Eco Extortion and threat to boatyards on Puget Sound

M

Matt Gurnsey

New member
In the recent issue of Norwesting, editor Chuck Gould posted the following editorial:

Just a few days before Christmas in 2009, five Seattle area boat yards received registered letters from a group of environmentalists known as Puget Soundkeeper Alliance. The letters constituted legal notice of "intent to file a lawsuit," and required the boatyard operators to respond within a very short period of time. While the rest of us were enjoying a holiday with our families, local boatyard owners were down at the office assembling paperwork and frantically trying to contact their vacationing attorneys.

Why would the Puget Soundkeeper Alliance sue boat yards? According to their own website, the group exists to bring lawsuits! Quote: ''We are a team of dedicated staff and citizen volunteers whose mission is to stop pollution from entering Puget Sound. The Alliance uses the power granted to citizens to sue under provisions of the Clean Water Act of 1972 to stop polluters in their tracks."

The guise under which the lawsuits are threatened involves alleged violations of stormwater discharge standards. Due in large part to aggressive lobbying by Puget Soundkeeper Alliance, environmental standards for stormwater discharge have become exceptionally difficult for any boatyard to meet. It is true that careless use of copper bottom paint in a boatyard can result in copper contamination of asphalt or cement surfaces, and that a rainstorm can then flush the copper contaminants from paved surfaces into adjoining waters.
Nearly all boat yards are making good progress toward reducing copper contamination. Steps typically include tarping under a boat, forbidding "do it yourself" painters, and the installation of extensive filtration systems.

It is also true that the copper content of nearly any storm drain in an urban area exceeds the "permitted" copper content from a boatyard. Automobile brakes, clutches, and other "wear and tear" components deposit copper particles on streets and parking lots. When rainwater drains from a roadway and down through a boatyard to the adjoining body of water, the boatyard takes the blame for every speck of copper in the stormwater - regardless of where the contamination actually originated. (We're aware of one boatyard in Seattle that has never done any bottom painting of any kind, doesn't even have a haulout facility, and is still bedeviled by higher-than-standard levels of copper in stormwater runoff).
Only by installing filters large and elaborate enough to extract any minute amount of copper generated in the boatyard itself as well as virtually all stormwater that flushes through the facility from any nearby street can a boatyard hope to meet the standards.

We have discussed this situation with highly informed sources, including individuals with many years of experience in the local marine industry and perpetually involved with committees resolving issues with Washington State Department of Ecology. While to this point we only have one side of the story, a number of serious concerns must be addressed:

First are these lawsuits really designed to address pollution, or are they primarily a fundraising device? According to one of our sources, Puget Soundkeeper Alliance virtually always offers to forego filing a lawsuit if the targeted boatyard will make a large cash settlement. We have heard that figures of perhaps $70,000, plus attorneys' fees for both sides, are typically demanded to squash the threatened legal action. A sum of this size could put many struggling independent businesses over the edge, and in any case will surely be figured into the prices charged to boaters for repairs and services at those yards.

Second, if the environmentalists are willing to drop the lawsuit in exchange for a large payoff, what prevents them from threatening to sue the same boat yards over and over again, year after year? Is it less important to the Puget Soundkeeper Alliance that any real progress is made toward cleaner stormwater discharge than that the threatened boat yards "pony up" the required ransom?

Third, and most troubling of all, is the possibility that the payoffs could be nefariously directed. The same law that grants Puget Soundkeeper Alliance the right to sue also prevents the group from collecting any of the settlements.
According to one well-placed source, the Alliance normally nominates another non-profit organization to receive the funds. How many, if any, of the "citizen volunteers" for Puget Soundkeeper Alliance earn a living as a paid staff member at another non-profit agency? If any of the Puget Soundkeeper Alliance volunteers also serve with other non-profit agencies, how many of those agencies (once again, if any) will benefit from the settlement funds extracted from local boat yards?

Nearly all boaters and boating related businesses appreciate the importance of maintaining a healthy aquatic environment. Few of us wantonly pollute. Our recreational pastime is genuinely threatened whenever environmentalism is carried to extreme. Nothing less than our basic social fabric would be threatened if ever extremism, disguised as altruism, might be allowed to shake down small independent businesses from behind the fig leaf of a government regulation.

Should Puget Soundkeeper Alliance choose to respond to our questions and concerns, we will make space available in an upcoming issue.
Click to expand...
 
I read this the other night in Northwest Yachting. This is so wrong. I used to use Seaview West and they were absolutely militant about taking care of their runoff and dust and waste. If this all runs the course if will impact all of us, in increased fees and taxes and the other "hidden" costs of boat ownership and use.
 
I read that too earlier this week. The part that really jumped out at me is:

Third, and most troubling of all, is the possibility that the payoffs could be nefariously directed. The same law that grants Puget Soundkeeper Alliance the right to sue also prevents the group from collecting any of the settlements.
According to one well-placed source, the Alliance normally nominates another non-profit organization to receive the funds. How many, if any, of the "citizen volunteers" for Puget Soundkeeper Alliance earn a living as a paid staff member at another non-profit agency? If any of the Puget Soundkeeper Alliance volunteers also serve with other non-profit agencies, how many of those agencies (once again, if any) will benefit from the settlement funds extracted from local boat yards?
Click to expand...

But that could just be the consiracy theorist in me. ;)
 
If they are going to demand money, and if their goal were to imrpove water run off condistions, why wouldn't they require teh business to put the money into filtration or other systems to reduce copper run off-

Oh, wait. Maybe because that isn't what they are really after?
 
Well, I'll be darned. This must be the new popular way to make a living. And all this started at Christmas with no negotiation? Welcome on board.

Here in San Diego, we've had that scam for a couple of years. An organization pops up, say "Vernal Pond Preservation Society" ( and I'm not making that up,) which claims state law protects vernal ponds because (you fill in the reason.) For those of you who don't know, vernal ponds are those ponds which appear in the spring and then dissipate in summer. In some places they offer a breeding ground for select species. I never knew that before. Down here, they last for a week. Well, here in San Diego, a property owner leveled their land to build a house, with permits. They got sued for destroying a vernal pond which was claimed to be a natural habitat. That threat of a suit lasted for some time. I thought it was a new way of extortion.

And now we have the Chaparral Preservation Society, which threatens to sue if you clear the brush around your house. Where were they when we had the fires?

Hey, I'm a liberal, but I don't like people who use those ideas to screw people.

Boris
 
Hey Boris

Must be the same group that inacted the laws at Lake Tahoe and would not let the homeowners clear the brush and trees around their property and of course entire neighborhoods were wiped out in a fire a few years ago. Un-named civil rights groups have used the same lawsuit tactics on businesses for about 25 years and still get away with it.
 
Actually, the article is fairly presented. Puget Soundkeeper Alliance is a threat to the boating industry in general, and boatyards in particular. They pushed for regulation that the boatyards can not meet, and then can threaten to sue the yards when they don't meet the numbers.

The NMTA tried to work with PSA on filtration systems and acheivable contaminant levels. But a new board has been elected at PSA, and now it's war on boat yards (and hundreds of other businesses with storm water permits).

These actions will limit boater's choices in where to get service and maintenance, and will raise prices. We have begun looking at alternatives to traditional copper bottom paint. One solution we have found is ePaint, whihc is twice as expensive, has special primers that are needed, and is only effective for a single year instead of two or three.

We have both sides of the story. The threat of lawsuits, and the csah settlement to prevent them speak for themselves.
 
I am not a member of PSA, and I consider litigation a last resort for solving problems. So, this is not a defense of the organization or its tactics. I also have a small business, so I tend to side with the small businesses in this kind of dispute.

However, Bob the Executive Director of Puget Soundkeepers has been a good friend for 35 years. I know his character, so I take offense when words like extortion are used. I thought that it would be good to give his response to an article about this situation.

Sorry about the length, I copied and pasted it from the web.
Lyle

Response from the PSA
February 2, 2010, 5:38 pm

Bob from the PSA was kind enough to respond to my rant. After reading his response it’s clear that the sited marina’s are many, many times over limits. This kind of thing definitely needs to be taken care of.

I still feel that threatening litigation and accepting a settlement to avoid that litigation that doesn’t go directly to fixing the boat yard is pretty lame. If the yards can’t afford it I don’t think it’s reasonable to say “well, then fold”. It shouldn’t just be the boat yards responsibility for this. Seattle is a boat town, it plays a large part in the economy and, just because taking care of boats (covered in copper paint and sacrificial leads) is bad for the environment doesn’t mean it should be the sole responsibility of the boat yards to fix. Kind of like suing the city because the oil you’re dumping down the storm drain is making it to the sound.

I don’t think anyone thought that Three Sheets NW headline “Lawsuit threat pushes boatyards the the brink” was taken as PSA killed the economy (no-one’s that daft), but, it is a huge expense at the worst possible time.

Anyway – here’s Bob’s response for anyone interested (colors and fonts are his):

Hi Ben:
Thank you for your email of January 30th, 2010. I share your concern for the survival of our boatyards because I am a boater, too. I trust you will give me the courtesy of sharing my point of view rather than accepting as fact those views expressed in a recent article in Three Sheets Northwest.

*
The Three Sheets Northwest article headline, ” Lawsuit threat pushes boatyards to brink,” gives readers the false impression that Puget Soundkeeper Alliance is responsible for the poor economic condition of the boatyard industry. All of us, businesses, non-profits and families are hurting during this awful recession. Puget Soundkeeper Alliance has a long history of collaborative work with local businesses, including many boatyards, marinas and members of the Northwest Marine Trade Association.
*
Puget Soundkeeper Alliance states in our Notice of Intent to Sue letter that we are willing to discuss effective remedies for the violations addressed in the letter and settlement terms. We suggest that the parties initiate discussions within 10 days so that negotiations may be completed before the end of the 60-day notice period. There is no demand for settlement fees. Each case is unique and the issues in any settlement are unique to that case. Coming into compliance with the law to protect water quality is always one element.
*
Puget Soundkeeper Alliance never has accepted penalty payments from defendants. All penalty payments are made directly by defendants to third party mitigation projects conducted by other non-profit organizations to mitigate the damage caused in that watershed. The size of the penalty payment is negotiated between the defendant and Puget Soundkeeper Alliance and is based on the severity of the violations, the duration fo the violations and the unique circumstances of the case.

I would like the opportunity to share some of the steps we have taken with the boatyard industry prior to our recent enforcement actions together with some information on the toxic impact of copper on salmon. I would also like to refer you to our website: http://pugetsoundkeeper.org

*
1995 (revised 1998) Co-wrote the Resource Manual for Pollution Prevention in Marinas. Although this is targeted for a Marina audience the publication deals with many boatyard issues.
*
2005, Participated in the stakeholder process to help Ecology write a Boatyard General Stormwater Permit that protected water quality while employing reasonable and achievable solutions.
*
2007, Wrote and produced a Do It Yourself Boat Repair manual to help boatyards educate their do-it-yourself clients. A common complaint from boatyards was that Do-It-Yourselfers were lax about pollution prevention. 2000 copies were eagerly put into circulation by boatyards.
*
February 2007, Co-sponsored a Boatyard Compliance Workshop with Washington Department of Ecology and Northwest Marine Trade Association to help boatyards learn about what to do to come into compliance with their stormwater permits.
*
2007, Partnered with NMTA and three boatyards to implement the Boatyard Stormwater Treatment Technology Pilot Project. Tested three treatment technologies to identify solutions to the boatyard stormwater problem. Six facilities are currently installing the technology identified as most cost effective.
*
September 2009, Boatyard warning letter sent to all boatyards in Washington. Recognizing our history of working with this industry, PSA broke with our normal policy of carefully guarding our legal preparations in order to alert boatyards about the seriousness of the issue and the possibility of future legal action. Copies of this letter were sent to NMTA to alert them to the seriousness of this issue.

Science around the toxic effects of copper on salmon
The science is clear, copper is incredibly toxic to salmon. Since 1995, Federal Water Quality standards which are based on scientifically-documented effects to aquatic life, limit dissolved copper to 3.1 parts per billion (ppb) (saltwater) and 5.1-49.5 ppb (freshwater, based on hardness calculation).[1]* In concentrations as low as 3 parts per billion (ppb) dissolved copper has been shown to significantly reduce a salmon’s ability to smell[2]. For salmon, their sense of smell is probably most important. It helps them locate prey, avoid predators and home in on their natal streams. Copper has also been shown to reduce a salmon’s ability to fight disease. In the struggle for survival, successive sub-lethal effects could jeopardize the survival of entire populations.
Copper can also kill salmon outright. Under various conditions (fresh water/ saltwater, adult/juvenile/smolt stage, various water chemistry conditions) copper can kill Chinook salmon at relatively low levels, between 10.2 ppb and 128.4 ppb, with an average lethality of 25.02 ppb (mean acute value). Levels for rainbow trout/steelhead and coho salmon are similar (mean acute values of 22.19 and 22.93), while sockeye salmon and cutthroat trout can tolerate somewhat higher levels[3].
*Since 2007, US EPA has used the Biotic Ligand Model (BLM) (based on pH, hardness and dissolved organic carbon) for establishing water quality criteria for copper in freshwater. Although the new BLM criteria range from 1.6 to 259.6 parts per billion, conditions in the Puget Sound region (slightly acidic, low hardness) favor the low end of this scale (1.6 to 18 ppb).
Boatyard copper discharges
Rather than having to meet water quality criteria for copper, boatyards are required to use adaptive management in their stormwater permits. First they sample their stormwater. When they find it to exceed artificially high benchmarks of 229 ppb for saltwater and 38 ppb for freshwater, they are required to implement level 1, 2 or 3 responses (based on the number of times they exceed the benchmarks). Level 3 is the most serious. A level 3 response is essentially an engineering study and developing a plan to install a treatment system for stormwater.
The exceedances at these 5 boatyards are not minor. The levels that are being discharged are often thousands of times over the levels shown to harm salmon (or hundreds of times over levels shown to kill salmon). For example, one boatyard on this list documented copper discharges at 7830, 5650, 2000, 1148 ppb and failed 13/13 tests for copper. They also failed 7/7 tests for lead, with a high reading of 1340 ppb. Lead is a serious neurotoxin which is regulated by a limit of 55.6 ppb, not a benchmark, making each exceedance a violation. They also did not implement required level 1, 2 and 3 responses and missed required samples on other occasions which are the very structures on which the adaptive management scheme is based.
Boatyards can comply with permits
One high volume boatyard with a history of high discharges installed a stormwater treatment system to bring them into compliance. This brought their discharges down from a range of 189-5500 ppb to 12.5-65 ppb. In addition, after installing the treatment, lead and zinc discharges were reduced to levels below what the measuring equipment could capture.
Cited References:
[1] National Recommended Water Quality Criteria, US EPA, 2005
[2] Sublethal Effects of Copper on Coho Salmon: Impacts on Nonoverlapping Receptor Pathways in the Peripheral Olfactory Nervous System, David H. Baldwin, Jason F. Sandahl, Jana S. Labenia, and Nathaneil L. Scholz, National Oceanic and Atmospheric Administration, 2003
[3] 2007 Update of Ambient Water Quality Criteria for Copper, US EPA, 2007
Additional Reference:
Safety assessment of selected inorganic elements to fry of Chinook salmon (Oncorhynchus tshawytscha), S.J. Hamilton, KJ Buhl, U.S. Fish & Wildlife Service, National Fisheries Contaminant Research Center, Yankton, South Dakota 57078, 1990
Again, I share your concern for protecting this valuable boatyard industry and the pastime of recreational boating. I believe that this can be done in a manner that protects water quality and valuable but sensitive natural resources like salmon.
Regards,
Bob Beckman
Puget Soundkeeper® & Executive Director
Puget Soundkeeper® Alliance
5309 Shilshole Ave. NW, Suite 215
Seattle, WA 98107
206-297-7002
206-297-0409 FAX
 
Let's see. Bob said that his group wrote/participated in writing the regulations, and now they're going to enforce them. I understand that and that doesn't sit well with me. Doesn't the city/county/state have any responsibility? And yes, payments do not go directly to him/his organization, but he still wants payments. If I said sent the money to my aunt, wherever she is, that makes it OK? And now they got the toxic limits in force and so go get them? And not by working with the regulatory agencies but through the lawyers? Everybody gets rich, and we save the Sound.

Hey, that's what happened in San Diego. At least here the group got the money and disappeared, though now someone else is using the business model. Sorry, I side with the boaters on this one.

Boris
 
Assuming, that I as a boatyard owner know that I am controlling NEW copper leachates since the inception of the NEW standards by banning open air grinding, traps under boats being painted, settling basins, etc. I would round up my fellow boatyard owners and the boat owners using the yards and respond, not with the answers to their extortion letter, but with lawsuits against this group...
I would go to Federal Court with a demand for a 'show cause' ruling...
I would file RICO complaints with the US Justice Department...
I would identify the officers in this organization AND the donors who fund them...
I would file individual suits against each of those individuals for harassment...
I would file separate individual lawsuits for abuse of the courts...
I would file separate individual lawsuits for economic damages...
I would take a lesson from the unions and pay people to picket their places of business and their homes...
I would invite the local TV and print media to my boatyard(s) and show them what I am doing to control NEW runoff, have them interview the employees who will now be on notice that they may be laid off if these econuts continue to cost the business to lose money...
If they want an economic war, I will give it to them...
 
Some laws are just wrong, even if they have the best of intentions.

Another example of this type of lawsuits comes from the folks who think they are doing the country a favor by sending out agents (often handicapped) to public facilities (mostly privately owned) like restaurants and motels to take measurements and photographs of various items not in compliance with ADA.

They usually settle out of court (because the suits are filed in Federal courts) for large sums. Then if you don't get in compliance they set you up again. So far most of these funds go the the good attorney for doing "the right thing".

I have seen numerous settlements from our area. What is so wrong is that the agencies with authority are not doing anything to bring businesses into compliance until they remodel. A few lawyers are getting large sums for this business compliance enforcement.

Sounds like the group from Seattle got their play book from watching the ADA compliance lawyers get theirs.

There's a reason lawyers get poor reputations. In this case they don't chase the ambulance. Anyway if a lawyer with a ponytail on a motorcycle comes to stay the nite at your motel it might be best to tell him you just rented your last room and have not yet turned on the no vacancy sign.
 
Hold on folks. You really need to know the whole story here
in Puget Sound.
The editorial was not factual on many items (correct on some)
and the author did not contact PSA. He spread hearsay and
distortions. I feel it is extreamly unfortunate for the word
extortion to have been used. I think that before you make
any comment on PSA, please get some factual infomation. Call
or email them, know the Clean water act, know what the EPA
is doing, and know what PSA is doing. Know what is going on
in Puget Sound.

The health of Puget Sound and the health of the marine
business community are both vital.


Robbi
 
A couple days before christmas? If that's true along with the fact that they helped write the laws and are now the ones doing the sueing. I would say that speaks of the character of the group or at least the lawyer or firm who stand to make some money. I have no problem with tightening down on what is allowed and being more enviromentally friendly, in fact I think it's essential, but that dosen't stop the fact that something here stinks. I don't think the same people or group who helped write the rules, should have anything to do with enforcement, or be able to benefit financially in any way, from lawsuits resulting from said legislation.

Sark
 
OK, there are some emotions on the sleeves here for sure!

I can tell you first hand that there is a little bit of both good purpose and "extortion" (legal extortion) going on here, and it is created by the citizen lawsuit provisions of the Clean Water Act, which perhaps need to be changed in some respects but I would not hold my breath for that. The Clean Water Act, like a number of other pieces of legislation, is actually intended to provide incentives for citizens to provide enforcement in aid of the legislative purpose, which is of course clean water.

And we should all be concerned about the health of Puget Sound and other water bodies. We need healthy water bodies to have fish to catch! While there can be debate about the state of the health of a water body, or what is causing some problem, I don't see how anybody can fault the purpose of protecting water quality.

Puget Soundkeepers are reprented, exclusively as far as I know, by Richard Smith and Noel Lowney. They make a lot of money, but what these guys do is neither unethical nor illegal. In fact, the Department of Ecology considers them a valuable resource to do enforcement that the Department does not have the resources to do.

Here is how it works. The Clean Water Act requires NPDES (National Pollutant Discharge Elimination System) permits for discharges to waters of the United States, such as sewer plant and storm water outfalls. The programs are administered by delegation to state agencies like the Washington Department of Ecology, which issues the permits. Each permit specifies limits at various points for things like dissolved oxygen, BOD, heavy metals and so forth, and establishes monitoring and reporting requirements. The DMRs (Discharge Monitoring Reports) are filed with Ecology by the permit holders and are public records. So basically permit holders are reporting their own compliance with or violations of their permits.

What Smith and Lowney do is to have people more or less permanently stationed at the Public Records desk at Ecology pouring over the DMRs. When they find that some permit holder has filed a DMR disclosing a permit violation, they kick out the notice of intent to file lawsuit letter, which is a procedure required before a citizen lawsuit can be filed. The purpose of the notice of intent is to give the permit holder a chance to correct the violation before a lawsuit is filed.

How do I know this? Well, I have been through the grinder with a suit on the Snoqualmie Wastewater Treatment Plant. Every municipality that operates a wastewater plant knows Smith and Lowney because it is pretty much impossible to avoid exceeding some NPDES permit limit occasionally. Our permit violation was an apparent prolonged exceeding of the copper limit. It spurred the city not only to hire a downtown lawyer but also to get our wastewater consultants tracking the cause of the violations down to see what would be required to correct it. In our case, we found it was not in the operation of the plant, but in the testing procedures - the collection vessels were being rinsed in a lab sink plumbed with copper piping, and the corrosive water was leaving copper in the collection vessel. As soon as we switched to distilled water to rinse the collection vessels, the apparent violations ceased! It is not always this easy.

It is true that Puget Soundkeepers do not keep penalties. In our case we did an enhancement project to Kimball Creek by removing invasives and planting native vegetation rather than paying a penalty, and of course paying Smith and Lowney's fees.

But the purpose is coercive, to get people doing what they need to do to come into compliance with their NPDES permits. And only people who are self-reporting their own permit violations receive the notice of intent letters. I know of no case in which the matter actually proceeded to trial, since there is literally no hope of winning because your own DMRs prove your liability, and liability is absolute. So it does achieve the purpose of causing people to come into compliance.

The bad part is that neither the economic cost of compliance not good faith efforts to comply, or anything else, is a defense to liability once the lawsuit has been commenced. I am not sure how I would change it however.


 
Thanks for that explanation, Pat. What keeps operators honest in their DMR reporting? Seems like there would be a huge incentive to not report a violation.

Warren
 
Doryman":f5l4zoxp said:
Thanks for that explanation, Pat. What keeps operators honest in their DMR reporting? Seems like there would be a huge incentive to not report a violation.

Warren
Click to expand...

Exactly what I was thinking reading Pat's explanation. If their own reporting puts them at liability and the State DOE doesn't have the ability/resources to monitor said reporting, I'd simply be in "compliance" each and every time.

This is just one more example of the enviro-nazis and what they do up here.
 
I would guess if you failed to report your own violation and the department found it during a random site visit the results would be nuclear.
 
localboy":4fbabrvg said:
Doryman":4fbabrvg said:
Thanks for that explanation, Pat. What keeps operators honest in their DMR reporting? Seems like there would be a huge incentive to not report a violation.

Warren
Click to expand...

Exactly what I was thinking reading Pat's explanation. If their own reporting puts them at liability and the State DOE doesn't have the ability/resources to monitor said reporting, I'd simply be in "compliance" each and every time.

This is just one more example of the enviro-nazis and what they do up here.
Click to expand...

The first part says you would lie about compliance and the second part calls people who care about compliance nazi's. Hmmm..... the lying is OK, the not being in compliance with waste water discharge requirements is OK and it's nazi's who care about the compliance. Am I correct in my interpretation of what you've written?

Secondly (and this is not specifically directed at the above comments), as long as we use words like nazi, etc. in our descriptions of people who are clearly far from committing the kinds of atrocities that the nazi's committed, there's really not much hope for civilized discussion, debate and appropriate resolution of differences of opinion. To me, one of the most disappointing aspects of the last many years of political debate in this country as that we have devolved our debates (at least partially) to name calling. The numerous and frequent examples of this provided by politicians and media from the left and the right makes this practice seem "normal" and even acceptable. We can do better than this.
 
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