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A tainted bay, but no fines yet

A DEP agreement allows oil companies suspected of violations more than a year to prove their innocence.

By CRAIG PITTMAN, Times Staff Writer

© St. Petersburg Times, published February 9, 2003

TAMPA -- For years, a good rain is all it has taken to send pollution pouring into Tampa Bay from oil company property at the Port of Tampa.

The pollutants are all heavy metals: arsenic, copper, lead, zinc, nickel, iron, mercury.

At one point, state environmental regulators threatened to levy thousands of dollars in fines against the oil companies.

But then top officials at the state Department of Environmental Protection cut a deal with the companies that allows the pollution to continue while the companies take nearly two years to figure out whether it is their fault.

Frequent DEP critic Linda Young of the Clean Water Network said she was not surprised the agency cut a deal rather than force a cleanup.

"That's typical of the way DEP has been dealing with enforcement lately: prepare a plan of study not to correct the problem but to figure out some way to get around it," she said.

The deal is "kind of open," said Paula Noblitt, a former DEP employee who investigated the pollution and now works for the Hillsborough Environmental Protection Commission. "It really kind of delays things."

But DEP officials deny giving any special breaks to the oil companies, which include ChevronTexaco, Murphy Oil and Marathon Oil.

"It wasn't a free ride by any means," said Richard Drew, the DEP's water resources management bureau chief in Tallahassee.

Bill Taylor, a Tampa lawyer who represents Murphy Oil Co. and was instrumental in negotiating with the DEP, described the deal as "a good example of industry working with the DEP."

The oil companies own bulk petroleum storage tanks at the port. The tanks sit on land dredged from beneath Tampa Bay. They take in petroleum that arrives by ship and dispense it into trucks and a pipeline.

State records show that as far back as 1996 and as recently as November, rain runoff from the tanks has sent a stream of pollutants into the bay.

Heavy metal pollution is a serious problem for Tampa Bay, Florida's largest estuary. Several of the metals that showed up in the runoff from the oil tanks, such as mercury, copper and zinc, are listed as "chemicals of concern" found in the bay, according to a 1999 report by the Tampa Bay Estuary Program. The area around the port is generally regarded as one of the most polluted sections of the bay.

After recording repeated violations of the state's water quality standards, Tampa DEP officials decided in 1999 to crack down on the tank's owners. The local DEP office planned to force the companies to clean up the heavy metal contamination and hit them with stiff fines.

Murphy Oil faced a possible fine of more than $237,000 for violations dating back three years, according to a draft memo from the Tampa DEP office. Taylor says now that those pollution problems were merely "isolated amounts."

Murphy was far from alone in facing fines and violations from the DEP.

"Almost every one of those facilities had a problem," said Rick Garrity, then-chief of the Tampa DEP office. "They had violations for a lot of different metals."

At an April 1999 meeting in the Tampa DEP office, a Murphy Oil official said the DEP was wrong to crack down on the oil companies. Paula Noblitt, who worked for the DEP at the time, pointed out that they had failed to comply with the state's water quality standards, which is against the law.

The oil companies all made the same argument to the DEP: The pollution was not their fault. They contended the heavy metals had been in the spoil when it was dredged from beneath the bay. Or maybe it settled into the water from air pollution, they said.

Either way, they were adamant that it had not come from their tanks.

Although there are other industrial facilities around the bay that are built on spoil from the bay bottom, Dick Eckenrod, executive director of the Tampa Bay Estuary Program, said he knew of no other industrial facility with a similar problem with heavy metal contamination. Still, he said, it's possible the source is the spoil and not the tanks.

Either way, the law says "it's still their problem," said Garrity, who was forced out as the Tampa DEP boss in September 1999 and now heads the Hillsborough Environmental Protection Commission.

In 2000, DEP officials from Tallahassee stepped in because the oil companies were concerned that "Tampa was handling the permits different from any other office in the state," said Walter McVety of the Florida Petroleum Council, who was in on the meeting with the DEP's Tallahassee officials.

Those officials in Tallahassee say there was no inconsistency. Still, they held their own meeting with oil company representatives and cut a deal that ended the pursuit of fines or a cleanup.

"It was just a matter of educating DEP," said Taylor, the Murphy Oil attorney.

State law forbids the DEP from issuing wastewater permits to an entity that cannot provide reasonable assurance that it will not pollute. Yet DEP officials in Tallahassee drew up a template for issuing permits to all of the oil companies with pollution problems at the Port of Tampa.

The pollution flowing into Tampa Bay was a problem, but the DEP "is sensitive to industry concerns as to sources of metals beyond their control," a senior DEP lawyer wrote in a January 2001 letter to the participants in the meeting between the oil companies and the agency.

So when rain washed pollution out to the bay again last year, the oil companies faced no penalty for violating state water standards.

Instead, they were given until 2003 to prove that they had not caused the problem.

"The whole point was to key in on who was causing the violation," said Drew of the DEP. "That's what the study is supposed to do."

Now, if heavy metal pollution is detected in the runoff, the oil companies have six months to prepare a plan for studying the problem to see if it's their fault. DEP officials get two months to look over the plan.

If they approve it, then the companies have a year to do the study.

If their study shows that the pollution comes from some source other than the oil tanks, then their permits do not require them to do anything to clean it up. In fact, DEP won't even require them to monitor their runoff for those pollutants anymore.

But if the study shows they are at fault, they can either clean up the pollution or apply for an exemption from the rules.

Meanwhile, the pollution continues to flow into the bay. For instance, rain that hit Marathon Oil's port terminal in August ended up washing arsenic, copper, iron, lead, nickel and zinc into the bay.

Marathon officials thus became the first to submit a plan for studying the pollution's source in December. DEP officials are still reviewing it.

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