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Oil Spill Whistleblower Settles,Vows to "Fund a Nationwide Attack" On His Former Employer

John Bolenbaugh says he agreed to take money from one company in order to keep exposing a larger coverup.

| Sat Apr. 28, 2012 5:00 AM EDT

But it almost didn't come to pass. Tuesday morning, early, I started getting a string of texts from Bolenbaugh.

"I went out to celebrate with my friends and i couldn't smile," the first began. "I am still up at 5am and i can't sleep. I feel sick to my stomach for giving authority to my attorney to except [sic] a settlement that i NEVER imagined SET would offer." He understood that this would be notched as a win, but "I didn't do this for a win or for any amount of Money," he insisted. But now, the paperwork had been entered with the court. "im [sic] told that i can't turn back," another text read. "That the judge will force the settlement no matter what complaints i have. What have I done? Letting this corruption go unpunished in the legal and public eye because I'm scared that the Judge wont give me a fair trial after asking if the cameras will be on to document history." The last message was concluded with a frowny-face emoticon.

By now, it was hard to tell: was Bolenbaugh actually feeling remorse for accepting a settlement from SET. Or was he trying to have it both ways: part of a strategy—engineered by Warnicke—to take a deal but allow Bolenbaugh to object to the arrangement in court, when it was too late to withdraw it and too late for the judge to do anything other than order the plaintiff to be quiet. Or had Warnicke completely lost control of his client?

More texts came soon after.

"The only positive feelings i have is the fact that i have No gage [sic] orders," he wrote. "The question I have for myself is did i sell out or was this settlement a way to go after the largest tar sand pipeline company in the world by using my settlement to fund a nationwide attack on Enbridge with better camera equipment, unlimited gas, banners, signs and town hall speeches that will be so many I will lose count."

Bolenbaugh seemed to be settling into the narrative now. His texts began focusing on getting his watchdog group——off the ground, educating the nation about the dangers of tar sands. "I will be there at the next tar sand spill evacuating residents and watching every move and clean up procedure Enbridge, Trans canada, Exxon, BP and any others make," he wrote.

An hour later, he sent another text: "I just told tom im not taking settlement. And to be ready tuesday morning."

* * *

By the time Bolenbaugh reached Tom Warnicke, his attorney had already spoken to Judge Kingsley's clerk on a joint conference call with Van Essen. When Warnicke called Van Essen back to say that his client was getting cold feet, Van Essen sent a written motion to the judge, asking for enforcement of the settlement, even if Bolenbaugh opposed it in session. "A party's 'change of heart' is not grounds to set aside a settlement agreement," Van Essen wrote, according to the motion obtained by the Battle Creek Enquirer. Some time Tuesday, Warnicke finalized the agreement, signing on Bolenbaugh's behalf—and the deal was done.

All day on Monday, Bolenbaugh kicked around the idea of making a statement in court—rising to tell the judge that he'd only given his okay because he believed it would be impossible to receive a fair trial in his courtroom. But, when the time came, Bolenbaugh signed his name without incident (adding only a note that he would not agree to any gag order, other than the "exact amount" of his payment); then, the settlement was read into the record, and the jury was released.

Bolenbaugh told me that Warnicke asked him in the elevator not to tip off reporters about the upcoming action against Enbridge. But Bolenbaugh was worried that Warnicke might try to back out if the promise wasn't made public—so he told me all about the plan on the phone (and asked me to make sure it appeared in my story), he told the local reporters in person before they left the courthouse, and I'm sure he'll have a video with that promise posted to his YouTube channel by the end of the week. For all of Bolenbaugh's suspicion, however, when I reached Steve Hnat by phone in Southfield, there was no flicker of hesitation. He was clearly preparing for Warnicke to file suit against Enbridge—"They're the real bad guys," Hnat said—and he expected to be counseling Bolenbaugh through the process. More than that, he regarded Bolenbaugh's acceptance of the deal as more than a legal victory.

"Maybe it'll be an epiphany for John," Hnat said. "Maybe he can move beyond the immediacy and the emotion of the situation and begin to recognize that—you know what?—this could really make a difference for a lot of different communities. Not for him but for those communities." Hnat is a trained psychologist who had a practice for years before becoming a trial consultant—and for just a moment, he sounded more like Bolenbaugh's therapist than part of his legal team. Every trial is partly about resolving the psychodrama of the principal players, he explained. "If he can sublimate that part of his emotional need and force it to be secondary," Hnat said, "then maybe he can effect real change."

* * *

Perhaps this is a victory for Bolenbaugh. And, if he goes to Enbridge's office in Marshall to deliver the papers for a lawsuit later this week—let's just be honest—it will be great video. But a part of me understands Bolenbaugh's reluctance to declare victory. SET hasn't admitted to anything, and a trial against Enbridge pushes judgment about the quality and sincerity of the company's cleanup effort in Michigan to the end of 2013. In the meantime, Bolenbaugh has enough money to fund his ongoing campaign against Enbridge, but the company also staves off—for now—national negative PR and the possibility of additional suits. That is also another 18 months for the spill to recede into memory, both in the popular imagination and in the minds of any potential jury pool.

Further postponing the lawsuit of John Bolenbaugh leaves the focus, for now, on the relatively limited issue of his termination. A local report in the Battle Creek Enquirer, for example, ran under the headline "BOLENBAUGH FIRED FOR INSUBORDINATION"—but glossed over the fact that several SET employees agreed that Jason Buford, a supervisor at O'Brien's Management charged with helping Enbridge meet its EPA deadlines, issued direct orders to cover up oil. The larger issue than whether Bolenbaugh was fired properly or improperly resides in two simple facts: Bolenbaugh's former co-workers confirmed under oath that Enbridge's management contractor instructed crews to ignore pockets of oil in September 2010, and today—more than 18 months later—oil remains in the spots where those instructions were given.

Meanwhile, the EPA has reopened a three-mile stretch of the Kalamazoo River and intends to reopen the remaining 37 miles by June. And yet, even as the river is again available for recreation in the summer months, residents have been cautioned not to put out kayaks or canoes except in approved areas, not to eat any of the fish they catch, and have been told to expect to see submerged oil bubbling to the surface when they swim; wash stations with wipes have been set up at sites approved for swimmers. Thus, the essential questions—bigger even than whether the 6B pipeline ruptured due to Enbridge's negligence, or whether the company's contractors sought to cover up oil, bigger even than the nagging questions about the health effects for area residents—are whether we, as a country, are willing to accept this level of risk to our waterways and, if so, whether we find this level of cleanup adequate. Do we consider a river with inedible fish to be restored? Do we find a riverbed slimed with submerged oil to be the same river it was before a spill?

In the end, the dispute between the EPA's documents certifying large areas of the Kalamazoo River as clean and Bolenbaugh's view of the cleanup as failed boil down to this: the EPA does not equate a 100 percent completed cleanup with a river that is 100 percent clean. The Kalamazoo River may never be the same again, explained Ralph Dollhopf, the EPA's federal on-scene coordinator and incident commander. Getting the river totally clean by invasive measures might create a disruption to the environment more damaging than leaving small amounts of tar sands crude and its chemical diluents behind. But are these really our only two options? Are we left to choose between one form of environmental destruction and another?

Maybe it is time, instead, to insist on greater oversight of the nationwide complex that carries a highly toxic crude through old and outdated pipes at great risk of rupture and potentially irreversible consequences to the environment and to public health. If those risks can't be minimized, if those consequences can't be mitigated, maybe it is time to halt the flow of tar sands oil altogether.

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