Pennsylvania Angler & Boater - January/February 2015 - Cover2

photo-Ken Hunter

Straight

TALK
by John A. Arway

Executive Director
Pennsylvania Fish & Boat Commission

The Common Man
The common man is usually regarded as the average man or
as more appropriately defined here as one of the common
people. The term usually applies to the larger portion of our
society, the commons, who are typically concerned about
personal or family issues and don't have the time to worry
about other things that don't concern their everyday lives.
In my training as an expert witness, I learned that an expert
is a person who has special knowledge or skills about a
particular subject beyond that of the average person. I was
actually summoned to court one day in a case involving
the tainting of fish by oil that was discharged from an oil
refinery into the Allegheny River. My testimony was not to
use my education or training as a fisheries biologist since I
was asked to testify about my experience as an angler and,
in this case, consumer of fish. The federal judge in the case
questioned my experience with the culinary arts, but the
attorney who subpoenaed me convinced him that I had
prepared and eaten enough fish in my lifetime that he could
trust my judgment about this subject. So, I appeared in
court, was sworn to tell the truth and proceeded to answer
questions about my experiences of eating fish downstream
of discharges that contained oil.
This story actually began many years before my court
appearance when I decided to catch a few trout below a
brine discharge from an oil well that we were studying in
the Allegheny National Forest. My staff and I had sampled
the discharge and determined that it contained petroleum
hydrocarbons (oil) and other assorted chemicals commonly
associated with the discharge of brine (salty water) from
oil and gas wells. At the time, these wastewaters were being
discharged virtually untreated, except for one small step of
oil/water separation, into our streams and rivers. We were
also concerned that the materials we were finding in the
water may be affecting the fish and possibly the people who
chose to eat them. Accordingly, we decided to sample fish
tissue, which confirmed what the local anglers already knew.
The fish in the stream below these discharges contained
high levels of the same aliphatic and aromatic petroleum

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Pennsylvania Angler & Boater * January/February 2015

hydrocarbons that were in the water. We used this evidence
to eventually get the polluter to plead guilty to summary
charges of littering since the local district attorney wasn't
interested in pursuing more appropriate pollution charges
and eventually worked with the Pennsylvania Department of
Environmental Resources (now Pennsylvania Department
of Environmental Protection) to restrict the discharge of
untreated brine to streams and rivers.
So, how does an expert suddenly become a lay witness
in federal court? Well, I decided to conduct a personal
experiment on my own one day. I went to the same stream,
below the same discharge and caught a few of the wild
Brown Trout at that location. I took them back to camp,
filleted them, cooked them and did a personal taste test. I
discovered that they did indeed smell like oil when they were
cooking (probably the aromatic hydrocarbons volatilizing)
and tasted like oil when I tried eating them (most likely the
aliphatic hydrocarbons left behind after cooking). Well,
the judge became so interested in my lay testimony that he
allowed me to talk about all of my other work as an expert.
The defense attorney representing the oil refinery was so
upset that he objected and accused me of being a stealth
expert. Needless to say, the judge ruled against the refinery,
which was then required to construct redundant oil/water
separators so that if one failed, they would have backup
treatment to prevent the continued discharge of oil into the
Allegheny River.
I believe that we are all specialists in some things and are
common men when it comes to others. Just as I functioned
as both a lay and expert witness on the witness stand that
day in federal court, you can also perform those dual
roles when it comes to helping us make decisions about
conservation and recreation in Pennsylvania. I would say
with some degree of certainty that by virtue of you reading
this article, you are sufficiently interested in fishing and
boating issues and are the uncommon man. Based on
recent estimates, we have over 1.1 million anglers in our
Commonwealth, and over 850,000 of us bought fishing
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Pennsylvania Angler & Boater - January/February 2015

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