The Letter Bomb

This article first appeared in Northwest Yachting Magazine in February, 2011.

 

Extortion is a pretty loaded word. Scenes of kidnappers or private investigators with broken noses come to mind, not images of John Muir and Henry David Thoreau. Lawyers don’t usually come to mind either.

In fact, extortion is such loaded word that I’m only going to use it in quoting Scott Anderson of CSR Marine, though a lot of other people have been bandying it about in the last few weeks. In December Anderson and three other freshwater boatyard owners in the Seattle area received Intent to Sue letters from the Smith and Lowney, a law firm that files citizen lawsuits on behalf of the Puget Soundkeeper Alliance (PSA). In total, five yards; Dunatos, Yachtfish, Yarrow Bay and CSR (two facilities) received such letters.
Basically, the letters threatened to take each yard to federal court in 60 days unless a settlement could be reached. In the settlement the recipient would likely agree to change his or her ways and pay a penalty. Oh, and pay Smith and Lowney’s fees. It felt to Anderson and and others like extortion.

The waters here get very muddied, and not by copper discharge. While enormously powerful, the national Clean Water Act (CWA) is administered in Washington State by its Department of Ecology (“Ecology”), which issues permits to entities discharging pollutants in the waters. While these permits have a number of specifics, some of them, for instance copper content in stormwater runoff, are “benchmarks” and not limits. If a benchmark is consistently exceeded, the culprit has to perform a “Level 3” response, which requires (among other things) a very expensive engineering summary.

Are boatyards in violation of their permits? It’s likely that most are, in some way or another. Even one missed report would put them in violation. And the penalties if assessed by federal court, are up to $37,500 per violation per day per incident. Let’s say that one missing report is six months late. If that fine is levied, it could be on the order of $6,750,000. Oh yeah, and Smith and Lowney’s (or some other law firm) fees. Going to court isn’t a really good option, and that’s what makes the CWA so effective.

So, are our boatyards a bunch of recalcitrant polluters looking for every chance to pollute? Nope. Not even to PSA. Yards are good at reporting DMRs (Discharge Monitoring Reports) and have several binders that make up their SWPPP (Stormwater Pollution Prevention Plan) decorating their offices. By most accounts, as an industry, they are doing a good job of cleaning up their act. Some, of course, are better than others.

 

A Bit of History

In this column not too long ago, I praised PSA, the yards, the Northwest Marine Trade Association (NMTA) and Ecology for compromising and moving forward on testing new equipment on moving forward on stormwater runoff control, even in the absence of new rules or even guidelines. Ironically, one of the yards participating in this pilot program was CSR. This seemed a great step forward, everybody working together.

So much for the warm and fuzzies. Several yards moved forward on installing StormwaterX systems to get their effluent levels down, which was done at considerable cost. Others looked for less expensive or more certain solutions while the new numbers were finalized. Then the economy tanked. Ecology commissioned a study to see what was economically feasible last year. While that study was being commented on, PSA sent out a (as they call it) “clean up your act” letter to all the boatyards. Even though it was general and vague in nature, the savvy yard owner couldn’t help feel the cold breath of the law(suit) breathing down upon them.

 

The Letter Bomb

 

To those of us who feel the truth and the written word should have some close relation to one another, these letters are obscene. They’re inaccurate and lazy, but I guess that’s how things work in the legal world: blast away with whatever in such a letter and then sort it out later.

Amid lots of Roman numerals and subheads, the letters start off by accusing the yards of misusing tidal grids (remember they’re on fresh water) and go on from there. Each yard got basically the same letter, because nobody had actually witnessed violations of any Best Management Practices or any other myriad on-site violations. Neither PSA nor Smith Lowney visited the yard. The numbers cited, the toxic compound levels, came from the DMRs the yards provided to Ecology. With so much thrown against the legal wall, surely something would stick.

Of course there’s a benefit to throwing everything against the wall, you don’t actually have to make it specific to the recipient. Saves time and energy. Just change a few figures and the recipient’s name and hit print again. Might not feel so good to the person who feels their livelihood is threatened.

Then there’s the gotcha factor. These letters were sent Dec 17, starting the clock. They require paperwork within 14 days and a great deal of action on the part of the recipient in the next 60 days, for some even one of those aforementioned engineering studies. Pretty tough to get an engineering study started over Christmas.

I asked PSA Executive Bob Beckman about the timing, and he insists that there was nothing calculated about it, that that just happened to be the timing. I also asked him about the lack of specificity in the letters. Because PSA was currently in negotiations, he couldn’t comment. But as an owner of a Westbay 45 Pilothouse himself, he was surely aware of the tidal grid gaff.

Today’s lawyers may see this kind of letter as the way things are done, but Justitia (and some of us mortal folk) see something about this as exceedingly wrong.

 

The Yards

 

I visited with a couple of yards and found different but equally distressed reactions.

It didn’t take long for CSR to get in touch with Northwest Yachting. Scott Anderson’s biggest gripe? “They could have just come down and talked to me any time. I would have showed them what we’re doing. Instead they just sent the letter.” CSR actually has an employee dedicated to environmental matters, Chip White, and he’s been working on CSR’s environmental situation for more than two years. He helped with the stormwater runoff pilot program, has been working on Best Management Practices (BMP) compliance and has been testing stormwater runoff systems. As a Navy captain, he was responsible for the environmental impact of an enormous military marshalling yard. He’s a guy who understands following the rules.

Turns out that CSR has improved their BMP compliance, tested two stormwater treatment systems (with another in the wings) and has its SWPPP blessed by Ecology. CSR still regularly exceeds the benchmarks of copper, and missed some DMRs at its Lake Union yard. They’re not perfect, but they’re definitely not sitting on their hands. Had PSA called, they might have learned that.

Anderson and his team at CSR decided not to move forward on installing a StormwaterX treatment because, without final numbers from Ecology, they didn’t want to spend the money on a system that might not do the job. “It would have been a bad business decision.” To some, it might seem like a convenient excuse to delay Now, the business decision will be whether to settle or go to court.

Over at Dunatos, it all felt a little more personal. “The worst thing is they say we’re one of the worst polluters,” says Patti Segulja, General Manager. “I’ve gone over all the numbers, we’re not one of the five worst!” She pauses. “You should see John’s [her uncle’s] office. The wall is covered with certificates of thanks from the police department and the fire department for things he’s done. He’s an asset to the community. And they want to drive us out of business.” Patti doesn’t seem like the easily shaken type, yet she is most definitely not dry-eyed about the family business.

Dunatos hasn’t been sitting on its hands, either. They installed new stormwater drainage systems, and as of January had begun testing the newly installed CleanWay filtration system. Their SWPPP also passed muster with Ecology. Their numbers, however, are still in the hundreds on copper, even on a good day.

“Nobody has to hold a gun to my head. I’m an environmentalist,” Segulja says. “ I want to do the right thing. I know we’re above the benchmarks. But we’ve come down a lot and have just installed a new stormwater runoff system. But none of it seems to matter to them.”

Somehow Segulja doesn’t seem personally resentful about the whole thing. “The PSA people were nice and polite when they came here last week (in January, after the L Bomb). Then they send this,” she says, waving a proposed settlement letter specifying $32,000 in penalties plus, oh yeah, attorney’s fees. “We have to decide now what’s best. John’s 68. Does it make sense for us to pay the fine and keep going, or get out of the business now. What would you do? ”

CSR and Dunatos have different stories and different attitudes. But both improved their numbers and were making positive steps toward an ultimate solution. They may not have been aggressive enough about installing the new stormwater runoff equipment after the pilot project. But neither are willful or recalcitrant destroyers of the environment.

 

The Other Players

Where does the Northwest Marine Trade Association (NMTA) fall in with all this? All five yards were NMTA members, and it’s this trade group that’s supposed to be looking out for them. Well, the week before The L Bombs were dropped, the NMTA Executive Director George Harris and the PSA Executive Director Bob Beckman (both new to their positions this year) had lunch together. It seems that would have been a good time to talk openly about the situation and see if it could have been diffused. But Beckman only let on that 5 yards were getting The L-Bomb. When boatyards starting calling Harris, he could not have been too surprised.

Subsequently, Harris looked at the numbers closely to see for himself if NMTA members were doing the right thing. He found that as a group, yards that are NMTA members are getting cleaner. For the rest, he figures it would be realistic to start installing runoff systems. “It’s about a $3 million problem. We should be able to find some grant money to help that process along.”

Harris, however, doesn’t answer only to those yards. He also answers to the 10 yards that have installed filtration systems. He also answers to all the members who want boating to be positioned as unquestionably green activity. He answers to PSA, with whom NMTA is partnering on the Clean Marina and other programs. He can’t throw himself in front of the oncoming PSA train to try to save the yards. He sent a formal letter “respectfully” expressing NMTA’s frustration with the matter, but suffice it to say in the letter writing exchanges Smith and Lowney already took the gold.

Harris of course finds himself in the middle of what was an apparently peaceful pasture that has suddenly become no man’s land. “Was there something I could have done before that train left the station?” Harris asks himself.

Regardless, Harris and NMTA are now fully engaged in the matter and have reached out to the Ruckelshaus Center, a University of Washington/Washington State University center for collaborative problem solving. The Executive Directors and two of their board members will be attending, though the L Bomb situations will likely be resolved by then. Hopefully the Ruckelshaus mediator can convince everybody that ongoing and clear communication is the answer. Sounds a bit like couples counseling, but let’s not go there.

 

What about Ecology?

Gary Bailey, Water Quality Permit Specialist at Ecology, offered some hope and a timeline for the new permit. The new draft permit will be available for comment by the end of March, and after a comment period and revisions (probably 60-90 days) the new permits will be issued.

So why did it take so long for the 2005 permits to be revised with the data from the 2007-2008 pilot project? “One thing was that we commissioned an Economic Impact Analysis (EIA), in light of the economic situation the boatyards were facing.” That report and the comments on it were placed online at http://www.ecy.wa.gov/programs/wq/permits/boatyard/index.html. They’re fascinating reading.

And why is it Ecology isn’t running around enforcing the permit provisions more actively? For one thing, they’ve lost 30 positions, mostly field inspectors. “We were hit hard budget-wise, “ he said, “and it’s not going to get better any time soon.”

Sandy Howard, an Ecology Communications Manager, jumped in with the big picture. “Our priority is reducing toxins in the Sound. We’re trying to move into a source control mode. That’s what we did as a nation with DDT and PCBs, and now it’s copper.”

When Ms. Howard says source control, she is talking about getting rid of copper bottom paints. Perhaps this is where the whole battle should have been waged the entire time. After all, even more than the yards, it’s our boats that are leeching copper 24/7 out there, a far greater source of copper than the yards. In Europe, copper bottom paints are banned in several regions and countries. And it did not mean the end of boating. It also did not happen overnight.

 

The Level Playing Field

The yards which have installed the StormwaterX systems are in an interesting position. They apparently made brilliant investments at exactly the right time, and are ready to take advantage of other yards’ difficulties. But even if they’re feeling pretty smug today, they can’t help but wonder if they’re next on the list or what happens if their systems can’t meet whatever the new numbers are.

Those yards want a “level playing field,” one on which everybody has to meet the same standards, and they have a point. They invested the big bucks to install the systems, and it just isn’t fair if the guys down the street are not.

 

The Green Guys

The mission of Puget Soundkeeper Alliance is simple and laudable: “To protect and preserve Puget Sound by tracking down and stopping the discharge of toxic pollutants into its waters. Its programs include patrolling, government interaction and education.” And legal action.

Legal action is not always bad. It has proven to be an effective and necessary instrument of change for the environmental movement. There are some Neanderthals out there who refuse to recognize the need for respecting the environment.

Bob Beckman insists that the Intent to Sue letters were about bringing the yards into conversation. “What we ask people to do is talk to us in those 60 days,” he says. “Let’s talk.” One gets the idea that Beckman is ready to listen. The trouble is, once the L Bomb is dropped, at the very minimum the lawyers on both sides are going to have to get paid. He had hoped that the “clean up your act” letters in September would have elicited some reponses, but only Jensen Motor Boat actually responded. “Chalk it up as a missed opportunity,” he says.

Beckman insists that PSA is well aware of the relatively tiny impact of boatyards compared to street runoff, and points to the recent settlement (no money) with Washington Department of Transportation regarding road construction and maintenance. He doesn’t even have many harsh words for the boatyards. He does have some choice words for Ecology, saying that they “fell on their face badly,” and “they blew off two years of work” when they failed to issue the new permit after the pilot project was complete.

Beckman also insists that PSA will not be inflexible when it comes settlement time. “We can negotiate all these things,” he says. For those who are interested (or skeptical), PSA does not receive the settlement money, and apparently does not receive Supplemental Environmental Project (SEP) money from other lawsuits. Its revenue comes primarily from foundation grant support.

As a side note, as this news was hitting, some unsuspecting volunteers manning the PSA Seattle Boat Show booth (complementary courtesy of the NMTA) got more than they bargained for. More than a few boaters came by to register their distress at the lawsuits, and in a couple instances were over-the-top hostile.

 

 

Here’s my opinion on all this:  First and foremost, I’m appalled at the way PSA has gone about this. They dropped the L-bomb before visiting the yards or even making a phone call. It begs the question of intent. Was it to encourage the yards to clean up or is it about backing them into a corner where they’d have to accept a settlement or shut their doors? If it was the former, it seems they could have visited the yards or made some phone calls to find out what was in the works. Because, clearly, things were in the works.

Simple phone calls would have shed some new light on the situation. If the yards aren’t responsive or are sitting on their hands, sue them. If you do, however, puleeeeeaaase have your lawyers take the time to make the words reflect what’s going on. It really isn’t too much to ask in something this important. Yeah, it’s work. So is cleaning up a boatyard.

The yards messed up as well. Granted, they kept working on cleaning up their yard. But they forgot to tell PSA, even when they received a letter that didn’t take too much interpretation to understand as a threat. Remember, keep your friends close and your enemies closer. With their neighbor yards installing treatment systems and a new stormwater runoff permit due in 2010, none of this should have come as a surprise.

The Northwest Marine Trade Association got caught flat-footed here as well. With the working relationship they’d forged with PSA before, it seems that they should not now be going to mediation sessions the day after five of their members have faced many tens of thousands of dollars in settlement penalties and fees.

And Ecology doesn’t come out smelling like roses. The delay in coming out with the new numbers after the stormwater project system created the perfect conditions in which this mess could multiply. When the yards and the PSA both cite Ecology’s inaction as reasons for the mess, it may be time for Big Brother to step in after all.

Uncertainty created some surprising allies when it came time to comment on the Department of Ecology’s Economic Impact Analysis. Seaview Boatyard, for instance, saw “no moral reason” for relaxing standards just because the economy was in shambles, while PSA stated that costs of complying with permit conditions shouldn’t be included in the Economic Impact Analysis. I don’t quite get that one.

We boaters get to shoulder some of the blame. We need to support the yards that are most progressive in the clean arena. Yes, that means asking them difficult questions like what are their stormwater runoff numbers before we choose them for our haulout. Imagine their surprise. Nothing (even a lawsuit) speaks more loudly to businesses than losing customers because the guy down the street is doing something they’re not.

 

Now What?

 

By the time you read this, much will have been settled.

 

The L Bomb deadline will have passed, and the yards will have paid up, shut down, or decided to fight it out (and, oh yeah, pay the lawyers). If Bob Beckman is right, and I hope he is, the settlements will be negotiated and reasonable. I hold no hope that the suits will go away. The PSA/NMTA mediation will have taken place and, hopefully, those two will have more open lines of communication.

Assuming the yards pay the penalties, where does all this settlement money go? I suppose it could go to some kind of elementary school program where Sam Seasnail tells the kids now important clean water is. I’d prefer to leave that to mommies and daddies, and instead find something more directly relevant to water quality (which, by the way, PSA does). How about giving that to Ecology to hire more inspectors. Or, how about putting that money toward development of a suitable replacement for toxic bottom paint? Perhaps even hiring a lawyer to help bring existing non-metal paints to market. They do exist.

We as boaters better pay attention. What will it mean if the yards shut down? It’s a distinct possibility. Fewer yards mean fewer choices and less competition. The yards that live to see another day aren’t likely to add any liability by allowing do-it-yourself work, and with less competition, haulout prices most assuredly will go up. Hey, it’s business. More people will go to  Oregon or BC where environmental controls aren’t nearly as stringent. Copper will be just as poisonous there as it is in Seattle. Others might choose to do their own work in a less than environmentally conscious way.

And there’s this final observation: If the yards in question shut down and take their existing pollution control measures with them, more copper would go into the lake and canal courtesy of reg’lar ole street runoff. Hmmm, that doesn’t seem in keeping with Puget Soundkeeper Alliance’s mission.

 

I’ll update next month.

 


Sidebar

Some Dissolved Copper Numbers (in parts per billion)

 

1000                         maximum allowable in drinking water

1400-1800             approximately what’s in the street runoff from Northlake Way

210                         January reading from Dunatos (as high as 7000 in May ’06)

584                        January reading from CSR-locks (as high as 7800 in April 08)

77-238            Current boatyard stormwater runoff benchmarks for copper

14                        approximate allowable benchmark average to be put in next boatyard  stormwater runoff permit (max. allowable approximately 29)

1.8                        The amount of copper in the Northwest surface water.

2.0                        The amount of copper in surface water known to affect salmon (under some debate)

40%                         The percent of copper in our waterways coming from brake pads

.03%                         The percentage of copper in our waterways coming from boat yards

 

There are a lot more numbers and a lot of ways to understand them, but some things are clear. Boatyards don’t contribute much to the copper pollution in Northwest waters. Brake pads do. Also, the proposed benchmarks on copper content in boatyard runoff for the next permits are exceedingly low.

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