Environmental Victory in New York Harbor Dredging Court Battle

Army Corps of Engineers Required to Conduct Strict Monitoring to Prevent Spread of Toxic Sediments from Massive Subsurface Superfund Site
NEW YORK (October 23, 2007) – In a landmark settlement approved last Friday in federal court, the U.S. Army Corps of Engineers agreed to adopt strict new environmental safety measures for dredging deeper shipping channels through a highly contaminated Superfund site that lies beneath the New York/New Jersey harbor.
The settlement resolves a lawsuit filed in January 2005 by the Natural Resources Defense Council (NRDC), NY/NJ Baykeeper, and GreenFaith. The dredging area in Newark Bay is laced with one of the deadliest forms of dioxin. The settlement will help ensure that the giant underwater dig – 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 spread the contamination into surrounding waterways and undermine the Environmental Protection Agency’s (EPA) ongoing environmental remediation efforts in and around Newark Bay.
“This settlement forces the Army Corps of Engineers to take responsibility for the health and environmental impacts of its dredging project,” said Larry Levine, NRDC attorney. “If the Corps fully implements the protective measures in the settlement, both the marine life under the water and the residents above will benefit from the safe removal of toxic waste from Newark Bay.”
The settlement follows two court rulings against the Corps. In both August 2005, and again in March 2006, a federal judge found the Corps in violation of the National Environmental Policy Act. These rulings sent the agency back to the drawing board to determine how the harbor deepening project would impact efforts to assess and clean up huge amounts of toxic chemicals on and under the harbor floor.
The new arrangement requires the Corps to adopt specialized environmental dredging methods, including the use of computerized controls to precisely guide dredging equipment and maximize the removal, rather than dispersal, of contaminated sediment. The Corps must also conduct a pilot project using underwater sensors to accurately pinpoint, in real time, the amount of sediment dispersed during dredging. Such monitoring would allow the Corps to better regulate its private dredging contractors, ensuring their operations minimize the spread of buried contamination.
The Corps will also conduct new analyses of sediment from the parts of the shipping channels suspected to be the most contaminated, which New Jersey state regulators can then use to determine what additional dredging precautions are necessary. On at least a quarterly basis, the Corps will provide members of the public an update on these activities and the opportunity to comment on the projects.
“Improved dredging methods and any substantive data gathered from the pilot project will help curb major pollution issues surrounding dredging activities within Newark Bay,” said Andrew Willner, the NY/NJ Baykeeper. “We anticipate New Jersey Department of Environmental Protection will fulfill its role in using the information from the Corps’ studies to make better decisions about dredging methods for the rest of the Harbor Deepening Project.”
The area slated for dredging encompasses a large portion of the Diamond Alkali Superfund Site, including 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. Without proper protections, dredging activities would disperse now-buried contamination further into harbor.
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.
“This settlement will help protect the people who live and work around Newark Bay,” said Rev. Fletcher Harper, Executive Director of GreenFaith, a New Jersey interfaith group. “The Corps has the opportunity to conduct the dredging in a way that benefits both human health and our ocean resources. We are encouraged by the settlement and will be watching to make sure that the Corps keeps its word.”
The three plaintiff groups are represented by attorneys from NRDC, the Rutgers Environmental Law Clinic (RELC), and the Eastern Environmental Law Center (EELC).
“We hope that from now on the Army Corps will take full account of environmental issues in its decision-making without forcing us to resort to further litigation,” said Richard Webster of EELC, counsel to NY/NJ Baykeeper.
In November 2003, NRDC, NY/NJ Baykeeper, in its role as protector of the waterways of the Hudson-Raritan Estuary, 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 may pose 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. 
Earlier this year, EPA announced its intent to require substantial remedial dredging of the lower Passaic River, just upstream of Newark Bay, to safely remove highly toxic sediments. As of this date, however, EPA does not expect to propose any plan for cleaning up Newark Bay until at least 2012.