“Under Oath on the Landfill – Truth is Coming Out, Chapter 1, Is Alchemy Still Alive in Texas?”

As seen on the front Page of Hotline Press, Wednesday, August 26, 2015, features a Letter to the Editor by CALH member, Bob Gage.”Under Oath on the Landfill – Truth is Coming Out, Chapter 1, Is Alchemy Still Alive in Texas?”

Hempstead, TX; August 21, 2015) Remember “alchemy”? That was a process which some folks in the Middle Ages thought would let them change one substance into another one. For instance, they wanted to change lead (a heavy metal) into an even heavier metal (gold) for the profit of themselves and those they served. They failed.

What’s that ancient history got to do with the proposed Pintail Landfill? Quite a lot, as it turns out.

The Applicant, Pintail Landfill, LLC, (which, incidentally, still has zero employees) knew from the beginning that one of the things they needed to show to get a landfill permit was a nice layer of clay under all of the area to be covered by the landfill. That’s supposed to keep landfill leakage in the shallowest part of the aquifer so it can be detected.

They also knew a Contested Case Hearing was extremely likely. Indeed, the chief executive, Ernest Kaufmann, said in a sworn deposition that from the day they started the project they expected one. He said, “…I’ve never heard of a landfill project that doesn’t have a contested case hearing.” (emp. added)

An expectation of “pending litigation” (such as a contested case hearing) carries with it a responsibility to preserve records and evidence. The destruction or alteration of materials which can be expected to be discoverable as evidence is called “spoliation.” Obviously, it is not supposed to be done.

Back to the alchemy business….

In late 2010, before the Applicant (Pintail) even had its “option to purchase” agreement signed, it had started drilling preliminary test holes. Later on, after the secret about the landfill plans got out on June 18, 2011, they began a further series of borehole tests to determine the nature of the soils on the site. In other words, they needed to know at what depth intervals the sand, gravel, clay, and rock layers were located.

For each of these boreholes, a licensed geologist prepared field logs showing his personal on-site observations of what materials were found and at what depths. Those should have been kept by Pintail and its consultants because TCEQ Rule 305.47 (Retention of Application Data) requires keeping data through the life of a permit. Also, the Code of Professional Conduct of the Texas Board of Professional Geoscientists’ Rule 851.106 says “A Professional Geoscientist…shall keep adequate records…for no less than 5 years…. Adequate records shall include, but not be limited to…relevant documentation that supports geoscientific interpretations, conclusions and recommendations….” (emp. added) Original field logs are obviously “support” for final logs.

Along with any soil samples taken from the boreholes, the field logs are the basis for all subsequent interpretations.

Despite the requirement for the geologist to keep the “adequate records” (at least a copy of his field logs), he apparently turned them all over to Pintail’s consulting engineers and kept nothing himself.

What did those consultants do with them? Well, first some of the information on the logs was changed at least to some extent…changed by a non-geologist. Then the information was computerized and run through some sort of program. Then some more changes were made and, ultimately, “final logs” were produced. Everything else, including the original field logs, core samples, and intermittent drafts, was destroyed, leaving only those final logs as the basis for the geologic portions of the landfill application.

The manipulation of the field logs into the final logs seems a lot like running an altered document through a copy machine several times until the white-out can’t be seen any more and then destroying the original.

It’s curious that Pintail’s consultants would routinely destroy such materials since, according to Ernest Kaufman’s sworn deposition, “We want to be transparent” and “If you don’t have anything to hide, then why try and hide it?”

Perhaps not surprisingly, the “final logs” showed what they needed them to show…a nice continuous layer of clay under the landfill site.

But… surprise, surprise! Despite the attempted destruction of the field logs by both the field geologist and Pintail’s consultants, several of those field logs have come to light. Somehow they escaped destruction and have been turned over to the Protestants (Hempstead, CALH and others).

One of those surviving logs is of particular interest. The “final log” of well BME-A5 shows the bottom 4 feet as being “hard clay”. That would be very good for the purposes of Pintail’s landfill application. Inconveniently, though, the field log for well BME-A5…with observations made by the geologist on-site as the well was drilled…shows the exact same interval as being “multi-colored gravel and sand.”

So what? So…Pintail’s dream of a continuous layer of clay across the area of the landfill is shown to have at least one big hole in it – at the location of well BME-A5. The “final log” of BME-A5 is clearly contrary to what the original field log shows. And all the other “final logs” that resulted from the modification of information and the computer-massaging of the original field logs means that they are, at the very least, highly questionable. And, since the vast majority of the field logs and all of the borehole samples were destroyed, there is no way to check the accuracy of the majority of the remaining “final” logs.

Alchemy? You want alchemy? How about the transformation of that 4-foot layer of “multi-colored gravel and sand” seen by the field geologist into “hard clay”? There’s some alchemy for you!

Obviously, TCEQ would not have had the destroyed logs and other destroyed materials, such as the borehole samples, when Pintail ultimately submitted the umpteenth version of its application (certified by Ernest Kaufmann as “true and correct” and prepared under his direction). So TCEQ declared the application to be both administratively and technically complete and issued a draft permit. Finally, on May 7, 2014, Pintail requested a Contested Case Hearing on that application.

After all of that, doesn’t the requested Contested Case Hearing on that “true and correct” application deserve be held?

Maybe TCEQ got “hornswoggled” and, fooled by the incorrect information in the application, OK’d the final version of it. But Pintail asked for a Contested Case Hearing and it should get one based on the current application before the court, even though that application deserves to be found deficient by the SOAH judges and then deserves to be rejected by TCEQ.

Pintail’s owners and investors shouldn’t be made richer by pretending to have changed sand and gravel into hard clay. Alchemy still doesn’t work!