Dredging up toxins, suit says

Groups want channel work coordinated with Superfund cleanups

Thursday, February 17, 2005

By Ronald Leir

Journal staff writer

A powerhouse environmental coalition is taking the U.S. Army Corps of Engineers to court to try and stop the dredging of New York Harbor, Newark Bay and surrounding waters to prevent dioxin and other toxins from a Superfund cleanup site from surfacing and spreading to other New Jersey and New York waterways.

The Natural Resources Defense Council, NY/NJ Baykeeper and GreenFaith, aided by the Rutgers Law School Environmental Law Clinic, filed for a preliminary injunction yesterday against the Corps in federal court in New York.

The dredging project, undertaken by the Corps in concert with the Port Authority of New York and New Jersey, is designed to allow the harbor and bay to accommodate larger container ships and increased port traffic.

NRDC attorney Larry Levine said that U.S. District Judge Shira Scheindlin, sitting in the Southern District of New York, will hear arguments from lawyers for the litigants - and possibly expert witnesses - at a hearing tentatively set for 10 a.m. on March 14.

Because the Corps isn't expected to start the next phase of dredging in the Arthur Kill channel until March 22, that should give the court ample time to hear both sides and make a ruling, Levine said.

If the court grants the injunction, the Corps would have to delay the project.

If the court denies it, Levine said, the Corps could proceed but the case would still go forward and the environmentalists would still have a chance to persuade the court that something more should be done.

Corps spokeswoman Carolyn Vadino said yesterday that it's the Corps' policy not to comment on ongoing litigation.

The Corps recently awarded a $74 million contract to Donjon Marine Cos., of Hillside, to deepen the Arthur Kill channel. It's the second of four contracts planned for that area of the harbor, which is to be dredged to a depth of 41 feet.

Donjon also got the first contract, awarded in 2003 and completed last year, for $50 million. The Arthur Kill project is expected to cost $195 million and should be finished by 2007.

In a press release issued yesterday, the coalition said it wants to ensure that the Corps takes every precaution in its harbor project so as to avoid the possibility of spreading chemicals like dioxin, pesticides, PCBs and mercury traced to a variety of industrial sources, like Diamond Alkali and former Agent Orange manufacturer Occidental Chemical Corp., bordering harbor waters.

The coalition is pushing for coordinating the dredging and/or blasting work with the ongoing Diamond Alkali Superfund cleanup of Newark Bay, off Jersey City and Bayonne, and portions of the Kill Van Kull, off Bayonne, and Arthur Kill, off Staten Island.

The coalition says the federal Environmental Protection Agency has found high concentrations of dioxin in the Passaic River and Newark Bay blue crabs, and the state Department of Environmental Protection has banned crabbing in and around Newark Bay due to an "extremely high" cancer risk and has placed consumption limits on fish caught throughout the New York/New Jersey region.

NY/NJ Baykeeper Andrew Willner said: "Without a better plan, the Corps will spread some of the nation's most contaminated sediments throughout our waterways. Newark Bay and its surrounding waters are public property (and) New Jersey citizens have the right to dredging methods that will protect their health and environment."

Yesterday's legal action is the next step in a suit filed by the coalition on Jan. 21 alleging that the Corps violated the federal Resource Conservation Recovery Act and National Environmental Policy Act by failing to conduct an environmental and health review of its harbor project.