Today, a federal court in Sacramento, California, ruled that the ongoing pollution caused by MARAD’s neglect is illegal.
MARAD has known about this illegal toxic pollution for more than a decade, but had an affirmative policy of ignoring it until NRDC, and our partners Arc Ecology and Baykeeper, sued. As described in court filings, internal MARAD documents and testimony obtained through litigation reveal that MARAD has been aware since the late 1990s that Suisun Bay ships were discharging hazardous, lead-based paint to Suisun Bay.
For example, one internal memo from 1997 warned that “exfoliating paint on MARAD ships is an issue that must be addressed,” that “lead paint waste … will be classified as hazardous under RCRA,” and that discharges “are prohibited by federal, state, and local environmental regulations.” And in 2000, DOT’s inspector general reported that MARAD’s non-retention ships were “literally rotting and disintegrating” into the water. Yet when MARAD discovered the pollution, the agency made a conscious policy decision to do nothing to stop the discharge, failed to seek required permits, and continued to miss disposal deadlines set by acts of Congress.
There are two lessons in this story. The first is that the government itself sometimes acts as if it is above the law. The second is the power of litigation in the hands of private citizens to bring dysfunctional government into line.
Through our lawsuit, which the California Regional Water Quality Control Board ultimately joined, NRDC, Arc Ecology, and Baykeeper are accomplishing what even Congress found itself incapable of accomplishing. After the lawsuit was filed, MARAD began taking steps to remove a few of the most decrepit ships and to clean others. I blogged about this in October in my blog, Two vessels (almost) down, 55 to go. Much work remains to be done.
These measures are welcome, whether prompted by a change in Administration or the prospect of an imminent trial that could be prove embarrassing to a federal government that is supposed to enforce environmental laws rather than break them. But the work MARAD has done to date is not enough. MARAD has recently shown some signs of being willing to move further, faster. We hope that it will.
Today’s ruling underscores the need for MARAD to halt its illegal conduct immediately. If MARAD does not submit to a prompt, thorough, and enforceable plan to fix the problem, NRDC and its co-plaintiffs will seek an order requiring a cleanup when trial commences in June.