Lawsuit alleges 'almost certain' environmental catastrophe with Golden Ray

Brunswick News (GA)

Feb. 15--A former contractor on the M/V Golden Ray salvage operation alleges the Coast Guard is failing to enforce federal law and presiding over "an almost certain" environmental catastrophe in the St. Simons Sound.

Attorneys for Donjon-SMIT filed a lawsuit Thursday in U.S. District Court in Brunswick asking the court to grant an injunction to halt the process slated to begin soon.

At the heart of the matter is the Oil Pollution Act of 1990. OPA 90 was Congress' response to the Exxon Valdez wreck and the resulting environmental destruction. It took power away from the vessel's owner and placed it with the federal government, through the Coast Guard.

The complaint

According to federal law, the federal on-scene coordinator, or FOSC, can only authorize deviating from a contractor listed in the approved response plan "under exceptional circumstances," so there wouldn't be contract negotiations amid an emergency. The complaint alleges the Coast Guard never provided justification for deviating nor showed any exceptional circumstances.

In this case, the response plan agreed to in September 2017 for the Golden Ray listed Donjon-SMIT as the salvage and marine firefighter contractor. The complaint notes, "Donjon-SMIT is the largest OPA 90 provider in the world," holding response agreements covering around 7,000 vessels.

The plan Donjon-SMIT sent to the Ray's owner in November specified the ship "would be cut and removed in small sections weighing approximately 600 tons each, allowing for a controlled removal of the over 4,000 automobiles still inside the vessel while minimizing stress on the damaged hull and reducing the significant risk of inadvertent discharges into St. Simons Sound."

The company claims it's still able to implement the plan today if called upon.

According to the complaint, "Rather than affording Donjon-SMIT an opportunity to advocate for its safer small section removal plan, Cmdr. (Norm) Witt instead allowed (the) owner to place the wreck removal project out for tender to third-party contractors who were not part of the (response plan) in violation of OPA 90 and its regulations. Further, Cmdr. Witt permitted (the) owner to solicit proposals based on a 'fixed-price' rate rather than on the 'cost-plus' terms used in the Golden Ray's (response plan).

"The change to a 'fixed price' structure is alarming it that it appears that the owner may be attempting to limit its exposure. Simply put, Cmdr. Witt allowed (the) owner to conduct the very bidding process that OPA 90 was designed to prevent, wasting valuable time that Donjon-SMIT could have used to begin work on the Golden Ray while at the same time allowing the owner to potentially limit its exposure."

The new contract went to T&T Salvage, which has since submitted and received approval for cutting up the Ray into eight massive slices. Donjon-SMIT argues it never received the consideration T&T did to present its plan to the entire Unified Command, nor a chance to discuss its "serious concerns with T&T's unproven, high-risk plan."

The complaint references the Baltic Ace salvage as comparable to the T&T plan, and though a YouTube video of the effort portrays it as successful, the complaint states, "after removal of several large sections, the remaining sections collapsed, releasing additional pollutants into the surrounding waters."

It also alleges the 31-acre environmental barrier is a navigation hazard and the barge-removal aspect risks removed sections falling off in transit.

United Command's response

The towering barge cranes that will begin pile-driving 140-foot support steel posts into the sound's sandy bottom for the environmental protection barrier arrived in local waters Saturday morning, according to Chris Graff, a response director of Gallagher Marine Systems and a key player in Unified Command. The lawsuit is directed specifically at the Coast Guard and not Unified Command, he said. Unified Command consists of the Coast Guard, the state Department of Natural Resources and Gallagher Marine Systems.

Despite the lawsuit, plans are still on target to begin work on the environmental protection barrier as early as Monday, he said.

"We are aware of it," Graff said. "We found out about the lawsuit late last night. We're still on track, we're still going forward with this thing until we hear otherwise. The big barge cranes just came in. Everything is still a go here."

The emails

On Dec. 22, Paul Hankins, Donjon-SMIT's vice president for salvage operations and project manager for the Golden Ray, sent a lengthy email to Witt and Capt. John Reed, commander of Coast Guard Sector Charleston.

In the email, he argues the Ray's insurer -- North of England P&I Club -- is being purposefully misleading and the United Command is unquestioningly going along with whatever the club says. Hankins states Donjon-SMIT was asked "to be extra-mindful of the costs as these (liability) limits are approached, yet here we are on the precipice of a $200 (million) effort all because of a dubious claim that a month can be shaved off the schedule. Meanwhile the American taxpayers, not the club, will be footing the expense."

Further, Hankins alleges the insurer misrepresented Donjon-SMIT's position and its plans, while the Unified Command failed to respond to Donjon-SMIT's objections.

"The North of England P&I Club suggested, for its own reasons, that Donjon-SMIT consider 'cooperating' with T&T Salvage and enter a joint venture to remove the Golden Ray in accordance with a plan developed by T&T," Hankins wrote. "We agreed to listen to the proposal. However, upon finding that the T&T plan calls for cutting the Golden Ray into ultra-large sections, and finding they agreed there was a huge risk to the lifts, and lacks of adequate planning to include a cofferdam, Donjon-SMIT quickly ended any consideration of partnering.

"We essentially were told the plan would likely fail but there was plenty of money to come back in 'to do it our way' if it did fail. That was unacceptable to us. Donjon-SMIT and its parent companies are more concerned with their reputations than the immediate financial gain that might come from participating in a flawed plan."

Witt responded the next day, arguing federal regulations regarding pumping, piping and discharge requirements for non-oceangoing ships of 100 gross tons and above still applies, since there was 44,000 gallons of petroleum products and hazardous substances remaining onboard. Witt also said he would defer to representatives of the Ray's owners to schedule any meeting between Donjon-SMIT and the Unified Command.

Conservation groups' response

Altamaha Riverkeeper Executive Director Fletcher Sams said he couldn't prove it, but the way things have progressed so far, "it seems like the insurance company is driving a lot of these decisions."

He said his organization supported the cofferdam proposal by Donjon-SMIT, as it would be a small footprint and a solid barrier, not a net, so not a danger of sea life getting caught in the netting.

"Some of these contaminants -- specifically heavy fuel oil -- can be heavier than water and sink or be subsurface," Sams said. "The floating boom strategy at the top of the environmental protection barrier ... is that we've seen the outcome of floating boom capture strategy. It's resulted in 30 miles of oiled shoreline. So, we're definitely not a fan of trying that again."

He said that oil remaining on the ship is a problem, described by Donjon-SMIT as a potential environmental disaster.

"When you do large-section removal on a ship with no bulkheads, which, that ship has no bulkheads -- the interior cargo area, you have to drive cars around in it. So, all the structure's on the outside of that boat," Sams said. "When you cut the ends off of the boat, in the two instances where Donjon completed the salvage, when you cut off the end sections there's no structural integrity to the middle part of that vessel, and it collapses.

"That happened on Baltic Ace, and it also happened on Tricolor. T&T has never completed, as far as I'm aware, a large-section removal of a ship, so this is their first try at this. If there is a large-section removal and that oil is ... still onboard the ship, it will release, and then we're faced with a floating boom strategy, which has already dramatically failed."

One Hundred Miles Executive Director Megan Desrosiers said her organization's been concerned for a while about the lack of transparency with the Golden Ray effort.

"We've sent (Georgia Open Records Act requests) and (Freedom of Information Act requests) and tried to get information, and it's just not available to the public," Desrosiers said. "I think the community needs to know what the contents of the ship are, aside from the fuel and the cars, that could be potentially released into the environment.

"That was kind of our big concern, is we don't even know what could contaminate our environment with the cutting up of the ship. I really thought we needed to know that, and what the plan would be, not just for catching the cars, but also making sure that any of the liquids in the ship didn't pollute the water, beyond the fuel."

She said she's grateful someone stepped forward to raise questions, and a salvage company like Donjon-SMIT knows what questions to ask.

Videos of T&T's plans as well as the Baltic Ace salvage are available on The News' website.

News reporter Larry Hobbs contributed to this story.

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