'An egregious violation': WA sues Navy for dumping toxic paint into Puget Sound

The copper-based paint repels barnacles — but it could add up to a larger environmental cost.

The USS Kitty Hawk sits in the Puget Sound Naval Shipyard in the Sinclair Inlet south of Bremerton. (All photos by Nia Martin/Cascadia Magazine)

Barnacles have been a drag on ships since ancient times. Now their removal is the root cause of what is Washington state’s biggest environment-oriented legal action against the U.S. Navy’s Puget Sound Naval Shipyard.

The lawsuit involves the “anti-fouling” paint used on hulls of aircraft carriers to remove barnacles. Copper, the key ingredient, threatens the fish and sea life of Puget Sound and the Salish Sea. The Navy has scraped, or is expected to scrape, copper-laced paint off carriers at the Naval shipyard, in Bremerton.

The aircraft carriers in question are the USS Independence and the USS Kitty Hawk. The Independence has spent 19 years at the Naval Inactive Ship Maintenance Facility — a dry dock for retired Navy vessels at the shipyard on Sinclair Inlet south of Bremerton. The decommissioned Kitty Hawk has been at the same dockyard since 2009. The two ships were commissioned in 1959 and 1961, respectively.

From Jan. 6 to 27, 2017, the Navy scraped up to 700 cubic yards (the equivalent of 70 dump truckloads) of debris from the hull of the Independence into the water. An unknown fraction of that material consisted of copper-laced paint chips — enough to raise the concentration of copper above permissible levels. The debris and chips still sit on the bottom of the inlet, and critics fear that the Navy will do the same with the Kitty Hawk at the same spot. The Washington state Department of Ecology claims that this is one of the worst incidents of pollution by the Navy at the Puget Sound Naval Shipyard, which until now has been cited for occasional minor violations on discharges from the shipyard’s sewage treatment plant.

It’s not the first time that an aircraft carrier cleanup at the Naval shipyard has attracted the attention of state environmental regulators, however. In 2012, the aircraft carrier USS Reagan was docked for several months at Bremerton after being exposed to offshore radioactive plumes from the reactor meltdown in the aftermath of the 2011 earthquake and tsunami in Fukushima, Japan. However, the radioactive substances in that plume consisted mostly of iodine-131, which has a half-life of eight days. According to Earl Fordham, deputy director of the Office of Radiation Protection at the Washington state Department of Health, the Reagan’s radioactivity had completely decayed by the time it docked at Bremerton.

In June 2017, a lawsuit was filed in federal court by the Puget Soundkeeper Alliance and Washington Environment Council — two Seattle-based nonprofit environmental organizations — and the Suquamish tribe located on the Kitsap Peninsula. The lawsuit seeks to force the Navy to remove the debris scraped from the Independence that now sits on the seafloor, and to prevent future violations. The planned scraping of the Kitty Hawk is of critical concern.

“We did this because it was such an egregious violation,” said Mindy Roberts, Puget Sound program director with the Washington Environmental Council. “The [Navy’s Bremerton] shipyard is one of the highest sources of copper in the Puget Sound region. This has a huge potential to pollute.”

Leonard Forsman, chairman of the Suquamish Tribe, noted that the effects on the Salish Sea from the Navy’s activity are cumulative. “When the water quality gets worse, you affect the ecosystem. You affect the orcas and the salmon,” Forsman said.

The Navy declined to comment about the issue.

However, it has sought to dismiss the lawsuit on the grounds that the work on the Independence is already finished, and it is unknown if and when the Kitty Hawk’s hull might be scraped at Bremerton.

Bill Sherman, an assistant attorney general of Washington state and chief counsel of  the AG office’s Environmental Protection Unit, countered that the Independence paint scrapings are still on the bottom of Sinclair Inlet, and polluting Puget Sound. “It’s an ongoing discharge,” Sherman said, noting that tidal currents stir up the debris and continue to leach copper into the Sound.

In addition to having the Navy clean up the chips from the Independence, the litigation is supposed to prevent the Navy from taking the same scraping approach to the Kitty Hawk, he said.

The Washington Attorney General’s Office joined the lawsuit as a co-plaintiff in April. The state received a Navy-contracted report in October 2018 that showed excessive amounts of copper remain on the inlet’s floor, below where the Independence was docked, Sherman said.

The lawsuit seeks a judgment that federal and state clean water laws have been violated; requests that the Navy stop additional violations; and demands that the plaintiffs receive ongoing updates of when the Navy plans to clean and scrape vessel hulls at Bremerton.

Suquamish tribal chairman Leorard Forsman says his tribe joined the lawsuit against the US Navy when it became clear water quality was being adversely affected. “When the water quality gets worse, you affect the ecosystem. You affect the orcas and the salmon.”
Suquamish tribal chairman Leonard Forsman says his tribe joined the lawsuit against the Navy when it became clear water quality was adversely affected. “When the water quality gets worse, you affect the ecosystem,” he said. “You affect the orcas and the salmon.”

This litigation’s origin can be traced to barnacles, the tiny crustaceans, related to crabs and lobsters, that exist in huge clumps as a survival technique. If predators attack a clump to eat them, the large numbers ensure survival. They live in shallow and tidal waters, attaching themselves to solid surfaces, such as the hulls of ships and boats. Barnacles have glands that secrete a cementlike glue with an adhesive strength of 22 to 60 pounds per square inch.

Bottom line: They’re really hard to scrape off.

According to a 2009 statement by the Navy, which studied barnacles’ effects on its ships, an infestation can reduce a ship’s speed by 10% and increase a barnacle-encrusted vessel’s fuel consumption by up to 40% to counteract the drag. This translates to an extra $1 billion in fuel costs per year and a significant increase in carbon emissions for the Navy.

Before steel hulls, copper sheathing was installed on wooden ships to fight barnacles. Copper in paint is poison to barnacles, leading to widespread application of copper oxide as an anti-fouling paint on the hulls of vessels.

Copper is a finicky element in nature. Living things, from fish to humans, need ultrasmall doses of copper. But higher concentrations of copper can be toxic, and the element does not break down into less-toxic components.

A 2012 Nature Conservancy report on copper and Alaskan fish said copper “is one of the most toxic elements to aquatic species; at levels just above that needed for growth and reproduction it can accumulate and cause irreversible harm to some species. Copper is acutely toxic (lethal) to freshwater fish via their gills in soft water at concentrations ranging from 10-20 (parts per billion).”

Copper can greatly reduce a fish’s sense of smell, damage neurons that help it stay aware of its environment, reduce growth, cut back on resistance to diseases, disrupt internal organ function, change blood and enzyme chemistry, and disrupt migratory patterns.

Roberts, of the Washington Environment Council, used to be a Puget Sound pollution expert at the Department of Ecology. Her expertise included Sinclair Inlet, which includes the Navy docks on the shipyard's south side, and Dyes Inlet, which cuts through eastern Bremerton and extends north of the city to Silverdale.

In a January 2018 affidavit accompanying the lawsuit, Roberts cited a 2003 Navy study that 23% of the copper in Sinclair and Dyes Inlets came from Navy ships, 25% from private vessels, 16% from commercial hulls, 7% from the Navy’s dry-dock facilities and the rest from other sources. Of the Navy-originated copper, 68% accumulated in Sinclair Inlet sediments, and the rest drifted into central Puget Sound.

When the 1,070-foot, 60,000-ton Independence was decommissioned in Bremerton in 1998, it legally ceased to be a vessel. Instead, it became a “floating craft.” The same is true with the decommissioned Kitty Hawk. This means the two ships are governed by the federal Clean Water Act and state water quality laws. Active Navy ships are largely exempt from those laws.

In 2016, the Navy decided to send the Independence to International Shipbreaking in Brownsville, Texas. There the carrier would be torn apart, with the scrap metal going to Mexico and the armor plating going to build new ships in Pennsylvania. But the National Oceanic and Atmospheric Administration issued an environmental recommendation (which the Navy honored) that the Independence, with ample marine growth on its hull, not be allowed to transport invasive species into the Brownsville facility in 2016, according to Roberts.

Roberts examined a 2016 Navy briefing to the Suquamish tribe and found that the feds estimated 284 to 620 tons of barnacles and other organisms were expected to be scraped off the Independence. Another 2016 Navy report cited in Roberts’ affidavit indicated that chinook salmon, coho and chum could be present in Sinclair Inlet when the hull of the Independence was to be scraped.

”It is well-established that dissolved copper adversely affects salmonids, even at very low concentrations,” Roberts said in the affidavit.

That brought the Suquamish tribe into the lawsuit. In 1855, the Suquamish — who have lived for millennia on the shores of Puget Sound — signed the Treaty of Point Elliott with the United States, giving up most of their ancestral lands in return for retaining the right to fish, hunt and gather in their ancestral lands and marine waters of Puget Sound, including Sinclair Inlet. To protect these rights (which are contingent on water quality), Suquamish Chairman Forsman said his tribe is fighting copper pollution tied to the scraping of Naval vessels

In 2016, the Navy concluded that any hull paint released by scraping with various brushes and underwater jets would not harm marine life in Sinclair Inlet. On the contrary, Roberts’ 2018 affidavit said she could not find a basis for the Navy’s conclusion.

The Navy consulted with the National Marine Fisheries Service, which went on to make recommendations for mitigating measures. Roberts read a September 2016 letter from the Navy to the fisheries service that declined recommendations to put an underwater silt curtain around the Independence during the scraping and to dredge out the accumulated debris below the carrier.

After the scraping, from March 11 to June 2, 2017, the Independence was towed 16,000 miles around the southern tip of South America and back north to Brownsville.

“It sat in Sinclair Inlet for 19 years, where the job could have been done properly [during the previous two decades],” Roberts said.

Meanwhile, the state Ecology Department and Attorney General’s Office watched closely from the sidelines.

In late 2016 the Navy hired a consultant to measure the concentrations of copper and other substances before the scraping and then after the Independence was towed out of Sinclair Inlet. The copper-related studies measured sediment at six different locations beneath the Independence.

Although dated April 2018, the Navy did not provide the report to the state and the lawsuit plaintiffs until October 2018. The state had been seeking a report on the study since mid-2017.

That study found that one of the six locations where the Independence had been moored had a copper reading four times the amount recorded before the scraping. Two locations had approximately twice as much copper after the scraping. Two locations recorded slightly elevated concentrations. And one had almost half of the initial concentration afterward.

“The thing that made the enormous difference [in deciding to join the lawsuit] was the sediment report,” Sherman said. “It was really alarming to us. It confirmed to us that this activity had no place in Sinclair Inlet.”

The state’s March 2017 court filing said: “The Navy ignored [the state’s] concerns and repeatedly downplayed the potential impact, assuring federal, state, and tribal regulatory agencies that impacts from the hull cleaning would be minimal. The Navy’s assurances are wrong.” The sediment measurements exceeded what Washington’s regulations allow, the filing stated.

The state, Washington Environmental Council, Puget Soundkeeper and the Suquamish tribe are now eyeing the 1,068-foot, 61,000-ton Kitty Hawk, moored near where the Independence used to be.

The plaintiffs expect the Navy to scrape the Kitty Hawk’s hull in Bremerton, and worry that the Navy might again ignore state and federal clean water laws in regard to copper pollution.

The original 2017 lawsuit claimed: “Like the USS Independence, the Navy is likely to prepare other decommissioned ships at the Naval Inactive Ship Maintenance Facility for towing to a dismantling location in a manner similar to that of the former USS Independence. This preparation is likely to include in-water and continual hull scraping that will likely result in on-going and repeated un-permitted discharges of pollutants into Sinclair Inlet.”

The Navy currently has only three inactive ship maintenance facilities: Philadelphia, Pearl Harbor and Bremerton. This means Bremerton can expect a steady stream of decommissioned ships at its facility.

“Puget Sound [Naval Shipyard] is liable to get aircraft carrier after aircraft carrier,” Roberts said.

Mindy Roberts of the Washington Environmental Council became alarmed when studies showed levels of copper jumped four times at some locations after the Navy scraped an aircraft carrier into the Sound. “It confirmed to us that this activity had no place in Sinclair Inlet.”
Mindy Roberts of the Washington Environmental Council became alarmed when studies showed levels of copper jumped four times at some locations after the Navy scraped an aircraft carrier into Puget Sound. “It confirmed to us that this activity had no place in Sinclair Inlet,” she said.

This story originally appeared in Cascadia Magazine. This feature was made possible by a generous grant from the Fund for Investigative Journalism.

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About the Authors & Contributors

John Stang

John Stang

John Stang is a freelance writer who often covers state government and the environment. He can be reached on email at johnstang_8@hotmail.com and on Twitter at @johnstang_8