soared from $4 million to $12 million. Caltrans then decided to leave the rest of the material in the dump, even though some of the agency’s own environmental consultants warned that this would threaten the Lynwood drinking water supply.

After two legislative hearings and considerable public outcry, Caltrans reversed its position and said the material would be removed.

But the toxic wastes are still there.

Caltrans has erected a fence around the 14.5-acre site and has posted “No dumping” signs, which seem to have had the effect of adding to the amount of junk dropped in and around the dump.

“ Nada (nothing) has been accomplished,” said Democratic Assemblywoman Maxine Waters, in whose district Willco is located. “It is clear they have been dragging their feet on this thing.”

‘Not Keeping Its Word’

George Higgins, a former Lynwood city councilman who owns a trailer park across the street from the dump, said: “I feel Caltrans is not keeping its word. They’re not keeping it clean over there.”

Caltrans originally announced that removal of the wastes would begin this month but now agency officials say the date has slipped to next June or July.

Caltrans regional director Heinz Heckeroth said closing of the BKK landfill in West Covina, the only landfill in the Los Angeles area that could receive toxic wastes, has delayed the Willco cleanup.

Jerry Baxter, Caltrans deputy district director in charge of the Century Freeway project, said the BKK closing means that more than 6,500 truckloads of material must be hauled from Willco to landfills in Kern County or northern Santa Barbara County, at an estimated cost of $12 million.

Reasons for the Delay

This is in addition to the $12 million that already has been paid to the contractor originally hired to excavate the Willco site--Andrew Papac & Sons of South El Monte.

Heckeroth also said removal of the wastes has been delayed because a study of the material to be removed, and preparation of a plan to remove it, took longer than expected.

However, he promised that the job would be done.

“Just because we aren’t moving the dirt out doesn’t mean we aren’t committed to do it,” Heckeroth said.

Assemblywoman Waters is not satisfied with this promise. To speed up the process, she plans to convene a meeting of Caltrans and the other agencies involved in the cleanup--the Department of Health Services, the Regional Water Quality Control Board and the South Coast Air Quality Management District.

Last week Deukmejian toured the Century Freeway route but did not visit the dump site. However, he later told reporters: “That will all be removed and cleaned out. It has to be.”

Meanwhile, investigators for the toxic substances control division discovered apparent illegalities in the handling of the 200,000 cubic yards already removed from Willco.

They found that some of the trucks used by contractor Papac to haul the material were not properly registered and that trip manifests, listing the contents of the trucks, had been falsified.

Last March 27, Angelo Bellomo, chief of the Los Angeles toxic control office, told the Assembly Committee on Consumer Protection and Toxic Materials that Caltrans, Papac and perhaps others had broken the law in the handling of those hazardous materials.

Asked for Complaints

On June 13, Bellomo sent his agency’s findings to Dist. Atty. Philibosian, asking that civil or criminal complaints be filed against Caltrans; Calscience Research Inc. of Huntington Beach, environmental consultants hired by Caltrans; Papac, the contractor, and at least two truckers hired by Papac.

“This is a solid case,” Bellomo said in an interview. “We gave them a very good package. . . . There’s no question that Caltrans broke the law.”

Investigator Jim McNally said: “The case, as it was presented, did support what I thought to be violations.” But he conceded that “some minor follow-up work” remained to be done.

However, Delaney, the deputy district attorney to whom the case was assigned, found weaknesses in the Department of Health Services investigation.

‘Further Investigation Needed’

“They haven’t provided to date substantiation of some of their allegations,” Delaney said in an interview last week. “We found out . . . further investigation was needed.”

The need to collect more information is one reason the case is proceeding slowly, according to Delaney.

Another reason, he said, is the complexity of the case, which involves about 30 charges against various potential defendants.

Bellomo said Delaney’s contention that the investigation was incomplete “is not the truth.”

“There must be a reason why it’s been eight months or whatever since we sent it over and nothing’s happened,” Bellomo said. “But it doesn’t involve our agency trying to put a lid on it.”

McNally noted that of all the cases referred to the district attorney by the toxic substances control division in recent months, only Willco was still in limbo.

“I think they’re stalling because of the extreme political nature of the situation,” McNally said.

By this he meant not only the potential embarrassment of one state agency seeking to prosecute another, but also the fact that contractor Papac had engaged the services of attorney Karl Samuelian, who is Deukmejian’s close personal friend and chief fund raiser and also a friend of Philibosian.

Papac needs a lawyer because Caltrans is suing him for $22 million--the $12 million paid for excavating the first two-thirds of the Willco Dump and another $10 million for alleged fraud in bidding the job on behalf of another contractor.

Samuelian told The Times last April that he never discusses his clients’ problems with the governor or anyone in the governor’s office and did not discuss the Papac-Willco case.

But a Caltrans attorney later told a legislative investigating committee that Samuelian showed up for one meeting with agency officials wearing a “Duke” button in his lapel.

Samuelian is no longer Papac’s lawyer.

Delaney denied that political pressure has delayed possible Willco Dump prosecutions.

“That I can categorically deny,” he said.

But there has been confusion about the position of the toxic substance control division, at least since Moskowitz’s late November phone call.

Bellomo said he did not consider the question of one state agency suing another when he referred the case to Philibosian last June.

“There was a lack of awareness on my part,” he said.

But McNally, the Willco investigator, said this issue came up frequently as he proceeded with the case.

“I checked with our (Department of Health Services) legal people in Sacramento and was told: ‘We have nothing that says you can’t (file against Caltrans), so go ahead.’ So I did,” McNally said.

Despite news coverage of the case and months of discussion within the health department about the possibility of a lawsuit against Caltrans, Moskowitz said he did not learn until late November that his agency was considering a request for action against Caltrans.

Barry Groveman, head of a toxic waste strike force for Reiner, the new district attorney, said he does not know what to make of the Moskowitz phone call, nor does he know why it took Philibosian so long to reach a decision about the Willco case. But he promises swift action.

“Regardless of what’s gone on in the past, we’re going to use our resources to assure that if there have been violations, they will be prosecuted,” Groveman said.