San Diego It's a perfect morning for spying. The water glints metallic blue in the sun. Marietta, the harbor cruise boat, slicks by, crammed with Zonies on its upper deck. You can hear the female guide's voice over the boat's speaker. "On our right is Southwest Marine, the second-largest shipyard in San Diego Bay..." As the Marietta slides through the arches of the San DiegoPCoronado Bay Bridge, a dot of a man is revealed climbing through scaffolding that hangs over the side of Southwest's salmon-colored floating dock. He manipulates himself to a level below the giant, painted letters reading "Team Southwest Marine" and above more lettering that reads "Freedom's 1st Choice." Judging from the sign on the dock's other side, we can see he's measuring the space to paint a massive red, white, and blue depiction of Old Glory, flying in the breeze.
"See?" says Ken Moser. His eyes are wide in the binoculars. "See? Before they paint, they're going to chip away the old paint; they're going to prep it with probably an acid wash so it won't rust, and then there'll be a marine application paint that has heavy metals in it. Look under that scaffolding: do you see anything to stop [paint or chips] from falling in the water? Do you see any kind of boom in the water so that if it reaches the water it's going to contain it? That's an accident waiting to happen. And that's the kind of thing that Southwest Marine knows they should be taking measures to prevent."
Moser's on a spying mission against Southwest Marine aboard his little white launch, the Kathy J. Okay, maybe spying is overdramatizing it. Moser's agreed to show me what's gotten him so riled with Southwest Marine that he's taking them to court to "stop them from polluting the bay." But while we're here - his lead lawyer for the case, Steve Crandall, is also aboard - he isn't shy with the binoculars. Workers on the floating dock eye us suspiciously.
Moser is a 44-year-old, grizzle-bearded, one-man waterborne citizen patrol who zips about the harbor "at least two to three times a week" in Kathy J. searching out environmental delinquents who may be dumping, debouching, or dripping toxins into the bay. He is defending the life of this wounded estuary that was once healthy enough to be a breeding ground for whales.
Moser, executive director of San Diego Baykeeper, has spearheaded a BaykeeperPNatural Resources Defense Council lawsuit against Southwest Marine, accusing the company of practices that could pollute the bay and of "failure to comply with requirements embodied in the federal Clean Water Act."
San Diego Baykeepers is a five-person operation running on an annual budget of "more or less $200,000," Moser says. The money comes from "San Diego families and students" and foundations (the largest is Environment Now, a Malibu-based foundation). "We are nonprofit. We have no government grants." The money supports Moser as director, a full-time attorney, the boat, and staff to run the boat and the office. The organization works on everything from lawsuits to a quarterly newsletter, Watermarks, to educational outreach programs on the bay. Moser started up the San Diego operation in March 1995 after six years earning a tough reputation as the first Baykeeper in Puget Sound. (The organization has set up in 18 bays and estuaries nationwide.) He first got angry - and you have to be angry to stay at this job - when he was a salmon fisherman in the Northwest in the late '80s. "They closed my fishery. The salmon populations had been devastated. I was devastated. That put me out of business. I decided I wanted to do something."
For Southwest Marine, a shipbuilding company heavily reliant on Navy contracts, a conviction could be a big deal. No Clean Water Act compliance, no government contracts. The lawsuit, filed last August, cited Southwest's failure to collect and analyze samples from stormwater drains, to eliminate non-stormwater discharges, and to develop "best management practices" to control pollution. Crandall and Southwest's lawyers, Luce, Forward, Hamilton & Scripps, have so far been doing battle over "discovery." Last week, U.S. Magistrate judge Anthony J. Battaglia agreed Baykeeper had the right to peruse Southwest's records. He also gave Baykeeper permission for a March 25 site inspection at the shipyard. The trial will probably take place in the fall.
Baykeeper also threatened nassco (the National Steel and Shipbuilding Company) with the same lawsuit. But last December nassco - without conceding pollution violations - agreed to pay for an independent audit of its compliance to environmental standards. It also agreed to pay up to $350,000 for a project (which the defense council and Baykeeper have a right to review) to reduce its potential for pollution discharges into the bay. The company even agreed to give $75,000 to the Chula Vista Nature Center to help protect the light-footed clapper rail, an endangered bird that lives in the Sweetwater Marsh.
Not Southwest Marine. It has clanged down its portcullis, vowing to fight. Luce, Forward first moved for dismissal of the case, and when that failed, they moved for a summary judgment, indicating there wasn't enough evidence to warrant a hearing. That motion, too, was denied. Some say this combative attitude reflects the personality of Southwest's chief, Ed Ewing. Moser recalls, "Basically they told us, 'We don't give a --.' "
"This is kind of a quirky lawsuit," says Crandall. "It's not as if you go to the end of a pipe, and you put down your little measuring cup, and then you take out pollutants and you say, 'Aha! They're violating the law.' The issue is that this huge facility [should] have controls and management practices in place to minimize the junk from their yard going into the bay."
Crandall says he and Moser are sure Southwest does not have those practices in place. "For example, they've got six different outfalls on their property that go off into the bay." (Southwest is located next to Kelco seaweed processors, directly south of the bridge.) "When it rains, when there's a 'storm event,' they're supposed to at least twice a year [analyze the mix of chemicals in the waters] coming through all those manholes. They don't do it. They've admitted in their reports to the water board that they don't do it. And they say they don't need to do it, and they come up with a million reasons why they don't need to do it. Fact is, we think they need to do it. So there's a dispute right there."
"Look!" shouts Moser. He's whipped his glasses up to the stern of a Navy amphibious transport ship being refurbished in the floating dock. It has giant curtains pulled halfway out from either side, but a 20-foot opening remains in the middle. We've gotten closer to it. The racket from what sounds like paint-chippers and generators is getting louder.
"Keep watching on the top deck," says Moser. "The cloudiness. Some type of air emission is being blown out through the opening of the containment curtain. Any time when there's a possibility of pollution, they're supposed to be fully enclosed. There's dust coming out of that dry dock!"
Harbor Police come by in their launch, Point Loma. "See?" he says. "They're looking at us. They're not even looking at the dust. At a potential violation of federal law taking place on Port property right now! That's why citizens have to be here. And that's why I'm angry about it."
It turns out the "dust" cloud is high-pressure water spray mist. But Moser says hydro-blasting is just as bad. We can see a shadowy worker up there, underneath the ship's hull, jetting water around its twin rudders. That mist, says Moser, will be laden with small flecks and particles from the bottom paint, which contains toxic chemicals like copper, lead, cadmium, and zinc, designed to poison barnacles.
"Even though it looks like a small amount on a given day, think years and years, day in and day out, when [Southwest's] contributions of hazardous waste, heavy metals, oils, greases, solvents, enter these waters.... They aren't on the surface for long, but they end up on the bottom of this bay, and they're there for a long, long time - if we don't stop this."
But isn't San Diego Bay the California Regional Water Quality Control Board's responsibility? And how about the Port District, the public's stewards of the bay? "You know the history of the Water Quality Board and the Port?" asks Steve Crandall. "Neither of those entities have been terribly effective in any kind of enforcement, and that's putting it mildly. They never sue anybody! When was the last time the Water Board enforced a case in court - against anybody, big or small? The issue is, they basically don't do it. So there's plenty of room for citizen enforcement in San Diego." "We don't sue people," agrees John Robertus, executive officer of the California Regional Water Quality Control Board, San Diego Region. "But we do apply graduated actions, ranging from what's called '13267 letters' - which warn entities they are polluting - to fines to criminal charges.
"But we are public officials." Robertus continues. "I have been accused [by Baykeeper] of 'kowtowing to industry.' It's not true. I have a clear conscience. [Baykeeper] can spend 100 percent of their efforts on pollution in the bay. We can't. We must look at industrial [runoff], sewage treatment, landfills, underground tank sites, chemically contaminated sites. There's no way I can compete on specific problems....." Still, for all his stretched resources, Robertus says he is "optimistic" that Southwest and all five shipyards in the bay will come up to required environmental standards.
Moser doesn't buy it. "I don't have Mr. Robertus's budget," he says. "I don't have his staff. But I have the evidence of violations on shipyards that are under his jurisdiction. You tell me why I can [make things happen] with a staff of four people and a budget that I would bet is a tenth of his. He needs some new marching orders from the regional board."
"I invite Baykeeper - Moser - to come over and show us where [Southwest Marine's] violations are," says Ralph Hicks, the Port's director of planning and environmental management. "We'd be happy to look at it. If he has specific allegations [against Southwest], we'll go out and do a compliance inspection."
Again, Moser is not impressed. "Under this charter, they're supposed to protect [the bay], for the beneficial uses of all the citizens of this region, not just their own tenants [like Southwest]. And when they allow their tenants to violate federal and state laws, the Port is as guilty as the Water Board of failing to do their job." Southwest's chief, Ed Ewing, did not return calls. The company's director of public relations, Jackie Kreisler, said, "It is our company's policy not to comment on pending litigation."