Voyage to the Bottom of the Sea

[August 15th, 2007]

Long-standing allegations that a prominent Port of Portland tenant arranged to have material illegally dumped in the Pacific Ocean are generating new interest from U.S. Sen. Ron Wyden and U.S. Rep. David Wu (both D-Ore.).

Both lawmakers have asked federal investigators about a 4-year-old case uncovered by Jerry Cressa, a career Port dockworker with a history of community activism and successful whistle-blowing.

Cressa, who retired in February after 43 years on the waterfront, believes the case has been brushed aside because the company in question, Houston-based Kinder Morgan Energy Partners LP, has close ties to the Bush administration.

Cressa and other dockworkers say Kinder Morgan, a major Port tenant with a spotty environmental record, bribed a freighter captain in August 2003 to haul 159 tons of contaminated potash out to sea and dump it.

Cressa’s charges have gained traction with Wu, whose spokeswoman Jillian Schoene calls the allegations “alarming.” They also got the attention of Wyden, whose office tells WW he takes the case “very seriously.”

A spokeswoman for Kinder Morgan declined to comment, saying only that the company has cooperated with an ongoing federal investigation.

It’s been nearly four years since Cressa reported the incident in fall 2003 to the Oregon Department of Environmental Quality, the U.S. Environmental Protection Agency and other agencies. The EPA and the U.S. Department of Justice are both investigating. But four years after the alleged incident, no charges have been brought against Kinder Morgan.

“It’s the worst I’ve seen in my 43 years on the waterfront,” says Cressa. “And everyone is busy trying to cover it up.”

Increasingly frustrated with what he considered a political coverup, Cressa dashed off letters for the first time last fall to Oregon congressmen. Wyden and Wu responded by contacting the EPA, the DOJ and the U.S. Coast Guard to ask about the stalled investigation.

The head of the EPA’s criminal division told Wu the agency can’t discuss an ongoing case. Wyden’s office has now taken the lead on the matter, and Cressa hopes the senator’s attention will speed up the case.

“Each of these agencies is aware that Sen. Wyden is following this case closely, and we do expect it to be resolved as soon as possible,” says Wyden spokeswoman Jennifer Hoelzer. “This cannot be stretched out in perpetuity.”

Kinder Morgan is a cash cow for the Port, operating two multimillion-dollar storage and shipping operations. At Terminal 5, the company takes potash, a mineral mined in Canada, off rail cars and loads it onto ships bound for Asia, where it’s used in fertilizer. Last year, Kinder Morgan shipped 4.9 million tons of potash through Portland.

But if potash gets contaminated it’s useless. And Cressa says Kinder Morgan accidentally mixed a load of contaminated potash with another, clean load Aug. 6, 2003, ruining 159 tons—enough to fill two railroad cars.

Cressa wasn’t at the scene, but he learned of the incident when rumors started flying around the International Longshore and Warehouse Union hall. He pieced evidence together from records and about 10 eyewitnesses.

Rather than dispose of the potash on land, which Cressa says would have cost $40,000, workers on the job told him Kinder Morgan’s management paid the captain of the JA Aladdin Dream II a $1,100 bribe and loaded the powder on the ship’s deck.

“To see those piles on the deck of the ship was an occurrence that I had never witnessed in my time on the waterfront, and I was there for 44 years,” Bill McCauley, a dockworker at the scene, told WW .

No witnesses say they saw the ship dump the material. But McCauley, who retired in November 2003, believes the only reason for loading the powder on deck was to put it in the water. Potash is not toxic, but dumping it at sea without a permit would probably have violated the 1972 Ocean Dumping Act. Penalties include up to five years in prison and a $50,000 fine.

Kinder Morgan has run afoul of environmental rules in the past.

In a 2004 settlement, the company agreed to pay $75,000 to clean up spills and stop soda ash from washing into the Willamette River from its Terminal 4 facilities. Cressa helped blow the whistle in that case as well, saying the Port and the Oregon DEQ ignored him.

The Oregon Center for Environmental Health brought the lawsuit under the Clean Water Act. Jane Harris, the nonprofit’s executive director, backs up dockworkers’ allegations about the potash incident as well.

“The point is that they violated the law,” she says. “The Port of Portland should have more care about the tenants it has down there.”

Port spokesman Josh Thomas defended the port’s environmental record and called Kinder Morgan “a responsible tenant and operator.”

Besides operating at port terminals, Kinder Morgan owns one of the largest pipeline networks in North America. On May 21 this year, the company agreed to pay $5.3 million for three oil spills in California that regulators say violated a long list of federal and state laws.

The company’s chairman and CEO, former Enron president Richard Kinder, joined 17 other prominent GOP contributors to dine with President Bush and Queen Elizabeth in May. Kinder has contributed nearly $1 million to the GOP, including $250,000 for Bush’s inauguration in 2005.

Cressa believes Kinder’s close ties to Bush have kept the federal investigation from moving forward.

And one Wyden staffer seems to agree. In a June 8 email to Cressa, Wyden aide Brendan Doyle notes, “We may need to await the arrival of new leadership in Washington before more happens on this case.”

Cressa says an EPA investigator told him in April 2005 that the case was in the hands of the U.S. Attorney’s Office in Portland and was about to go to a grand jury. But that hasn’t happened, and a letter Cressa wrote in August 2006 to U.S. Attorney Karin Immergut went unanswered.

Immergut, a Bush appointee, says she’s familiar with the case. She declined to comment on specifics because it’s still under investigation by the DOJ, but she said she’s felt no political pressure.

“That simply is not how we do business in this office,” Immergut told WW . “These types of cases are complicated. They can take a long time. Sometimes that causes frustration, but that doesn’t mean necessarily that we are not moving forward.”

Note: This online version corrects errors in the names of Kinder Morgan Energy Partners LP and the JA Aladdin Dream II that appeared in the print edition of WW.