Court Finds Army Corps Violated Federal Law With Plans To Plow Through Dioxin-Laced Superfund Site
NEW YORK (August 10, 2005) -- In a decision announced this week, a federal court judge ruled that a massive dredging project by the U.S. Army Corps of Engineers violated the National Environmental Policy Act by ignoring the impacts of dredging in the middle of a Superfund site beneath the Port of New York and New Jersey. The area is laced with dioxin, one of the most dangerous compounds known; without proper protections, dredging would spread the contamination into surrounding waterways.
The 61-page August 5 decision resulted from a January 2005 lawsuit filed in federal district court in New York City by NRDC (Natural Resources Defense Council), NY/NJ Baykeeper, and GreenFaith. The groups are seeking to ensure that the giant underwater dig, which is part of a 10-year, multi-billion-dollar project by the Corps and the Port Authority of New York & New Jersey to open the harbor to larger container ships, does not undermine the Environmental Protection Agency's (EPA) efforts to study and clean up the pollution under Superfund.
"The court ruling sends a strong message to the Corps that it cannot ignore the health and safety of our waters. We all want the contaminated sediments removed, but simply plowing through a toxic waste dump won't solve the problem," said NRDC attorney Larry Levine. "Thanks to the court, the Corps now has another chance get this right."
Singling out what she termed "disturbing" conduct by the Corps, Judge Shira Scheindlin's ruling establishes that the Corps cannot simply ignore how its dredging may interfere with the EPA-led Superfund cleanup and containment efforts. After additional filings from the parties, the court will decide what steps the Corps must now take. Known as the Diamond Alkali Superfund Site, the area in question includes Newark Bay and portions of the adjacent Kill van Kull and Arthur Kill bordering Staten Island. The site contains dangerously high levels of toxic chemicals that flowed downstream from industrial facilities on the Passaic River, including a now-closed plant that made Agent Orange during the Vietnam War.
In November 2003, NRDC, NY/NJ Baykeeper, and Hackensack Riverkeeper announced plans to sue Occidental Chemical Corp., the company responsible for the defunct Agent Orange plant, to force a cleanup of Newark Bay. In February 2004, the EPA determined that pollution in the Bay posed an "imminent and substantial" risk to human health and the environment, incorporated the Bay into the Diamond Alkali Superfund site, and ordered Occidental to carry out a comprehensive study under EPA supervision. The study will support the design and selection of a cleanup plan. "Our organizations will continue to fight for the cleanup of the Passaic River and Newark Bay, and to reclaim these waterways for the public," said NY/NJ Baykeeper Andrew Willner.
Scientists have called Newark Bay one of the world's worst dioxin-contaminated sites, with layers of polluted sediment contributing to dangerous dioxin levels in blue crabs, fish, and fish-eating birds. Dioxin levels recorded in Passaic River and Newark Bay blue crabs are believed to be the highest ever measured in aquatic animals. The New Jersey Department of Environmental Protection has banned crabbing in and around Newark Bay because of an "extremely high" cancer risk and recommends strict limits on consumption of fish caught in the area. Research has also uncovered high dioxin levels in certain marine fish species caught by anglers throughout the NY/NJ region.
"The court's decision is an ethical, first step in the right direction," said Rev. Fletcher Harper, Executive Director of GreenFaith, a New Jersey interfaith group. "Now, the Corps needs to dredge Newark Bay and the Kills in a manner that protects human health and the marine environment. We're encouraging people of all faiths and concerned citizens to comment on the Corps' draft environmental assessment, which is not yet strong enough to accomplish this goal."
The Corps and the New Jersey Department of Environmental Protection are accepting public comments though August 16 on a proposal to start the next phase of the dredging, and on a new draft environmental review by the Corps.
The three plaintiff groups are represented by NRDC and the Rutgers Law School Environmental Law Clinic.