Boyd: Dredging Up the Truth???

DREDGING UP THE TRUTH

Farmers sue to force EPA to release information

By GORDON BOYD
(Reprinted from the Schenectady (N. Y. Gazette page E1 6/3/01)

For The Sunday Gazette Although it has been lately quiet in the media, the controversy over whether to dredge the Hudson River to clean up PCB contamination recently shifted into a new forum: litigation.

This should come as no surprise to anyone who spent any time with the U.S. Environmental Protection Agency's six-volume Remedial Investigation/Feasibility Study before the comment period ended in mid-April. Although six volumes should be enough to fully describe almost anything, EPA's effort was woefully incomplete and disingenuous. So last month, the group Farmers Against Irresponsible Remediation (FAIR) served notice on EPA that it intends to haul the agency into federal court, charging that EPA has committed multiple violations of federal statutes in pursuit of its dredging plan.

Whether FAIR will be successful, of course, remains to be seen. But they have a number of legal points working in their favor, and pro-dredging environmentalists are uncomfortable. FAIR is led by a dairy farmer, Willard Peck, with deep roots in Northumberland, a beautiful spot on the Hudson about 10 miles east of Saratoga Springs. He works his farm like so many others in that community, but unlike most farmers, Peck is also an attorney, and he is associated with one of the leading environmental law firms in the state: Young, Sommer, Ward, Ritzenberg, Wooley, Baker & Moore, of Albany.

By way of background, at least two of the firm's senior partners have professional roots in the environmental law bureau of the state Attorney General's Office during the tenure of Democrat Robert Abrams, a fact that suggests they are taking on FAIR's cause more out of intellectual and ethical loyalty to the original intentions of Superfund law and the goals of public participation in the environmental process.

Citizen suits FAIR, represented by Peck and Dean Sommer, intends to file a citizen suit under federal Superfund law, citizen suits being the avenue the law provides for people living adjacent to or near Superfund cleanups to make sure the polluters and everyone else are following the law.

FAIR's suit will raise several strong points unless EPA agrees in writing by July 16 to "complete the (Feasibility Study) assessment," that is to publish the following information, none of which is contained in the EPA dredge plan:
1) An assessment and evaluation of the impacts of dredging, especially concerning excavation, transport, and redisposal or containment. How a feasibility study does not contain such information makes you wonder.
2) Disclosure of the location of the hazardous waste treatment and dewatering facilities and soil/gravel extraction mines necessary to implement the dredging. Where will they be?
EPA's plan is silent on it all, including where the gravel will come from to replace what comes out of the river.
3) Assessment of the community impacts, particularly concerning noise, odors, PCB resuspension, health and environmental risks.

Without disclosure of these aspects of the plan, says FAIR, "the public has been deprived of an established statutory right and U.S. EPA has violated" federal environmental laws.

FAIR asserts that EPA's "failure and . . . refusal to complete the (dredging Plan)" prior to issuing its final Record of Decision this August "constitutes an abuse of discretion, is arbitrary and capricious and constitutes a violation" of federal laws. EPA, and its friends among certain environmental groups, have always said that the details of the location of the treatment facilities, gravel mines, disposal sites and other incidentals will be handled during the design stage, that is, after the final, irrevocable decision and order are issued to GE to start spending a half-billion dollars. First you make the decision final, then you tell the public what you're going to do and where. FAIR anticipates, probably correctly, that EPA will respond to its notice or of?

ourt action by saying that the federal courts have no jurisdiction until after the dredging is complete, i.e. in about 10 years.
FAIR cries foul But FAIR maintains that "EPA's violations of law, its attempt to deprive the public of its statutory right to public participation during the . . . process, and its expected assertion that the U.S. District Court will not have jurisdiction to hear challenges in this matter once the [final decision] is issued, constitute a gross violation of" Superfund law.
Unlike other citizen groups in our community, FAIR explicitly does not challenge the dredging remedy per se, but the incompleteness of EPA's plan. The refreshing aspect of this challenge to EPA is that it constitutes a surgical attack on the agency's adherence to its own rules and procedures, an area that the plaintiffs' attorneys know well from years of experience in these issues.

FAIR's challenge exposes how the EPA has undermined the public participation process. After all, FAIR asks, how can the public possibly assess the wisdom of the proposed remedy without all the information?

How does a national environmental group react to a group of citizen farmers and environmental lawyers challenging EPA to provide full information about its dredging plan and allow more public input?

The Sierra Club's Chris Ballantyne, asked by a local paper for his view, found the challenge "troubling. Litigation is not the way to do it." Mark your calendar. When was the last time an environmental group sought to deny public access to information about an environmental cleanup project?

Environmental groups should drop their dogmatic insistence on dredging, stop turning a blind eye to EPA's abuse of the review process, and insist that New York state provide for environmental review of all upland treatment and mining operations.

At this point, environmental advocates are in the uncomfortable position of cutting the public out of the process and leaving them short of information. Not a legacy you would expect from the likes of the Sierra Club.
Gordon Boyd lives in Saratoga Springs. He is a regular contributor to the Sunday Opinion section.