The Letter Bomb Part 2

The Letter Bomb went off with more whimper than bang. And, like so many weapons, it hit its target and achieved its goal but left everyone asking questions: Was it worth it? Was there a better way to achieve the same end? Who’s going to repair the collateral damage? What are the long-term effects?

 

For those of you who missed it or chose to ignore it, just before Christmas the Puget Soundkeeper Alliance (PSA) sent Intent to Sue letters against five Seattle area boatyards. (March’s Wave Writer) The Intent to Sue letter basically put the yards, which PSA felt were out of compliance with their stormwater runoff permits, into a position of either having to fight an uber-expensive and dangerous federal court battle or negotiate a settlement with PSA.

 

The yards, all facing serious economic challenges these days, fought back with public relations (on these pages as well), lots of paperwork and their own lawyers. But the way the law works, it’s cheaper to settle without admitting guilt. In the end, not much in terms of penalties were assessed. Nobody went out of business. Some improvements in stormwater are being implemented faster than otherwise.

 

Did it benefit the environment? Yes, a tiny bit. If the boatyards account for .03% of copper in the waterways, and these are 5 of 90 yards, most of which were well on their way to compliance anyway, it’s doubtful the difference could ever be measured. That’s OK, I believe we boaters have to hold ourselves to a higher standard. It’s our playground, after all.

 

I also happen to believe those results and more could have been achieved through other means. As it stands, trust and the spirit of cooperation have left and the darkness of adversarial relations has returned. Furthermore, a lot of boaters and business people are running around using phrases like “*&*^*&^ %* ^*$*Q%)+ enviromentalists!”

 

While our troops overseas (who have far cooler weapons than Letter Bombs) are ramping up their attention to winning hearts and minds, Puget Soundkeeper Alliance seems to have forgotten how important those little things are. Not a watertight comparison by any stretch, but the point stands. Effective environmentalism comes from everybody (all the “stakeholders” in the current vernacular) believing in the importance of something.

 

There were some clear winners, the lawyers. At $12,000 to $13,000 per letter on PSA’s side, plus maybe half that on the yards’ side, it’s a fine little revenue stream. I wonder where that money could have been better spent.

 

Housekeeping/PSA

 

Not surprisingly, PSA Executive Director Bob Beckman was less than happy with my last column.  He would like me to elaborate on a couple of things, starting with the adaptive management aspect of the permits. While the benchmarks are not limits, exceeding them triggers the requirement of level 1, 2 or 3 responses. PSA claims that the responses were not done. Additionally, there are some hard limits (lead being one) that were in some cases exceeded. Note that in some cases the yards vehemently deny this and in some other cases the Department of Ecology said (in writing) that they weren’t required to file level 3 responses until the new permit numbers were issued. PSA feels Ecology does not have the legal authority to do this.

 

Beckman would also like to highlight the plight of the salmon with regards to copper. Salmon are very sensitive to copper levels. Concentrations as low as three parts per billion affect smell, and concentrations as low as 10.2 ppb can kill them. The current concentration on the canal is xxxx and in the Sound is xxxxx. Nobody questions salmon sensitivity or the need for a healthy salmon population (especially the fishermen reading this)

 

Finally, Beckman would like me to include the June 2007 Settlement Agreement between NMTA, PSA and Ecology. Beckman explains the terms of the agreement:

 

1) the Technology Pilot Project; (2) Department of Ecology’s agreement to produce a permit modification without undue delay; and (3) a deadline for all permittees who had triggered a level 3 response to have them completed by the earlier of three months from the publication of the Technology Pilot Project results (March 2008) or three months from March 15th, 2008.

 

PSA contends that since Ecology broke the agreement by not issuing the permit quickly enough. Ecology points out there was bit of an economic meltdown that occurred that greatly affected the yards’ ability to upgrade, they undertook an economic study, and that was the major source of delay. In any case, says PSA, the numbers were known and agreed to by NMTA and PSA as of August, 2008.

 

Beckman wouldn’t comment on the settlements until they were all completed. His frustration with Ecology hadn’t waned. When asked why, if PSA’s frustration was mainly with Ecology, they didn’t apply pressure there instead of the yards, Beckman said “We have fewer tools to go after Ecology.”

 

“I don’t see that we’ve fundamentally changed our approach,” says Beckman regarding recent events. “We’re still moving ahead on collaborative efforts (with the industry).”

 

The most likely partner in those efforts is Northwest Marine Trade Association (NMTA). PSA and NMTA just went through two mediated by the Ruckelshaus Center, but suffice it to say there are issues of trust to be resolved. “We’re at a crossroads,” explains NMTA Executive Director George Harris. “Do we keep our friends close and our enemies closer and keep working with them, or do we break off that relationship?”

 

As of this writing, Harris was trying his very best to formulate an NMTA position that would best serve itself and all its members. “Do we trust them is the question.” Harris says of PSA.

 

 

CSR Marine had the most to lose to lose in recent events, since two of their yards were cited. At this writing, final settlement had not been signed off on but was in sight. As promised, PSA had filed suit in federal court, which would end with the agreement.

 

Yard co-owner Scott Anderson thought about fighting it but felt there just weren’t enough resources. “Our lawyer said ‘Go to court! You’d win.’ It’d take a couple years and $300K, which we can’t do.”

 

There is no doubt the battle would be bloody. Even in the negotiation of the settlement agreement, there were unresolved issues of simple fact – if there was no rainfall and no discharge to report, and no report was made, is that a violation? Seems like that sort of thing could be figured out, but lawyers eat that stuff for breakfast. In the end, settling without admitting guilt seemed the most prudent route.

 

CSR will file its Level 3 report after Ecology issues the new permit for public comment on April 21. In the meantime, they’ll continue to work on their environmental controls on their facilities, which are leased. The biggest challenge of these may finding and stopping the source of lead which continues to exceed limits. Clearly, it’s a legacy pollution issue left over from the land being used as a boatyard for nearly a century. A likely source of the lead may be the pit.

 

An old timer came to the yard few weeks ago and described the pit where all old paint (including the leaded stuff) was simply poured. That practice is long gone, and so are the perpetrators, but lead doesn’t go away. So, does CSR pay for this? The land owners? The state (I’m not hearing anyone volunteer higher taxes). Yet, the poison MUST be cleaned up, and no lawyers are getting sized for hazmat suits. Wouldn’t that be a sight?

 

Dunatos has settled for legal fees and no penalties (after PSA was given access to their financial documents). They submitted a level 3 report before the Intent to Sue deadline. The only change in Dunatos actual environmental efforts was to send copies of documentation to PSA on a quarterly basis. So, basically, it came down to about $12K the law firm of Smith and Lowney and maybe about half that for Dunatos’ own lawyers.

 

Yard manager Patti Segulja-Lau hopes that the CleanWay system she’s already installed, combined with the StormwateRx system they will install. In the meantime (with loan help from Sterling Bank) some old underground storage tanks were removed, one of Dunatos’ own legacy pollution issues they’re trying to remedy.

 

“In the end nothing was accomplished,” says Segulja-Lau. “Our challenge is affording the StormwateRx system. We just spent about $20K on attorney’s fees.”

 

Stephen Yadvish, owner of Yachtfish Marine, was by far the most adamant at the outset of events that he would not cave in to PSA’s demands, and specifically not pay attorney’s fees. In the end he paid the attorney’s fees, and undisclosed penalty and made some serious and costly upgrades to both his Yachtfish yard named by the Intent to Sue letter and to his xxxx yard in Port Orchard, which was not under any immediate threat. Both yards are having StormwateRx systems installed.

 

What’s more, Yadvish said “Both Bob Beckman and the lawyer from Smith and Lowney were very good to work with. You always have to negotiate, otherwise the only people who win are the lawyers.” Not surprisingly, Yadvish now questions yards that haven’t installed the environmental equipment he has.

 

It’s clear that the yards with treatment systems and a pass from PSA are upping the pressure on those without. That’s the whole level playing field thing. It could be good news for the environment, but really bad news for boaters if yards start closing.

 

Of all the yards receiving Letter Bombs, the most unlikely one seems to have been Yarrow Bay. Owner Dennis Bortko explained that even though their toxic levels were among the lowest of all boatyards, their paperwork wasn’t up to snuff. The yard didn’t even sand or paint boat bottoms. Yarrow Bay will give up its permit, pay a small fine, pay some attorney’s fees and move on.

 

But it doesn’t leave a very good feeling about the whole process. “They were totally off base with us.”

 

The Fallout Future

 

Now that this bombing mission is complete, the cleanup begins. The yards are still in business. Everyone’s waiting for Ecology’s new numbers to come out on April 21st. These new numbers are determined from both an AKART (All Known and Reasonable Technology) study and a study of acceptable pollution levels. Those two views of the problem are both employed in coming with up with the numbers.

 

After a public comment period and revisions, the new permits will be issued. After that, according to Gary Bailey of Ecology, there can be appeals to the Pollution Control Hearing Board. “Last time that took six months,” Bailey says.

 

I think we can expect to seem some attorneys involved, and not dressed in hazmat suits.

 

There is one thing that absolutely everyone is agreed upon and eager to see happen, i.e. the end of toxic bottom paint. “It’s coming,” Bailey says. Maybe then everyone can have a great big party at one of the boatyards.

 

We’ll keep an eye on it, but I promise some lighter reading next month.

 

Good Flotsam, Good Jetsam

 

While PSA and NMTA and yards and Ecology were all fussing about .03% of the copper, the Washington State Senate was doing something about the 40% that apparently comes from brake pads. SB 6557 passed, which means that copper brake pads will be phased out in the state starting in 2014.

 

 

 

 

 

 

 

 

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