Brief Filed in Lawsuit to Protect Delaware River from PCBs

A massive liquefied natural gas project threatens public health and the water quality of the Delaware River.

Source: Peter Miller, Flickr (2015)

NRDC moved to file an amicus brief, and filed a proposed brief, this week in a case challenging the permit that authorizes dredging and construction of a natural gas export facility in Gibbstown, New Jersey. The proposed terminal would be the first liquefied natural gas (LNG) project on the Delaware River—and would threaten to release toxic chemicals into the Delaware.

The Gibbstown Terminal and the Dangers of Dredging 

The proposed LNG export facility of the Gibbstown Terminal would be built along the banks of the Delaware River across from Philadelphia. Fracked gas from Pennsylvania would be transported to Gibbstown, to be pumped onto huge shipping vessels for sale overseas. Once operating, the Gibbstown LNG Terminal would bring 15 trucks in and out of the facility every hour, 24 hours a day, seven days a week—that’s 360 trucks moving near residential neighborhoods every day. Those trucks, plus a number of rail cars, would be full of LNG, a substance that is not only potentially explosive but whose use is a leading contributor to global climate change.

It gets worse: the proposed location of the new port is the contaminated site of a former DuPont chemicals and munitions manufacturing plant. The site has a long history of hazardous waste discharges, and while remediation has been ongoing for over thirty years, it remains one of the top ten point sources of PCB pollution in the Delaware River Estuary. 

PCBs (short for polychlorinated biphenyls) are a hazardous class of man-made chemicals shown to cause multiple cancers and harm to the immune, endocrine, nervous, and reproductive systems in humans and animals. They are long-lasting in soil and sediment, and bioaccumulate as they move up the food system, meaning that those higher up in the food chain, like humans, are at the highest risk of PCB exposure from ingesting contaminated fish or livestock. PCBs are so toxic that they are one of the only classes of chemicals that the U.S. has ever banned altogether. But before they were banned, PCBs were widely employed in many industrial processes, including those at the former DuPont facility where the LNG terminal is proposed. 

Building this new port would require dredging over 45 acres—equivalent to 34 football fields—of river sediment. Dredging is the process of removing sediments and debris from the bottom of a waterbody. When toxic particles are embedded in those sediments, dredging can cause those toxins to re-enter and pollute a waterway. Usually, this kind of risk is meticulously analyzed, especially when dredging is proposed in areas that are known to be contaminated, like this one. But in this case, the U.S. Army Corps of Engineers virtually ignored the potential impact of dredging on PCB pollution. 

Our Amicus Brief Highlights Potential PCB Contamination 

Last April, the Delaware Riverkeeper Network and the Delaware Riverkeeper brought this case to challenge the U.S. Army Corps of Engineers’ issuance of a permit for construction of the LNG export facility at the Gibbstown Terminal. They allege that the Army Corps violated the National Environmental Policy Act (NEPA), one of the nation’s bedrock environmental laws. 

NEPA requires that a federal agency prepare an Environmental Impact Statement before issuing a permit for a project with the potential for such wide-scale environmental impacts. That statement must outline the project’s potential effects on the environment and analyze how to mitigate them. It ensures that government actions that will have significant environmental impacts are fully informed, and allows the public to learn about and participate in decision-making.

Inexplicably, the Army Corps found that dredging and construction of the Gibbstown LNG Terminal would not have significant environmental impacts—despite threats including the well-known PCB contamination of the construction site. Accordingly, they declined to prepare an Environmental Impact Statement. 

The Army Corps’ analysis was deficient in multiple respects. Our amicus brief focuses on the agency’s failure to meaningfully consider how the proposed dredging and in-water construction could exacerbate pollution by PCBs and other toxic chemicals in the Delaware River Estuary.

Our brief explains how the Army Corps’ conclusions rely on insufficient sampling and testing to analyze the risk that contaminants could reenter the waterway during construction. The part of the Delaware River abutting the construction site has long violated regional and federal water quality limits for PCBs. By omitting a substantive analysis of potential PCB pollution, the Army Corps’ flippant consideration of the water quality effects of the proposed LNG terminal violated its duty to take a hard look at potential environmental impacts. 

The failure to fully analyze water quality impacts is especially egregious considering the ecological and economic importance of the Delaware River Estuary. The Estuary is a critical habitat for aquatic life, including protected species like the Atlantic sturgeon and bald eagle. As one of the most important fisheries in the nation, the Estuary is an economic engine that generates over $19 billion annually. It also provides clean drinking water to approximately 16 million people, or 5 percent of the total U.S. population. If additional PCBs are unleashed upon this majestic waterbody, even in miniscule amounts, they will further threaten water quality and put public health even more at risk. 

Because the Army Corps violated its obligations under NEPA, the court should require the agency to undertake a comprehensive environmental review before this project can move forward. 

Click here to read our brief.

About the Authors

Marisa Guerrero

Program Assistant, New York Regional and Environmental Justice, Healthy People & Thriving Communities Program

Julia Jonas-Day

Beagle Fellow
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