Updated: A little oil and a ton of trouble

A fisherman with a leaky hydraulic line discovers what a serious business an oil sheen on Puget Sound can be — especially if you're one of the unlucky few to get tagged for it, and you get on the wrong side of the pollution detectives. New: The Department of Ecology has now reached a decision.

By Pete Knutson

January 29, 2012.

Update: The state Department of Ecology has decided that it will issue only a warning letter to Pete Knutson in connection with the incident he describes here. The decision was announced on the Ecology's blog. On Friday (Feb. 3), Knutson said he had spoken with a department official and that the discussion looked ahead to future cooperation. The letter, which was dated Feb. 2, appeared to take a similar tone. Knutson said he is still waiting to hear anything further from the Coast Guard. — The editors

“K. was living in a free country, after all…”

                            —Franz Kafka, The Trial

My story begins on November 9, 2011 when, acting on a tip from an unnamed private citizen, a harbor manager for the Port of Seattle reported me as a polluter to the Department of Homeland Security. His report alerted a chain of agencies, including, among others, Customs and the Border Patrol, the Coast Guard, the National Guard, FEMA, NOAA,  EPA, the Washington State Department of Ecology, the Port of Seattle, and the Oregon Titan and Washington State Fusion Centers, federal intelligence clearinghouses created in the aftermath of 9/11.

So began Homeland Security Incident #995038 — when the harbor manager reported that an automatic bilge pump on my 40-foot fishing vessel discharged an estimated one-quarter cup — two ounces — of oil into the water at Shilshole Bay Marina.

I’m a fisherman with a family business and a long history of public activism in support of sustainable fisheries. I’ve fished for 40 years in Alaska and on Puget Sound; I am committed to protecting the web of marine life in the Sound and North Pacific. I serve on the Puget Sound Salmon Commission, a state commodities commission. Last year I co-authored a Seattle Times op-ed and a Crosscut piece on the need to equip fishing boats to fight oil spills. I’ve organized fishermen to testify for environmental responsibility, successfully opposing huge industrial interests. In my other job, at Seattle Central Community College, I teach environmental anthropology. Never before have I been charged with any fisheries or environmental violation.

Beginning in 2001, I’ve repeatedly challenged  the Port of Seattle for ignoring its mandate to support small family fishing operations. I sold smoked salmon from my boat at Fishermen’s Terminal and handed out leaflets to other fishermen while port officials tracked me with their surveillance cameras.

“Sorry, our hands are tied, Pete,” the harbor manager told me that morning last fall. “If someone reports a spill we are mandated to call Homeland Security. We have no choice. Fifteen agencies have been notified. You are in the bull’s eye.”

When I arrived at my boat, the Njord, there was little evidence of what would normally be considered an oil spill. The oil-absorbent diapers the Port had placed around my boat were white and appeared unstained. The only evidence of hydrocarbon next to it was light streaks of residual oil, a common sight most days at this marina.

Perhaps a hundred feet down the dock from my boat was a patch of light oil. It was just after slack water, and there had been very little tide and no wind that morning; if my vessel’s automatic pump had discharged this oil, there would have been signs everywhere around the hull and in the diapers.

As I began taking cellphone pictures of the clean booming and barely oiled water, a knot of state and federal investigators arrived.

A severe-looking woman who turned out to be a Department of Ecology agent glared at me as I snapped photos. Without introduction, she barked at me, “One drop of oil in Puget Sound is a crime against the state!”

 “Where’s the oil spill?” I asked her, palms upturned.  She pointed at the water next to my boat and snapped, “Just because it’s not there doesn’t mean” — she pointed at the sheen at the end of the dock — “it’s not there. You may need to hire a private contractor to do your cleanup.”

I was tempted to tell her that she was making a mountain out of a molehill, but I remembered my wife’s parting advice: “Don’t give them attitude.” 

Mr. Coast Guard now consulted with Ms. Ecology, referring to me in the third person: “Do you want him, or should we be lead on this?”

The dock grew crowded with personnel from the Coast Guard, the Port of Seattle, and the Department of Ecology. They crawled into my engine room on their hands and knees, alongside the John Deere diesel motor and refrigeration compressor. Admittedly, it wasn’t spotless. My crew recently had finished another Alaskan salmon fishing season — three months, 1,500 engine hours, and 3,000 miles. That is a lot of labor, fossil fuel, and maintenance, which ultimately translates to about 30 tons of processed-on-board salmon and halibut for farmers’ market customers in Bellevue, the Rainier Valley, Ballard, West Seattle, and Capitol Hill.

The Coast Guard men checked the engine room and pronounced the bilges dry. But the Ecology agent emerged soon afterward brandishing a sample of clear hydraulic oil apparently taken from my engine room floor. A quarter-inch sensor line with a loose fitting had weeped a small amount of oil, perhaps one or two ounces, on the floor next to the bilge. I had not noticed the loose fitting; now I fixed it with one turn of the wrench.

Back on the dock, I signed Coast Guard papers acknowledging federal jurisdiction in this oil “incident.” My automatic bilge pumps were shut off, the hydraulic hose tightened, and the paperwork finished. It was now 11:30 and I had to drive from Ballard to Capitol Hill to teach my noon environmental anthropology class at Seattle Central Community College. (Sometimes I teach during the day and fish at night). I informed the authorities that I would return after class, and expressed my desire to go out that evening the scheduled fishing opening.

When I returned to my boat that afternoon, the Coast Guard incident manager handed me "Order 102-11 from the Captain of the Port of Puget Sound," who in this case was also the “federal on-scene coordinator” and a parallel "Administrative Order." The upshot was that my vessel was impounded until it underwent an engine room inspection and a Coast Guard Fishing Vessel Safety Inspection. According to Order 102-11, a “nonwillful” violation of these orders made me liable for a $32,500 civil fine. A willful violation is a class D felony, “subject to a criminal penalty of not more than $50,000 and/or five years imprisonment.”

“For a spill of this size we would normally just file a warning,” said the Coast Guard incident manager. “Losing a fishing night is already a pretty stiff fine.” I replied. This is a financial hit for my family. Washington State gives us only a few fishing nights for the fall season and a single night can be worth a couple thousand dollars.

The Ecology agent then took over and informed me that if I put any dispersant (i.e. soap) in the water, I would be violating state law and would be prosecuted. She also handed me literature regarding the potential fines to which I might be subject, including a fee for her time. And she left me her card. It read, “Working with you for a better Washington.”

Not until five weeks later would I learn, in response to a public disclosure request to the Coast Guard, that in my short absence that afternoon the Ecology agent came aboard the Njord and searched the engine room, which my son Jonah was then cleaning. She took bilge samples, according to her log, and also listened in on a cell phone conversation between Jonah and myself. She had the right to board under state oil response law, but it’s troubling that she would do so rather than wait 30 minutes for my return, without the courtesy of asking my permission, and without subsequently informing me.

Her comments get me thinking. In an effort to clean up after the Deepwater Horizon gusher, the Coast Guard let British Petroleum put 1.84 million gallons of dispersants into the Gulf of Mexico. That’s equivalent to 235 million ounces of dish soap. Apparently, the no-soap regs apply only to real persons, not to the fictitious ones.

I got a small check from Exxon for damages to my salmon market this year, 22 years after the Exxon Valdez hit the rocks. Exxon dumped 700,000 barrels of oil into Prince William Sound. That‘s five billion ounces. It paid just under $2 billion in fines, penalties, and interest, which works out to about 40 cents an ounce. So, if I’m guilty of a discharge and get fined at the same rate, I’ll owe 80 cents 20 years from now. But I guess BP and Exxon get the volume discount.

Later, as my son Dylan and I made dinner on our impounded boat, the Ecology investigator and her assistant returned, unannounced. Dylan saw them standing silently in the dark, staring at the stern.

I stuck my head out the galley door. “Is there a problem?” I asked. “No,” she said, and turned to leave.

“Good,” I found myself telling her, “I was beginning to get a little paranoid.”

The next day, after my vessel passed Coast Guard inspection, the impound order was lifted.  I gathered up the Port of Seattle’s oilsorbs and stacked them on my deck. They were crisp and clean. I wanted to retain them as evidence for any future proceedings, but the port manager told me they wanted their diapers back. When I protested, he promised they would bag and tag them for me.

Over the next week I photographed many small oil sheens at the marina, similar in size and location to the sheen for which I was on the hook. I emailed the incident manager the time-stamped photo files and reported the floating oil to the marina office. I didn’t hear back from the marina. The coast guardsman instructed me to call a 1-800 number.

I phoned the Coast Guard incident manager and asked, “Why was the Ecology agent so aggressive?”

“You know, it’s like when you get pulled over by a cop,” he explained. “It’s how you respond. She felt you were being nonchalant about the incident because you left the dock to go teach your class.”

“There was nothing else to do at the marina. Students pay tuition, the taxpayers pay salary. Am I supposed to blow them off?”

A couple days later, the incident manager notified me that an oil sample taken from my boat and a sample taken from the water matched. He attached the lab results and the Ecology agent’s comments. Those results actually said something very different: that the two samples both contained “lube oil,” and that to confirm a match, further, more complex tests would need to be run.

This struck me as curious, because the Ecology agent had identified the oil from the sensor line in my engine room as “hydraulic oil,” which is a very specific grade of low viscosity oil used to power, not lubricate, machinery.

I called the research chemist at Ecology’s Manchester Environmental Laboratory.

“What do you mean by “lube oil”?" I asked him.

“Lube oil means anything from heavy motor oil to light automatic transmission fluid. It’s a wide range of hydrocarbon. We’re going to conduct biomarker analysis to see if we can match the two samples.”

The notes that the Ecology agent submitted to the laboratory with the samples indicated that neither sample came from my boat: The two samples were taken nearly three hours after the call to Homeland Security at two locations in the marina, one of which was near my boat.

I asked the chemist, “If two boat owners get their lube oils from the same Mobil or Chevron distributor, would their biomarkers be similar?”

“If the oil came from the same production batch, their biomarkers would be identical,” he said.

The Ecology agent characterized the chemist’s results differently in an email to the Coast Guard: “Hydrocarbon identification of oil in both samples matched. The oil is hydraulic oil.”

The chemist had not identified hydraulic oil. He had explicitly stated in his lab notes that a match had not been confirmed. Yet, based on her misrepresentation, the Coast Guard had now concluded that I was responsible for this “spill.”

The Coast Guard, the Department of Ecology, and the Port of Seattle are now considering their enforcement options. The Ecology agent has informed the incident manager that she is preparing a penalty. Her log of the incident, which I obtained from the Coast Guard, portrays me as a flippant noncooperator. She claims I made a joke that Shilshole Marina looked like “the Bay of Mexico.” Her notes omit any evidence of cooperation and state that I did nothing to rectify the situation. She writes that, by locking the door to the Njord while teaching at Seattle Central, I cut off her investigative access. She failed to note that she did not request continued access, nor that I had valuable electronics onboard. Nor that when she did come aboard, she ordered my son Jonah to stop cleaning the bilge, on grounds this interfered with her investigation. All these details are pertinent to the eventual penalty, which largely hinges on evidence of cooperation by the “responsible party.”

I agree that anyone who transports or uses oil should fully cooperate with authorities in the event of a mishap. If a vessel of any kind keeps gushing oil into a marine environment, that's a problem. And indeed I fully cooperated with all the agencies involved  — Port, Coast Guard, and Ecology. I came to the scene as soon as I was notified, immediately turned off the automatic bilge pump, fixed the hydraulic weep, provided access to investigators, provided full identification, monitored the water around my vessel, observed the impound order,  and passed subsequent inspection. But in my case, noncooperation seems to be redefined as the exercise of constitutionally protected rights to gather documentation and request public information. Such exercise is regarded as “attitude.” 

I tried to get more information by filing a new FOIA request with the Coast Guard for an item in the Ecology agent’s log notes. Her notes contain an email fragment from the Coast Guard incident manager that was prompted by an earlier public disclosure request: “From recent interaction, it does look like this gentlemen is going to challenge any enforcement.” Three weeks after his email was sent, I requested the full text from the Coast Guard. (I had already received his witness statement, which did not include this remark. Here's my own contrasting statement.) I was then informed that:

Individuals run into data storage limitations, and often delete emails unless there is a specific reason to keep them. That was an email that was apparently deleted so it is no longer available.

On November 17, I filed a public disclosure request with the Department of Ecology regarding this incident, a request noted by the Ecology agent in her notes. Under Washington State statute   state agencies must initially respond to such a request within five business days. Ecology has not responded. On January 9 I filed suit against the agency in King County Superior Court for violation of the state public disclosure statute

The Coast Guard has now stopped sending me documents and has informed me that my FOIA request has been transferred to D.C.  Their email to me reads:

The investigation is still open and in progress. Per Department of Homeland Security policy and under 5 U.S.C. 552(b)(5) we cannot release documents until the case is completely reviewed and closed.

I am alleged to have inadvertently spilled two ounces of oil. How much public money has been spent in lab fees and agency time to pursue this charge?  Strong protections for Puget Sound are needed, but I fail to see the cost-benefit here as our state budget implodes.  I would wager that the money spent on this investigation would fund at least two additional classes at my cash-strapped community college. 

Beyond the money, the most damaging effect of disproportionate enforcement like this is the way it promotes cynicism and undermines the legitimacy of vital institutions.  I believe government regulations can play a critical role in protecting the environment. But a story like this provides grist for corporations seeking to end all regulation that constrains their profits.

On December 1, the Coast Guard called to “deliver enforcement.” I met two young men at Fishermen’s Terminal. They gave me the penalty notice and told me that new lab results conclusively matched the bilge sample from the Njord to the November 9 oil sheen at Shilshole Marina. They informed me I had 45 days to decide: either pay a $250 fine or request a hearing and risk paying up to $11,000. I told them I would reserve my options. (I've since declined the fine and requested a hearing.) I pointed out the sheen that surrounded us on the work float, and the incident manager laughed: “Yeah, that looks worse than what you got cited for.” We laughed together.

Meanwhile, in my other life, I teach environmental studies to students who can’t afford to buy books.

View this story online at: http://crosscut.com/2012/01/29/maritime/21732/Updated-A-little-oil-ton-trouble/

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