HomeMy WebLinkAboutThames River Dredging Info
HARVEY A. ARNOFF
Town Altomey
.V@
-------
.'
SCOlT L. HARRIS
Supervisor
MAlTHEW G. KIERNAN
Assistant Town AUomey
OFFICE OF THE TOWN ATTORNEY
TOWN OF SOUTHOLD
Town Hall. 53095 Main Road
P.O. Box 1179
Southold, New York 11971
Fax (516) 765-1823
Telephone (516) 765-1800
PROPOSED RESOLUTION
(/Lto u.. Ii) ~
'/11 to
WHEREAS, it has come to the attention of the Town Board of the Town of
Southold, through resolutions of the Fishers Island Conservancy (see
attached) and the Fishers Island Civic Association that the United States Navy
is planning to dump 2,7 million cubic yards of dredged material (from
Connecticut's polluted Thames River) into the waters of long Island Sound in
an area only one and a half miles off Fishers Island's northwest shore; and,
WHEREAS, the Town Board of the Town of Southold
dumping of this polluted sludge from the Thames River
potential hazard to the marine life of the area
irreplaceable marine resource area known as "The Race";
recognizes that the
constitutes a serious
and threatens the
{
NOW, THEREFORE BE IT RESOLVED, that the Town Board of the Town of
Southold protests the current planned dumping of 2.7 million cubic yards of
dredged material as detailed above and requests that the U. S. Navy make
every effort to find and use alternate dump sites away from these critical'
environmental areas; and,
,
BE IT FURTHER RESOLVED, that the Town Clerk of the Town of Southold is
and she shall hereby be authorized to forward a copy of this certified
resolution to the following so that they may use their best efforts to prevent
the Navy's implementation of this dumping plan.
Senator Alfonse M. D'Amato
Senator Daniel P. Moynihan
John H. Thatcher, Jr., President of Fishers Island Conservancy
John Clavin, Fishers Island Harbormaster
Thomas Jorling, Commissioner of New York State DEC
Joseph Sawicki, Jr., Assemblyman
Kenneth P. laValle, State Senator
Congressman George J. Hochbrueckner
Carol Ridgway, President of the Fishers I sland Civic Association
Robert Ostermueller, Department of the Navy, Northern Division
Elizabeth Higgins Congram, Assistant Director, Office of Environmental Review,
U.S.E.P.A., Region I
.-
-
FISHERS ISLAND CONSERVANCY,INC.
.
POX ~~3
FlSIIERS IS~Alm, N,Y, 06390
August 8, 1993
RESOLUTION.
At the Fishers Island Conservancy's Annual Meeting on August 7th, 1993,
a resolution was introduced and passed unanimously to empower Judge Raymond
Edwards a5 our Councilman to present to the southold Town Board a motion that would
urge and roques.!: that Board to protest vigorously to the U.S. Navy and the state
of Connecticut (via approprIate and official channels) the concern folt by the
FIshers Island Cor~ervancy and the Fishers Island ClvIc AssocIation, as well as
by tho Southold Town Board, that any planned dumping of polluted sludge from the
Thames River over the designated dumping grounds in Fishers Island sound just 1\
miles off the north-west shore of Fishers Island be counted and judged as a
hazard to the marine life of the area, including Block Ialand sound, Fishers Island
Sound, and Eastern Long Island sound. In addition, the Conservancy resolution
mentioned the health and environmental hazards of such polluted dredge spoil
entering the territorial waters of New York State and the Town of southold, as
well as waters so close to Fishers Island, It was 'felt that these d"ngers alBo threatene
irraplaceab1e marine resource area known as "The Race", not \:0 mentIon the Conn. ahorll.
This resolution also asks the Southold Town Board to communicate its concern
to other N.Y. State polItical and environmental authorities. The current planned
dumping of 2.7 million cubic yeards ot largely polluted dredge spoil in such a
sonsitlve environmental area should not only be protested by all relevant political-
and environmental entities affected by such dumping, but further every effort
should be made by all parties concerned to find and ~ alternate ~um~ sites
away from theSe critical environmental areas If these dredging and dumping plans
are ever put into operation by either the U.S. Navy or the state of Connecticut.
N.Y. State and Town poUChs that protect the environment, as well IS Stato and Town
policies that protect the public health and guard against depletion of marine
resources and commercial fisheries - all these exisitng policiea would in our view
lead the Southold Town Board to join us in protesting tho furtherance of a dredging
and dumpi ng program tha t presents threa ts to a cruda lly important ,~rea on both
environmental, c01lllllerclal, and pubHc health grounds.
*
The above motion passed without a single dissenting vote at a well ,~ttendad meeting
of the Fishers Island ConsElrvancy to ..bleh the pubUc ..as invited. '1'hh resolutlon
was also endorsed whole-heartedly by the Flshers Island Civic Association and its
President Carol Ridgway, ..ho noted that she and Conservancy Preslde'lt Thatcher
had jointly sent a previous letter to the Southold Town Board on th'ls sama subject
sOUle months ago. This resolution and its sentiments '~ere presented ':0 CounCilman
Reymond Edwards for transmission to southold by John Thatcher, Pres:ldent of the
Fishers Island Conservancy on August 9th, 1993. the precise verbal presentation
of this resolution was chosen so that the TO\ln of Southold could Ch')098 its own
wording in adding its o..n endorsCtmElnt to the above-expressed feellnl~s of the
Fishers Island Conservancy and the Fishers Island Civic Assodaelon,.
____~-- 1Z(O~ ~
~ H. - Thatcher Jr. - pre~~(n;
Fishers Is land Conservancy ,
1'~'1l'
'~'.r.;~)..ll', :~"l'
"~;.~'di "
,.'';';:'--.' j
\. -".j.,\~~;(;;' \' ,.t
THE ASSEMBLY
STATE OF NEW YORK
ALBANY
RANKING MINORITY MEMBER
Commerce, Induslry
and Economic Oevelopmenl
JOSEPH SAWlCKI. ,/R
A!';semblym<'1n 15! District
Suffolk County
COMMITTEES
Aging
Agriculture
November 18, 1992
Honorable Alphonse D'Amato
United states Senator
Room 420, Leo O'Brien Office Building
Albany, NY 12207
Dear Senator D'Amato:
We need your immediate intervention to prevent the United states
Navy from implementing their plan to dump 2.7 million cubic yards
of dredge material - from Connecticut's polluted Thames River -
into the waters of Long Island Sound in an area only 1 and 1/2
miles off Fishers Island's northwest shore. This dump site is
located near New London and is right on the border between New York
state and Connecticut. This action by the united States Navy has
the potential of causing severe and irreparable environmental
damage as it would impact not only Fishers Island waters, but also
eastern Long Island Sound. The Navy must find an alternate
disposal site!
It should be emphasized that this projected dredging program (part
of the "SeaWolf" submarine project) will dredge the Thames River by
New London in a swath 4 feet deep, 150 feet wide, and nearly 8
miles long. Indeed the dredging will reach as far north as the
submarine base near Gales Ferry, Connecticut, an area where radio-
active material has been deposited in the past and where measurable
quantities of radio-active sediments have recently been detected in
core sampling. This amount of pollutive dredge spoil is truly
enormous and it must again be noted that the New London Harbor dump
slte is right on the New York state line. Therefore, if any of the
dredged material is dumped on an ebb tide, it will more than likely
drift into New York State and Southold Town waters before it hits
bottom.
It is my understanding that this Navy project is being undertaken
so that a prototype of the SeaWolf submarine can travel the eight
miles down the Thames to the Navy's submarine base near Groton,
Connecticut, for fitting and testing, estimated to take
approximately one year to complete. Once completed, the SeaWolf -
which is being built elsewhere in the United States - will not even
be based at Groton.
DISTRICT OFFICE: 107 Roanoke Avenue, Riverhead, New York 11901, (516) 727-1363, FAX (516) 369-3869
ALBANY OFFICE: Room 550, legislative Office Building, Albany, New York 12248, (518) 455.5294, FAX (518) 455.4740
on p'
\..J nnted on recycled paper.
Page 2
Correspondence to Senator Alphonse D'Amato
November 18, 1992
Furthermore, the federal Environmental Protection Agency apparently
raised objections when the Navy first asked for permission to
dredge the channel last year, seeking additional information on the
sources of contamination as well as the risk to human environment.
The bottom line, Senator, is that in no way should the United
States Navy or anyone be considering dumping the slightest bit of
contaminated spoil in Long Island Sound - especially in an area
which is home to such heavy tidal flow and powerful currents, not
to mention one of the most resourceful fishing areas in the
northeast. The states of New York and Connecticut and our federal
government are in the process of spending millions of dollars to
clean up Long Island Sound; this dumping is contrary to these
environmental programs.
We need your direct intervention to stop the united States Navy
before it is too latel I eagerly await your response and look
forward to working with you to prohibit this tremendous threat to
our marine environment and its precious aquatic life.
JSJ:kb
Encl.
cc: John H. Thatcher, Jr., President
Fishers Island Conservancy ~
John Clavin, Fishers Island HarbormasterV
Scott L. Harris, Supervisor, Southold Town
Thomas Jorling, Commissioner, NYS DEC
Judith Terry, Southold Town Clerk
rJ;w
JOSEPH SAWICKI, JR.
Member of the Assembly
~f
FISHERS ISLAND CONSERVANCY, INC.
\
BOX 553
FISHERS ISLAND, NEW YORK 06390
October 11, 1992
Members of the fown Board of Southold
I'Olm Hall, Main Road
Southold, ~. Y . 11971
Re: Javy Dredging &
pollution in L.I.
Sound near Fishers
Island.
To: Members of the !own Board
'The Leaders of the, undersigned organizations wish to bring to
the Boards attention the alarming fact that in a few months time
the U.S. Javy will be poised to begin a truly massive, pollutive,
and potentially dangerous program of harbor dredging that will
deposit over 2,700,000 cubic yards of Thames River muck into the
waters of Long Island Sound - only 1~ miles off Fishers Island's
north-west shore, ani abutting waters that are part of the fown's
territory.
The Fishers Island Conservancy, &J.ong with the Fishers Island
Civic Association, are by this letter formally requesting the Yown
of Southold to t~e note of this situation, which has a real .
probability of occurring in the near future unless the Xavy can be
persuaded to shift the dredge spoil to alternate sites.
It should be emphasized that this pro jected dredging program
(part of the "Seawolf" submarine project) will dredge the 'rhames
River by llew London in a swath lj. feet deep, 150 feet wide, and
nearly 8 mile s long I Indeed the dredgi.ng will reach as far north
as the Submarine Base near Gales Ferry, Conn; an area where radio-
active material has been deposited in the past, and where measurable
quantities of radio-active sediments have been recently detected
in core sampling. '!'he amount of generally polluti ve dredge spoil
all this ldll dredge up is truly enormous, and it should be always
remembered that the Jew London harbor dump site is bU1llping right up
to the J.Y. State line. In other words, if any of the dredged material
is dumped on an ebb tide, it will more than likely drift into I.Y.
State and Southold 'town waters before it hits bottom.
We ask here not only for the attention of the Southold Town
Board, but also for the help of that Board in the event th~ JaT-Y
after completing;its Environmental Impact Statement begins to 1110Te
to dUmp this huge mass of polluted river bottom 00 near to Fishers
Island. Such an action would negatively impact the eco-systems of
Southold, I.Y. State, !!lld Connecticut, not to mention Fishers Island.
It would also reverse a decade-long emphasis on efforts to clean up
Long ISland Sound.
D
.~
- 2 -
\
11alce no mistake - we are not \\Orried here over either the
scope or the reality of the Iavy's submarine program - a program
that basically we support. What we are worried about is the huge
environment al impact of dumping; such ilii:t ss! ve amount of po1l1:l.ted
and/or contaminated material in the swirling currents just off
FiShers Island's north-west shore. We are talcing the stand that
the Xavy find alternative dumping sites that will not affect
either Southold's territory or our om local waters.
We are urging Southold by this letter, then, to be both aware
of tele problem, and the threat to our joint environments and
territories. We hope that the Southold Town Board, along with
our own two groups, will continue to monitor the situation closely,
and that they will join us in expressing concern over the potential
danger and damage to both our own coastal waters and our own fragile
environment that this projected action of the Javy1s would cause.
Sincerely,
~~ W. 72:~--L
1 l{. Thatcher lr. - P~ident
ishers Island Conservancy
Carol O. Ridgway - President
FiShers Island Oivic Association
(by authorized proxy).
--
~
------
I
, -
v
1 /
,
NORMAN RICHARDS, Ph.D.
Environmental Consultant
29 ATTAWAN AVENUE
.
NIANTIC. CONNECTICUT 06357
.
(203) 739-4035
October 20, 1992
Carol O. Ridgway, President
Fishers Island Civic Association, Inc.
Fishers Island, New York 06390
Dear Carol,
Thank you for the October 16 letter. Yes indeed, I know
Stanley!
Since I am accustomed to giving three-hour class lectures, it
seems that I barely introduced the subject at the Civic Association
meeting. . .
I share your hope for "safe science" in the final assessment
of the potential environmental impact of the proposed dredging with
disposal at the dumpsite. However, I hope that I did not treat the
subject too superficially and leave the audience with the
impression that my only concern is the Sea Wolf Program dredging.
Environmental Risk Analysis of the potential impact is an
extremely complex undertaking. A few examples of my concern that I
did not have time to adequately discuss at the meeting include:
-Uncertainty in the approach and specific experimental design used
to evaluate sediment toxicity.
-Inadequate sampling and sample handling.
-The use of questionable and inconsistent analytical chemistry.
-A lack of adequate interpretation of anaLytical data.
-Improper use of historic data.
-The need to apply new research information about bio-availability
of toxic chemicals in the dredge spoil.
-Questionable validity of the proposed capping procedure.
-Possible lack of availability of adequate and timely capping
material.
-Lack of analysis of cumulative impact of repeated dredging and
capping by the Navy.
-Consequences of voluree limits on the present site.
-Evaluation or all feasible and prudent alternatives to the
proposed plan.
.--(
. .
-Consequences of attraction of fishes to the mound and subsequent
consumption by man subsequently feeding on those species (see
enclosed letter for needed seafood safety methodology).
-Worst case scenario analysis ("maximally exposed individual") of
the proposed operation.
-Evaluation of "segmentation" i.e. the cumulative effect of all the
Navy's dredging operations that are now using the dumpsite.
-Long term effects of all foreseeable repeated future maintenance
dredging.
-Lack of use of current technical literature in the assessment.
-Proper evaluation of the cumulative effect of all non-Navy
dredging.
-Application of modern ecological risk assessment methodology to
the spoil disposal.
Well, if I continued listing my concerns, the letter will
become unreadable. I am not being a sophist here: I believe that
there are many legitimate concerns that were not professionally
addressed by the Navy.
Let me end by stating that with or without my consulting, I
believe that the Association / Conservancy could benefit from the
formation of a study group. The study group goal could be
development of a formal position and plan of action. Unfortunately,
I feel that Navy is unlikely to spontaneously develop a modern
total quality management approach to the dredging operation without
outside prompting.
Please give my regards to John.
Sincerely,
~~.
._~
Norman Richards
K
FISHERS ISLAND CIVIC ASSOCIATION, INC.
FISHERS ISLAND, NY 06390
October 16, 1992
Norman Richards, Ph. D.
29 Attawan Avenue
Niantic, Connecticut 06357
Dear Dr. Richards,
On behalf of the Fishers Island Civic Association and the citizens of the
Island, thank you for taking time on a holiday weekend to speak to our
congregation.
Your credentials are impressive and your report was very well delivered
and informative. The Civic Association and the Conservancy are sending a
representative to the next Town Board Meeting in Southold to apprise the
members of the Navy's dredging and dumping plans in conjunction with
the Sea Wolf Submarine Program. I feel there were many groups in
attendance last Saturday who were made aware of the scope of this plan
and will act in our behalf to do everything possible to make sure "safe
science" is used in the event that the planned dumping area remains the
same one so close to our shores.
If there is anything specific in the future you feel we could help you with
or that we should know, please contact the Civic Association. I know that
you are in constant dialogue with the Conservancy and John Thatcher will,
I'm sure, continue to do an outstanding job on that front.
Thank you again for your time and interest.
Sincerely,
Carol O. Ridgway
President
NORMAN RICHARDS, Ph.D.
Environmental Consultant
29 ATTAWAN AVENUE
.
NIANTIC, CONNECTICUT 06357
.
(203) 739-4035
August 8, 1992
Mr. John Thatcher
P.O. Box 132
Green Village, New Jersey 07935
John,
I thought that a brief review of a few local coastal zone
activities may help you to keep up with the complex issues that
affect the assimilative capacity of Long Island Sound near Fisher's
Island. "
The Long Island Assembly Report to the Connecticut General
Assembly is enclosed as promised. You will recall that all: of
authors were politically appointed. Most had no prior expertise in
marine science, management, or environmental regulation. Be
forewarned that the document is also further compromised by
personal agendas of some assembly members. Many have substantial
financial interest in the recommendations of the report e.g. marina
owners, consultants. Others have parochial career interests at
stake, e.g. town planners who want limited state control over their
development activities, elected officials who want to remove eel
grass near their bathing beaches. The Eastern Council chairman has
major outstanding permit violations with CTDEP. Therefore, this is
not a purely objective technical document.
When we talked Sunday, I mentioned that an October 23 & 24 LIS
Conference is scheduled at Central Connecticut State University in
New Haven. The purpose is to summarize LIS pollution research
projects. If you cannot attend, I can provide you with a summary of
any significant findings reported at the meeting. Is there a
similar meetiTlg on the New York side? Does New York have a
repository of technical information?
We should co~pare notes about activities at the Sub. Base in
Groton. The Navy has at least five projects of interest to you:
(1) Seawolf dredging, including a new series chemical anal ysis
of the sediments that are propo$ed for dredging.
/'
r
(2) Superfund site remediation work (you will recall that I am
a member of the TAC).
(3) Continued segmented pier-by-pier permitting and dredging
that avoid the need for an environmental impact analysis of the
overall river downgradient of the Superfund Site or disposal in
LIS.
(4) Off-site groundwater studies.
(5) The CT Attorney General's litigation
hazardous waste management regulation violations at
on continuing
the Sub. Base.
I believe that I sent you a package on correspondence about
Seawolf dredging, right? However, to get information about the
recent chemical analysis of the sediments, one of us will have to
go through the Freedom of Information Act: Mr. Ostermuller will
refused to release the information otherwise.
You may not be aware that most NPDES permit conditions in the
vicinity of the Thames River are now being modified. For example:
(1) Pfizer Chemical has decreased its production and increased
its R&D waste streams. 1
(2) The New London POTW will soon increase its service to
include Water ford and East Lyme.
(3) Dow Chemical has been Dredging.
(4) Thermal discharges are increasing.
(5) Additional dredging and marina expansion near Baker's Cove
is under consideration for permitting. Also, the port of New London
will soon undergo major development under an accelerated permitting
system. The former Fulton pier will be included in the project.
I have also enclosed the resume that you requested. Let me
know if you need additional information.
----e./~~
Norman Richards
G-
NORMAN LEE RICHARDS
29 Attawan Avenue
Attawan Beach
Niantic, Connecticut 06357
SOCIAL SECURITY #043-26-1816
TELEPHONES:
(203) 739-4035 (office)
823-7472 (cellular)
SUMMARY: Skilled in analysis and permitting of complex
environmental programs using my extensive background in science,
law, growth management, public health, grants management, coastal
zone management, teaching, and risk analysis/communication.
EDUCATION:
Ph.D. :
Postdoc. :
M.S. :
M.P.A.:
B.A. :
Also:
Bacteriology and Biophysics. University of Rhode Island.
Molecular Biology, National Institutes of Health.
Bacteriology/Biochemistry, University of Connecticut.
Coastal Zone Management, University of West Flori~.
Bacteriology, University of Connecticut.
Many graduate courses in environmental law,
management, and environmental sciences.
FORMAL CERTIFICATION:
Hazardous Materials Manager, #640, Master Level.
Computer Science Applications.
Scientific French Reading Knowledge.
PROFESSIONAL HISTORY:
Environmental Consultant: ENVIRONMENTAL RISK ANALYSIS AND
REDUCTION. Niantic, Connecticut (April 1989 to present). Areas of
emphasis include: lake management; monitoring of soil, groundwater,
lakes and wetlands; integrated pest management / sustainable
agriculture; environmental impact assessment; water diversion
(wells and reservoirs); wetland use permitting; proposed project
consistency with zoning and conservation/coastal management
planning; assessment of water quality; functional value of vernal
ponds; land use planning; marina impact assessment; analysis of
proposed coastal airport expansion; Long Island Sound (Connecticut
and New York) resource management.
p. 1 of 5
~
"" .....~
Practitioner in Residence: UNIVERSITY of NEW HAVEN (September 1990
to present). Developed and taught graduate courses: Human Health
and Environmental Risk Assessment, Environmental Effects of
Pollutants and Environmental Reports and Impact Analysis.
Environmental Advisor: CITY of GROTON, CONNECTICUT. (April 1990 to
present). Recommended action to the Mayor, Council, City Attorney,
Utilities Department staff, and Health Director. Issues include:
reservoir management; industrial emissions; NPDES permits;
environmental risk of a superfund site; health risk of a proposed
hazardous waste incinerator; monitoring risk of river dredging and
ocean spoil disposal; development of legislation; reservoir
waterfowl impacts; Long Island Sound management; sewage treatment
plant operation; cumulative impacts of pollution; health effects of
electromagnetic fields, lead and radon. The position involves
interaction with many reporters, industry representatives, academic
scientists, elected officials, agency representatives, commissions,
planners, environmental advocates, and the public.
Naturalist: Mashantucket Pequot Tribe, Ledyard CT (September 1991
to Present). Taught two field courses on Natural Resources of
Tribal Lands to tribal members, covering the ecological stru~ture
and function of ecosystems associated with forests, abandoned
fields, fresh/saltwater wetlands, surface/groundwater, and coastal
ecosystems. Environmental ethics and man's historic and current
interaction with the systems was emphasized. Now developing lake
management strategy and monitoring wetlands.
Conservation/Inland Wetlands Commissioner / Vice Chairman: TOWN of
EAST LYME, CONNECTICUT (January 1989 to present). Appointed to non-
paying commission. Receive training, participate in site visits,
evaluate proposals, question permit applicants, participate in
hearings, vote on project application completeness and proposed
project approval.
Lonq Island Sound Council and Assemblv: (August 1990 to present).
Appointed as City of Groton and Town of East Lyme representative to
this arm of the Connecticut General Assembly. Prepared legislative
initiatives on natural resource protection and restoration.
Executi ve Director: FLORIDA DEFENDERS of the ENVIRONMENT, INC.
(August 1988 to March 1989). As CEO of this not-for-profit
corporation dedicated to wildlife management, river basin
protection, and forest management, I obtained a grant to provide
technical assistance to environmental groups. I developed and led
a workshop on global warming (involving governors and other elected
officials from 13 states).
p. 2 of 5
G
",................ -
Assistant District Manaqer/Enforcement Officer: FLORIDA DEPARTMENT
of ENVIRONMENTAL REGULATION; Pensacola, FL (August 1985 to August
1988). Directed the Northwest District Office and two branch
offices in implementing a program of environmental regulation in 16
Florida counties, including the management of professional staff
responsible for the District's regulation of municipal waste water,
solid waste, industrial waste water, air quality, potable water,
dredge and fill operations, hazardous waste control, storm water
management, construction grants, technical assistance, impact
assessment, environmental monitoring, and permit compliance.
Served on many committees, including those on comprehensive
planning, growth management, ordinance development, transportation,
and corridor impact assessment. I managed significant reduction of
permit application processing time, streamlined correspondence
control, introduced basin planning, and improved relationships with
the public and academic community. My human resource studies
contributed to reorganization and policy changes.
Adiunct Facultv Associate: UNIVERSITY OF WEST FLORIDA; Pensacola,
FL (September 1983 to June 1988). Developed and taught graduate
courses in Science and Political Science departments: Natural
Resource Law, Marine Toxicology, Pollution Biology, Chemicat and
Biological Endpoints in Environmental Regulation, and Coastal Law.
THE FOLLOWING CAREER ASSIGNMENTS OCCURRED WHILE A COMMISSIO.NED
OFFICER WITH U. S. PUBLIC HEALTH SERVICE (1964 to 1985), AND
INCLUDED A DETAIL TO THE US ENVIRONMENTAL PROTECTION AGENCY:
Associate Director for Extramural Activities/Special Assistant to
the Director: U.S. ENVIRONMENTAL PROTECTION AGENCY; Gulf Breeze,
Florida (August 1975 to October 1985). Created and managed
extramural and in-house programs designed to assess environmental
effects of carcinogenic pollutants, fossil fuels, pesticides and
toxic chemicals. Developed, hosted, moderated and edited four
international symposia based on these programs. Testified as expert
witness to U.S. House and Senate committees. Appointed national
expert on aquatic toxicology for NPDES permits. Served as exchange
scientist in three foreign countries, developing and monitoring
environmental projects. Performed personal research on risk
assessment and complex environmental chemical mixtures. Received
two promotions, two medals, cash award and letter of commendation.
Technical Proqram Review Specialist/and Director of Enerqv
Coordination Staff: U. S. ENVIRONMENTAL PROTECTION AGENCY,
Washington, D.C. (December 1971 to September 1975). Significantly
improved efficiency and effectiveness of a $200 million
environmental research and monitoring program at headquarters and
field laboratories. Developed budget/planning/reporting system.
Organized international symposium on pollution. Managed innovative
multi-agency program to assess environmental effects of emerging
energy technOlogies on human health and ecosystems. Successfully
p. 3 of 5
.......... ~.......
defended proposed annual budget -- including innovative programs --
before the Office of Management and Budget. Received medal,
promotion and was nominated for special promotion based on
outstanding performance.
Senior Scientist: NATIONAL INSTITUTES OF HEALTH; Bethesda, Maryland
(September 1969 to December 1971). Performed postdoctorate research
on radioscope uptake during synchronized cellular differentiation
and induction of autolysis by bacteriophage and antibiotics.
Senior Health Service Officer: U.S. PUBLIC HEALTH SERVICE;
Narragansett, Rhode Island (February 1964 to September 1969).
Participated in a national water quality survey. Determined the
estuarine distribution of botulism-causing micro-organisms.
Elucidated the biochemical mechanism of stimulation of bacterial
growth by peptides. Received promotions, early assimilation into
the Regular Commissioned Corps of the U.S. Public Health Service.
Prior to 1964: Developed human algal life support systems
(including waste recycling in closed ecosystems) from laboratory to
pilot scale for use on extended space missions. Studied:
transmission of infectious organisms among simulated astronauts,
corrosion of materials by microorganisms, isolation" and
characterization of algae at test-tube and pilot scale levels,
physiology of anaerobic bacteria. Performed research on: metabolic
effects of gaseous environments on bacteria, serology, microbial
physiology. Details furnished on request.
MISCELLANEOUS:
24 Papers/Publications: Author of
organizer, moderator, and editor
symposia; author of patents; author
articles and book chapters;
of international and other
of many consultant reports.
Public Speaking, Dispute Resolution, and Media Experience:
Presented numerous technical papers; organized international
meetings; gave talks to legislative bodies; served as environmental
expert witness in state, federal, and local permit requests,
hearings, and litigation; conducted enforcement and permit
meetings; presented talks to children, commissioners, environmental
advocacy groups, service clubs, business orginizations, state and
federal agency heads, governors, state and federal legislative
bodies, university faculty associations, scientific experts, etc.
Reading Knowledge: French, German, Spanish.
Travel/Scientist Exchange Participant: Mexico, Canada, U.K.,
Russia, Estonia, Denmark, West Germany, Yugoslavia, Poland, France,
Holland.
p. 4 of 5
.... .,..
Professional Organizations: North American Lake Management Society,
American Chemical Society, American Association for the Advancement
of Science, Ecological Society of America, Legal Environmental
Assistance Fund, Hazardous Materials Management Society, Society
for Risk Analysis, Soil and Water Conservation Society, Connecticut
Forum for Regulated Environmental Professionals.
Other Organizations: Mystic River Whitford Brook Watershed
Association, Attawan Beach Association (Erosion Committee), Clean
Water Coalition, Rivers Group, Audubon Society, Sierra Club,
Connecticut Forum for Regulated Environmental Professionals.
Areas of Significant Formal Training During the Last Two Years:
Groundwater pollution, non-point source pollution, NPDES
permitting, shellfish growing water classification, shellfish
biology, marina permitting, growth management, risk assessment,
risk communication, coastal management, wetlands management, Long
Island Sound, lake management, water supply, water diversion,
pesticide use, environmental health, and fisheries management.
Listed In: American Men and Women of Science, Outstanding Young
Men.
.,
Honors: National Athletic Scholorship Society, The Honor Society of
Phi Kappa Phi, University Academic Scholarship.
Uniformed Service: retired Scientist Director (Captain, 06) from
the Regular Commissioned Corps of the u.S. Public Health Service
after serving full time from February 1964 to September 1985.
Security Clearance: Secret.
Hobbies: Macro-photography, sailing, fishing, martial arts.
Current Volunteer Work: Southeastern Connecticut Economic Diversity
Coalition, The Day (newspaper), Connecticut Fund for the
Environment (Expert Witness), East Lyme Conservation Commission
(Commissioner / Vice Chairman), Long Island Sound Coalition and
Assembly, Niantic-Pattagansett River Basin Association (President),
Thames River Watershed Association (Science Advisor), u.S. Navy
Superfund Site Technical Advisory Committee (City of Groton
Delegate), Citizens for Responsible Siting of Radioactive Waste
(Board of Directors), Regulatory Reporter (Science Editorial
Advisor) .
p. 5 of 5
" .
.
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
NA TURAL RESOURCES DEFE"ISE
COUNCIL, INC., ET AL
v.
CIVIL NO. H-74-268
HOHARD H. CALLAHAY, as
Secretary of the Army,
ET AL
:
:
MEMORANDUM OF DECISION
The plaintiffs here, groups representing environmental
and general public interests, seek to halt a major governmental
project because the agencies involved have allegedly made both
substantive and procedural mistakes in complying with appli-
cable environmental protection laws.
The origin of this suit lies in the Navy's current
project of dredging a wider and deeper channel in the Thames
River above New London to allow a new class of submarine (the
11
SSN 688) to use the Navy's submarine facility at Groton.-
The dredging itself is not being challenged here; instead the
11
- The SSN 688, also known as the "Los Angeles" Class, is a nel~
and larger class of nuclear high-speed attack submarine that
has a draft of 32 feet. A number of these new vessels are
scheduled to be homeported eventually at the subw3rine base in
Groton. The first is to arrive from its builder in Newport
News, Virginia, in July of 1975. The second, and 18 of the
first 23, are to corne from the Electric Boat Division of
General Dynamics, whose plant is located in Groton. See Exh.
6A, 1 Final Environmental Impact Statement: Dredge River
Channel ~ 1.21 (December 1973); Testimony of Adm. Stev2n A.
vfnite, Transcript (Sept. 12, 1974) 350-356.
I
;,
- 2 -
challenge is directed at the dis~osition of the dredged spoil
at the "New London dump site," \~hich lies approximately two
nautical miles directly off the entrance to New London Harbor
and about one-and-one-half nautical miles to the west of
2/
Fishers Island in Long Island Sound.-
The total of the Navy"s dredging is calculated as some
. 3/
2.8 million cubic yards of spoil.- The project is scheduled
to be done in two phases. Phase I, which began August 3,
involves dredging the Thames River channel from a depth of
33 feet to a depth of 36 feet between the river's mouth and
the Underwater Systems Center (about halfway to the submarine
base) and deepening the entrance to the Systems Center to 38
4/
feet from a present depth of 35 feet.- After a hiatus of
approximately nine months from the completion of Phase I in
~. 5/
June 1975, Phase II will commence.- This portion of the
project involves dredging the channel from the submarine base
2/
- See, e.g., Exh. 6A, suora note 1, fig. 3, at 7; Exh. 1,
Block Island Sound and Approaches Map (C & GS 1211) (19th ed.,
Dec. 15, 1973) (New London dump site marked "X").
2/
See Exh. 6A, supra note 1, ~ 1.06. This quantity is equiv-
alent to a block approximately 1 mile long, 300 feet wide,
and 50 feet high. See Exh. 13, Affidavit of Dr. W. Frank
Bohlen 6.
4/
Exh. 6A, supra note 1, n 1.03-1.05.
5/
- See Plaintiffs' Hemorandum in Support of Hotion for Injunc-
tive Relief 7-8; Exh. 20, A Proposal for an Environmental
Survey of Effects of Dredging and Spoil Disposal in the Thames
River and Nel') London Dumping Ground 1 (Hay 21, 1974).
.,.._'
- 3 -
to about a mile above
the Systems Center from a present depth
6/
of 36 feet.-
---...-
of 33 feet to a depth
\
Concededly, the dredged material will be polluted,
with especially high concentrations of volatile solids,
industrial wastes, and Kjeldahl nitrogen.I/ The New London
dump site is apparently much ',freer of pollution than the bed
of the Thames River, and the plaintiffs fear that the dredge
spoil from the Thames will contaminate this relatively purer
8/
area.- Additionally, the plaintiffs are concerned that
dispersal of the spoil from this site will lead to pollution
of estuaries and nursery grounds for marine life that exist
inshore to the northwest of the dump site along the Connecticu
9/
coast.- Putting these concerns into the language of a
6/
- Exh. 6A, supra note 1, ~ 1.04.
7/
- See id. ~, 2.06-2.06h and accompanying figures and tables.
The Environmental Protection Agency (hereinafter "EPA") has
promulgated regulations which specify what material is pol-
luted for purposes of dumping in "oceans." See 40 C.F.R. 99
227.61-227.64 (1973). Hhether or not Long Island Sound is
subject to these regulations, cf. note 52 infra, the Navy, in
compiling the environmental impact statement for the project,
cf. p. 4 infra, acted as if they applied and compared the
composition of bottom sediment from the dredging area with
interim EPA guidelines issued pursuant to them. (The source
of these guidelines, ~vhich are developed at 'if 3.11 of Exh.
6A, was not further identified for the court; however, they
were not challenged and will be accepted by it.) One or more
of these samples exceeded each EPA guideline except that for
acceptable concentrations of mercury. See Exh. 6A, supra note
1, table 2, at 40. See also Testimony of Lt. Chas. T. Hay,
Transcript (Sept. 11~974) 32-33.
8/
- Cf. Exh. 13, supra note 3, at 6-8; Exh. 14, Affidavit of Dr.
Howard M. Weiss 4.
9/
- See, e.g., Exh. 13, supra note 3, at 7-8; Exh. 14, sunra
note 8, at 10; Plaintiff~r-Memorandum, supra note 5, at 10-11.
v
!:
- 4 -
complaint, the plaintiffs argue that the decision to dispose
-- ---
of the dredge spoil at the New London dump site \vas "arbitrary
and capricious"--a clear abuse of discretion that this court
10/
should nullify.-- This claim will be referred to below as
the "substantive" objection to the Navy's project.
The plaintiffs also co~l~~n that the agencies in-
~, volved inadequately complied with procedural requirements for
making the decision to use the New London dump site. The
parties do not dispute that the spoil disposal project was
subject to the requirements of the National Environmental
Protection Act, 42 U.S.C. ~~ 4321-4347 (1970) (hereinafter
"NEPA"). Principal among these requirements is one demanding
that an environmental impact statement (hereinafter "EIS") be
11/
filed before the project is undertaken.-- A substantial
body of case law
has grown up around the issue of exactly wha
12/
must contain,-- and the thrust of many of
such a statement
:4
,
the plaintiffs' claims is tha.t the Navy's EIS for this projec
10/
See Plaintiffs' Memorandum, supra note 5, at 54-58.
11/
-- See 42 U.S.C. ~ 4332(2) (1970). In an early and perhaps
the leading case in the field, Calvert Cliffs' Coordinating
Corom., Inc. v. United States Atomic Energy Comm'~, 449 F.2d
1109 (D.C. Cir. 1971), Judge Skelly Wright emphasized strongl)
the importance of the EIS in the statutory scheme of NEPA.
449 F.2d at 1112-1115.
12/
-- The court notes that one service that specializes in
reporting environmental 1m, cases, BNA' s Environmental
Reporter--Cases (hereinafter "ERC") has grown to six volumes
and well over 10,000 pages since 1970.
- .-1
- 5 -
13/
is deficient in omitting required data.-- A broader but
related claim is that the Navy's EIS for this project was not
"
the objective inquiry required by NEPA and regulations there-
- "" --~-.".'--- .-'---'- '-.---
14/
under-- precedent to a decision but was instead a self-
serving justification for a previously made decision tc use
15/ .
the New London dump site.- 'TI~o other related claims are
that (1) the Army Corps of En'gineers (hereinafter lithe COrpS"),
not the Navy, should have prepared the EIS, and (2) even if
the Navy was properly in charge of preparingt?e statement,
it violated the requirements of NEPA by contracting the
preparation of the EIS to a consultant instead of doing all
16/
the work on the statement by itself.--
The parties do not dispute that the Navy ~~as required
by the Water Pollution Control Act to get a permit from the
17/
Corps in order to dump the dredge spoil.-- The Corps granted
13/
See Plaintiffs' Memorandum, supra note 5, at 24-50.
14/
See, e.g., Council on Environmental Quality (hereinafter
"CEQ"), Guidelines for the Preparation of Environmental
,Impact Statements 59 1500.2, 1500.7, 38 Fed. Reg. 20550,
20552 (1973); Calvert Cliffs' Coordinating Comm.. Inc. v.
United States Atomic Energy Co~m'n, 449 F.2d 1109, 1114-1115,
1127-1128 (D.C. Cir. 1971); Environmental Defense Fund, Inc.
v. Armstrong, 352 F. Supp. 50, 55 (N.D. Ca1. 1972), aff'd,
487 F.2d 814 (9th Cir. 1973); Daly v. Volpe, 350 ::? Supp. 252,
259 (H.D. Hash. 1972).
15/
See Plaintiffs' Memorandum, suora note 5, at 19-24.
16/
See id.at 51-54.
17/
-- 33 D.S.C. 9 1311(a) (Supp. II, 1972) provides that "[e]xcept
as in compliance with. . . [the Federal I'later Pollution
ji
I
i
i
i
- 6 -
such a permit on April 29, 1974, ,conditioning it upon insti-
tution of a program to monitor the environmental effects of
17/ cont'd
Control Act] the'discharge of any pollutant by any person
shall be unla\vful." "The term 'pollutant' means dredged
spoil. . . " 33 V.S .C. 5 1362(6) (Supp. II, 1972). For
disposal of dredged spoil 3 13tH. of the Act provides:
"(a) The Secretary of the Army, acting
through the Chief of Engineers, may issue per-
mits, after notice and opportunity for public
hearings for the discharge of dredged or fill
material into the navigable waters at specified
disposal sites.
"(b) Subject to subsection (c) of this sec-
tion, each such disposal site shall be specified
for each such permit by the Secretary of the
Army (1) through the application of guidelines
developed by the [EPA] Administrator, in conjunc-
tion with the Secretary of the Army, which guide-
lines shall be based upon criteria comparable to
the criteria applicable to the territorial seas,
the contiguous zone, and the ocean under section
403(c), and (2) in any case where such guidelines
under clause (1) alone \.;Quld prohibit the speci-
fication of a site, through the application
additionally of the economic impact of the site
on navigation and anchorage.
"(c) The [EPA] Administrator is authorized to
prohibit the specification (including the with-
drawal of specification) of any defined area as a
disposal site, and he is authorized to deny or
restrict the use of any defined area for specifi-
cation (including the \'Iithdra\val of specification)
as a disposa 1 site, \vhenever he determines, after
notice and opportunity for public hearings, that
the discharge of such materials into such area
\'Iill have an unacceptable adverse effect on muni-
cipal water supplies, shellfish beds and fishery
areas (including spawning and breeding areas),
wildlife, or recreational areas. Before making
such determination, the [EPA] Administrator shall
consult with the Secretary of the Army. The [ErA]
Administrator shall set forth in \.Iriting and make
public his findinc;s <lnrI his re<lsons for ffietking
<lny deter'minet tion ul1eJer this subsection."
Ii
!
!
I
- 7 -
18/
the dumping.- The plaintiffs argue that this act:ion by the
Corps ,'1as improper (1) because the Navy's underlying EIS of
19/
December 1973 was deficient;- (2) because the Corps itself
failed to comply. ,>lith applicable guidelines developed by t:he
20/
Environmental Protection Agency;- and (3) because the
monitoring program gives no protection against harmful dis-
21/
persion or the spoil--it simply records it.-
22
On the basis of all these alleged violations of lmv,--
the plaintiffs ask this court to grant permanent injunctive
18/
-- The permit is Exh. 11 in these proceedings. For a dis-
cussion of the events leading up to this action see pp. 19-
23 infra.
19/
See Plaintiffs I Hel,'orandum, supra note 5, at 58-59.
20/
-- See id. at 59-61. The application of such guidelines is
require~by 33 D.S.C. ~ l344(b) (Supp. II, 1972). According
to the plaintiffs, the appropriate criteria are those for
"ocean dumping," promulgated at 40 C.F.R. SS 227.6l-227~64
(1973). But cf. note 52 infra.
21/
-- See Plaintiffs' Hemorandum, supra note 5, at 61-62. This
objection is perhaps best characterized as a "substantive"
one and Hill be treated as an element of the clail7l that the
decision to use the Nel') London dump site was arbitrary and
capricious. In addition the plaintiffs clail'l that the re-
quired monitoring program is not being carried out. Se~ id.
at 62.
22/
-- A number of claims have been dropped by the plaintiffs
since institution or this action. First, the pl;:lintiffs
originally c08plained that, because of the substantive cmd
procedural ~hortcomings alleged above, the permit for the
dredging in the Thar~c~; River, i~3sued by the Corps pursu~nt to
3~ U S C f [,03 (1070\ n~r '.LoI1"~] JOd I j' t'11' <' <.t~"" t'lle
..J .. . J -.. . ./ , '/) "<-......1 V Cl. .._. . ~ - I,. "_' .:.> <..:.t(J' _ _
P 10. intiffs no lon~icr Ch::l11cng(~ the vo'11idi ty 0 f the drec~~;ing ~
S0C Transcrif)l: (~~ept. 11, 197/+) 5-6. SQcond, th~ thi:cd c(J~-'.nt
//
v-'
- 8 -
relief against the continued dumping of dredge spoil from the
Thames River project at the New London dump site.23/ After
22/ contld
~
of the plaintiffp' complaint alleges that the Navy failed to
recirculate and solicit comments on an addendum to their
draft EIS, thereby violating NEPA. This claim is not pressed
in the post-trial brief, and indeed the point seems to be
conceded. See Plaintiffs' Memorandum, suora note 5, at 26-27.
Third, the plaintiffs originally complained that the EPA
failed of its responsibilities by neglecting to enforce con-
ditions it imposed upon the Corps' issuance of the dumping
permit to the Navy. However, the plaintiffs nmv concede that
this "issue has dropped out of consideration, and will not be
developed at any length in this brief." Id. at 17 n.*.
Accordingly, this court will not treat the-issue as a live
one.
23/
-- More particularly, the requests for relief still relevant
to the case pray for judgment:
"A. Declaring that the actions of the Navy
in proceeding with its. . disposal project at
New London are contrary to applicable la,v;
'''B. Declaring null and void, and setting
aside, the permit or permits issued by the Corps
of Engineers for the project;
"C. Enjoining the Navy and its officers,
agents, servants, employees and attorneys, and
all persons in active concert or participation
with any of them, from proceeding with any action
in furtherance of the . . . disposal of resulting
spoil at the Ne,v London Dumping Ground unless
and until there has been full compliance with
NEPA and Section 404;
"
.
"F. Awarding plaintiffs costs and reason-
able attorneys' fees and such other relief as
may be deemed just and proper under the cir-
cumstances."
The plaintiffs originally requested both preliminary and
permanent relief. Through agreement of the parties the three-
day hearing (held September 11, 12, and 20) on the application
I-
- 9 -
disposing of two preliminary issues, I will turn to the merit
of the remaining substantive and procedural objections that
the plaintiffs have raised.
I. Jurisdiction
The jurisdiction of this court to hear the challenges
based on alleged violations of NEPA is indisputedly proper
under 28 U.S.C. 99 1331, 1337 (1970)~ However, the defendant
maintain that the court does not have jurisdiction of the
objections based upon alleged violations of the Water Pollu-
24/
tion Control Act.-- This Act contains a section giving
jurisdiction over citizen suits, 33 U.S.C. 9 1365 (Supp. II,
1972). One of the requirements of this section is that:
"(b) No action may be commenced--
(1) . . .
(A) prior to sixty days after the
plaintiff has given notice of the allegeo
23/ cont'd
for a preliminary injunction was consolidated with the hearing
on the merits required for a permanent injunction. See
Fed.R.Civ.P. 65(a)(2).
At the time of oral argument (October 10) the dumping had
been halted and the court ~vas informed that it was not sched-
uled to resume until October 28. The plaintiffs requested
that if the opinion of this court as to permanent re '_ief had
not been issued by October 28, the court grant temp' -c-ary re-
lief pending issuance of the opinion. See Transcript (Oct. 10
1974) 106.
24/
-- The defendants would also challenge the justiciability of
an attack on the dredging permit. See Brief for Defendants 7;
Connecticut Action Now, Inc. v. Roberts Plating Co., 457 F.2d
81 (2d Cir. 1972). Because the plaintiffs di[;claim Hny such
attack, I do not reach this issue.
"
- 10 -
violation (i) to the Administrator
[of EPA], (ii) to the State in Hhich
the alleged violation occurs, and
(iii) to any alleged violator of the
standard, limitation, or order . . . .
. . . .
Notice under this subsection shall be given in
such manner as the [EPA] Administrator shall
prescribe by regulation."
The regulations prescribed are set out in the margin.251 The
251
- 40 C.F.R. ~~ 135.2-135.3 (1973):
"s 135.2 Service of notice.
n(a) Notice of intent to file suit pur-
suant to section 505(a)(1) of the Act shall be
served upon an alleged violator of an effluent
standard or limitation under the Act, or an
order issued by the Administrator or a State
with respect to such a standard or limitation,
in the follmving manner:
"
. . .
"(3) If the alleged violator is a Federal
agency, service of notice shall be accomplished
by certified mail addressed to, or by personal
service upon, the head of such agency. A copy
of such notice shall be mailed to the Adminis-
trator of the Environmental Protection Agency,
the Regional Administrator of the Environmental
Protection Agency for the region in which such
violation is alleged to have occurred, the
Attorney General of the United States, and the
Chief administrative officecof the water pollu-
tion control agency for the State in Hhich the
violation is alleged to have occurred.
n
. .
"(c) Notice given in accordance "7ith the
provisions of this part shall be deemed to have
been served on the postmark date if ~~iled, or
on the date of receipt if served personally.
[Footnote continued on following page.]
/
,
,
)
.
- 11 -
26/
plaintiffs gave the required notice on July 15, 1974;-- the
complaint ,'Ias filed on September 3, 1974, less than 60 days
thereafter. Therefore, the plaintiffs'
claim to jurisdiction
27/
must fail.-- Cf.
under 33 D.S.C. s 1365 (Supp. II, 1972)
Montgomery Environmental Coalition v. Fri, 366 F. Supp. 261,
25/ cont'd
"s 135.3 Contents of notice.
"(a) Violation of standard, limitation
or order.--Notice regarding an alleged viola-
tion of an effluent standard or limitation or
of an order with respect thereto, shall in-
clude.sufficient information to permit the
recipient to identify the specific standard,
limitation, ~r order alleged to have been
violated, the activity alleged to constitute
a violation, the person or persons responsible
for the alleged violation, the location of the
alleged violation, the date or dates of such
violation, and the full name, address, and
telephone n~~ber of the person giving notice.
"
. . . .
"(c) Identification of counse 1. --The
notice shall state the name, address, and tele-
phone number of the legal counsel, if any,
representing the person giving the notice."
26/
See Exh. C, Stipulation, and second attach~ent thereto.
27/
-- Moreover, according to the inside address the plaintiffs'
letter of notice ,vas not sent to the Administrator of the
Environmental Protection Agency or the Attorney General of
thc United States, as required by 40 C.P.R. s 135.2(a)(3)
(1973). (This regulation also requires a copy to be sent to
the chief administrative officer of the water pollution con-
trol agency in the region in d1ich the violCltion is alleged
to hove occu,:red. The court has not been infon11'~d ''ihctlwJ:
the New London dump site is within the jurisdiction of any
,'lato1: pollution oontrol agency, hO''icver, so I do not rely l1pcn
this possible deficiency.)
I
I
I
.,
I'
- 12 -
265-266 (D. D.C. 1973); Brmm v.. Ruckelshaus, 364 F. Supp.
28/
258, 265 n.lO (C.D. Cal. 1973).--
II. Standing
The standing of the ptaintiffs to assert that the
Corps and the Navy have violated NEPA is unchallenged here.
The plaintiffs are all groups which assertedly contain
numerous members who use Long Island Sound in one ~lay or
another. In showing potential actual injury from pollution
of the Sound, they have shown enough to have standing to sue
28/
-- These alleged violations of the Water Pollution Control
Act may not be complained of under some other jurisdictional
head (e.g.; 28 D.S.C. ~ 1331 (1970)), even though section
1365 of Title 33 contains a savings clause:
"(e) Nothing in this section shall restrict
any right ~1hich any person (or class of persons)
may have under any statute or common law to seek
enforcement of any effluent standard or limita-
tion or to seek any other relief (including re-
lief against the Administrator or a State agency)."
The Senate Committee on Public Works explained:
"It should be noted. . that the section ~vould
specifically preserve any rights or remedies
under any other la.,. Thus, if damages could be
shmm, other remedies would remain available.
Compliance with requirements under this A~t would
not be a defense to a common law action for pol-
lution damages." S. Rep. No. 92-414, 92d Cong.,
2d Sess. (1971), in 1972-2 U.S. Code Congo &
Admin. Ne.,s 3746-3747.
Thus, subsection (e) apparently was not intended to allm,
violations of the Act to be prosecuted, except as they create
some rights independent of the Act, other than under t:he
jurisdictional grant of the Act, 33 D.S.C. ~ 1365 (Supp. II,
1972) .
li
I
- 13 -
under Sierra Club v. Norton, 405 'U.S. 727 (1972). See
Montgomery Environmentnl Coalition v. Fri, 366 F. Supp. 261,
264 (D. D.C. 1973).
.111. Authorship of the EIS
One of the plaintiffs' objections is that the Corps
and not the Navy should have prepared the EIS. NEPA provides
that "the responsible official" shall prepare an impact
29/
statement,-- and the CEQ Guidelines (not issued in final fa
30/
until August 1973)-- provide guidance on which federal agenc)
should be the "lead" agency and write the EIS t~hen there is
31/
overlapping jurisdiction.-- Tne agency selection should
29/
See 42 U.S.C. ~ 4332(2)(C) (1970).
30/
See note 14 supra.
31/
-- In many federal projects different agencies ID~Y interact
with one another and have partial responsibility for a project.
This raises the interesting possibility that as to each agency
the project may not be "major." Because HEPA applies to
"major Federal actions," hm~ever, 42 U.S.C. Ii 4332(2)(C) (1970)
(emphasis added), it is clear that all the federal parts of a
project should be stnllffied in order to determine t~hether the
project is "major" and thus whether HEPA should apply. Con-
comitantly, if NEPA does apply to a project as a whole it must
apply to each of its parts. Here, even though the Corps' re-
sponsibility for site selection mayor may not have constitute
major federal action by itself, the dumping project as a whole
t~as clearly major federal action. Therefore NEPA applies to
the project, and all the obligations it imposes fall squarely
upon the agencies involved. This does not mean that each must
separately comply with each of NEPA I S requirements, tvhich
would result in multiple impact statements, etc. It does mean
that there must be a valid EIS somel'ihere in the procc'ss, and
deficiencies in the EIS will affect all parts of the project--
even those being carried on by other agencies. In other twrcls
if the EIS prepnred by the Navy is deficient, the deficiency
may invalidate the action of the Corps in granting a dumping
permit.
- 14 -
turn upon
lithe time sequence in \vhich the agencies
become involved, the magnitude of their
respective involvement, and their relative
expertise in regard to the project's
environmental effects." 32/
The plaintiffs contend, somewhat conclusorily, that
application of these guidelines to the instant case should
have resulted in the Corps' being chosen to write the EIS.
The court does not view the guidelines as so pellucid, how-
ever. As to the time sequence (and assuming that the guide-
lines favor the agency who becomes involved at the earlier
date), the Navy has the stronger case for being the lead
agency since it initiated the dumping project. As to the
magnitude of the agencies' respective involvement, it was the
Corps that had the statutory authority to select a site. But
this was not merely a site selection project; it was a dumping
project, and the Navy was to carry out all the actual dumping.
As to relative environmental expertise, no data has been
presented as to which agency was more experienced prior to
January 1972 (when the Navy prepared the first draft of the
33/
impact statement).--
32/
CEQ Guidelines, supra note 14, 9 l500.7(b).
33/
-- The Navy's initial draft statement is Exhibit 3 in these
proceedings. The plaintiffs point out that the Corps had pre-
pilred a draft statement for their m-m Thames dr .'ging project
by August 1972. The court finds this irrelev<ir. as to the
issue of which agency Has more knmvledr;eClble I'lhcn the decision
about who ~'7as to write the EIS on the Navy project was made'
sometime prior to January 1972.
H
,I
I
,
,
I
I
I
- 15 -
34/
It is true that ,.]here defects of procedure-- are
urged in environmental cases, the standard a reviewing court
will apply is very strict:
"if the decision y]as reached procedurally
without individualized consideration and bal-
ancing of environmental factors--conducted
fully and in good faith--it is the responsi-
bility of the courts to reverse." 35/
However even where the challenge is to the procedures follolved
the court must be convinced that error has been made. In the
present instance the court is unable to conclude, on an
examination of the record, that the Navy should not have been
designated the lead agency for the dumping project here
involved. Without a stronger showing of error, the court is
unwilling to upset the agencies' decision that the Navy should
draft the EIS. Although admonished by Calvert Cliffs' not to
accord too much weight
to the delay that following NEPA.pro-
. 1 36/ h f d .
enta~ ,- t e court in s ~t note-
cedures properly might
worthy that if an error in authorship were found here, the
34/
-- That is, those that do not challenge the propriety of the
ultimate agency decision but instead attack the EIS or the
procedures followed by the agency in reaching its substantive
decision.
35/
-- Calvert Cliffs' Coordinating Corom., Inc. v. Vnited ,States
Atomic Energy Co~n'n, 449 F.2d 1109, 1115 (D.C. Cir. 1971);
see 1-291 \:hy? Ass'n v. Burns, 372 F. Supp. 223, 240-242 (D.
Conn. 1974). The basis for this strictness is found in 42
D.S.C. ~ 4332(2)(C) (1970).
36/
See 449 F.2d at 1118.
- 16 -
government ,wuld have to retreat all the ,my back to the EIS-
drafting stage. If the statement "ere otherwise proper,
invalidating the entire EIS process because of a mistake of
authorship would be an extraordinarily harsh measure. There
is no need to make an abstract decision about the boundary
of responsibility betNeen these agencies on which so much
~,ould turn. The purposes and policies behind NEPA ~vere
fulfilled in this case.
. The plaintiffs next argue that if the Navy was prop-
erly designated as the "responsible" agency to be charged wit
preparation of the EIS, it improperly abdicated its duty by
contracting the job out to an independent consultant, the
Ecosystems Division of Jason M. Cortell & Associates in
Cambridge, Nassachusetts (hereinafter "Ecosystems").
The Navy itself prepared the initial draft EIS in
January 1972. This eight-page doclli~ent was given to
Ecosystems, along with comments received on it, appropriate
b k d . f . d . . 37/ E 11
ac groun ~n ormat~on, an ~nstruct~ons.-- cosystems t.en
prepared the much more extensive revised draft EIS and final
EIS. Lt. Charles T. Hay, the Naval officer principally
responsible for the EIS,38/ reviewed and edited these drafts.
Way testified that he confined himself to a coordinator's role
37/
See Testimony of Lt. Chas. T. Hay, Transcript (Sept. 12,
1974)196-197.
38/
See Testimony, supra note 7, at 22-23.
"'.
- 17 -
and did not question the content or accuracy of the studies
. 3
the consultants used or the conclus~ons they drew therefrom.
The plaintiffs contend that the Navy's actions here
represent an impermissible delegation of its duty as the
"responsible official" to prepare the EIS. ~ 42 U.S.C.
9 4332(2)(C) (1970); CEQ Guipelines, supra note 14, 9 l500.7(c).
The Second Circuit has been in the forefront of those courts
requiring the responsible agency itself to prepare the EIS:
a number of cases in this Circuit have held impact statements
to be invalid because prepared by someone other than the
agency. See Greene County Planning Bd. v. Federal PO\~er
Comm'n, 455 F.2d 412, 420-422 (2d Cir.), cert. denied, 409
U.S. 849 (1972); 1-291 W:1Y? Ass'n v. Burns, 372 F. Supp. 223,
243-247 (D. Conn. 1974); Conservation Soc'y v. Secretary of
Transp., 362 F. Supp. 627, 629-632 (D. Vt. 1973); Committee
to Stop Route 7 v. Volpe, 346 F. Supp. 731, 741 (D. Conn.
1972). In all of these cases, the concern has been that the
EIS preparer, a state agency, had an interest in seeing the
project accepted as proposed and would therefore ~~rite a
biased EIS. Bias in the impact statement, of course, renders
impossible the fair and careful evaluation of a project's
environmental effects demanded by NEPA. Cf. Calvert Cliffs'
Coordinating Gomm., Inc. v. United States Atomic Energy
Gomm'n, 449 F.2d 1109, 1115 (D.G. Cir. 1971).
39/
See Testimony, supra note 37, at 198-200.
.
ii
;]
I!
i
- 18 -
This case is easily distinguishable. The preparer
here was a consultant hired by and fully responsible to the
v
Navy; Ecosystems had no self-interest that \'lould be served by
401
biasing the E1S.-- The major factor ~~tivating the decisions
in the cases cited above is simply not present here. Indeed,
there are compelling reasons why federal agencies should be
allowed to use outside consultants, making them in effect
adjuncts of the agency's own staff for purposes of E1S prep-
aration. A number of federal agencies may not undertake
enough projects to make it cost-efficient to hire full-time
people to work on impact statements. To prohibit agencies
from hiring part-time consultants to do this work might compel
them to utilize employees without any special expertise in
this area to compile impact statements; an expectable result
would be poorly written statements. Alternatively, prohibit-
ing consult~nts might force agencies to hire full-time people
for \~hom there was only part-time work. Hith the economy
401
This fact distinguishes the present case from Life of the
Land v. TIrinegar, if85 F.2d 460 (9th Cir. 1973), cert. denied,
416 U.S. 961 (1974), in \lhich a consultant ror a .state agency
prepared the E1S. The consultant's fee was computed upon a
percentage of the cost of the entire project, so there was
some self-interest in having the project approved. The Ninth
Circuit approved the consultant's authorship of the EIS not-
I withstanding these considerations. 485 F.2d at 467-468. This
I court has previously indicated that approval or this sort of
I delegation is inconsistent \~ith Greene County. See 1-1'91 ~':'hv?
Ass'n v. Burns, 372 F. SupP. 223, 246 n.72 (D. Conn. 19/I'5;J
I cf. Sierr<~ Ch.b v. Lynn, 502 F.2d if3, 59 (5:::h Cir. 19/4).
~,nd ~ustic~ Dm~g1as vehcmcnt;y disap~roved o,f tl:d.,: c1el~2ation
I In dlssenclng :crom the Court S vr'.catul::; of tne H1Junctlon end
I stay he had ordered in the case. 414 U.S. J052, 1053-1057
I (1973).
I
I
II
I
I
J
I
il
- 19 -
already in a tailspin due to 'stagflation;' this court will not
compel such a \~asteful result. I hold that the use of a
consulting firm responsible solely to the federal agency
charged with preparation of the EIS does not violate the
requirements of NEPA.
IV. Integrity of the EIS
Before considering the next claim it will be helpful to
briefly set out the chronology of events leading up to the
issuance of a permit to dump at New London.
A. Background
The Navy's short original draft impact statement, pre-
pared in January 1972, did not name a site for dumping. It
provided simply that the dredge spoil would be disposed of
"at a distance of approximately
41/
of the Thames River."-
23 to 50 miles from the mouth
A number of the agencies to \~hich
42/
upon its deficiencies,-
the draft was circulated commented
and the Navy hired Ecosystems to prepare a revised draft.
The revised draft, issued in May 1973, went into the
issue of site selection much more thoroughly. The draft
41/
-- Exh. 3, supra note 33, at 1 (because there is a covering
letter, index, and cover sheet to the EIS, all unnumbered,
this is actually the fifth sheet of paper in Exh. 3).
42/
-- See Exh. 4, Revised Draft Environmental Impact Statement:
Dredge River Channel " 8.01-8.02, app. A (May 1973).
.-
,
v
~y
7
...."-0""'" ~
U
I
I
- 20 -
concluded that containment sites '(those in which dumped spoil
43/
.-7Quld remain) were preferable to dispersal sites- and that
Long Island Sound was a poor disposal area. This latter con-
44/
elusion was based partly on the Navy's own studies- and
45/
partly on comments received from the EPA.- The revised
draft EIS recommended that tqe spoil be dumped at a previously
used dump site, knmm as the Brenton Reef site, that lies off
- 46/
Ne.vport in Rhode Island Sound.-
Exactly what happened thereafter is the subject of
much dispute in this case. The following facts are fairly
clear, however. On Hay 2, 1973, (before the revised draft
EIS had been circulated) the Corps of Engineers refused as
"premature" a request from the Navy for a permit to dump at
47/
Brenton Reef.- The Corps at that time questioned the
economic desirability of dumping so far from the site of the
dredging and indicated that it was awaiting the results of
studies of the New London dump site.
These results were.
43/
See id. '11 1.08.
--
44/
Cf. id. 'J'J 1.09, 2.llc.
45/
See id. 'J 1.09.
--
46/
See id. II 1.08 & fig. 3.
--
47/
- See Exh. 7B, Letter from Col. Chas.
to Commanding Officer (Northern Div.),
Engineering Cormnand, Nay 2, 197Lr.
.
J. Osterndorf (Corps)
Naval Facilities
'?
'1
.
"
il
- 21 -
issued on May 25, 1973, in a Naval Oceanographic Office
48/
study,-- and the Corps began, in its ol-ln
thinking,
. 49/
s~te.--
to lean
heavily toward use of the New London dump
The Corps'
scientific advisory group, the Scientific Subcommittee on Ocea
Dredging, met oq June 19, 1973, and actively considered using
the New London dump site. This group has representatives
from EPA, the National Oceanic and Atmospheric Administration,
50/
the U. S. Fish and Wildlife Service, and the Corps.-- By
the time that the Subcommittee next met, on July 13, 1973, it
had moved to recognizing "the Ne\v London spoiling site as the
best site to use at the present time; it saw no need to trans-
51/
port spoils to another site further to the east."- The EPA
commented on the revised draft EIS on July 3, 1973, noting
that a recent legislative change had made consideration of
52/
dump sites within Long Island Soundpossible.--
48/
-- This study is a part of Exh. 5 in this proceeding.
49/
-- See Exh. 17, Draft Memorandum from Vyto L. Andreliunas
(Corps) to Division Engineer, June 27, 1973.
50/
See Exh. 6A, supra note 1, ~ 1.11.
51/
-- See Exh. 10, Record G~ Meeting of Scientific Subcommittee
on Ocean Dredging and Spoiling 1-2 (July 20, 1973).
52/
-- See Exh. 6A, suora note 1, at A2. The EPA conclusion that
the law was changed to 3110\07 more flexibility to select sites
in Long Island Sound is based on 33 D.S.C. 5 14l3(d) (Supp.
II, 1972), I-Ihich provides that the Secretary of the !,rmy may
authorize otheniise nonconforming dred;:;e spoil dumrin;:; in the
"ocean" if he concludes that no other economically feasible
,
-,
- 22 -
All this activity culminated in the Navy's issuance
of an "AddenduIll" to the revised draft EIS on August 9, 1973,
in which the dump site was changed from Brenton Reef to NeH
53/
London.-- Publ~c hearings were held on the revised EIS plus
Addendum, and a final EIS, based in part upon the comments
54/
of the Corps, was issued in December 1973.-- The fact that
the Corps occupied a dual role as one of the commenting
agencies to \vhich the EIS was circulated and as the final
decisionmaker has tended to cause some confusion in this case.
But the Corps' function as a comment agency in no way dimin-
ished its sole responsibility to select a site, and thus the
Navy reapplied to the Corps for a permit to dump at Ne\v
London. After the local headquarters of the Corps got clear-
ance from its national headquarters in Hashington, 55/ and _
after the Corps had given the EPA an opportunity, in conform-
ity with the Hater Pollution Control Act, 33 D.S.C. ~ 1~44(c)
52/ cont'd
method or site for disposal is available. See Exh. 6A, supra
note 1, ~ 1.09. The defendants here contend that restrictions
on "ocean" dumping do not apply to dumping in Long Island
Sound, cf. 33 U.S.C. ~ l402(b) (Supp. II, 1972); the court doe
not need to determine the correctness ,of this contention.
53/
The Addendum is part of Exh. 5 in this proceeding.
54/
-- This final statement is in ttvO volumes, \vhich are Exhs. 6A
& 6B in this proceeding.
55/
See Exh. II, Hemoranda from GoL John H. Nason (Corps Neu
England Division Engineer) to HQDA (Di\EN-O:W-N), }larch I,
1974, and from Haj. Gen. J. lV. }lorris (DAEN-Cim-N) to Division
Eng5_neer, Net.) England, tiarch 18, 197!+.
;-
- 23 -
(Supp. II, 1972), to "restrict or deny" dumping at NeH
56/
London,- a permit \'Ias issued to the Navy on April 29, 1974,
57/
to dump the dredge spoil there.-
B. Issues and Analysis
An EIS for major federal projects is required to imp le-
ment the congressional cOffiW~nd that all federal agencies shall
help "insure that presently unquantified environmental ameni-
ties and values may be given appropriate consideration in
decisionmaking along with economic and technical considera-
tions
"
42 U.S.C. S 4332(2)(B) (1970).
The plaintiffs
. . . .
argue that since the EIS is supposed to be an input to deci-
sions, it is naturally important that the decisions not be
made first, Ivith the EIS serving simpl~.as a post hoc justi-
fication for them. The CEQ guidelines for the preparation of
....."_"'_..",._..^_.,~'_o
impact statements concur:
"In particular, agencies should keep in mind
that such statements are to serve as a means
of assessing the environmental iUlpact of pro-
posed agency actions, rather than as a justi-
fication for decisions already made." 58/
56/
See Exh. E, Letter from Cal. John H. Nason (Corps) to John
NcGlennon (EPA), March 27, 1974.
57/
See Exh. 11, supra note 18.
58/
I CEQ Guidelines, g.1:1nra note lLf, 5 1500. 7(a); _~(~e f1err~
Clc;~~_-0'i1n., 502 F.2d L>3, 5<)-60 (5th C:i.r. 197If); 1~2.Y_i1:"on'T,~,~.~12
I De~_J.'lse F:1nd-LJ;::', ,v: ,\~r2_~''i=_'~.r?Jl_:i, ~52 F. _ Supp. 50, 55 (,:.D. C~LI
l~)/I:), nfr1o, L;ul 1< .2d dJl!. (IJcn C.u:-. 1~}7J); D2 ty v. \/010(', 3.::J).
IF. Supp-:-:TS:T, 259 (II.D. 170sh. 1972). - _____
II
I
I
-"
- 24 -
The plaintiffs argue that this b~sic requirement for an EIS
was not follOlved
decision by June
here--that the Corps w4de its site selection
59/ -
27, 1973,- and that it was therefore IIk'lde
in spite of, rather than because of, data on the environmental
impact of dumping at New London. The plaintiffs contend that
the final EIS that the Navy issued in December 1973, containin
the first detailed analysis of the New London site, was nothmg
more than a justification of this decision. The defendants,
on the other hand, contend that the
Corps' decision to use
60/
1974,- by which time
New London was not made until 11arch
all of the input required by NEPA to be part of an EIS had
been provided. They argue that the decision was therefore
made .vith due regard to its environmental impact and was
61/
entirely proper.-
On the parties' view of the case, the court's finding
of the date of the Corps I decision to use New London is
critical. Indeed, the defendants as much as conceded that if
the court should find the facts to be as characterized by the
59/
- See Exh. 17, supra note 49. The plaintiffs also rely on
statements in the final EIS that the Corps "directed" the
Navy to use the New London site. See Exh. 6A, suora note 1,
'J~ 1.12-1.13. HOIvever, the defendants deny that this occurred,
maintaining that the Corps only recommended the NelV London
site during this period. See Brief for Defendants 11. For
furcher discussion, see note 143 infra.
60/
See Exh. B, suora note 55.
61/
The plaintiffs, of course, also dispute the contention that
by l-Iarch 1974 all of the requirements of Nf::PA .']ere ffif,t. See
I pr. 28-64 infra.
Ii
I
;1
!
- 25 -
62/
plaintiffs they would lose this oase.-- The court cannot
agree Ylith the parties I vie(v of the case, hmvever. No matter
when the Corps' decision to use New London \'Ias made, it is
undisputed that it could have been altered until the last
procedural step had been taken and the permit had been issued.
Assuming arguendo that all of the necessary environmental
data was at hand before the permit issued, the court is un-
willing to invalidate the Corps' action as long as the Navy
~ supplied and the Corps considered the data in good faith. If
it \'Iere acting in good faith, the Corps would presumably re-
evaluate a decision if subsequent information showed it to be
mistaken. And as long as this evaluation of all the neces-
sary input occurs before the permit issues and the decision
is finalized, it should not matter (vhen the Corps "decides"
to use a particular site.
Several factors compel the conclusion reached he~e.
First, as noted earlier this year in 1-291 Hhy? Ass'n v.
Burns, 372 F. Supp. 223, 25G-258 (D. Conn. 1974), it is
possible to cure deficient impact statements with timely
"supplementals" that include the data necessary to make the
EIS sufficient and have been properly circulated among the
63/
appropriate "comment agencies."-- See Citizens for Hass
62/
See Transcript (Oct. 10, 1974) 67-68.
63/
See 42 D,S.C. ~ 4332(2)(C) (1970):
"Prior to naking any detailed stutement, the
responsible Federal officiul shull consult
- 26 -
Transit Against Free,.Jays v. Brinegar, 357 F. Supp. 1269, 1274
(D. Ariz. 1973); cf. Environmental Defense Fund, Inc. v.
Froehlke, 368 F. Supp. 231, 236-237 (H.D. Mo. 1973) (supple-
mental sufficient even though not circulated for comment).
But ~ Daly v.Volpe, 350 F. Supp. 252, 259 (H.D. Hash.
1972). If the Corps conside~ed subsequent input in good
faith, there would seem to be no reason to differentiate what
has occurred in this case (in which supplemental data came in
and was incorporated in the final EIS) from the cases cited
above (in which the data was circulated in supplemental impac
statements).
Second, the normal remedy when an EIS is found by a
court to be deficient is an injunction and an order to shore
up the statement. See, e.g., Natural Resources Defense
Council, Inc. v. Morton, 337 F. Supp. 165 (D. D.C. 1971),
aff'd,458 F.2d 827 (D.C. Cir. 1972). Even though the project
may already be undenvay, all that is demanded is that the
necessary data be collected and considered. It would seem
63/ cont'd
with and obtain the comments of any Federal.
agency which has jurisdiction by laH or special
expertise with respect to any environmental im-
pact involved. Copies of such statement and
the comments and vieHs of the appropriate Fed-
eral, State, and local agencies, which are
authorized to develop and enforce environ-
mental standards, . . . shall accompany the
proposal through the existing agency review
"
processes . . . .
In the instant case all of the data that was collected
Has included, at least by reference, in the final EIS (Exhs.
6A & 6B). The plaintiffs have not complained that the EIS
was not properly circulated for corn:nent.
/'
"
I
- 27 -
anomalous to hold that these agencies, \.)ho at I'Jorst tried to
correct \'Ihatever deficiencies may have existed ~Ihen they
decided in June 1973 to use New London, are to be treated
more harshly than those who have to be ordered by the courts
to take corrective action.
The plaintiffs' argument has substantial force in
urging that the purpose of NEPA's requirement of an EIS was
to make sure that the decisionmaker consider the environmenta
impacts of major projects. An EIS should not be simply a
post hoc justification for a decision already made. However,
the way to insure that the EIS is properly used is not to
deny the use of supplemental statements after a preliminary
decision is made, but to demand that these supplementals be
prepared and considered in good faith. ,In the present case
the good faith of the Corps and the Navy is admitted by the
plaintiffs,64/ and the court finds no indications of bad fait
by these agencies in the record before it. I therefore
conclude that there is no violation of }ffiPA's EIS requirement
if all of the information required by lal~ \Vas placed before
the Corps in the form of an EIS and properly circulated
supplementals in advance of the time the Corps issued the
Navy a permit to dump at New London.
64/
See Transcript (Oct. 10, 1974) 54.
I
I
I
!
- 28 -
V. Alleged D2ficiencies in the EIS
vfuat is considered next is the adequacy of the in-
formation before the Corps. The plaintiffs contend that the
information Has 'inadequate under NEPA standards in the
several respects considered below.
A. Cumulation of Imoacts
One of the plaintiffs' claims is that the EIS is
deficient because it assesses the impact of this dredge spoil
.
disposal project in isolation. The plaintiffs argue that
NEPA requires that the EIS contain data on the impact that
this and all other similar projects will have.65/ They stress
that this project is but a part of the dumping which has
66/ h' h 67/
occurred- or w l.C may be expected to occur- at Neiv
65/
See Plaintiffs' Hemorandum, supra note 5, at 44-50.
66/
- See Exh. D, Disposition Form, Sept. 19, 1974; Exh. 16,
Stipulation ~l. Since 1958 an average of approxi~~tely
240,000 cubic yards of spoil has been dlliuped at New London
yearly. During the.first eight months of 1972 a total of 2.1
million cubic yards of dredge spoil i'las dumped into the Sound.
67/
- See Exh. 16, suora note 66, ~~ 2-6; Exh. 15, Stipulation
~~ 1, 3. One of the points particularly urged by the plain-
tiffs is that the EIS should have considered the proposed
dredging of the Thames to a depth of 40 feet by the Corps.
See Plaintiffs' Nemorandum, supra note 5, at 45-47. The point
might be compelling if the objection Here to the ErS' treat-
ment of the dredging of the Thames, for the interrelationship
of this aspect of the Navy Project and the Corps project is
clear. See Scient!.sts' lnst. for Public InggT:E'ation, Inc. v.
Atomic Energy CO!;",~ln, 431 F.2d 1079, l086-l0i:W (D.C. Cir.
1973). \-lith respect to the challenged dumping, hm'lever, the
- 29 -
London, and they argue that it ts quite important for the
decisionmaker to be given an overvieH of the impacts of
dumping. For example, the plaintiffs contend that if such
information had been in the EIS, it is "possible that looking
at the magnitude of spoils involved, as well as dredged mate-
rial from projects elseHhere in Long Island [Sound], Congress
or even the Corps itself, might have
concluded that
68/
project."-
it tvas
time to develop [a] container island
In arguing that the Navy should have considered the
impact of this and all other dumping, the plaintiffs rely
h h" h " 69/ I h
upon t e ~g Hay segmentat~on cases.- n t ose cases
67/ cont'd
plaintiffs' point is less strong. The Corps is presently
considering Eel') London, inter alia, as a possible dump site,
~ Exh. 15, supra, If 3, and the plaintiffs point out that th
Navy's use of ReH London may serve as a precedent for the
Corps' 0l\1TI, see Plaintiffs' Hemorandum, supra note 5, at 46.
It is still entirely a matter of speculation that New London
will be chosen, hmvever. It appears that the Corps' proj ect,
if approved, l'iOuld not commence until at least 1980. See
Exh. 15, supra, ~ 4; Exh. 16, supra note 66, ~ 6. Between
nOH and then the Corps expects to undertake further studies
to gather data about the best method of spoil disposal for
this project. See Exh. 15, supra, attachment: Draft Environ-
mental Impact Statement: NeH London Harbor and Thames River
3 (August 1972). Horeover, Hith continued dumping at Nel'l
London betlveen nOI>] and 1980, the Nelv London dump site might
well be "full" by the time the Corps needs a dredge spoil
disposal site. Cf. Exh. 7B, supra note 47 (Brenton Reef, as
the disposal site for several other projects, may be too full
to handle the Navy's Thames spoil). Thus the court gives no
more weight to the Corps' proposal than to others which the
plaintiffs urge should have been discussed in the EIS.
68/
-- Plaintiffs' Hemorandum, supra note S, at 47.
69/
See id. at Lf9.
-
,
,
- 30
impact statements have sometimes 'been held deficient becnuse
they considered a deceptively small portion of a much larger
project. See, e.g., Indian Lookout Alliance v. Volpe, 484
F.2d 11 (8th Cir. 1973); Conservation Socly v. Secretary of
Transp., 362 F. Supp. 627 (D. Vt. 1973); Committee to Stop
70/
Route 7 v. Volpe, 346 F. Supp. 731 (D. Conn. 1972).-- The
segmentation cases do not provide a coherent rationale for
determining when the impacts of different projects must be
70/
-- The plaintiffs claim that this type of segmentation has
been found improper in other contexts also, citing Hanly v.
Kleindienst, 471 F.2d 823 (2d Cir. 1972), cert. denied, 412
U.S. 908 (1973), and River Defense Corom. v. Callm.]ay, 6 E.R.C.
1977 (S.D. N.Y. July 3, 1974). This court finds both of thes
cases inapposite. As Hill be seen infra, Hanly contains
language some\'lhat relevant to another part of the plaintiffs I
argument (that the EIS should have considered the incremental
impact of this dumping on the Sound as a whole); hOvlever it
says nothing about needing to consider the impact of other
projects on the environment. In Hanly the federal project at
issue was a mid-Hanhattan jail, and there Here no other fed-
eral projects in the area whose ilnpacts the plaintiffs $ought
to cumulate Hith those of the jail. River Defense Cornm. in-
volved a challenge to a Corps permit allowing a private citi-
zen to dump rocks in the Hudson River. The Corps had not
considered, except in cursory terms, the impact of this actio
on marine life in the river. The court characterized this
omission as considering the project as an isolated phenomenon
and cited Hanly for the proposition that such consideration
is insufficient. Hanly does support the holding insofar as it
says that the environmental impacts of a project must be taken
into account; however, neither Hanly nor River Defense Comm.
supports the plaintiffs' proposition that the im~acts of all
the projects in the area must be considered.
Although not citcd to it by the plaintiffs, the court
notes that Greene County Plcmning Bd. v. Federal Po\'7er Cormnln,
455 F.2d 412, 423-424 (2d Cir.), cert. denied, 409 U.S. 849
(1972), also condemns segrr,entation (in this instance, of a
power project). Like the highway cases, Greene COlmty offers
no discussion use.ful here.; hm'lever, it CCln be e;;p1ained by
the rntioncl1e of Scien.U."ts I Ir1st~_ for Pu]?)ic I12ior1'1;l~j_Oi~,-
Inc. v. Ator71ic J~nen;Y-..J.:()[:t:n'I1, MH F.2c1 1079 (D.C. Cir. 1')73),
considered infrn.
~
- 31 -
cumulated in a nonhigh\';ay context. However, the District of
Columbia Circuit has done so in a case considering \vhether an
EIS is required for a projected wide-reaching technology
development program. In Scientists' lnst. for Public
Information, In~. v. Atomic Energy Comm'n, 481 F.2d 1079 (D.C.
Cir. 1973), Judge Skelly Wright warned of the bandwagon effec
some projects, there the nation\vide breeder reactor project,
have:
"To wait until a technology attains the stage
of complete comrr,ercial feasibility before con-
sidering the possible adverse environmental
effects attendant upon ultimate application of
the technology will undoubtedly frustrate
meaningful consideration and balancing of
environmental costs against economic and other
benefits. Modern technological adyances
typically stem from massive investments in
research and development, as is the case here.
Technological advances are therefore capital
investments and, as such, once brought to a
stage of commercial feasibility the investment
in their development acts to compel their appli-
cation. Once there has been, in the tenns of
NEPA, 'an irretrievable commitment of resources'
in the technology development stage, the balance
of environmental costs and economic and other
benefits shifts in favor of ultimate application
of the technology. . . ." 71/
71/
- 481 F.2d at 1089-1090 (footnotes omitted). Judge Hright
developed a balancing test to help protect against this band-
wagon effect by requiring an early EIS when the effect is
strong and the potential impacts serious:
"Statements must be written late enough in the
development process to contain meaninsful in-
forrnation, but they must be \vritten early
enough so that whatever information is con-
tained can practically serve as an input into
the decision mald.ng process.
[Footnote continued on following page.]
i
, -
- 31a -
711 cont I d
"Detemining \-lhen to draft an impact
statement for a technology development
program obviously requires a reconciliation
of these competing concerns. Some balance
must be struck, and several factors should be
weighed in the balance. How likely is the
technology to prove commercially feasible,
and hmv soon ~o}ill that: occur? To what ex-
tent is meaningful information presently
available on the effects of application of
the technology and of alternatives and their
effects? To what extent are irretrievable
commitments being made and options precluded
as the development program progresses? How
severe will be the environmental effects if
the technology does prove commerically
feasible?" 481 F .2d at 1094
-
- ----------------- ------ - ---------
- 32 -
In the instant case, hmvever, thGre is no bandwagon effect.
Dredging the Thames and dumping the spoil at New London in-
volves only the slightest investment that will compel further
actions;72/ this is a single project, almost entirely self-
contained. Thus the court is unable to agree with the plain-
tiffs that the EIS should have considered the cumulative
impact of this and all or any other projects. The plaintiffs'
concern that many projects are going on, each of which is
adding pollutants to the Sound, cannot be belittled. It may
be true that as each incremental harm is imposed and as the
Sound becomes more polluted the
need to preserve the purity
73/
to the next decisionmaker.--
of the Sound ~.)ill seem lessened
Thus a comprehensive survey providing an overview of both the
Sound and the projects ~vhich would pollute it is eminently
desirable, and the court is informed that such a study is
presently being undertaken by a special multi-state com-
mission. 74/ The duty to discuss the impact of all possible
72/
-- The parties have stipulated that approximately 200,000
cubic yards of spoil will be generated from maintenance of the
Thames River channel through fiscal year 1980. See Exh. 16,
supra note 66, ~ 5. It is unclear hmv much, if any, of this
figure represents additional nuintenance required because of
this project to deepen the existing nlames channel.
73/
-- Cf. S. Rep. No. 91-581, 91st Cong., 1st Sess. 5 (1969):
"Important decisions concerning the use and
shape of man's future environment continue to
be made in small but steady increments \.]hich
perpetuate rather than avoid the recognized
mistakes of previous decades."
7lf/
See Brief for Defendants 8.
r
'I
- 33 -
pollutants cannot be imposed on each isolated project,
ho\vever. This is a single dredging operation unrelated to
any other. The appropriate impact to consider in this case
Ivas the one actually considered: the impact of the ciuinping
of the Navy's Thames River spoil.
B. Impact Area to be Discussed
.
Another alleged deficiency in the EIS is closely inter
twined with that just considered: the plaintiffs complain
that it was not enough to consider the impact of the Thames
spoil on the Nei'7 London dump site. Instead, the EIS should
have considered the impact of the spoil on the Sound as a
75/
whole, they argue.-- To bolster this contention they adduce
distinguished opinion that the Sound is a self-contained
ecosystem in which interrelationships abound and any change
761
affects the whole.--
There is not much authority for the plaintiffs to draw
upon, and they rely mainly upon language addressed to a some-
what different issue in Hanly v. Kleindienst, 471 F.2d 823,
830-831 (2d Cir. 1972), cert. denied, 412 U.S. 908 (1973)
(citation omitted):
J..21
See Plaintiffs' Hemorandum, sunra note 5, at 44-50.
761
-- See id. at 47, quoting Henry L. Diamond, Corrm'r of the
New YorkState Dep I t of E-nvironmental Conservation, Exh. 6A,
supra note 1, at A45.
- 34 -
"In the absence of any Congressional or
administrative interpretation of the term, we
are persuaded that in deciding ,,;hether a major
federal action "ill' significantly' affect the
quality of the human environment [and thus
whether an EIS must be prepared] the agency in
charge, although vested with broad discretion,
should normally be required to review the Dro-
posed action in the light of at least two .
relevant factors: (1) the extent to which the
action will cause adverse environmental effects
in excess of those created by existing uses in
the area affected by it, and (2) the absolute
quantitative adverse environmental effects of
the action itself, including the cumulative
harm that results from its contribution to
existing adverse conditions or uses in the
affected area. 1-Jhere conduct conforms to ex-
isting uses, its adverse consequences will
usually be less significant than when it rep-
resents a radical change. Absent some showing
that an entire neighborhood is in the process
of redevelopment, its existing enviroQment,
though frequently belm, an ideal standard,
represents a norm that cannot be ignored. For
instance, one more highway in an area honey-
combed with roads usually has less of an ad-
verse impact than it if "ere constructed
through a road less public park. . . .
I~lthough the existing enviroTh~ent of
the area which is the site of a major federal
action constitutes one criterion to be con-
sidered, it must be recognized that even a
slight increase in adverse conditions that
form an existing environmental milieu may some-
times thr~aten harm that is significant. One
more factory polluting air and water in an area
zoned for industrial use may represent the
straw that breaks the back of the environmental
camel. Hence the absolute, as well as comparative,
effects of a major federal action must be con-
sidered."
Even if the plaintiffs' view of the law is correct,
hm,ever, there can be no requirement tha t an EIS do what is
scientifically impossible. At most the ngency cnn be com-
pelled to disclose the impossibility.
See Scientists' lnst.
-----
v
I
i
I
\
I
- 35 -
for Public Infornation, Inc. v. Atomic Energv Comm'n, 481
F.2d 1079, 1092 (D.C. Cir. 1973); Natural Resources Defense
Council, Inc. v. Horton, 458 F.2d 827, 837 (D.C. Cir. 1972).
The defendants have presented uncontroverted evidence that
it ~']ould be scientifically and practically very difficult,
although desirable, to ascertain what impact the dumping of
dredge spoil at the New London dump site would have through-
77/
out the entire Sound.-- Although not specifically mentioned
in the EIS itself, that uncertainty is clearly inferable from
the fact that the EIS discloses scientific uncertainty as to
the much narrower issue of whether this dumping project will
adversely affect even the i~~ediate environs of the dlli~p
78/
site.-- It would be meaningless for the court to require
that an EIS which indicates that it is already at the bounds
of scientific knowledge also indicate that inquiries beyond
that frontier are not possible. No fault is found with the
EIS on this score.
77/
-- See Testimony of Dr. John B. Pearce, Transcript (Sept. 20,
1974) 425-431. As noted supra p. 32 , a special study is nm,
undenvay to explore the Sound more fully. However the Navy
should not have to m,ait the results of ,.]hat 'viII undoubtedly
be a massive study if their own environmental investigation
has been adequate. Cf. Jicarilla Anache Tribe of Indians v.
Morton, 471 F.2d 127~ 1279-1282 (9th Cir. 1973). The plain-
tiffs concede this point. See Transcript (Oct. 10, 1974)
60-61.
78/
See, e.g., Exh. 6A, sunra note 1, 'J 6.01: "there is littl
available information on "lhat the long term ramifications are
in tems of vegetation, finfish, shellfish or other benthic
org:misms, or those higher m:ganisms ,'Jhich live on marine
biota. Thus there is no W<lY to reasonably predict the ef:fect(;-:
of ocean dUe,ping on long tem productivity of the area." ",
I
II
I
,
- 36 -
C. Consideration of Alternatives
. I
I
I
I
respect to the consideration derr.an~;jbLlmPA of alteEnatives I
to dumping at the New London site.-- The first is that the I
The plaintiffs rr.ake two claims_of defic:i~.ncy .with
treatment afforded those alternatives which "ere considered
.-----.' . 80/
was inadequate.- Alternatives which the Navy considered
.~
may be broadly divided into two classes: alternative under-
----.
water disposal sites and alternative methods of disposal. Th
~.
-------..-.., -,--
second of the plaintiffs' claims is that other alternatives
81/
existed that should have been considered but "ere not.-
1. Treatment of considered alternatives
The requirement that alternatives be considered is one
of the most stringent of all those governing impact state-
82/
ments; it is the "linchpin" of NEPA.-- The purpose of NEPA,
of course, is to insure that decisionm akers will make reasoned
choices that take environmental impacts into account, so the
comparison of alternatives is an absolute prerequisite to
provide such choices to'the decisioTh~aker and thus guarantee
successful implementation of the Act. It is not enough to
79/
See 42 U.S.C. ~& 4332(2)(C)(iii), (D) (1970).
80/
See Plaintiffs' J.lemorandum, supra note 5, at 38-42.
81/
See id. at 42-44.
82/
See, e.g., Nonroe COlmty Conserviltj.on Council, Jnc. v.
V 1- 47') 1" 216'0::;--6""7 "\"'-(2-'-1 C-:-:---Jc'J'";)-)'-=--J ')0']- l"~' I
o ne, ~ '. c. j:J, :; .-'.)70 _( ]_1... .:1.....) -L;.J._ ...1':ry. dSS n
v~rns, 372 f. Supp. 223, 247 (D. Conn. 1974). .---.-..--.
:1
I
- 37 -
consider alternatives in a conclusory fashion in the EIS.
Not only must the statement's drafter have a basis for his
assertions, but also he must present enough of this data that
those who must comment on the statement are able to evaluate
83/
his recommended"choice.-- Othen~ise the comment process
mandated by NEPA, 42 D.S.C. '9 4332(2) (C) (1970), could notpro-
ceed intelligently, for those who co~~ent would be forced to
accept the drafter's conclusions on faith alone.
The defendants argue correctly
that the requirement of
84/
a rule of reason.--
discussing alternatives is subject to
Certainly the impact statement need not study every alterna-
tive in the same detail as it considers the recommended
course of action. Hhat is required is that
"'the agency shall develop information and
provide descriptions of the alternatives in
adequate detail for subsequent reviewers and
decision makers . . . to consider the alter-
natives along with the principle [sic] recom-
mendations.' ... 'Sufficient analysis of
such alternatives and their CO$ts and impact
on the environment should accompany the pro-
posed action through the agency review process
in order not to foreclose prerr~turely options
\~hich might have less detrimental effects. '" 85/
83/
-- See, e.g., Silva v. Lynn, 482 F.2d 1282, 1286-1287 (1st
Cir. 1973); Naturel I~esources Defense Council, Inc. v. r-1orton,
458 F.2d 827, 836 (D.C. Cir. 1972); Mont~omery v. Ellis, 364
F. Supp. 517, 521-522 (N.D. Ala. 1973). But see Fayetteville
Area Chamber of Commerce v. Volpe, 6 E.R.C. 1891, 1894 (E.D.
N.C., Feb. 1, 197If).
81f/
See Defendants' Brief 16.
85/
I>Iatural Re~;OUJ.~Cf~S D2rCn;;(~ Coui1c:Ll~ Inc. v. Horton) l}58 F.2d
827, 833-8Jf-l n.1Z (D.C. Cir. 1912), Citiil;>, S-:-iZep. No. 91.-296,1
- 38 -
Thus, although NEPA requires an 'investigation of alterna-
86/
tives, it does not require an exhaustive study of an
alternative about "hich so little is knmm that imolementaticn
. .
would not be feasible. See, e.g..j:p.41-4?infra; cf. Sierra
Club v. Lynn, 502 F.2d 43 (5th Cir. 1974); Natural Resources
Defense Council, Tnc. v. Horton, 458 F.2d 827 (D.C. Gir.
1971). Other alternatives may be environmentally worse than
the one recommended (even though less expensive), and the
court ,.lill not interfere (nor is anyone likely to ask it to
interfere) when the agency itself sum.rnarily rejects an alter-
native as involving too much danger to the environment. See
pp. 40,45 infra.
Even though NEPA 1 S requirements are flexible, hONever,
the flexibility does not provide
"an escape hatch for footdragging agencies . . . .
Congress did not intend the Act to be such a
paper tiger. Indeed, the requirement of environ7
mental consideration 'to the fullest extent
possible' sets a high standard for the agencies,
a standard ,vhich must be rigorously enforced by
the revie,ving courts." 87/
85/ cont'd
91st Cong., 1st Sess. 21 (1969); CEQ Guidelines, supra note
14. See Sierra Club v. Lynn, 502 F.2d 43, 62 (5th Cir. 1974);
Calvert Cliffs' Coordinating (;0=., Inc. v. United St2.~es
Atomic Energy Com:n'n, 4!:.9 F.2d n09, 1118 n.19 (D.C. Cir. 1971).
86/
See 42 D.S.G. ~ 4332(2)(D) (1970).
87/
- Ca lvert Cliffs I Coor_din;} t ing~_omm.,-, Inc-,-~ lTni:tl:.c1 Si:a tc':.
Atomic Eneqw Common, !149 F.2d H09, lllL~ (D.C. Cir. 1971).
ii
ii
II
I
I
I
I
I
- 39 -
If an agency Hould summarily reject an alternative it must
at least indicate the basis for the s~~ry rejection so that
the comment process may be effective. ~ Scientists' Inst.
for Public Inforw~tion, Inc. v. Atomic Energy Comm'n, 481
F.2d 1079, 1092: (D.C. Cir. 1973). It is extremely difficult
to respond, for example, tooa statement that an alternative
is "too expensive." Cf. I-291Ii'hy? Ass'n v. Burns, 372 F.
Supp. 223, 248 (D. Conn. 1974). On the other hand, if the
statement is that the alternative is "too expensive because
it ~olOuld cost $5 billion," possibilities for comment abound.
Many courts have agreed and required an economic-cast-benefit
analysis to be included in the EIS. See Silva v. L,rnn, 482
F.2d 1282, 1287 (1st Cir. 1973); Environmental Defense Fund,
Inc. v. Froehlke, 473 F.2d 346, 352 (8th Cir. 1972); 110nt-
gomery v. Ellis, 364 F. Supp. 517, 522 (N.D. Ala. 1973);
Conservation Soc'y v. Secretart of Transp., 362 F. Supp. 627,
635 (D. Vt. 1973) (Oakes, Cir. J.); cf. Calvert Cliffs'
Coordinating Comm., Inc. v. United States Atomic Energy
Co~~'n, 449 F.2d 1109, 1123 (D.C. Cir. 1971); Daly v. Volve,
350 F. Supp. 252, 259 (H.D. Hash. 1972); EPA Regulations,
Preparation of Environmental Impact Statements, 40 C.F.R.
~ 6.32(d) (197fr):
"\o}here practicable, benefits ane! costs should
be quantified or described qualitatively in a
Hay lo,hich 10Jill aid in a more objective judg-
ment of their value. Hhere such an analysis
is prepared, it shall be appended to the
statcl:1cnt. . This nnalysis shall evaluate
alternatives in such d manner that: revieHers
- 40 -
independently can judge their relative de-
sirability. In addition, the reasons why the
proposed action is believed by the Agency to
be the best course of action shall be ex-
plained. . . ."
To summarize, NEPA does not require an infinite ex-
V pans ion of an impact stateme~t, but it does require a full
disclosure of the basis on ~'lhich the decision is to be made.
See Monroe County Conservation Council, Inc. v. Volpe, 472
F.2d 693,697 (2d Cir. 1972). IJhether or not this full dis-
closure has been made is naturally a determination that nillst
be made on a case-by-case basis. Taus I now turn to the
"Alternatives" section of the Navy's EIS.
Exclusive of mans
, ,
the EIS devotes only five pages to a
direct discussion of
88/
New London site.--
The
alternatives to dumping spoil at the
first alternatives considered are total or partial land dis-
posal. The statement identifies five potential land disposal
sites and concludes that they do not include sufficient 'area
89/
to make total land disposal feasible.-- With respect to
partial land disposal, D~O of the sites are sUmITlarily rejected
because they have been identified by other agencies as "areas
of significant ecological importance." As indicated above,
this is a proper ground for summary rejection of an alter-
90/
native.-- The other three potential areas are rejected in
88/
See Exh. 611., supra note 1, " S.04.a-5.04.t, at 178-183.
89/
f;ee id~
'ie! t: OLf ,,_t; all (r
II I. ,J. - *'-1. ..j. '*<-J*
901
See
p. 38
.::.yprCl.
"
I
I
i
- 41 -
varying detail. The area of each is given and asserted to
"be too small to allow settlement of the suspended solids
from liquid dredge spoil before discharge back into the
91/
river."- This recital probably provides enough data \'Iith
respect to the failure of solids to settle that one with some
knowledge in the area would be able to comment on the accuracy
of the Navy's assessment that spoil solids will return to the
river.
The second alternative considered is "dredge spoil
fanning, ", a technique in \'Ihich the spoil is used to refurbish
denuded areas. The Navy indicated that one type of spoil
fanning was being experimented with in Haryland, but that
"there is insufficient information to justify large-scale
92/
use of the spoils in this manner."- Because of the refer-
ence to the Maryland experiment, the EIS has a sufficient
basis for its rejection of this form of spoil fanning. The
Navy has revealed the source of the data on which it relied,
\1hich ,vill give a commenting agency an opportunity to chal-
lenge the adequacy of the Navy's interpretation by looking
at this data independently. See Natural Resources Defense
91/
- In addition one of the three sites is said to require an
easement, to involve "excessive" cost, and to have insuffi-
cient la tera 1 support. See, Exh. 6A, sunra note 1,
~I 5.04.e. The sufficiency of these reasons need not be con-
sidered in light of my conclusion that the Navy's rejection
of land dumping is sufficiently justified by reference to its
inefficiency.
92/
Id. \1 5.0!r.h.
;1
I
- 42 -
Council, Inc. v. Morton, 458 F.2d 827, 837 (D.C. Cir. 1972).
Furthermore the grounds for the Navy's decision are prima
facie proper: an
agency is not required by NEPA's rule
h 1 '. 1 . 93/
new tec no og~es as a ternat~ves.--
of
reason to develop
Hith
respect to two other types of spoil farming (use as fill on
strip mines; use as fertilizer), however, the Navy did not
claim insufficient information; its sole basis for rejecting
these alternatives was stated in one short paragraph:
"The drmibacks to these alternatives
include great distance and transportation
costs in addition to the political juris-
dictional problems associated with long dis-
tance transportation of the spoils, truck or
rail traffic with the resultant increases in
noise and air pollution, possible leaching of
toxic materials from the spoils and the sub-
sequent contamination of land and ~'Jater re-
sources." 94/
~'Jhile this is terse, it is adequate. The InS contains a
thorough chemical analysis, sufficient to disclose to COITmlcnt
ing agencies its possiblity for use as fertilizer. There are
no strip mines in this district, and it is obvious that
transportation overland is much more costly than transporta-
tion by barge for t~'Jo-and-one-half miles out to the Nel-J
London dump site.
The third alternative considered is incineration.
This alternative is also under study elsel'ihere: "Lockheed
93/
See p. 38 sunr<1.
9r,/
-- Exh. 6A, SUfl~.:l note 1, \: 5.0!"k.
.;
ii
- 43 -
Shipbuilding and Construction Company, Seattle, Hashingto::l,
has designed a \,aterbol:-ne Haste treatment system utilizing
95/
old ship hulls."- The Navy's rejection of incineratio;;l is
96/
surnmary,-- but, as above, the reference to a known project
suffices to avoid a deficiency in the EIS. Likevlise, in
considering container disposal the EIS refers to a detailed
study of containerization of spoil w3de by the Corps in the
f f . . 97/ f. d' h h 1
EIS or one 0 ~ts proJects;-- ~n ~ng t at t e resu ts
(especially in terms of cost) are less desirable than those
of other alternatives, the Navy sUillW3rily rejects container-
ization. The court holds that the Navy EIS has given suffi-
cient consideration to this alternative.
The Navy EIS gives some\'lhat more detailed attention to
9~
./ the possibility of building islands out of the dredge spoil.'-'
Several ongoing experiments are cited that to date have re-
ceived favorable reports.
HOI-7ever the Navy rej ects the idea
95/
Id. 'if 5.04.1.
\
96/
-- "The problems associated \,ith this approach include posslbl.
air pollution, possible adverse affects [sic] of the ash 1
residue in an ocean ecology and the large time factor necessa~y
for the development of a workable system. In addition the
cost ~'iOuld be substantially greater, at the outset than other
methods." Id.
97/
See id. 'I 5.04.m.
-- "
98/
See id. ~I 5.04.n.
- 44 -
quickly on several bases:
"Against the development of such islands is
the lack of infonnation concerning the impact
such construction ,-)Quld have on marine life
in the area. An extensive enviroTh~ental impact
study would need to be completed before such a
project could go fonvard. Impediment to navi-
gation and aesthetics in the areas chosen are
also negative aspects ,.]hich must be considered.
Not all material from dredging operations is
suitable for island construction. Much of the
dredged material would be unsuitable and would
need to be separated and disposed of elsewhere.
. . . [T]he cost of utilization of disposal
islands ,vould be exceedingly high under current
practices and . . . there would be jurisdic-
tional problems surrounding control of ulti-
mately chosen sites." 99/
The court finds these reasons for rejecting this alternative
entirely sufficient under the rule of reason., The idea seems
to involve environmental risks from erosion of the island
-~.
wherever built in exactly the same way that use of the New
London dump site poses dangers from erosion and dispersal of
the dredge spoil. Thus, ,.)hatever the benefits to be expected
from this alternative, they ,,'ill not be such as to alleviate
all the problems posed by the alternative the Navy has pro-'
posed. On the negative side, it is obvious that to separate
the spoil would be quite expensive, and enough is revealed
about the composition of this material that those who must
comment should be ab le to knmvledgeab ly eva lua te the Navy' s
claim that the cost ,wuld be "exceedingly high."
99/
1eL
j'
,
]J",'~Sf
,of ~",",,1.1
:1
- 45 -
Havir.g considered alterna~ive ~et~ods for disposing
of the spoil, the next matter to be considered is the infor-
mation revealed in the statement relating to alternative sites
for unde~]ater disposal.
Dumping at dispersal sites (sites which will foster
dispersal of the spoil) is quickly rejected because scientist
do not agree on the long-range effects on marine biota of
spoil intake and because current scientific opinion advises
1001
against the use of dispersal sites on environmental grounds~
The court has already indicated that this type of summary
101/
treatment of an alternative is proper;--- in any event, the
plaintiffs do not seem to challenge the EIS' treatment of a
dispersal-site alternative.
The plaintiffs emp~a!ically challenge the Navy's con-
--- '---'-10'2/'
sideration of alternative containment sites.--- A page and
a half of the tIS' treatment of alternatives is devoted to
consideration of three alte~~ative containment sites in Long
Island Sound ("Sites 1, 2, and 3"). Site 2, located in the
----- -
plains area nortl-mest of Block Island, is rejected because
the environmental impact of dumping there ,.]QuId be disastrous;
this conclusion is not attacked by the plaintiffs, and the
1001
See id. ~ 5.04.0.
lOll
See p. 38 supra.
lQlI
See Plaintiffs' Eemorimc1um, supr,'. n8te 5, ~t {~2-4!:,.
'1
- 46 -
court finds the Navy's treatrne~t of this site entirely
103/
proper.-
(
!
The Navy rejected Sites 1 and 3 because it lacked
sufficient information about the environmental impacts which
104/
Hould occur should the spoil be du.'TIped at these sites.-
A preliminary question is whether the Navy was completely ex-
cused from developing such information about these or any
~
other sites in Long Island Sound. In its comments on the
January 1972 draft EIS the EPA indicated that Long
Island
105/
site,-
Sound should not be considered
CIS a potential
106/
adopted.-
dump
a recommendation that the Navy
It was not until
mid-1973 that changes in thinking by EPA and the Corps led
the Navy to believe that the use of a dump site in Long Island
Sound was permissible. No more than six months later, the
107/
final EIS, recommending the New London site, ,vas released.-
Given this chronology, it is not at all surprising that 'the
'.
Navy lacked data on alternative disposal sites ,vithin Long _'.
Island Sound. The real question is whether, under the
103/
See p. 38 supra.
104/
See Exh. 6A, sunra note 1, \fIr 5.04.q, 5.04.t.
105/
--- See Exh. 6R, 2 Final Environmental Impact Statement:
Dredge River Channel, at H10.
106/
See id. at Ill; p. 20
supra.
107/
See p. 22 supril.
11
I
I
- 47 -
circumstances, the Navy ,'laS obli'gated in mid-1973 to delay
its EIS, its dredging project, and its deplo)rment of the SSN
688 submarine in order to generate this data. Or, to put it
(
in other Hords ,_ does the fact that the Navy legitimately
excluded the Sound from consideration until mid-1973, com-
bined with the defense inter~st in deployment of the hew
\ submarine class, excuse what might othenvise be deficient
\
I treatment of alternative containment sites by the EIS?
The court must conclude that the Navy's obligation to
discuss Sites 1 and 3 is not excused. It appears that no
court has ever been asked to rule on the sufficiency of the
consideration of alternatives ,.,here there had arisen a situ-
ation similar to the Na\~'s prior justifiable exclusion of
the Sound. Hmvever, I believe there is guidance in the cases
of a couple of years ago dealing with \vhether an EIS was
required for projects begun before the effective date of
NEPA. In those cases courts \'Iere also faced with "innocent"
agencies, for they had laid their plans and begun their \'IOrlC
before there \'Ias any requirement of an EIS. Nost courts foun
that NEPA did not apply retroactively to invalidate projects
that had received final approval before the Act became appli-
cable, but that it
did apply to ongoing projects, i.e., those
108/
were yet to be rnade~ - The latter group
in Hhich decisions
108/
See Arlin~~ton Coalition on TrnnSDortation v. VolDe, 458
- ~ -..... --.........<.--
F.2c1 1323, 1331-1332 (ffi:h CiL), .:,_crt. c]C'J::'Je<:l., (fO') U.S. 1000
(1972); Gr~_~~~?Ut~~~J.~]-'~~~:.~~LlJ~_l~~~___Y-~_ J.L'(~~~gEa:l. J~s:?;rcr C:OT'L~_.2!.:1
lS~ II 20' ~17 ~2~-~?5 (2d C'L"J-) c('y(- tl~r'E.tl ~09 IJ S 0~9
1'.-". l"~, r~r r._. - -'.., _n'. '~_,\.1__) 1 "'. ()_,._
(1972); Cons(~rv;1tion ~()Cl.y v.Vol~~-';.~3L0fl':;-.-SuPP. 761) 765-"16/'
( D V t 1(1"/" ") ---;;-n-:j- C" :::'-r:-;--c L" ,- E.~l '-11Q~-~C '"Ln
. . -:J '-. , ...1 ~,_ (..10..0 L __. c. ...._L~. .
- 48 -
of cases is more closely analogdus to the posture of the
Navy's dredging project 2S of mid-1973. Hhen EPA \vithdre\v
its objections to a Long Island Sound site the Navy had cir-
culated a revised draft EIS, but the final site decision had
not been IP.ade, and the dredging contract had not been a,,,arded.
The project was still in the; planning stage and, by analogy
to the cases cited above, subject to all the requirements of
\
I
i
\
'-
NEPA. Thus, even though the consideration of Long Island ~
Sound alternatives might properly have been summary before
mid-1973, thereafter the Navy could not rely on lack of
information per se as a basis for rejecting alternative sites.
Neither is the Navy project excused from fully consid-
ering the Long Island Sound alternatives because of the
importance of dredging the Thames in tline to accoffiroDdate the
first of the nel'} submarines. As the Sixth Circuit pointed
out in Environmental Defense Fund v. TVA, 468 F .2d 1164 (6th
Cir. 1972), NEPA clearly requires that
"'each agency of the Federal GovernI'lent shall
comply IVith the directives [of KEPA] unless
the existing 1m" applicable to such agency's
operations expressly prohibits or makes full
compliance ,,,ith one of the directives im-
possible. . . .' ... Accordingly, if the
. . . Project is subject to the NEPA, ap-
pellants should not be permitted to rely
upon '[c]onsiderations of administrative
difficulty, delay or economic cost' to support
a claim of exemption. . . ." 109/
109/
- 1,68 F.2d Clt 1175-1176, ~1\1()YJn''!L H. Rep. No. 91-765, 9lGt
CO~D l"~ OC'~~ 9 JO (ln~o) 011C] C"l\'c'rt- Cl'Lfc~' Cc)()rc'"Ll'0-'1101
J 10.' .:>......., d....'.. ...... -' V / , ~__ _~_"":-=--.~:""~':'::"~_"':~~~._~':':-':',_'.:.~-----':',
C()-e:!' Iue \' TTnit-("l 0-,"1-0" ^t-o''';c !:"y,--cn- C'()"'l'll 11/,0 Ii '),1
~-=":,,,:,:-,:,~~I~""":__~~"":'::'~~.':_(_'~:,,'...:_.'..J~~.:____~~:2'~--'--:":':"-~_) ,-.,.;; ......\1
1109, llb (D.C. Cir. 19/1).
--,
1
c
il
I
I
- 49 -
Because the Navy's project "as .concededly subject: to I':EPA,
this court must conclude that Congress' intent was that the
environmental concerns protected by NEPA would oUb,eigh any
interest of the Navy that would be harmed by full compliance
with the Act.
Thus the question ar;i.ses ,,,hether, under the rule of
reason, the Navy's treatment of Sites I and 3 in the EIS was
adequate to meet the requirements of 1~PA. In answering this
question, it is important to understand how the rule of
reason applies in this case. Thus it is important to realize
how limited is current scientific kno\vledge, even with the
best of testing procedures, \'lith respect to the environmental
effects of dredge spoil disposal. The Corps has said;
"1'lith the existing data, it is almost impossible
to differentiate bet\'leen effects from one site
to another, and there is a very obvious need to
vigorously pursue a continued research program
to fill in the many gaps that exist." 110/
Moreover, it is important to recognize that the Navy and the
Corps are actively pursuing such research, largely by means
-
111
of studying ,.!hat happens to the spoil dumped at New London.-
"Congress has recently authorized the Corps to undertake a
110/
- Statement of l'forgan Rees, Chief of Permits Branch (Corps),
at Public Hearing in Groton, Conn., August 28, 1973, Exh. 6B,
supra note 105, exhibit A, at 29.
111/
See Exh. 6A, ~ra note 1, 'J'ii 1.15-1.17.
!
II
I'
II
I'
,1
I
,
I
I
- 50 -
nationwide 5-year $30 million research program to study the
112/
effects of spoil disposal. ,,- This type of detailed rc-
search obviously cannot be done in a vacuum--what is required
is some durnped dredge spoil whose fate can be studied. The
cases do not permit the courts to establish a timetable for
the ascertainment of standards and methods for measuring the
effect of the ~Dtion of the sea upon the dispersal of the
separate ingredients in the spoil. Hhether to proceed withou
such a study or to postpone the project while such a study is
being undertaken is a question for the decisionmaker.
Environmental Defense Fund, Inc. v. Corns of Eng., 325 F.
Supp. 749, 760 (E.D. Ark. 1971), adhered to, 342 F. Supp.
1211 (E.D. Ark.), aifld, 470 F.2d 289 (8th Cir. 1972), cert.
denied, 412 U.S. 931 (1973).
The rule of reason is also informed by the scope of
the risk that the project \7ould create. In this instance
polluted material which is attributable to sources other than
the Navy project is being removed from the Thames River,
which ~an only have a beneficial effect on the marine life
113/
located in the river,- to be disposed of else,vhere, further
112/
Statement of Morgan Rees, suora notc 110, at 28; see
Statement of Col. John H. Hason (Corps) elt Public Heeting in
Groton, Conn., September 11, 1973, Exh. 6B, supra note 105,
exhibit B, at 38-39.
113/
-- There is some dispute ;]s to the current effects of pollu-
tion on marine life in the Thomes. I'hl' EIS states that "the
taking of oY~jtcrs) cl~ms, n.nd quaho:;s is presently prohibit0cl
\o}ithin the Thta':"lcs P..i\lCr and NC~'7 London lla.rbor due to gros~;
1
II
,
,
- 51 -
from shore and deeper under ~vater. The EIS has done a good
job in considering I-lhat Hill happen in the iITL:nediate environs
114/ .
of the site at 1-7hich it is disposed;- at issue is ~'lhcther
or not the spoil will thereafter disperse and, to some extent
the danger that will be posed should it disperse. It is note
worthy that although other d~edge spoil from Connecticut)
including much from the Thames River, has previously been
115/
dumped at Ne~v London,- the plaintiffs have presented no) .
'--,
evidence that this prior disposal has dispersed and harmed
the marine life along the Connecticut shore that they seek
.,
to protect by this action. Thus the scope of the risk of
this dumping, 1-7hile perhaps not insubstantial, by no means
amounts to a certainty of significantly adverse environmental
damage.
113/ cont'd
contamina tion." Exh. 6A, supra note 1, ': 3.07. a; see Exh.
14, SUDra note 8, at 10. On the other hand, the Department
of the Interior, in commenting on the initial draft E1S,
indicated: I~ccording to the State of Connecticut Department
of EnviroTh~ental Protection, the Thames River is currently
classified as SC (suitable for fish, shellfish and wildlife
habitat, recreational boating, and industrial cooling and
shellfish harvesting after depuration; excellent fish and
wildlife habitat; good aesthetic value)." Exh. 6E, suprn not
105, at 17. Both assessments conclude that the Thames is a
home for commercial and recreational fishing.
114/
See Exh. 6A, supra note 1, \I\f 3.17-4.08.
U5/
- Exh. D, supra note 66) provides a list of the sources of
all dumpings at the l;eH London site for \lhich permits were
issued b2t\'n~cn 1958 .s.nd 19 7~. The totD.l uredg2d spoil (h.i-::lped
aOlounts to 3,356,298 cubic yards.
!
I
I
I
I
I
I
,I
/.
7
'I
I
- 52 -
The Navy contends that in light of these factors the
rule of reason demands no more than has been provided. '"ith
respect to Site 3 there is almost a page of discussion about
environmental impacts that might be expected should the Thame
116/
spoil be dumped there. --- \-lith respect to Site 1 the indi-
-
vidualized consideration is ~ess extensive, but the EIS does
indicate that a significant danger of environmental harm is
indicated by an analysis of the site's water chemistry and
117/
bottom substrate.- In addition, much generalized material
about the characteristics of eastern Long Island Sound, ~n1ere
Site 1 is found, is contained in earlier portions of the EIS.
The court concludes that these provisions of information are
adequate, in light of the rule of reason, to satisfy the
Navy's duty to consider alternatives under h~PA. Cf.
Favetteville Area Chamber of Commerce v. Volpe, 6 E.R.C. 1891
(E.D. N.C. Feb. I, 1974).
The plaintiffs also challenge the impact statement's
consideration of the so-called "acid site," which lies about
118/
ten miles southeast of Block Island. - Hmo/ever, I must
reach a conclusion \'lith respect to this claim similar to that
reached vlith respect to the claims considered above, even
116/
Exh. 6A, suora note I, CJ'J 5.04.p-5.04.q.
117/
Id. If 5.04.t.
UB/
\
~e'~ nl~ i n't]' "fe 1 1~p--1o'~an(Iu"1 "~I"~ "'., n~le 5
~ '- .r u_ _1..:::> .1~.l:..>._.... _ .., .::....-.~~~~ 1. v - ,
Sl'jcp l'" n'~rI'('C'1 "I," on )'vh 1 enT"\ 'IC)~e 2
-,- ~ ~\- ..... 1:\ 'J<'.., '~\,-")_'_L~ ~ L. .
at 42-ff3.
This
- 53 -
though the plaintiffs have particularly urged that the acid
site deserved full consideration in the EIS because it is
the primary alternative to the Nel~ London site. The Corps'
Scientific Subcommittee on Ocean Dredging recommended and the
Navy agreed to this site for study concurrent with the use of
the New London dUlllp site in :case adverse effects at NevI
. 119/
London should necessitate relocation of the dumping.----
Moreover, the Corps requested and the EPA gave the acid site
provisional certification as a dump site in September and
October 1973, "Ihich ,'Ias after the Navy recommended use of
120/
Nev! London but before the final EIS was issued.-
The treatment given the acid site in the EIS is brief:
I
I
its selection for concurrent study is disclosed as is the
f. 11." 'f: 11.' 11 r 'bl 121/ "'
act that to use t IS SIte, l~ tec nlca. y Ieasl e,-
would cost "at least $8 million more than using the New
122/
London dumping ground."- The brevity or this treatm?nt
119/
See Exh. 6A, supra note 1, If'J 1. lib, 1.17.
120/
- See Exh. E, Letter f)~om Col. John H. Hasan (Corps) to
Regional Administrator, EPA, Sept. 27, 1973; Letter' from
Jeffrey G. Hiller (EPA) to Col. John H. Mason, Oct. 25, 1973.
121/
- In requesting provisional certification of the site by th~
EPA Col. Hasan of the Corps wrote: "Use of this dumping
ground presumes that certain questions of the physical
capability of tow boats and scows to haul to an exposed area
are overcome." Exh, E, Letter (Hasan to EPA) , sunro note 120.
}J.2/
Statement of Hargan Rces, RUP~ note 110, at 27. Rees
olso indicated that it would cost about $9 1/2 million to use
the, Nel'! Londo:1 dump site and about $17.3 million to use
Brenton Reef, rd.
- S4 -
cannot be equated \~ith inadequac.y, hOv7ever. The acid site
alternative is of uncertain technical feasibility, is almost
tl~ice as expensive to use as the Ne\~ London alternative, and
is to be studied concurrently with use of the New London dunlp
site. Especially given the Co~ps' rational policy of prefer-
ring to use established dump; sites (about which more is and
'123/
can be known) when possible,--- the court does not find
s~~ry treatment of the acid site in the EIS violative of
the rule of reason. Indeed it would make little sense to
exhaustively study such an expensive and uncertain alternativ
h h d '11 b '1' l' 124/ Th
I-I en t e stu y va e necessar~ y ~nconc us~ve. e
consideration of this alternative is sufficient to satisfy
the Navy's obligations under rillPA.
2. Development of alternatives
The duty to actively develop alternatives stems fro~
the same authority as the duty to discuss fully those aLter-
natives that are considered--42 U.S.C. 99 4332(2)(C)(iii),
(D) (1970)'. And the duty to actively develop alternatives
is also subject to a rule of reason similar to that consid-
ered above: not every alternative that anyone could dream
up must be given the full treatment that NEPA demands for
those alternatives that are considered (and Clre not stlilmnri1y
123/
See, e.g" {d. at 24.
12/+/
See p. If9 ~:.!:)J:a; c[. 1"2ypttevillc Area ClvltC11wr of
Co=erce v. Vol):lc, 6 }~-:-R.C-.1391TE.-]5-~ N.C=-}-;-c~1,-r97Lf).
- 55 -
:
rejected for proper reasons). See, e.g., Life of the Land v.
Brinegar, 485 F.2d 460, 470-472 (9th Gir. 1973), cert. denied
416 U.S. 961 (1974); Natural Resources Defense Council, Inc.
v. Horton, 458 F,2d 827, 834-838 (D.C. Gir. 1972); 1-291
Hhy? Ass'n v. Burns, 372 F. Supp. 223, 251-252 (D. Conn. 1974
The rule of reason seems especially important in a
case like this, where the issue is consideration of alter-
native offshore containment sites. Unless the Navy studied
in the detail required for considered alternatives all of
Long Island, Block Island, and Rhode Island Sounds, plus
portions of the surrounding ocean, it is obvious that someone
would be able to name a site that had not been explored.
Obviously the Navy's failure to make this complete study
(the magnitude of "hich ,.]ould have been far greater than
any other oceanographic effort or which this court is mvare)
should not preclude it from disposal of its dredge spoil.
The rule of reason applied sensibly to this type of case
requires only consideration of enough feasible alternatives
125/
that a reasoned choice can be made by the decisioTh~ker.---
See Friends of the Earth v. United States Environmental
Protection Agency, 499 F.2d 1118, 1126 (2d Gir. 1974); Nat-
ural Resources. Derense Council, Inc. v. United States
Environmental Protection Agency, 494 F.2d 519, 524-525 (2d
ill/
Of course this rule is not meant to allo~.] all agency to
ignore fe3sible olternative~, presented to it simply because
it has alrcCidy consid<:r~cl enOUGh .:11tcrnettives to survive!
juc1icinl rcvi8~<7 of the EIS.. Cr. 1-291 Fhv? Assln v. Bt1rn~)
372 F. Supp. 223, 2/+9-252 (D.Con;-:--r<T74f,----------
;'."
, .
,
/)
t
\
.1
r
,
- 56 -
Gir. 1974). The plaintiffs' claims that the Navy EIS has not
126/
considered some feasible alternative containment sites---
must be examined in light of this rule.
The plaintiffs first commend to the Navy in a general
~~ay "[ dJ eeper sites, further removed from shore, ~~ith para-
. 127/
meters far more clearly evidencing containment."--- Read
most charitably, this formulation suggests that the Navy
should have found an example of a deep site far offshore and
included an analysis of it in the EIS so that the decision-
maker could see the cost of achieving better containment than
is possible in sites closer to the shore. In making this
argument, however, the plaintiffs ignore the fact that the
Navy had concluded that, although knoHledge in the area is
slight, current scientific opinion advised against adding
128/
pollutants to deep ocean areas.- It appears, in other
words, that the Navy concluded that the sites proposed by the
plaintiffs were not feasible and consideration of them thus
would not aid the decisionmaker in reaching a reasoned choice.
129/
This court does not find fault with this conclusion.----
126/
See Plaintiffs I Hemorandum, supra note 5, at 42-l,4.
127/
--- Id. at 44.
128/
See Exh. 6A, supra note 1, ~ 5.04.0.
129/
- Gf. p. 38
sunra.
.
II
I
1
1
- 57 -
The plaintiffs also argue that the Brenton Reef site,
recommended by the Navy in the revised draft EIS (Exh. 4),
was completely and improperly dropped from consideration in
the final EIS. .They contend that this alternative, above
. 1301
all, should have been consider2d in the lmpact statement.---
HO\~ever, the defendants correct ly point out that the final
"
EIS incorporates by reference the discussion of Brenton Reef
1311
in the revised draft EIS.--- Thus the only question with
respect to the EIS I treatment of Brenton Reef can be ~'Ihether
it was deficient; this issue the plaintiffs specifically
1321
decline to raise.---
1301
See Plaintiffs' Memorandum, supra note 5, at 43-44.
1311
--- See Brier for Defendants 16, citin~ Exh. 6A, supra note
1, ~T22.c.
1321
See Transcript (Oct. 10, 1974) 8-9:
"THE COURT: Now your contention, I guess,
is that this third or this revised draft sub-
mitted by the Navy was satisfactory?
"r-lR. BUTZEL: There were limits in it whieh
need not be discussed in terms of the revised
draft. For. your inf01:111ation, if there had been
a litigation over the revised draft I think it
Hould have been over the inadequate considera-
tion of alternat~ves there and the alternative
section - ~vhich I Hill reach in terms of the
New London site.
"But in terms of its determination as to
an appropriate site, the kind of research that
had been done, the kind of study and considera-
tion that had been given to the selection of
Brenton Reef, it Has in my judzmcnt an adc-
quo te impDc t s ta tem(~llt.. II
,
I
I
.
- 58 -
VI. Alleged Errors in the Tmnact Statement
The plaintiffs make three additional claims \Vith
respect to the impact statement: (1) that: the role of the
Corps' Scientific Advisory Subcommittee in the decisionmaking
133/
process \Vas misreported by t4~~i~~1 EIS;--- (2) that the
change bet\Veen the revised draft: and final statements in the
-
conclusion as to \Vhich site \vas the "best" containment site
--.....-.--
environmentally (Brenton Reef in the revised draft EIS; Ne\oJ
134/
London in the final EIS) was unsupported by any evidence;---
and (3) that the findings of the Naval Oceanographic Office
-....;>.......,.
study that the Ne\V London
----~- 135/
ment \Vere unfounded.---
site exhibited short term contain-
The standard of review to be applied to these sorts
of challenges differs from the strict "procedural" standard
136/
used above.--- At issue here is not whether the agency has
turned square corners in follmving the procedures demanded
by NEPA, but \'lhether its findings are supported. i-lith re-
spect to this type of issue the test is \Vhether the agency
has acted arbitrarily and capriciously or on the basis of
. - "-,..._",..,......._~
133/
See Plaintiffs' Memorandum, supra note 5, at 25-28.
134/
See;
at 28-35.
135/
See
-\(1
." ....,.
at 35-37.
136/
See p. 15 sup~.
.
- 59 -
137/
insubstantial evidence.- See Conservation Soc'y v.
-.,-.-
Secretary of Transp., 362 F. Supp. 627, 632-633, 635 (D. Vt.
1973); Environmental Defense Fund, Inc. v. Corns of
Engineers, 342 ~. Supp. 1211 (E.D. Ark.), aff'd, 470 F.2d
289 (8th Cir. 1972), cert. denied, 412 D.S. 931 (1973).
This standard, of course, is'precise1y that to which most
agency findings are subjected during judicial review under
the Administrative Procedure Act,S D.S.C. ~ 706 (1970).
See, e.g., Hong \o:'ing Han~ v. Im:::nigration & Hatur!11ization
Serv., 360 F.2d 715, 717-719 (2d Cir. 1966).
A. The Role of the Scientific Advisory Subcommittee
The plaintiffs' first claim of error is based on the
impact statement's description of the role of the Corps'
'1,
137/
- Inevitably, bright lines turn dim \9hen it becomes neces-
sary to characterize individual fact situations. Thus in
this instance all of the alleged errors could be character-
ized as "procedural," for their effect is to make deficient
the EIS ultimately set before the decisionmaker. For exampl~
inasmuch as the first of these three claims alleges mis-
characterization of the SubcoIT~ittee's role, it might be
regarded as a bias in the EIS rather than as an erroneous
agency finding. Cf. p. 17 supra. H0\gever, I am con-
vinced that it is proper to revie\9 these claims using t:he
"substantive" standard described in the text.
Some of the statements to \'lhich this standard will apply
are conclusions about \<lhich site is best (~&..:.., the second of
these three claims). In the mouth of the clecisionmaker this
conclusion is subjected to review only for arbitrariness,
~, ~, Conservation Soc'y v. Secretary of Transp., 362
F. Supp. 627, 632-633 (D. Vt. 1973). To subject the same
conclusion in the mouth of another to a stricter stnndard
would achieve nothing, and I conclude that NEPA does not re-
quire the court to do so.
.
I
!
-
f
- 60 -
Scientific Advisory Subcommittee in influencing the Navy to
change from its recommendation of Brenton Reef in the revised
draft EIS to its advocacy of the NeH London c1ulllp site in the
final EIS. The Navy's description is s~~m3rized as folloHs:
"As a result of .the recommendations of
the Scientific Advisory Subcomnittee, the
Navy has been directe'd by the Army Corps of
Engineers to utilize the NeH London Dumping
Ground." 138/
It is the emphasized language that the plaintiffs claim con-
stitutes a distortion. Specifically, they say that the
Subcommittee only concurred in the Corps' recommendation of
the New London site, an interpretation based on doclli~ents
139/
by the Corps to that effect.--- According to the plaintiffs
this misstatement of the Subcormnittee's role made it appear
that the s,vitch to the New London dump site ,vas IT'.ade on the
I
\
basis of scientific considerations rather than on the basis
of cost and other considerations.
The defendants do not deny that this characterization
llfO/
of the Subcotll.mittee's role is incorrect;- in fact, the
141/
Corps itself first objected to this 1anguage.--- Hm~ever)
138/
--- Exh. 6A, supra note 1, ~ 1.12 (emphasis added). Language
of similar import appears elsewhere, both in the final Ers
and in other spots as ,,'ell. See, e.g., E~:h. 5, Addendum,
supra note 53.
139/
--- See, e.g., Exh. 9, Hemorandum from Vyto Anclreliun3s (Carpe"
to Division Engineer (Corps), .Jan. 23, 1971+.
lllOI
See Brief for Defendants 10-11.
lLfl/
See Exh. 9,
SUDra note 139.
-~-
~.-
- 61 -
the defendants do argue that this mistake is not sufficiently
serious to invalidate the EIS. See Environmental Defense
Fund. Inc. v. Corps of Engineers, 342 F. Supp. 1211 (E.D.
Ark.), aff'd, 470 F.2d 289 (8th Cir. 1972), cert. denied,
412 U.S. 931 (1973). The court agrees. The EIS does not,
as a whole, distort the role played by the Subcommittee. In
fact exactly the point contended for by the plaintiffs--that
the Subcommittee I s decision \~as made on the basis of cost
~ ~/
and other considerations--is explicitly made by the EIS.---
143/
The Navy's misstatement is simply harmless error.---
B.
The Final Imp2cJ Statement's Conclusion-
.
The conclusion of the revised draft EIS was:
"Of the several containment sites, the most
environmentally suited for the material to
be disposed of is the previously spoiled
dump site in Rhode Island Sound [Brenton
Reef] . . . ." llf4/
142/
See Exh. GA, supra note 1, ~ 8.02, at 194.
t
143/
--- The plaintiffs also complain about statements in the
final EIS that the Corps "directed" the Navy to choose the
NevI London site as its recommended alternative, see id. 'sIr
1.12-1.13, even though the defendants nm-I contend that the
Corps only recommended New London \-Ihile the EIS was in prep-
aration. See Brief for Defendants 11. The court is unable
to believe that any misimprcssion was created and refuses to
set a precedent that would require a project to be halted
because of one or t"70 poorly \wrdecl passages in a lengthy
t,-)O-vo lume EIS.
144/
Exh. 4, St~~ note 42, ~ 1.08.
.
J
- 62
By the time the final EIS I.]as issued, the Navy's conclusion
l4S1
had changed:-
"Of the several relative containrnent sites,
the most ~nvironment~lly-suited for the
material to be disposed of is the previously
spoiled dilinp site in Long Island Sound [New
London] . . . ." 146/
The plaintiffs claim that there is no scientific data
to support this change and that, measured by containment
ability, Brenton Reef remained clearly the "rr.ost environ-
mentally suited." The plaintiffs have built a strong and
careful case in their brief, citing studies of Brenton Reef
and analyzing the limited scope of the Navy's study of New
London, to try to shmv that the conclusion of the final EIS
is erroneous. HOIvever, this court does not sit in judgment
of the conclusion's correctness; it must stand if it is not
arbitrary and capricious and if there is substantial evidence
to support it.
The court is unable to conclude that the Navy's con-
elusion Has arbitrary and capricious or unsupported by sub-
stantial evidence. There was expert testimony at the hearing
on this matter that on the basis of prese~t scientific knol'11-
edge there is no way to tell Ivhether Brenton Reef or Nelv
lLfsl
See pr. 19-27 for a description of the intervening events.
lLf61
Exh. 6A, sunr3 note 1, ~ J.08.
'j
I'
...
- 63 -
London is a better site with respect to containment charac-
147/
teristics.- This expert evaluation '1'laS by Dr. John B.
Pearce, who chaired the meetings of the Scientific Advisory
Subcommittee, and Dr. Pearce indicated that this opinion
148/
was generally shared by that body.- All parties take it
as granted that the ecological problem presented by this case
is one which can best be analyzed and solved by scientists.
The court concludes that the evidence presented is enough to
meet the relatively light burden placed upon the Navy by the
7 "substantive" standard of revie.'I.
c. The Naval Oceanographic Office Study
The plaintiffs' third claim is that the purported
finding of the Naval Oceanographic Office (}~\VOCEANO) study
of the Ne," London dump site (appendix J to the final EIS)
that short-term containment exists at that site is unsup-
ported. This claim is based on (1) the finding's alleged
inconsistency with the fact that at current speeds evidenced
at the dlli~p site resuspension of sediments occurs, and (2)
the finding of the study that oil and grease sediments
previously deposited at the Ne>'! London site have been scoured
therefrom by current action.
147/
See Testimony, supra note 77, at 406-420, 441-451.
148/
See id.
.
- 64 -
Once again, however, the court is unpersuaded. Dr.
Pearce testified that although certain sediments could be
scoured aI-lay by currents of the velocity evidenced here,
there is evidence tha t the dredge spoil 't'las not so susceptible
. 149/
of eros~on.--- Thus there is no clear inconsistency with
the NAVOCEANO finding of short-term containment. Moreover,
the finding of sediment scouring upon which the plaintiffs
rely was subsequently 'tvithdrmm by the Oceanographic Office
150/
because it Has found to be unsupportable.- The agencies
involved did not arbitrarily and capriciously or without
<1
substantial evidence conclude that the New London dlli~p site
exhibited short-term containment.
VII. The Corps I Selection of Ne't.J London
The plaintiffs' final challenge goes to the ultimate
decision of the Corps to use the Nelv London site for dis-
. f h I h . d '1 151/
posit~on 0 tLe Navy s T ames R~ver redge spo~.- Be-
cause this is directed squarely to the substance of the
project, the plaintiffs concede that the "arbitrary and
capricious" standard applies. HO\~ever, they maintain that
in this instance even this low standard is violated.
149/
See id. at 413-417, 450-451.
150/
See Testimony of Dr. Richard E. Smith (HAVOCr.:ANO),
Transcript (Sept. 12, 1974) 30G-308, 328-335.
151/
C:ec 1)1-' .'nt}' fJ~" I !'el'~"aJl"l'n "UT)'~~ no"c <; ~.. c4 c"
...... ..(,1. ... ..:J ".L'. HV.L Cll., :::-_L~. L oJ, dL _) -Jo.
I,
)
I i~
I
I
,
- 65 -
The plaintiffs' argument must be rejected, however.
Above I have indicated that none' of the errors of procedure
or substance alleged by the plaintiffs have been co~~itted
by the Navy or the Corps. Ibroughout I have stressed the
careful nature of the decisioIlII12king process undertaken for
this project. Three draft ,impact statements and an addendum
were properly circulated; public meetings were held; the
Corps and the Navy cooperated to achieve a mutually satis-
factory result; a special s'cientific subcommittee reviewed
the data provided about environmental effects. From all of
this it should by nOli be clear that the Corps' ultimate
decision to use New London cannot seriously be claimed to
be unsupported or arbitrary and capricious. At \wrst it may
not have been a perfect decision--some better method or site
~ d' 1 "t 0.;- ,.-c....J- "h' ~th
Ior 1sposa m~gn eX1S~; some ol~rerenL welg lngs O~ . e
economic and environm,mtal trade-offs involved migh~ be
"better" in an abstract sense. But these are issues upon
which this court does not sit in judgment. Hith respect to
those issues on Hhich I am obligated to pass, the defendants
carry the day in every respect.
The plaintiffs' requests for relief are each denied.
It is
SO ORDERED.
Dated at Hartford, Connecticut, this {3 ~(hY of
December, 1974.
, 1 ~\
----- o. I ( \
I~ /L----lci1-:-:~m___EJ(,=~-::. 'C':'~' J
N. Josep);); lun;c.nL: lei J I
United SUites ]H~tr.ic.t ,Jud~;('
-~:",~,:<c,."-,"J~~~ "i:!ri~I.I\iP.'4l'1'i~""'To;'!"J:;;:r:""~~,,,,,,!!,,Q:~~"I1',',.~""
IJ.ii"r:i;",
_",;y;,'-."r'.:~:-'-'F;"-'~;".'.:>'.~~'<<';,^,<';~'~'.r~~,.l''l',E.~~''.'';{''''''~;Y:~~
US Army Corps
of Engineers
New England DMsion
Hearing
Procedures
m
424 Trapelo Road, Waltham, MA 02254-9149
1. Hearings for Corps of Engineers permits are conducted in accordance with Title 33, Code of
Federal Regulations, Part 327. The most recent edition of these regulations was published in the
July 22, 1982, Federal Register which is available at most libraries.
2. Either the Division Engineer orthe Deputy Division Engineer (the two top ranking officials at the
New England Division) normally serves as the presiding officer at the hearing. When neitherofthem
is available to serve, the Division Engineer may designate another presiding officer.
3. The Division Counselor his designee serves as the legal advisortothe presiding officer to advise
him on legal matters that may arise.
4. Any person may appear at the hearing on his own behalf or may be represented by counselor
by another representative.
5. Hearings will be conducted orderly, but expeditiously, by the presiding officer.
6. After the opening remarks by the presiding officer, the applicant will give a presentation of his
proposed work.
7. After the applicant's presentation, elected and appointed officials will be given an opportunity
to present their official comments on the application.
8. The general public will then have an opportunity to make oral statements, present written
statements, call witnesses to make oral presentations and make recommendations as to any
appropriate decision. Cross-examination will not be allowed. The presiding officer may establish
reasonable time limits for the presentations.
9. The applicant will be given an opportunity to present a clarification as necessary to any of the
information presented.
10. The hearing file will remain open for a period of 10 days from the date of this hearing for the
submission of additional statements.
11. The presiding officer shall have the power to recess the hearing and reconvene it at a later date.
12. A transcript ofthe hearing will be prepared. Copies may be purchased from the hearing reporter,
and a copy will be available for inspection at the New England Division headquarters in Waltham,
Massachusetts.
ml
Public Notice
US Army Corps
of Engineers
New England Division
424 Trapelo Road
Waltham, MA 02254-9149
Date: FEBRUARY 24, 1995
Comment Period Closes: APRIL 7. 1995
File No: 1992-00083N
In Reply Refer To: STEPHEN D. DILORENZO
PUBLIC NOTICE
AND
NOTICE OF PUBLIC HEARING
MARCH 27 & 28, 1995
DEPARTMENT OF THE NAVY, NORTHERN DIVISION, NAVAL
FACILITIES ENGINEERING COMMAND, 10 INDUSTRIAL HIGHWAY,
MAIL STOP # 82, CODE 1831, LESTER, PENNSYLVANIA 19113-2090
has requested a Corps of Engineers' permit under Section 10 of the
Rivers and Harbors Act of 1899 and Section 404 of the Clean Water
Act to dredge approximately 1.7 million cubic yards of sediments
from the Thames River in New London, Waterford .and Groton,
Connecticut, to accommodate the homeporting of the new SEAWOLF
class submarines. Since this project involves disposal of more
than 25,000 cubic yards of sediments, it will be evaluated under
Section 103 of the Marine Protection, Research and Sanctuaries Act
of 1972 criteria.
This material will be removed with a clamshell dredge from the
Thames River Federal Channel from north of the 1-95 bridge to
alongside the existing pier 32 (north side) and Pier 33 (north and
south sides) at the Naval Submarine Base, Groton, Connecticut. The
proposed dredge depth is -39 feet mean low water (mlw) in the
channel and -42 feet mlw at the pier berths, with two feet
allowable overdredge at all locations with a channel slope of 1
vertical on 3 horizontal to maintain the current channel width.
Disposal of the material is proposed for either the Central Long
Island Sound Disposal Site or the Connecticut section of the New
London Disposal Site.
The Navy requir€s a homeport for three SEAWOLF Class submarines at
an appropriate Naval facility on the east coast of the United
States. In order to use the Naval Submarine Base as homeport, the
portion of the Federal channel and berths at the two piers must be
deepened.
The proposed homeporting of the SEAWOLF Class submarine is the
subject of a Draft Environmental Impact Statement (DEIS) published
by the U.S. Navy on February 17, 1995. Copies of the DEIS are
available for review at the Public Affairs Office, Groton SUBASE,
Groton, CT and at public libraries of the communities of Groton,
New London, Waterford, Ledyard, and Mitchell College, New London,
CT.
-2-
The New London Disposal Site is used periodically for the disposal
of bottom sediments dredged principally from the New London,
Mystic and Groton areas. The quantity of sediments deposited at
the site varies considerably each year and peaks when the Federal
Channel and Navy-maintained reaches of the Thames River are
dredged. Overall, the site receives approximately 200,000 cubic
yards of suitable sediments annually.
The Central Long Island Sound Disposal Site is frequently used for
the disposal of bottom sediments from various harbors along the
eastern New York, northern Long Island, and central and western
Connecticut coasts. An average of approximately"400,000 cubic
yards of suitable sediments have been deposited at this site
annually (suitability determined through case-by-case analyses for
both sites).
Both sites have been monitored since 1977 through the Corps'
Disposal Area Monitoring System (DAMOS) program. DAMOS studies
show that the sites are in a low energy environment such that
sediment deposited at these locations will remain within the
sites' boundaries. Levels of metals and organics in the sediments
within the disposal sites are generally above background levels,
indicative of the industrial nature of the areas dredged that
utilize the sites. Areas outside the disposal sites have not been
found to be affected by sediment deposited within the sites.
The material to be dredged has undergone physical, chemical and
biological analysis in accordance with the criteria for ocean
disposal of dredged material as specified in Part 227 of the
Marine Protection, Research and Sanctuaries Act regulations. It is
our preliminary determination that the majority of the material is
acceptable for disposal at either disposal site, while a portion
of the sediments are suitable for disposal with capping. Any
permit issued to the applicant will contain a special condition
which will outline the capping procedures and requirements. The
applicant will also be required to submit a capping plan to this
office for approval before any dredging is undertaken.
At this time, the Navy proposes to obtain capping material from
portions of the dredging project where sediments have been
determined to be suitable for unconfined disposal. As indicated in
Sheet 2, the proposed capping material will be obtained from the
navigation channel.
This project is located on the USGS New London and Uncasville, CT
quadrangle sheets at coordinates Lat.41-20'56" and Long.
72-05'10" to Lat. 41-23'56" and Long. 72-05'-48".
-3-
A joint public hearing has been scheduled by the U.S. Navy
and the U. S. Army Corps of Engineers. The Navy will be
seeking public comment on the DElS with the Corps seeking
comments on the permit application. The hearing will be
held on March 27, 1995 at 1 p.m. and on March 28, 1995 at
7 p.m. at the Groton Municipal Building, 295 Meridian
Street, Groton, Connecticut.
In order to properly evaluate the proposal, we are seeking public
comment. Anyone wishing to comment is encouraged to do so.
Comments should be submitted in writing at the public hearing or
to us by April 7, 1995. If you have any questions, please contact
Stephen D. DiLorenzo at (617)647-8335 or use our toll free number
(800) 343-4789 or (800) 362-4367 if calling from within
Massachusetts.
SEE NEXT PAGE FOR
DETAILS OF EVALUATION
FACTORS
W///J/b
RObert~~~ista
Chief, Permits Branch
Regulatory Division
The decision whether to issue a permit will be based on an evaluation of the probable impact of the proposed
activity in the public interest. That decision will reflect the national concern for both protection and
utilization of important resources. The benefit which may reasonable accrue from the proposal must be
balanced against its reasonably foreseeable detriments. All factors which may abe relevant to the proposal
will be considered, including the cumulative effects thereof; among those are: conservation, economics,
aesthetics, general environmental concerns, wetlands, cultural values, fish and wildlife values, shoreline
erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food
production end, in general, the needs and welfare of the people.
Where the activity involves the discharge of dredged or fill material into waters of the United States or
the transportation of dredged material for the purpose of disposing it in ocean waters, the evaluation of
the impact of the activity in the public interest will also include application of the guidelines
promulgated by the Administrator, u.s. Environmental Protection Agency, under authority of Section 404(b) of
the Clean Water Act, and/or Section 103 of the Marine Protection Research and Sanctuaries Act of 1972 8S
amended.
Based on his initial review, the District Engineer has determined that little likelihood exists for the
proposed work to impinge upon properties listed in or eligible for listing in the National Register of
Historic Places, and no further consideration of the requirements of the Preservation of Historical and
Archaeological Data Act of 1974 is necessary. This determination is based on one or more of the f~llowing:
a. The permit area has been extensively modified by previous work.
b. The permit area has been recently created.
c. The proposed activity is of limited nature and scope.
d. Review of the latest published version of the National Register shows that no presence of
registered properties or properties listed as being eligible for inclusion therein are in'the permit area or
general vicinity.
Presently, unknown archaeological, scientific, pre.historic or historical data may be lost or destroyed by
work to be accoq::ll ished under the requested permit.
Pursuant to the Endangered Species Act, the District Engineer is hereby requesting that the appropriate
Federal Agency provide comments regarding the presence of and potential impacts to listed species or its
critical habitat.
The initial determinations made herein will be reviewed in light of facts submitted in response to this
notice.
The following authorizations have been applied for, or have been, or will be obtained:
eJ(l
e l
ex;>
Penmit, License or Assent from the State.
Penmit from Local Wetland Agency or Conservation Commission.
Water Quality Certification in accordance with Section 401 of the Clean Water Act.
The States of Connecticut, Maine, Massachusetts, New Hampshire end Rhode Island have approved Coastal Zone
Management Programs. Uhere applicable the applicant states that any proposed activity will comply with and
will be conducted in a manner that is consistent with the approved Coastal Zone Management Program.
Issuance of a State permit from the appropriate State agency will indicate concurrence with this statement
of Consistency.
All comments will be considered 8 matter of public record. Copies of letters of objection will be forwarded
to the applicant who will normally be requested to contact objectors directly in 8n effort to reach an
understanding.
THIS NOTICE IS NOT All AUTHOIlIZATllII TO DO AllY IOlK.
If you would prefer not to continue recelvlng public notices, please check here ( ) and return this
portion of the public notice to: u.S. Army Corps of Engineers ~ New England Division, Attn: Regulatory
Division, Bldg lD8N, 424 irapelo Road, Waltham, MA 02254-9149.
NAME:
ADDRESS:
41' 23' 56"N
72' 05' 48"
- - US COAST GUARD
CONN. STATE
PIER
NEW LONDON
NAVAL
UNDERSEA
WARFARE
CENTER
GRAPHIC SCALE
,.
'.
. .:~ ~.~ &I)
uJ
:Ii
c(
:t:
I-
0'
, ,,'
6000', ' ':
.. ....
. .',.
3000'
PURPOSE: PROVIDE DEEPER
ACCESS TO EXISTING
PIERS FOR SEAWOLF
CLASS SUBMARINE
HOMEPORTING
DATUM: MLW
VICINITY MAP
12
US NAVAL SUBMARINE
BASE
APPROXIMATELY 1,700,000 CY OF
CLAYEY SILT TO BE DREDGED
FROM CHANNEL AND PIERS 32,
33 TO ELEVATION -39,0' MLW
AND -42.0' MLW PLUS 2' OVERDEPTH,
RESPECTIVELY AND DEPOSITED'
AT EITHER THE NEW LONDON
OR NEW HAVEN DISPOSAL
ITE.
41' 21' 49"N
',72' 05' 18"W
. '. GROTON
INTERSTATE 95
'~., :
, ..
:0.;,
, "
. . ~ .
. ,.
.'" .
. .
..'O, .... ...
. ....
., ....
'.' EASTERN ~ .:
. POINT ".
.E':l
~
PROPOSED DREDGING ACCESS
TO PIERS 32 AND 33 OF SUBASE
IN: THAMES RIVER
AT: GROTON
CTY OF: NEW LONDON STATE: CT
APPL. BY: US NAVY.
SHEET I OF 7 DATE: 13 FEB 95
NAVAL SUBMARINE BASE
NEW LONDON
GROTON, CT.
:~:::::::::~::~::::::::::::::::::::~:~:~::::~::::::::::::~:::+::::::::::.
.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:,:,:,:,:':':':i:':':':':':':
:.;.:.:.:.:.:.:.:.:.;.:.:.;.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.r..;.:.:.:.:.:.:.
:I;.:fmff~::!:iII-m:.::if:.:tF.
:;::;;'::::':::::::::::::::;;;:':::;;:':::;;:'::1
.,""',....,"",..,",..,",..,",...\
i~@@f!hlIl.JIM
~:.I:M@i1@llgM.;i~
::::. '::::::::::::::::::::::::::~::::::::::::::::::::::::::::::::::::~
:::, ::::,;~:iS:,:,':::::::,f::\:::':::::,:/1
... ..............................
..................................
..................................
..................................
:,:i :,:,/:\,;:::,ARtK':':~.:..
.................................
~:? :f?~:~:;:~:~:~:~:~:~:~~::: ::~:~:~:~: ~:~: ~:~:~:~:~:~: :....
:./:/::::.:',......:::::;::x
....:..:..............:::..:::....:....::....:..::..:
.:....:..:..........::........:.........~.::..:....:::::
:.::;:~~~~~~::t~~~~~t~~~~t~~~~:f~~:I~~::~;~:~~~:~:t~t:;
..........................
.......................
..................-..
...................
.................
. .............
. ................
..................
...................
...................
...................
...................
....................
.................................
..................................
...................................
. ..................................
. ..................................
..................................
...................................
..................................
: OI..g.tgJ'i.::::
I
. I
I
I
I ................."...... ...::..
.....................
I..:.:.::...',::,".,...::::.::.........:::
l
....
\ ........,..,."..,......,..,...",.."..,.
.::::::.:.:.:;:::::::.:.:.:.:.:.:.:.:.:.::::.:.:.:.....::....
\ ':':':':':':::':':':':':':':':':':':':':':':"':..:::::..
\ i::::;;,::?i
\ iii?i,:::},: :~~~ ~ t ~ : 552.5!J0 CURIC YARDS
\ i:"::;:::::::":":::::::":":::":::":"::".:'" 1.147.500 CURIC YARDS
.....::::::::::.::.:.::...:.:.:.:::::::: HOTE: CHANGES BY COE 2/23/95
I I:":":":::":::::::::::",:";;::::::.:.:.... DRFDGING SFOUENCF:
I ...::::::
I ..............:::::
I ......
............-..
I .:':0:.:.:.:.:.:.:.:...:.:.:...:..
I .,::;;;:\:,:::::,:::
::::::::~::::::t:::::::::::::::::
. ..m......._..............._.
................................
.............................
............................
...............................-..
.............................-..
..........................,.....
............................
......................
.....................
......................
............................
!1m
o
SEDIMENTS REOUIRING
CAPPING
SEDIMENTS SUITABLE
FOR UNCONFINED
DISPOSAL
1. AREA 1
2. AREA 3
3. AREA 2
4. AREA 4
10CG' _ __ -
1>/ UUU ,u~/ /0 n/ U/ ~nuuno In,nn /n1
SCN..E ~ FtET
":':':'\:':':':':':':'..'
--~:~:~.<:::::::::::::::::::
NAVAL SUBMARINE BASE
NEW LONDON
GROTON, CT.
PROPOSED DREDGING ACCESS
TO PIERS 32 AND 33 OF SUBASE
IN: THAMES RIVER
AT: GROTON
CTY OF: NEW LONDON STATE: CT
APPL. BY: US NAVY
SHEET 2 OF 7 DATE: 13 FEB 95
PURPOSE: PROVIDE DEEPER
ACCESS TO EXISTING
PIERS FOR SEAWOLF
CLASS SUBMARINE
HOMEPORTING
DATUM: MLW
DREDGING SEQUENCE
ci
0::
~
U
<[
-,
0::
w
<D
::;:
<[
0'
GRAPHIC SCALE
200'
,
400'
~
~
~
AREA TO BE
DREDGED TO
EL. ~39.0' MLW
PURPOSE: PROVIDE DEEPER
ACCESS TO EXISTING
PIERS FOR SEAWOLF
CLASS SUBMARINE
HOMEPORTING
DATUM: MLW
PLAN VIEW
BERTHING AREAS
NAVAL SUBMARINE BASE
. NEW LONDON
GROTON. CT.
PROPOSED DREDGING ACCESS
TO PIERS 32 AND 33 OF SUBASE
IN: THAMES RIVER
AT: GROTON
CTY OF: NEW LONDON STATE: CT
APPL. BY: US NAVY
SHEET 3 OF 7 DAT.E: 13 FEB 95
PIER 32
LIMIT OF DREDGING
LIMIT OF PAYMENT
:-.. 0.00' MLW
Ii \' . '
" ,I ~ ., " II
I " ') " I'
" I, \ I', I'
" I, \~l./I I'
I APPROXIMATE
" " ;,"
Ii 'I :I} SEABED
II I ,'I ~ I
I: " I:',
" " I '\
II p " I \
I " 1\ ~
U ',Ii I. \~
~ b
-44.0' MLW
TO ASSUME SCALE:1:' = 30'
NATURAL SLOPE , ,
O' 30' 60'
SECTION B-B
LIMIT OF DREDGING ,.0'
LIMIT OF PAYMENT
0.00' MLW
PIER 33
40.0'
I
9.0' L1M T QF DREDGING
LIMIT OF PAYMENT
0.00' MLW
::::. ~.
'"
\\ ~I " II
\\ III II I
\' III II "
\ III I' .'
\ Id I I
\\ I. ~ I,
\ " I
\ III,' II
" I'
I,~\ I'
" II" ,I
I ,5 \\ ,
\UQa\~~
TO ASSUME NATURAL SLOPE
APPROXIMATE
SEABED
/ -42.0' MLW
,,~
APPROXIMATE
SEABED """-
-42.0' MLW '"
-44.0' MLW
-44.0' MLW
SCALE: I" = 30'
SECTION A-A
O'
30'
,
60'
PURPOSE: PROVIDE DEEPER
ACCESS TO EXISTING
PIERS FOR SEAWOLF
CLASS SUBMARINE
HOMEPORTING
DATUM:MLW
SECTIONS
BERTHING AREAS
PROPOSED DREDGING ACCESS
TO PIERS 32 AND 33 OF SUBASE
IN: THAMES RIVER
AT: GROTON
CTY OF: NEW LONDON STATE: CT
APPL. BY: US NAVY
SHEET q OF 7 DATE: 13 FEB 95
NAVAL SUBMAR'NE BASE
NEW LONDON
GROTON, CT.
0
0 0 0
3:3: (\J
(\J r<) -1-1
~~ 0
o. 0
.0 II
en....: 0
r<)'<T - 0
I. I N
,.,
a::
0
:x: :x:
I-
0...
W 0
W Q
Q a::
<t w
a:: >
(!) 0
Q W
W -1
a:: III
::J ~
0
W 0 U
a:: -1
If) -1 I
W <t U
a:: Z
-- ~ 0
I-
U
W
U)
PURPOSE: PROVIDE DEEPER
ACCESS TO EXISTING
PIERS FOR SEAWOLF
CLASS SUBMARINE
HOMEPORTING
DATUM: MLW
SECTION
CHANNEL
NAVAL SUBMARINE BASE
NEW LONDON
GROTON, CT.
,
~
,.,
PROPOSED DREDGING ACCESS
TO PIERS 32 AND 33 OF SUBASE
IN: THAMES RIVER
AT: GROTON
CTY OF: NEW LONDON STATE: CT
APPL. BY: US NAVY
SHEET 5 OF 7 DATE: 13 FEB 95
. '*-
DISPOSAL FOR
THIS CONTRACT
IN NORTHWEST QUADRANT
,.----- -.-r-- ~:
~"~ 41'17'30"N
:~ : 72'04'44"W _ _ -
I I ~ _---_-
~~ i c=~~==~;;~~:--
;~~:\S I " 9
NEW LONDON- - -: I LEDGE LIGHT
DISPOSAL SITE I---"v----I
I
I
I
I
L________;..__ __ __J
I ~ ~ I
I NAUTICAL MILE
PURPOSE: PROVIDE DEEPER
ACCESS TO EXISTING
PIERS FOR SEAWOLF
CLASS SUBMARINE
HOMEPORTING
DATUM: MLW
"WALL .,"
--
---
9000' TO MIDDLE OF
DISPOSAL AREA
SCALE I: 40,000
\\
,..
PLAN VIEW
DISPOSAL SITE
NAVAL SUBMARINE BASE
NEW LONDON
GROTON, CT.
PROPOSED DREDGING ACCESS
TO PIERS 32 AND 33 OF SUBASE
IN: THAMES RIVER
AT: GROTON
CTY OF:.NEW LONDON STATE: CT
APPL. BY: US NAVY
SHEET 6 OF 7 DATE: 13 FEB 95
,
NEW HAVEN
"
NAUTICAL MILES
.-----
o
2
3
PURPOSE: PROVIDE'DEEPER
ACCESS TO EXISTING
PIERS FOR SEAWOLF
CLASS SUBMARINE
HOMEPORTING
DATUM: MLW
"
"
,
..
"
"
"
"
,
,I
I'
"
"
"
I'
"
"
"
"
"
"
"
.'
"
. . ~ :'. .. ::~.~. .::. ';.':"
II>
~
~
~
<2-
'?
<1-
Z.
~.
~
UJ
-1
:E
,- - un ...:------..,I5
I : ~
J . ::J
I , <l
, , Z
L__________n_J -
I I
2 NAUTICAL MILES
PLAN VIEW
NEW HAVEN DISPOSAL SITE
NAVAL SUBMARINE 13ASE .
NEW LONDON
GROTON, CT,
PROPOSED DREDGING ACCESS
TO PIERS 32 AND 33 OF SUBASE
IN: THAMES RIVER
AT: GROTON
CTY OF: NEW LONDON STATE: CT
APPL. BY: US NAVY
SHEET 7 OF 7 DATE: 13 FEB 95
'.
:ot ',:":
.' .
~
~.
.,. .
~
.
~
It 'j
S2 st t4
.. ~..
":.
1.,
sr-1:,
4' ..,
~ ..
" HO""
..
It
"
..
..
..
"
to
It
II
'"
It.. 1'l'P
to ~_lS~! ...
, r.. o"'~'l'" ,.7..:"
IU'SI
'"~
1M .11
SO 171
.., "1 "4 lOt
It 1M
114 Ii III
11,144
u
'"
....
M
IOJ QII.' gllll J.
,..
J J
..
Mil sr
..
....
II
..
..
'~
/. "dlJl' "
" ~ ..
.",. JS SO "
" .. hu ,..
..
.. ..
.. ..
,a
..
..
II
.. " "
IS " .. to
IS IS
" ...
II " IS ..
II '0.
OS, ~
,It ...
., 'IS Ii,IU
os, .. ,..
"0
os, '" ,It
", '" ,"
...
"
'10
"so \l ~,~
ur ...
"
"
II
II
OJ
..
to
M1 "'
IS
or
us
.N III
"'...
III '"
III
'"u'l
IS
....
140 IDO 110
U'z III
'111&2 liS
JJ
o.
..,
IS
..
..
...
...
114 lIS
.,.
"'
"
..,
"0
...
...
It' l: ..II c
...
...
'"
'" s..
114 III
1m IU
Z04 It! Z04
.0 -f' ...
"'1 ~c::? IU
21 I' C-
or
'10
SQ.
...
10. ...
IS
It,
."
... OIl ...
" ,.. ..
M
to " ,..
.. IS
II
..
lOr II'
III ." 114 101
Soundings Are In Feel
NAUTICAL MILES
IS'
ISI 4'
..
41 'I IDJ JS
40 J' JI
~ ...
.ell/I, Qdl I...
"
..
..
..'
...
...
..................
I . a 0
."
."
2
NEW LONDON DISPOSAL SITE
Descriplion: This sile is 1 nautical mile square with eenler al 41..16.rN. 72-.04.S'W and sides running Irue norlh,sDuih.
ea".wesl. From Ihe center. Oarllell Ree' Lighledllaln bears trll. 276' 21 5.600 yards. aud ~lack l.dg. Lighl.d Ollay
N "2" bears true 13' al 4.000 yards. n'Plh Range, 36.72 'eel MlW
Th. authoriled disposal poinl (wilhin Ih. overall disposal areal IS sp.cifi.d lor .ach dredging ploj'CI in other proj,cl documenls.
NOTE, Th. map d.piclS Ih. disposal sit.s location in relalion to landmarks. It is not inl.nd.d lor use in navigation.
. .
WEST HI. YEN'
",:-:",.:".
MILFORD
Woodmonl
...;:....;-..::.:;.t 21.
. .:::; ".... ol:'er RIV!rZ~1 21
'::./ 26 21 20
..
"
"
"
"
"
"
"
"
"
"
"
"
..
"
..0 40
"
"
"
..
"
"
"
"
"
"
2933
2128
"
"
44 41'N P 49
SOU,. "
..10"
..~
S 1~ 52 53
"
"
" "
"
"
"
"
"
"
"
"
"
"
" 1'< G
10"
" '
'"
,. ..
"
"
"
"
"
"
"
"
"
"
"
'"
"
31 40
"
"
"
"
"
..
"
"
"
"
"
"
"
39 43
"
"
"
"
"
"
"
"
"
"
"
"
"
"
n
"
"
"
B 32
"
"
"
"
"
"
730-00'
"
"
CENTRAL LONG ISLAND SOUND DISPOSAL SITE
. ~
"
"
"
"
"
II
I'
,I
"
"
"
"
"
"
19::
"
"
\\ .SWLEOGE
,'FIRSoec51"''''
I' 26
"
,\ 23
24,\ 20 21
221'
"
23 2<}\"8
27 3.
"
"
"
"
n 23 20
24 27
34 39
"
" "
"
.,22
"
"
"
..
"
"'"
"
"
'427
"
"
2:1 35 44
45 ~~: "2 42
"'. ",. '''-'::/-
,q'lIl4" 4
FI/i'4s#c
"
"
"
"
"
"
"
"
..
"
"
..
:::E"
z
..q
It')
"
"
..
"
"
"
"
"
"
..
..
"
"
"
"
..
"
..
"
"
"
..
"
"
"
..
"
"
"
"
141'.10'1
"
..
"
"
"
'"
"
"
"
"
"
"
"
"
"
"
"
"
"
"
'"
"
"
..
"
"
"
n
"
..
'"
"
eo
n
"
"
n
"
"
"
eo
"
81 Soundings Are In Feet
"
NAUTICAL MILES
"
"
~.~
I 1/2 0
.
3
Description: This site is two nautical miles long by one nautical mile wide with the major axis running true east-west and center at
41'-08,95'N latitude and 72'-52,85'W longitude, From the center, Southwest Ledge Light bears true 345' at 10,750 yards and
Townshend Ledge Lighted Gong Buoy No, "10-A" bears true 13' at 7,400 yards, This site is approximately 5,6 nautical miles oil South
End Point, East Haven, Depth Range: 49-75 teet MLW, The authorized disposal point (within the overall disposal area) is specitied tor each
dredging project in other documents,
NOTE: The map depicts the disposal site's location in relation to landmarks, It is not intended for use in navigation,
I Housing the Seawolf:
I River's Role Debated
Lead, mercury
and PCB's are in
the sediment.
By MELINDA TUHUS
THE Navy wants to designate
the New London submarine
base as the home port for
its Seawolf nuclear subma-
rines, but to do so it must dredge the
Thames River to accommodate the
submarine, the Navy's largest. The
base is six miles upriver from the
mouth of the Thames in Long Island
Sound.
The debate over deepening the riv-
er channel and disposing of the con-
taminated sediment that lies on the
bottom has heated up. Homeowners,
environmentalists and government
regulators have all expressed views
on the subject.
The proposal
moved one step
closer to reality
on July 5, when
the state's De~
partrnent of En-
vironment Pro-
tection issued a
water quality
certificate ap-
proving the
Navy's applica-
tion to dredge 1.1
million cubic yards of sediment and
dump it at the New London Disposal
Site, a one-sQuare-mile area 2.5 miles
south of the mouth of the Thames
River and very close to where east-
ern Long Island Sound empties into
the Atlantic Ocean.
The sediment contains lead, mer-
cury, PCB's and pesticides, among
other contaminants, according to the
Navy's Draft Environmental Impact
Statement. The Navy proposes cap-
ping the contaminated material with
clean sediment drawn from the same
area.
When this site was proposed last
year, the Fishers Island Conservan-
cy protested vigorously. The island is
only 1.5 miles from the disposal site,
and summer residents were con-
cerned that the ecosystem would be
irrevocably damaged if the dredged
materials were dumped there. The
Connecticut Fund for the Environ-
ment also opposed disposal there,
saying strong currents and tides in
the area would likely prevent a suc-
cessful capping of the contaminated
sediments.
Attention shifted in late spring to
the Central Long Island Sound Dis-
posal Site, a two-square-mile area 5.6
'miles from New Haven harbor. But
spirited protest begun by the local
BUTCHER
- --.----- _._-~-~,"-
environmental group Don't Dump on
Us and the New Haven.based Green-
peace chapter stirred up public inter-
est and anger from politicians, who
demanded a public hearing. The De-
partment of Environmental Protec-
tion did not grant a hearing in New
Haven; shortly afterward it made its
ruling in favor of the New London
Disposal Site.
Jane Stahl, assistant director of
Long Island Sound programs for the
environmental agency, said the op-
position had nothing to do with its
decision. The department deter-
mined, she said, that the New London
site was preferable because it was
closer to the dredge site, thus mini-
mizing the risk of accidents en route,
and because dis-
posal there
would keep the
dredged sedi-
ment within its
general region of
origin, minimiz-
ing the risk of
transferring or-
ganisms from
one geographic
range to an-
other. The
Navy's applica-
tion acknowledges that "temporary
impacts to water quality benefit bot-
tom-dwelling organisms and aquatic
habitat will occur from both dredg-
ing and disposal activities." But Ms.
Stahl said that la-year studies
showed there were no long-term ef-
fects on sea life.
She said the Army Corps of Engi-
neers still must issue a permit for
the project to go forward, after the
Navy issues its final Environmental
Impact Statement. But she said the
corps' recommendation must be
based on a valid water quality certif-
icate, making it very unlikely that it
would come to a different conclusion
from that of the Department of Envi-
ronmental Protection.
In mid-July New York State de-
cided that it would exert its jurisdic~
tion in the matter, since one-third of
the New London Disposal Site lies
within its territorial waters. Now it
too must issue a water quality certif-
icate.
John Thatcher, president of the
Fishers Island Conservancy, is en-
couraged by New York's decision to
get involved, hoping that that state's
Department of Environmental Con-
vervation will not approve the New
London site."We don'! oppose lhe
Continued on Page 14
B
-
tly
:es-
in
IX
)r
{
for
s;ijl
for
ay
~ss
I
the
Ius
L ._.....'"'.j"""..,~.'~u" , . """"
rTouslng the Seawolf
Continued From Page 12
i dredging at all," Mr. Thatcher said.
i "We support the Sea wolf and the
'homeporting in New London. We sup-
port almost the whole defense esta-
bishment; we just don't support
dumping it at the New London Dis-
i posal Site. We want to set up a pro-
i cess to find a solution that everyone
I can live with." He added that if a
i solution can't be found, his group is
~ prepared to go to court to block the
dumping.
Don't Dump on Us and Green-
peace, on the other hand, oppose the
building of the Seawolf itself.
"With the cold war over, there
should have been a serious discus-
sion of whether we need the
Seawolf," said Vincent Kay. a mem-
ber of Don't Dump on Us. "Even the
Pentagon said they don't need it."
One Seawolf was christened at Elec-
tric Boat in neighboring Groton in
June, a second is under construction
and financing for a third is being
debated in Congress.
Mr. Kay accused the Department
of Environmental Protection of cav-
ing in to political pressure to do
whatever is necessary to base the
submarines in New London.
Curt Johnson, a staff lawyer with
the Connecticut Fund for the Envi-
ronment, said his organization,
"faced with two bad choices," sup-
ported disposal of the sediment at
the New Haven site, rather than New
London, because currents are slower
and the site has a better record on
capping dredged sediments. He said
'R"-- ---.
that at the New London site, data
from the Army Corps of Engineers'
disposal area monitoring project
showed that four out of five attempt-
ed capping operations were signifi-
cantly off target. ''I'm appalled that
the D.E.P. has refused to admit this
problem," Mr. Johnson said.
Ms. Stahl, of the Department of
Environmental Protection, respond-
ed that there have been "smalJer
projects where capping has been
problematic" but said that the diffi-
culties have been resolved.
Messrs. Johnson, Thatcher and
Kay are all skeptical that clean sedi.
ment for capping can be found in the
same part of the river where. the
contaminated sediments are.
Mr. Johnson said Navy studies
showing significant bioaccumulation
of lead, nickel and polyaromatic' hy-
drocarbons in sandworms and mus-
sels living in contaminated sedim~nt,
and he is concerned about contami-
nation moving up the food chain.
In mid-July Mr, Johnson attenyed
a conference on contaminated ma-
rine sediments sponsored by 'Jhe
Coast Alliance and came away With
some new ideas: one is to treat "fhe
sediments before disposal by run-
ning them through a remediation
process to remove the bulk of the
contaminants; another is to dredge a
grave under the ship channel, in
calm, shallow water into which the
contaminated sediment could be
placed, then capped with much
greater accuracy, thus enclosing it
on four sides. He would like the Navy
and the state's environmental agen-
cy to look into these options. .
"
..
.\
,c'
.se
,0
lC
..-
.
1
~,.;:~,;, ~C\'~;':YJ':'::-*i;F:. '-'_",""_d~.l'
It's official:
Seawolfs lair
:i
f'
, I
l
will be Groton
New Jersey company plans to complete
$2.8 million dredging job by January 31
-,
By ROBERT A. HAMILTON
Day Staff Writer
Groton - The Navy has given
final approval to homeport the
Sea wolf submarine here and has
awarded a contract to dredge the
Thames River to accommodate
the attack submarine.
Duncan Holaday, an assistant
Navy secretary, signed the ap-
proval to base the Seawolf at the
Groton Naval base, news which
will be formally published in the
Federal Register on Tuesday.
Within hours of the signing, the
Navy awarded a contract for the
dredging work to Weeks Marine
of Camden, N.J., which bid
$2,872,980 for the work.
The decision to homeport the
Sea wolf in Groton will mean $20
million a year to the local econ-
omy, once the three Seawolf
submarines that are planned are
built by the Electric Boat ship-
yard and put into service, the
Navy estimates.
"It's obviously good news for
the region," said William D.
Moore, chairman of the Subase
Realignment Coalition and exec-
utive director of the Southeastern
Connecticut Chamber of Com-
merce, which both lobbied for
Groton as the homeport of the
Seawolf.
No evidence of harm
He said there is no evidence to
support claims that lbe dredging
project would harm the environ~
ment, either at the dredging site
or at the New London Disposal
Site in Long Island ')ouna, where
the spoils will be dumped.
The Fishers Island Conservancy
has said it might file a suit to
block the project. Although the
conservancy does not oppose
homeporting the Seawolf in
Groton, it is concerned that open
water disposal will allow contam-
inated sediments to destroy criti-
cal habitat in the Sound.
The Navy has agreed to strict
conditions that will require mon-
itoring the dump site for envi-
ronmental impact.
"The proposal has been thor-
1
~
f
t
t
~f"
/'
.:-.,..
'*
'~
1~f;
~oy
Ie
oughly studied by the Navy, the
Army Corps of Engineers, the
state Department of Environmen-
tal Protection and the U.S. Envi-
ronmental Protection Agency,"
Moore said. "The scientific evi-
dence clearly indicates there will
be minimal, short-term environ-
mental impact, and a major. long-
term economic benefit to the re-
gion."
He called the homeporting
choice a victory that assures a
continued Navy presence in
southeastern Connecticut.
"The decision today clearly
shows the importance of the U.S.
Naval Submarine Base in the
Navy's defense arsenal," Moore
said.
From Gold Star Bridge up
The Navy wants to dredge more
than 1 million cubic yards of ma-
terial from a channel starting at
the Gold Star Bridge and proceed-
ing north to the Naval Submarine
Base to accommodate the Seawolf
Submarine, which is almost half
again as large at the 688-class
boats that make up most of the at-
tack submarine fleet today.
The Navy takes delivery of the
first Seawolf next year, the next
Seawolf in about two years, and
the third Seawolf - which has not
been fully funded yet - in about
six years.
The dredging job will require
about 45 working days, and the
Navy has agreed to do all the work
between Oct. 1 and Jan. 31, which
would minimize its impact on fish
and wildlife.
The contract falls well within
the Navy's estimate of the project
cost - it estimated it would pay
about $4.50 per yard for the 1.1
million cubic yards that will have
to be removed and far short of
the up to $15 million the state
pledged to pay for the dredging as
an inducement for the Navy to
choose Groton as the homeport.
Before the dredging work can
actually begin, the Army Corps of
Engineers must issue a dredge
permit and the Coast Guard needs
to publish a notification to mari-
ners concerning when and where
the work will be done.
...
-
S
:l
e
,t
d
i.
-,'I
:"l .~
,
, ''''"~
Ip~
, to IIQ:J r
. ' Il:I3-L1
. ~
. ' 6U/~
... ;::;;-.:.
''''
~ ~
111
I
I
I
I
!..J
.1
'A:Ju
S '/$
!Ita,
I!~
I',
',a
I I "
h
:..-.J
I
I
I
I J
I
I I
I
I I
I I
I I
I,
I I
I I
I I
I I
I I
I I
I I
I I
I I
Ii
I I
I I
I I
I J
II
I I
I I 0 < NEW LONDON LEDGE
I I LIGHT HOUSE
, I
I I
I I
THE
THAMES RIVER
= Channel
F.1. FERRY DOCK
OCEAN BEACH
u.S. NAVEL
SUBMARINE
BASE
tf
!
GOLDSTAR BRIDGE
~
:[
~
"
<J
~
"
"
z
..
a
"
FISHERS ISLAND CONSERVANCY, INe.
BOX 553
FISHERS ISLAND, NEW YORK 06390
late fall,1994
QUICK FACT SHEET AND SUlIKI>,.RY REGARDrJC: NAVY DREDGING ':ATTERS.
(1) The ;,avy ;->lans to dredGe and deposit at least 2 million cubic yards
of polluted dredGe spoil from an 8-mile stretch of the Thames River
and deposit same, either "ith ;->iece-meal permits or with one larGe permit,
at the New London Dis;->osal Site in the middle of eastern L.I. Sound.
(2) The Fishers Island Conservancy, with overwhelming support from the
Fishers Island Civic Association and the Southold (:1. Y.) Tm.ffi Board,
fully support the buildin~ of submarines, and the home-porting of those
submarines in the economically depressed area of New London-Groton in
Connecticut. Also supported is the occasionally necessary job of dredging
the Thames River. The foregoing parties, however, all have the sreatest
concern over the dumping of heavily polluted dredge spoil at the ;-lew
London Disposal Site where the ecological dangers to fin-fish, shellfish,
and other marine life and resources are both real and obvious.
(3) Both the Conservancy and its allies also feel the dis~osal site is not
a true "containment" site in that relativel~' shallo'.~ depths, decades of
heavy dumping of pollutants, incessant storm wave e2fects, and swift
tidal currents throughout the water coluDn ma~e it an "erosion site",
where dumped naterial is likely to be dispersed (either in suspension,
by plume, or by tidal scouring) far outside the boundaries of the dump
site. Environmental risks to this disposal site location are further
compounded by the fact that it collects polluted sediments in an area
of Eastern Long Island Sound now designated "an estuary of national
significance". In our view, these watrs are not deep enough, nor its
tidal currents slm., enough, to be designated a true"containment site".
(4) ,Then the Navy first broached the idea of this drec\ge proj ect in 1991, the
Federal Environnental Protection Agency (EPA) filed a major criti~ue
of the plan, outlining at least six areas of prime concern. To this date
the Navy has fully res;->onded to only one of these areas with anything
close to convincin~ detail. A key area whe~e the Navy needs to do much
nore investigative work is in the investigation and evaluation of
alternate disposal sites and methods. ;181 methods of disposal, as well
as alternate dump sites, do exist that have both promise and viability
as a major report commissioned by the Conservancy has sho,vn.
(5) In addition, the EPA criti'1ue properly questioned the "capr>ing" procedure
at the New London dump site where supposedly at least 6 million cubic
yards of clean fill are to be dumped on tor> of the already deposited
toxic dredge spoil. Besides the great difficulty of locating such a vast
amount of clean fill, it is obv~ous that swirling, high velocity tides
and different velocities at different times make it verv difficult to
dump clean fill precisely on top of already deposited polluted spoil.
There is also the terrible disadvantage of waiting 5 long months for all
the contaminated dredge spoil to be fully deposited before any "capping"
can even begin. The enviro~~ental risks here are obvious.
FACT SHEET - con't.
- 2 -
(6) Lastly, it has been found that nearly one-third of the New London
Disposal Site actually lies in New York State waters, and t~erefore
becomes SUDj ect to New York State environmental laws and ')ermit
requirements. For some unknown reason, no one has realized this in
past years, and in past years much contaminated matter has probably
reached New York State waters from this source without due permitting
or even consideration bv N.Y. State authorities. This is a matter of
great concern to the Co~servancy, the Fishers Island Civic Association,
and the Town of Southold, since the Thames River is known to be one
of the most polluted on the east coast, especially for sewage and
industrial waste, and the Navy Base itself in Groton (the sub base)
is itself so polluted that it has been designated a national "superfund"
site.
(7) Primarily because of these and other reasons, the Conservancy and its
allies feel that the :lew London Disposal Site should be closed, and
an alternate disposal site chosen, before any permits are granted to
allow contaminated dredge spoil to be dumped an~~here in Eastern Long
Island Sound. To this end, we hope to work with both the Na~J and State
and Federal authorities in the hope that a disposal site solution can
be found that will not only safely accomodate the current project,
but also most of those that will inevitablv arise in the future.
J
for the Conservancy 30~rd,
----1&L 7l~ ~
~ H~ Thatcher Jr. -\~esident
n
,
1
fX:P
.....@
WEST
HOLE
SITE
NANTUCKET IS.
~;ourc c :
'I " \.1-'-;) I ('nrl'~; of i~n'Tinec\r~-;
t. . ,). / t.., _, . L'
.
.
~
-...,
--~
I MASSACHUSETTS
PROVIDENCE
CAPE COO
BAY
I
I
RHODE
ISLAND
I
,
@NEW
BEDFORD
SIT~~
BROWN'S~CO
@ LEDGE
~~ SITE_
POtENTIAL
SITE SOUT~
OF BROWN'S.
LEDGE (SUMMERHAYES)
MARTHA'S VINEYARD
.
NANTUCKET SOUND
r@
BRENTON
REEF
BLOCK IS. WEST SITE
lID. ~ SliE
~......~
~AST 17
HOLE D
. SITE BLOCK IS.
@~ 0 ACID SITE
BOUY
SITE
OPEN WATER SITES
. HISTORICALLY USED/CONSIDERED
MUNITIONS SITE
40045 '-70.50'
r
~.
Y"~
/'"
/
COpy
,
~
,
J~/$ &: $~
~~~d~
ONE AMERICA~ Row
HARTFORD. CT 06103-2819
TEL' 12031 251-5000
JOHN E. WERT AM
TEL: 251.5813
FAX: 251-5199
f ~,
i. l !: r-
'-C.~-,;i:IVED
october 31, 1994
'..... .:: i L;9-l '
HAND DELIVERY
!:C"J'.", ';7;r ' ;_ ~ ,.._
(F ..c ';,: :_~'1~ lY:~,~~,::E;jt::jl ?rOr .
~ ~au~~ ~_ .ectlO
1-, O~'''ailS
Ms. Jane K. Stahl
Assistant Director
Office of Long Island Sound
Department of Environmental
79 Elm Street
Hartford, CT 06106-5127
Programs
Protection
Re: Application #WOC-GW-94-065: Department of The Navv
Thames River Dredaina proiect - piers 15 and 17. and
South of Gold Star Bridae
Dear Ms. Stahl:
The following comments are sent in opposition to the Notice
of Tentative Determination to approve the referenced application,
which was issued by your office on September 30, 1994. We
forward these comments and concerns on behalf of our client, The
Fishers Island Conservancy, Inc.. For the reasons set forth
below, we believe that issuance of a 5401 Water Quality
certification for this project would contravene federal and state
law.
I. connecticut Water Oualitv standards
In compliance with federal1 and state2 statutes, the DEP
Water Management Bureau adopted Water Quality standards ("WQS")
in January, 1992. The preface to the Standards states that the
1
See, Sec. II.
2 Conn. Gen. Stat. 522a-426 requires the Commissioner of
Environmental Protection to adopt water quality standards that
are consistent with the Clean Water Act.
(-.
(
Ms. Jane K. stahl
October 31., 1.994
Page 2
WQS "provide policy guidance" on S401. Water Quality Certification
decisions. WQS at 3. As explained below, the contemplated
disposal in the Long Island Sound of dredged material from this
application, would violate the WQS.
A. Numeric Water Oualitv criteria
The WQS state:
Surface waters and sediments shall be free from
chemical constituents in concentrations or
combinations which will or can reasonably be
expected to result in acute or chronic toxicity to
aquatic organisms or impair the biological
integrity of aquatic or marine ecosystems outside
of any allocated zone of influence or which will
or can reasolnable [sic] be expected to
bioconcentrate or bioaccumulate in tissues of
fish, shellfish and other aquatic organisms to
levels which will impair the health of aquatic
organisms or wildlife or result in unacceptable
tastes, odors or health risks to human consumers
of aquatic life. In determining consistency with
this standard, the commissioner shall at a minimum
consider the specific numeric criteria listed in
APpendix D and any other information he or she
deems relevant.
WQS '1.3, at 1.0. There is no indication in DEP's Notice of
Tentative Determination that the Commissioner has considered each
and every compound listed in Appendix D of the WQS. In fact, the
Navy did not test for every compound listed in Appendix D. See,
EA Table IV-3 through IV-7. The DEP cannot therefore show
consistency with its own WQS for the Navy's application, until it
has determined that the Appendix D compounds do not exist, or do
not exist in toxic amounts in the dredge material (or associated
water) to be disposed of in Long Island Sound.
B. Surface Water Standards
The New London Disposal site (NLDS), proposed site for
dumping of the dredged Thames River sediment, is located in the
Long Island sound, a body of coastal surface water given the
Water Quality Classification "SA" by DEP. DEP water Compliance
Unit, Water Qualitv Classifications Map of connecticut (1.987);
WQS '29, at 1.2. In listing the discharges permitted in Class SA
surface waters, the WQS refer to "dredging" and "dredge material
Ms. Jane K. stahl
October 31, 1994
Page 3
dewatering operations."3 WQS '19(A), at 7. The proposed deposit
of contaminated dredged material in the Sound constitutes neither
"dredging" nor a "dewatering operation." "Dredging" is defined
by the WQS as the "excavation, removal or dispersal of
sediments." WQS App. C, at 55.
"Dispersal" is not defined by statute, regulation or the
WQS, but commonly means "the act or process of dispersing or the
condition of being dispersed;" to "disperse" is "to break up and
scatter in various directions," or to "cause to vanish or
disappear." Webster's II New Riverside Universitv Dictionarv 388
(1994). The proposed disposal in the Sound is not a "dispersal"
__ a scattering or cause of disappearance -- it is a deposit in a
defined area. "Dredging," then, as defined by the WQS, does not
include depositing or disposal; it merely includes the normal
dispersal or scattering of fine matter during the excavation
process.
Even if depositing contaminated sediment should be found to
be not inconsistent with the Long Island Sound's "SA"
classification, the Navy's application does not evince
consistency with each and every element of WQS 126. Standard 26
provides, in part:
Dredged materials dumped at approved disposal
areas shall not pollute the waters of the state
and shall not result in: (a) floating residues of
any sort; (b) release of any substance which may
3 The surface water standard reads, in relevant part:
"(A) Class AA. A and SA surface waters:
discharges may be permitted by the Commissioner
from public or private drinking water treatment
systems, dredging and dredge material dewatering
operations and other clean water discharges. ...
The Commissioner may authorize other discharges to
waters with a water quality goal of SA ...
provided the commissioner finds such discharge
will be of short duration and is necessary to
remediate surface water or ground water pollution.
Any such discharge must be treated or controlled
to a level which in the judgment of the
Commissioner, protects aquatic life and public
health." WQS 'I 9 (A), at 7 (emphasis added).
.-
Ms. Jane K. stahl
october 31, 1994
Page 4
result in long-term or permanent degradation of
water quality in waters overlying or adjacent to
the disposal areas; (c) dispersal of sediments
outside a zone of influence enclosing the
designated disposal points; or (d) biological
mobilization and subsequent transport of toxic
substances to food chains.
WQS '26, at 12 (emphasis added).
term harm to the water quality of
issuance of a 5401 certification.
Thus, any possibility of long-
the Long Island Sound precludes
Moreover, the Navy's application for 5401 water quality
certification (September 8, 1994) and DEP's Notice of Tentative
Determination focus on the effect of the proposed activity on the
coastal and aquatic resources of the Thames River, virtually
ignoring the adverse effects of dumping contaminated sediment in
the Class SA Long Island Sound. The Navy's own Environmental
Assessment, prepared for purposes of the National Environmental
Policy Act (NEPA), shows that the discharge will be inconsistent
with the WQS. Environmental Assessment for pier 17 Replacement
V-9 through V-19 (September 1994) ("EA"). The same harmful
results prohibited by WQS 26 are planned as an incident of the
disposal of contaminated Thames River sediment at the NLDS. The
Navy and DEP, however, appear to assume that "capping" -- the
placement of "clean" sediment over contaminated sediment -- will
solve all the problems caused by said disposal.
One of the many significant flaws with this assumption is
the fact that nowhere does standard 26 -- or any of the WQS
endorse prohibited activities in class SA waters so long as
capping is employed. Furthermore, there has been presented no
proof that degradation of the Sound's water quality will not
result from the inevitable dispersal and discharge that occurs
(1) as the contaminated sediment makes its way to the bottom of
the Sound, (2) during the interim before the "clean" sediment is
placed over the contaminated sediment, and (3) in the future as
the "cap" erodes from the possibility of continuous current flow
over the cap. We therefore have serious reservations about the
efficacy of capping.
capping also conflicts with WQS #3, which states:
For new of [sic] expanded discharges to high
quality waters, the Commissioner shall, at a
minimum, require of discharge permit applicants a
level of treatment meeting the highest applicable
standards of performance promulgated pursuant to
,"
Ms. Jane K. stahl
October 31, 1994
Page 5
the Federal Clean Water Act as well as sections
22a-426, 22a-430 and 22a-436 of the General
statutes, and require additional treatment
measures deemed necessary to prevent pollution and
maintain high water quality. The commissioner
shall also require the use of appropriate Best
Management Practices for control of point and
nonpoint source discharges to high quality waters.
WQS i3, at 6 (emphasis added). We believe that neither the Navy
nor DEP have shown that capping meets the highest possible
treatment standards or that it constitutes a "Best Management
practice." simply because it is the option selected, does not
make it the best alternative. The undocumented presumptions
regarding capping that have persisted in this matter to date must
be rejected, as they do not satisfy the high standards of the WQS
and, therefore, cannot serve as a basis for approval of the
Navy'S application for S401 certification.
Furthermore, the WQS assume that permitted discharges from
dredging operations will be "clean water discharges.,,4 WQS i
9(A), at 7. There has been no determination by DEP that sediment
and water from the Thames River, given a surface water
classification of SC/SB by DEP, is "Clean.,,5 The only other
discharges to Class SA waters are those found by DEP to be
"necessary to remediate surface water or ground water pollution."
rd. certainly, there has been no such finding in this case, as
the Navy'S own Environmental Assessment recognizes that the
sediment to be deposited at the NLDS is contaminated. EA V-9
through V-11, V-19.
Thus, approval of the proposed deposit in the Long Island
Sound would violate connecticut's Water Quality standards for
surface waters. Such a discharge, then, is prohibited absent a
4 Discharges from disposal of dredged sediment -- if permitted
at all under WQS 9 (A), which is contested herein -- are placed
in a category with "other clean water discharges." See supra
note 2.
5 The disposal of sediment from the Thames would certainly cause
a "discharge," since that term is defined as "the emission of any
water, substance or material into the waters of the state,
whether or not such substance causes pOllution." Conn. Gen.
stat. S22a-423.
'.'
Ms. Jane K. stahl
october 31, 1994
Page 6
discharge permit under General statutes S22a-430(a).
contemplated disposal also conflicts with the state's
degradation policy.
The
anti-
C. Anti-Deqradation Policy
In accordance with the anti-degradation policy required by
the federal Clean Water Act and WQS 2 through 5, DEP adopted the
"Connecticut Anti-Degradation Implementation Policy." WQS App.
A. This Policy "requires the maintenance and protection of water
quali ty in high quality waters." Id.
The Policy forbids the issuance of a certification for any
discharge in Class SA waters from "dredging,,6 unless: (1) the
discharge will not "result in violation of Class A or AA
standards;" (2) "for nonpoint source discharges, appropriate Best
Management Practices as determined by the Commissioner are
employed;" and (3) "in all cases the Commissioner finds that
existing or designated uses will be protected fully." WQS App.
A, 111(2), at 45. DEP has not satisfied any of these three
requirements in this case.
First, as previously set forth in this letter, the
contemplated discharge of contaminated dredged material will
violate Class SA standards. Second, there has been no finding
that Best Management Practices have been employed. Finally, the
Commissioner has not made a finding that the existing and
designated uses for Class SA waters will be fully protected.
Thus, the above review and analysis of applicable authority
necessitates a conclusion that the issuance of a S401 Water
Quality Certification in this case will violate the Connecticut
Water Quality standards. By doing so, in turn, it will violate
the federal Clean Water Act, which requires compliance with the
state WQS.
II. Federal Law
A. section 401 Water oualitv certification
The Department of the Navy is required, in applying for a
S404 permit under the Clean Water Act to discharge dredged or
fill material, to obtain the same S401 Water Quality
6 We renew our previously-stated objection here based on the
absence of authorization of disposal of dredged sentiment.
Ms. Jane K. stahl
October 31, 1994
Page 7
certification, similar to that which an applicant for a S402
NPDES direct discharge permit must obtain. section 401 of the
Federal Water Pollution control Act ("Clean Water Act" or "Act")
requires "any applicant for a Federal license or permit to
conduct any activity . . . which may result in any discharge into
the navigable waters" to provide a certification from the state
of origination of the discharge "that any such discharge will
comply with the applicable provisions of sections 1311 . . ." of
the Act, which includes compliance with state water quality
standards. Therefore, a S401 certification must set forth the
effluent limitations and monitoring requirements necessary to
assure that the applicant will comply with "any applicable
effluent limitations and other limitations" adopted under state
law. 33 U.S.C. S1341(d). See, Public utility District No.1 of
Jefferson County v. Wash. Dep't of Ecology, 114 S.ct. 1900, 1909,
128 L.Ed.2d 716 (1994).
We find no distinction is made between types of federal
permits in requiring a Water Quality certification. An applicant
for a S404 dredge permit must comply with the same standards and
policies as any other federal applicant.
B. Water Qua1itv standards
section 303 requires states to adopt water quality standards
that are consistent with the requirements of the Act. 33 U.S.C.
S1313(a) (3). section 303 also requires that new or revised water
quality standards (1) state "the designated uses of the navigable
waters involved and the water quality criteria for such waters
based upon such usesi" (2) "protect the public health or welfare,
enhance the quality of water and serve the purposes of [the Clean
water Act] i" and (3) take "into consideration recreational
purposes, and agricultural, industrial, and other purposes, and
also ... their use and value for navigation." 33 U.S.C.
S1313 (c) (2) (A).
C. Anti-Dearadation Policy
section 303 also contains an "anti-degradation policy," 33
U.S.C. S1313(d) (4) (B), which has been implemented by the E.P.A.
at 40 C.F.R. S131.12 (1993). See, PUD No.1 of Jefferson county
v. Wash. Dep't of Ecology, 114 S.ct. at 1912. Under this
regulation, states must "develop and adopt a statewide anti-
degradation policy and identify the methods for implementing such
policy." 40 C.F.R. S131.12(a). At a minimum, this policy and
its methods of implementation must ensure that n[e]xisting
(
Ms. Jane K.
October 31,
Page 8
stahl
1994
instream uses and the level of water quality necessary to protect
the existing uses shall be maintained and protected."
S131.12 (a) (1).
Federal law, therefore, prescribes that a S401 certification
issued to the Navy by the DEP must state the requirements
necessary to assure that the Navy will comply with Connecticut's
water quality standards and anti-degradation policy. The review
of these state policies contained herein reveals that the
intended approval of the Navy's application would conflict with
state law, and, thus, the Clean Water Act and its implementing
regulations. For the foregoing reasons, we respectfully request
that DEP deny the Navy's application.
Sincerely,
ii {d/;;!;i;
ohn E. Wertam, Esq.
Counsel for Fisher's Island
Conservancy, Inc.
JEW:ekf
21545_1C.DOC
cc: Mr. John H. Thatcher, Jr.
curtis P. Johnson, Esq.
Mr. Robert Ostermueller
./
J~ &. .#~
~~d~
ONE AMERICA:"i Row
HARTFORD. CT 06103-2819
TEL: (203) 251-5000
JOH:-J E. WERTA,\t
TEL; ~51.5813
FAX: 251-5199
November 10, 1994
VIA FACSIMILE AND FEDERAL EXPRESS
Mr. Stephen D. DiLorenzo
U.S. Army corps of Engineers
New England Division
424 Trapelo Road
Waltham, MA 02254-9149
Re: Department of the Navy Permit Application;
File No. 1994-01959N, Dredging of piers 15 and 17:
Comments of Fishers Island Conservancy
Dear Mr. DiLorenzo:
The following comments are sent in opposition to the
proposed issuance of a permit for the referenced project as
indicated in the Public Notice issued by your agency on October
11, 1994. We forward these comments and concerns on behalf of
our client, the Fishers Island Conservancy, Inc. ("FIC"), a
conservation organization composed of approximately four hundred
citizens concerned with the quality of water in Long Island
Sound. Our client objects to the current practice of disposing'
contaminated dredged material into the Sound at the New London
Disposal site.
For the reasons set forth below, we believe that issuance of
a permit to the Department of the Navy for this project would
contravene federal and state law. In brief, our objection to the
Navy's proposal to dispose of contaminated sediments at the New
London Disposal site is based on the following issues:
I. The corps of Engineers cannot issue a S404
permit because the State of Connecticut will
violate its own Water Quality Standards by
issuing a S 401 certification.
Mr. stephen D. DiLorenzo
November 10, 1994
Page 2
II. We question the adequacy and thoroughness of
testing of the sediments, particularly those
to be used as capping materials.
III. There is data available at this time that
contradicts the opinion that the New London
Disposal site is a "containment" site.
IV. The New London Disposal site is both in New
York and Connecticut, and as such, New York
EPA Region 2, and Army Corp Region 2 must
also exercise permitting jurisdiction and
water quality certification under 5401 of the
Clean Water Act.
A discussion of these issues follows.1 While numerous
federal statutes govern the granting of a permit for this type of
project, see, e.g., 33 C.F.R. 55 320.2 and 320.3, at this time we
will address our concerns under the Clean.Water Act and the Ocean
Dumping Act. This current focus should not be construed as a
representation that the issuance of a permit for this project
would comply with other applicable law; FIC reserves its right to
raise objections under these other statutes at a later date.
I. THE CLEAN WATER ACT
A. section 401 state Water Oualitv certification
section 401 of the Federal Water Pollution Control Act
("Clean Water Act") requires "any applicant for a Federal license
or permit to conduct any activity . . . which may result in any
discharge into the navigable waters" to provide a certification.
from the state of origination of the discharge that any such
discharge will comply with the Act. 33 U.S.C. 5 1341(a). The
Clean Water Act, in turn, requires compliance with state water
quality standards. 33 U.S.C. 55 1311 (b) (1) (C), 1313; Public
Utility District No.1 of Jefferson County v. Wash. Dep't of
Ecology, 114 S.ct. 1900, 1909, 128 L.Ed.2d 716 (1994).
Therefore, a 5401 certification must set forth the effluent
limitations and monitoring requirements necessary to assure that
1 As many of our arguments have been explained in greater detail
in existing letters and reports concerning this and other similar
projects, we will at times reference those documents and, in such
cases, have included them as attachments to be made part of this
record.
.
Mr. stephen D. DiLorenzo
November 10, 1994
Page 3
the applicant will comply with "any applicable effluent
limitations and other limitations" adopted under state law.
33 U.S.C. 51341(d).
As of this date, a 5401 certification has not been issued
for this project. As explained in our October 31, 1994 letter to
the Connecticut Department of Environmental Protection ("DEP")
(see Attachment 1), we believe that any forthcoming certification
from DEP will be defective as not in compliance with
Connecticut's Water Quality Standards ("WQS"), and thus also in
violation of 5401.
We believe that DEP cannot find consistency with its own WQS
because it has not considered all of the specific Numeric Water
Quality criteria set forth in Appendix D of the WQS.
Furthermore, disposal of the contaminated sediment and associated
water from the Thames River will violate the Surface Water
Standards of the WQS which pertain to the Long Island Sound's
high quality "SA" designation. For further elaboration of this
issue, see Attachment 1.
B. Section 404 Corps of Enqineers Permit standards
section 404 of the Clean Water Act authorizes the Secretary
of the Army, through the Chief of Engineers ("Corps"), to issue
permits, after notice and opportunity for public hearings, for
the discharge of dredged material at specified disposal sites.
33 U.S.C. 51344(a). When considering specification of a disposal
site, the Corps must apply guidelines developed by the
Administrator of the U.S. Environmental Protection Agency
("EPA"). 33 U.S.C. 51344(b) (1). The Corps' regulations
regarding such permits require it to evaluate the probable
(including cumulative) impacts of the proposed activity and to
balance several factors in determining, among other things,
whether the project is in the public interest. 33 C.F.R.
5320.4(a). Under those regulations, the District Engineer must
deny a permit if the proposed discharge would not comply with the
EPA guidelines or if issuance would be contrary to the public
interest. 33 C.F.R. 5323.6(a).
EPA's guidelines, promulgated under 5404(b) (1), forbid a
permit for the discharge of dredged material if the discharge
"(c]auses or contributes, after consideration of disposal site
dilution and dispersion, to violations of any applicable state
water quality standard." 40 C.F.R. 5230.10(b) (1). As set forth
in Subsection A above and Attachment 1, the contemplated
discharge we believe would indeed violate the Connecticut Water
Quality Standards.
.
Mr. stephen D. DiLorenzo
November 10, 1994
Page 4
The EPA guidelines also preclude issuance of a permit if the
discharge "will cause or contribute to significant degradation of
the waters of the United states," including significantly adverse
effects on plankton, fish, shellfish, and aquatic life and
ecosystems. 40 C.F.R. S230.10(c). The independent analysis
performed for Fishers Island Conservancy by Diversified
Technologies Corporation ("DTC") concludes that this is the
likely result of the disposal of contaminated Thames River
sediment in the Long Island Sound. See Attachment 2 at 29-30.
The DTC study reports that "it is highly likely that a
substantial amount of contaminated material will be dispersed
into areas adjacent to the proposed New London Disposal site."
Id. at 30.
Furthermore, as previously noted, not all of the components
required by the Connecticut Water Quality Standards have been
tested for, thus presenting the serious possibility of unknown
future adverse effects. The possibility of such effects should
be ruled out by testing for all possible contaminants before
beginning dredging. Moreover, the Navy's own Environmental
Assessment shows that the discharge will be inconsistent with the
WQS. Environmental Assessment for pier 17 Replacement V-9
through V-19 (september 1994) ("EA"). Many "unavoidable"
environmentally harmful results are planned as an incident of the
disposal of contaminated Thames River sediment at the NLDS. See
also EA at VI-1. There are also serious problems with the
methodology that produced the EA, as set forth in the following
section.
II. ANALYSIS OF BACKGROUND INFORMATION
A. contaminated Sediment
The bulk chemistry analysis, as reported in Table 4-4 of the
EA, was inappropriately sampled. The sediments sampled from
beneath pier 17 are highly contaminated; the sediments have been
in place since the construction of the pier in 1947 and were not
subject to prop turbulence and dredging disturbance.
Furthermore, these sediments are the most contaminated of those
sampled, however, the area containing the high contaminate levels
do not have a clearly defined boundary. Sediment in this area is
contaminated to the extent that it is inappropriate for ocean
disposal. The Navy should determine the extent of contamination
and define the boundary of the area of sediments requiring
special handling. .
The Navy also chooses not to use the most contaminated
sediments, those from beneath pier 17, to perform bio-studies.
Mr. stephen D. DiLorenzo
November 10, 1994
Page 5
Clearly, if the Navy is proposing that all the sediment is
appropriate for disposal, then they should use samples from the
most contaminated sediments to prove their point. On the other
hand, their use of less contaminated sediments for the bio-
studies shows only that the areas exclusive of the contaminated
area beneath pier 17 do not require special handling.
As the area beneath pier 17 is obviously a "hot spot" of
contamination, the sequence of dredging and capping of materials
from the area becomes important. The Navy is currently planning
to remove the near-surface layer and use deeper sediments (or
down river sediments) for capping. However, the time for which
the sediments are going to be exposed is not discussed. As the
project could take until 1996 to complete, contaminated sediments
in NLDS could remain exposed for over two years.
B. Sediment Dispersal
The Navy does not provide any information on how they intend
to prevent sediment from migrating upstream or downstream
throughout the entire project. The use of the State pier study
to determine that sediment will not disperse is inappropriate and
unacceptable. The micro-environments in and around the two sites
are different, and the flow conditions have not been shown to be
the same. Also, the barge used during the dredging of the piers
would conceivably have to be located closer to the channel and
thus, we believe that the far-field contamination could be
significant or at least more than previously estimated.
Moreover, the sediments from pier 17 consist of sand which may
contribute to increased mobility and breakdown of sediments at
the disposal site.
C. Radio-nuclide contamination
The Navy does not include the analysis of dioxin or radio-
nuclides in the sediment or associated waters analysis. We
believe this to be a major oversight, as the Ocean Dumping
Regulations clearly prohibit the disposal of radioactive
materials, particularly since the surrounding upland area is
known to contain nuclear contamination.
D. Bio-Impact Evaluation
The bio-impact evaluation was not conducted properly. As
stated above, the sediments used did not corne from the most
contaminated area to be dredged. Yet, the mortality rates for
~.. ~ "?IilI'T
Mr. stephen D. DiLorenzo
November 10, 1994
Page 6
those species selected are still high. As the confidence
intervals are not reported by the Navy, we are unable to
determine whether or not the mortality rates are acceptable with
any degree of confidence. This information should be provided
and the results allowed to speak for themselves without any
qualifiers from the Navy.
E. Alternatives
The Navy's discussion of alternatives needs to include
discussion of upland disposal of contaminates, especially for the
sediments currently under pier 17. As described above, these
sediments will require special handling.
F. Current Data
The current data referred to in the report is out-dated.
The Navy uses information included in old DAMOS reports that do
not measure the present environment at the New London Disposal
site. As the site is frequently used, the topography of the
bottom has most likely changed, in turn changing the currents and
site environment.
G. Caooinq
The DAMOS reports do present the difficulties inherent with
the use of capping. These issues are dismissed by the Navy and
not addressed in the EA.
According to James s. citak of the Connecticut Department of
Agriculture, shellfish in the vicinity of the Naval Base could
become contaminated from the dredging project. Citak, James 5.,
Letter to Long Island Sound Programs Re: Application #WQC-GW-94-
065 (October 24, 1994). See Attachment 3. It follows, then,
that shellfish or other organisms in the vicinity of the New
London Disposal Site, could become contaminated as well. Mr.
citak states:
This proposed project also involves dredging the
Thames River Channel between the Gold Star
Memorial Bridge and Avery Point. This is a highly
industrialized area with three municipal sewage
treatment plants, two major industrial wastewater
discharges, an oil terminal and several shipping
terminals. Efforts must be made to minimize the
resuspension of any contaminants into the water
.~
Mr'. stephen D. DiLorenzo
November 10, 1994
Page 7
column which could be transported to adjacent
Approved shellfish growing waters located 1.5
nautical miles east of the proposed project. This
dredged material must also be capped with clean
dredged sediments when deposited on the New London
Disposal site.
If capping is to be continued in the Sound, Mr. citak's
statements underscore the absolute necessity of locating capping
material that is unquestionably clean.2 We have serious doubts
as to the adequacy of the material to be used as "capping
material" for this project. As Mr. citak points out, the
material south of the Gold Star Bridge proposed for capping is
located in a "highly industrialized area" with municipal sewage
plants, industrial wastewater discharges, and oil and shipping
terminals. See Attachment J. Thus, Mr. citak requires that
"this dredged material must also be capped with clean dredged
sediments when deposited on the New London Disposal site." Id.
From where, then, will the "clean" material come to accomplish
the necessary cap?
In addition, the NLDS cannot properly be characterized as a
"Containment site." The currents present at the site, as
measured by Ocean survey's consultants retained by FIC, are
strong enough to result in the resuspension of material after
disposal. Thus, even if the sediments were capped, the cap
itself could be later resuspended as well. See Attachment 2 at
20-22, 29. We incorporate by reference additional arguments
against the viability of capping made in our recent letter to DEP
opposing 401 certification, and in our August 16, 1994 letter to
the Navy. See Attachments 1 and 4.
Thus, the issuance of a 404 permit by the Corps for this
project would conflict with the Clean Water Act. As explained
below, such issuance would also violate the Ocean Dumping Act.
III. OCEAN DUMPING ACT
The federal Marine Protection, Research and Sanctuaries Act
("Ocean Dumping Act") specifically requires that the dumping of
dredged material into the Long Island Sound comply with the
provisions of that Act. JJ U.S.C. S1416(f). Under Sl03, the
Corps of Engineers may issue permits for the transportation of
dredged material for purposes of dumping if, after applying
2 The EPA guidelines similarly require that capping be
...............'""....'4~1-.""'~ nC";'VT n,...lo::llnn m::ll~DTi.::.,l_ 40 C.F.R. E;230.72lb).
~"" '1"'."
Mr. stephen D. DiLorenzo
November 10, 1994
Page 8
the criteria established under 33 V.S.C. S1412(a), it makes an
independent determination of need for the dumping.
section 102 of the Ocean Dumping Act and the EPA guidelines
promulgated thereunder require satisfaction of extensive
standards which require, in brief, that the proposed dumping not
be permitted if it will cause unacceptable adverse effects on
aesthetic, recreational or economic values or other uses of the
ocean. 33 V.S.C. S1412(a); 40 C.F.R. S227.2(a). Among the
factors to be considered in determining such effects are:
"[p]otential for affecting the recreational and commercial values
of living marine resources," and "[r]esponsible public concern
for the consequences of the proposed dumping." 40 C.F.R.
S227.17.
For the reasons cited in this letter and its attachments,
and for those further reasons to be presented at the public
hearing requested below, we believe that the proposed dumping of
contaminated Thames River sediment into the Long Island Sound
will cause the unacceptable adverse effects prohibited by the
Ocean Dumping Act. FIC stands firm in its conviction that
continued disposal of contaminants at the NLDS is inconsistent
with the Long Island Sound's status as a natural resource to be
protected.
IV. ALTERNATIVE DISPOSAL METHODS MUST BE FOUND
Thus, an alternative to the Sound for the proposed dumping
must be identified and selected. EPA regulations prohibit
issuance of a permit "if there is a practicable alternative to
the proposed discharge which would have less adverse impact on
the aquatic ecosystem, so long as the alternative does not have
other significant adverse environmental consequences." 40 C.F.R.
S230.10(a). See also 33 V.S.C. S1413(b); 40 C.F.R.
S227.16(a) (2).
FIC does not advocate that the Navy should be prevented from
improving its piers. Rather, it simply argues that the
contaminated sediment that is a by-product of such projects no
longer be disposed of in the Sound. This argument is supported
by the foregoing requirements of federal law and principles of
long-term resource conservation and protection. FIC presents for
consideration the alternatives described in the DTC study. See
Attachment 2 at 25-28.
"'.. ....
Mr. Stephen D. DiLorenzo
November 10, 1994
Page 9
V. REOUEST FOR A HEARING
FIC requests that the Corps provide it the opportunity to
present its concerns at a public hearing, as required by the
applicable statutes and regulations. 33 U.S.C. S1344(a)i 33
C.F.R. S327.4i 33 U.S.C. S1413(a). FIC wishes to further explain
its positions and present greater detail and information
regarding the concerns raised herein and those to be developed in
the future and to cross examine the applicant and its experts,
and those persons responsible for selecting and approving the
continued use of the NLDS for disposal of contaminated material.
These include, but are not limited to, the contaminants contained
in the dredged sediment, their mobility and effect on marine
organisms, the viability of capping, and the availability of
alternative disposal sites.
VI. SITE IS BOTH IN NEW YORK AND CONNECTICUT
A survey commissioned by FIC indicates that the southeastern
corner of the disposal site is located in New York. See
Attachment 5. In the past, use of this disposal site has been
decided by the CTDEP, Army Corps of Region 1, and the Region I
office of the USEPA alone. However, because its use involves New
York State waters, the New York Department of Environmental
Conservation, Army Corps of Region 2, and the USEPA Region 2 must
also exercise their permitting jurisdiction over such waters,
Thus, before the Corps may approve a 404 permit, it must receive
a 401 certification from New York.
In conclusion, the Fishers Island Conservancy is opposed to
activities that would harm the Long Island Sound and its
resources. As such, the group condemns the continued use of the
Sound for disposal of contaminated sediments. We believe the
efforts of FIC will result in a healthier Long Island Sound for
future generations.
Very truly yours,
7t {JA
JEW:ekf
Enclosures
327_1Y.DOC
E. Wert am
cc: Mr. John H. Thatcher, Jr., President, FIC (w/o enc.)
curtis P,'Johnson, Esq., Connecticut Fund for the
Environment (w/o enc.)
Ms. Jane K. Stahl. CTDRP (wIn ~n~.\
-~~~. ,.
J~&~~
~~d~
ONE AMERICA:-l' Row
HARTFORD. CT 06103-2819
TEL' (203) 251-5000
JOH~ E. WERTAM
TEL: 251-5813
FAX: 251.5199
November 16, 1994
Mr. John P. DeVillars
Regional Administrator
u.s. Environmental Protection
Agency - Region 1
John F. Kennedy Federal Building
One congress street
Boston, MA 02203
Ms. Jeanne M. Fox
Regional Administrator
u.s. Environmental Protection
Agency - Region 2
Jacob K. Javitz Federal Building
Room 1203
26 Federal Plaza
New York, NY 10278
Re: Proposed Disposal of contaminated Dredqed Sediment in
Lonq Island Sound
Dear Mr. DeVillars and Ms. Fox:
This letter and attachments are sent to request intervention
by your agency in a matter of very serious concern to our client,
the Fishers Island Conservancy, Inc. ("FIC"), a conservation
organization concerned with the quality of water in Long Island
Sound. We ask that you exercise your statutory authority to
prohibit the further disposal of contaminated material in Long
Island Sound.
The Department of the Navy has applied for one of the state
certifications necessary and a 5404 federal permit to dredge
contaminated sediment from the Thames River and dispose of it at
the New London Disposal site ("NLDS"), located in the Long Island
Sound, as part of its piers 15 and 17 modification project. The
connecticut Department of Environmental protection ("DEP") and
the Army Corps of Engineers, New England Division ("Corps") have
tentatively approved this project.
~
Mr. John P. DeVillars
Ms. Jeanne M. Fox
November 16, 1994
Page 2
In a letter dated November 9, 1994 addressed to Mr. Warren
Llewellyn of EPA Region 2, we expressed the need for the
appropriate authorities with jurisdiction over New York waters to
also address this matter. As the NLDS is located within both
Connecticut and New York, we direct our petition to both EPA
Regions with jurisdiction over the site.
Our arguments and supporting data against continued disposal
in the NLDS are set forth in detail in our letters to EPA, DEP,
and the Corps opposing the issuance of a S401 certification and
permit for the project (see attached). Thus, we will not repeat
our arguments extensively here, but incorporate them by
reference.
We believe the Corps must consult EPA and comply with EPA
guidelines promulgated under the Federal Water Pollution Control
Act ("Clean Water Act") and the Marine Protection, Research and
Sanctuaries Act ("Ocean Dumping Act") in issuing permits for
disposal of dredged material. 33 U.S.C. SS 1344(c), 1413(c).
Indeed, the Corps' own regulations require it to deny a Clean
Water Act S404 permit if the proposed discharge would not comply
with the pertinent EPA guidelines. 33 C.F.R. S323.6(a).
Based on the referenced data and analyses, we believe that
the contemplated disposal will result in violating EPA guidelines
for discharges from dredged material in the following ways: (1)
it will cause or contribute to violations of applicable state
water quality standards, 40 C.F.R. S230.10(b) (1); (2) it will
cause or contribute to significant degradation of the waters of
the united States, including significantly adverse effects on
plankton, fish, shellfish, and aquatic life and ecosystems, 40
C.F.R. S230.10(c); and (3) it will cause unacceptable adverse
effects on aesthetic, recreational or economic values or other
uses of the ocean, 40 C.F.R. S227.2(a).
EPA regulations empower the Regional Administrator(s) with
jurisdiction to notify the District Engineer that the proposed
project will not comply with the applicable EPA criteria and that
the Regional Administrator intends to deny the use or
specification of an area as a disposal site. 40 C.F.R. SS
225.2(e), 231.3(a) (1). Under such circumstances, the Corps may
not issue a permit. 33 C.F.R. S323.6(b).
Therefore, we request that EPA exercise its authority under
the statutes and prohibit the further specification by the Corps
of the use of NLDS as a disposal site for contaminated dredged
sediment. As the Corps has indicated its willingness to approve
-.-
Mr. John P. DeVillars
Ms. Jeanne M. Fox
November 16, 1994
Page 3
the Navy's application and the stakes are significant, we urge
you to act swiftly in addressing this cause of great concern to
FIC.
Thank you very much for your attention and cooperation. I
would greatly appreciate hearing from you at your earliest
convenience regarding your plan for resolving this matter.
Sincerely,
j!: ~~~
JEW:ekf
Enclosures
21545_1C.DOCls3
cc (wjo enc.): Mr. John H. Thatcher, Jr., president, FIC
Ms. Jane K. Stahl, CT DEP
Mr. Phillip Colarusso, U.S. EPA Region 1
Mr. Warren Llewellyn, U.S. EPA Region 2
Mr. Robert K. Ostermueller, U.S. Navy
Attachments
1. New London Disposal site Survey Map
2. DTC Report, dated November 8, 1994
3. Response to CTDEP Certification, dated October 31, 1994
4. Letter Regarding New York Jurisdiction,
dated November 9, 1994
5. Response to Army Corps of Engineers,
dated November 10, 1994
6. Letter to Robert ostermueller, dated November 16, 1994
I
J~&g~
~~d~
ONE AMERICAN Row
HARTFORD. CT 06103-2819
TEL' (203' 251-5000
.JOHN E. WERTAM
TEL,251.5813
FAX: 251.5199
November 16, 1994
Mr. Robert K. ostermueller
Northern Division
Naval Facilities Engineering
Command
10 Industrial Highway
Attention Code: 202
Lester, PA 19113
Re: Comments on piers 15 and 17 S404 Permit Application
Dear Mr. Ostermueller:
We agreed at our meeting on September 13, 1994 to mutually
exchange information we developed regarding the dredging of the
Thames River. I therefore am enclosing for your information,
along with the comments we provided on the Navy's piers 15 and 17
dredging application, the final report of our consultant.
We were very disappointed that at our meeting you did not
disclose to us the existence of the Navy's piers 15 and 17
dredging project. We believe that it was appropriate for you to
disclose the Navy's intentions to us at our meeting, particularly
since the piers 15 and 17 project is identical in nature, if not
in scope, to the SEAWOLF project.
Our disappointment is reflected by the fact that we felt
compelled to react vigorously and aggressively to the pier 15 and
17 application, and will challenge its issuance until a full and
thorough evaluation occurs of the issues raised with the
continued use of the New London Disposal Site. We had hoped that
in the spirit of our meeting that you would have come forward
with this information that we are now forced to evaluate on an
adversarial basis.
Mr. R. K. Ostermueller
November 16, 1994
Page Two
I hope that in the future you will provide us with
information about these, and other Navy projects affecting the
Thames River and utilizing the New London Disposal Site, in a
timely manner.
Very truly yours,
JEW/kad
Enclosures
cc (w/o enc.): Ms. Jane K. Stahl, CT DEP
Mr. Robert Woodward, Maguire Group
Mr. John H. Thatcher, Jr., President, FIC
Attachments
1. New London Disposal Site Survey Map
2. DTC Report, dated November 8, 1994
3. Response to CTDEP S401 certification, dated October 31, 1994
4. Letter Regarding New York Jurisdiction,
dated November 9, 1994
5. Response to S404 permit to Army corps of Engineers,
dated November 10, 1994
13810_1C.~s24
':J~
J '
~s" ~j~
.J--uj~~~flJ~
5 j y-" _ ~ .,= U f ' ~ \
,,~ ,j:,~" -"'cl,f
';\, ' \".5 J.4 ) J ld J coi j
, \ ," ' _ .:5 . ,
,~ ' I " ' ' ,."p.k,.- ; ".
.~" " .' ' ' ,,,,,-'O$Y'" -' u.. - -"
, . ' ,,' " ",',' ' ,~"
, . "". ' .' ' "V"" ' ,"
,," ,. ".' ,,~,v d~' '
\l' ' "" . .,C"" ,', ",n "
, , ",., : "..' " ,.., , ' ",'
. .' ,. .",., " "" "
" ," "-,",, ... ," ' .." ,
," .." "".'" _. , ",,' ,0 '
4.\" \ . ,,' ' ,;-' .,.'i" .,-.'>,',1 "'I;
~ ,..' . ' 0- "., ," ",..'" ", 0 ' ,
(.. " 1" 0' ' /i"" ' J '''-' ",,', ' '
"\ I'"~ ,po' """.,,, ",,, ,,'
I \~.p\P \~/ ._________ )!'~'. -'"."0 ......;!.'."c: 'Y. ' I'
_ I )za~ ~> I r:: .r'\'\' . o~. t'"~. ," ~ .....
\ ,,"A' ","'F'~' "." ",,,, ,," ," · '
'\ ",J' ".,,/. ",'" .' ",,, :.,,, ,'/ .. . ,.
I \~2/:1? )' /' ,IJ<e:.", I,,,,,~,,,;;;,""'~-' 8"" :::, 115
, , ' /j""'"'''' ,,=< .,0';;" '
,,____~ I \~~~: ~~~ / 1""> ..(,7' ;....:,"'S.' F"h"-'C '"'> . ' , '
. ." ,/' . .. ,,'. ,.. ' ' .'
, ",,\' I 1"'-"'/ ... ('<. -/ - ~< ","""--' ~.:..-.....:A-<. -;:----~~ ) , 0 .
\ ~ ~ \;;'0' .~ "".= ~.....;. "CO-' , ..,;
if> \ \ ~~- .."';,;?-"~ r....~ . ". /,1 ,~< ~ .
\ <' '~7' ." . I.",",. ,"- ,~~. -'
" ,,' " ' ';'" , _ ? .. " "",:,,,""
, ""_" ~\, \\ i ,,]/ .: ~"j,~~<' : r
~ '.J \ I' ..".~-" ^ ' I,
.. ,\; ,1(6;&'$'1> .' ,(
.. \ ,,,,,"F"""
\\ ,_~..IY~;!:\ i,l~
, ..:o.,~.;;,<-' -.-, Ig
, n <>_cc \~~
- " ;;' .:..'~, \..~
~._.\ ~ . ",c'--. . .
-:-' / \ . ;:".zJ) L
'\ ~ ,'_~___ //, C>I~ 00
, .~. . ,Ji,
'\ ,I' ,
\\ ' 'I' Ii 0
"l/ -
,I ,',
1,\,.. /// I' I."II![,:I
,,~,Q" I'
. \./ _ , 1"U'li'
\,'-------- / 1 ,ril'"
\ / : I' 'II
~~o L ,e~"
'So - ','I:
.,"a...-J-, 1 I
p/ '\, il'li'llll
'" \ Ii! ;01' !~!o1
\ ~ 25 ~I
1- ~ 1,1 0
\ l~l ~"II'
\) J'if!
+- \~, I, Vi
\ pi'
\ ? I I!
\ L
I
I
I
I~
I
~(,
:A, I
~~
\
, \
('0
MJ
I
'0
'-\
J
,
F!~-~.
"
,
o
0
l ,
/
? G)
,
o
,
),
jC;
i.... 1.'3'
:;...... -~.-
~
,
~---""
~.-
,4
\'
[)
,/
,
/
---
----
p---'
,
,
......., ,"
i _':l- .co.
! (~H
"\ / (5
~ all ' (~
~i:i--.! -~
Qf~l }r~ ';,~
,1"" Cc: .,
.' I
~
,I
"
"
,;of'"
"r ~~
,.. ~~
",0
"
z
~ i ~
~ ~ ~
~ -0 ~
U
~
o
.
I i
"
, 0
Z ~
I I
I ,..
~.)v
,
,
/
/
\l?<!;I!'J'---
/
-,-,--'
./-
//
I
I
1/
./
; //
,.-"
..-
"."
-p.
;'
I
"'-.
,
t
I
if'
,
,.... ,
,
0
\
,
,
\ <J)
0 \
,
,
, \
f
';Z.
~ f;
..-~
i--
,
,
"
,
.,
,'"
'--
, '-..
~ ~
.~
~
Q
~
C)~ l~
~8\ \
,
r.
.-~
~,;- '.'
',,;',
'"" <\:":,--:,\
THE CITY OF GROTON
CONNECTICUT
295 MERIDIAN STREET
06340
CONSERVATION COMMISSION
TELEPHONE (203) 446-4103
FAX (203) 445-4058
c.
el \
==\ .
.
~,
/11: : '~\
!I.f ~~; ~ \~:
~ '\\,,;: J ,,"," ~,' ; ',-I ,
I.: >,.Il ~ ~,
~., ~::;: - ~_.....~
:~
November 9, 1994
state of Connecticut
Department of Environmental Protection
Office of Long Island Sound Programs
79 Elm Street
Hartford, CT 06106-5127
Attn: George Wisker Environmental Analyst
RE: Application No. WQC-GW-065
Dredging at u.S. Navy Submarine Base
The City of Groton Conservation Commission a~ain (since
mid 1960's) wishes to express our concerns regard1ng the
dumping of hazardous dred~ed materials in Long Island Sound.
Dumping into open waters 1S not a logical and safe place for
hazardous wastes. Capping with clean dredged spoils is
simplr impossible to assure long term safe coverage.
Divid1ng a large area of dredging projects into smaller
units, such as the above referenced application for Piers 14
and 17, will ultimately equal the sum of the major project
that is presently being evaluated by the McGuire Group for
the Navy.
......
St. of CT. Department of Environmental Protection
Office of Long Island Sound Programs
Page 2
Nov. 9, 1994
application, is dumped in a 3 foot high spread, a square of
255 square yards minimum would result. To assure coverage
with J feet of clean spoils more than 65,000 cubic yards
would have to be used. If the spoils are piled to a 6 foot
depth, the minimum area of spoils would be approximately 180
square yards and another 65,000 cubic rards may not provide a
J foot cover. Therefore, the numbers ~n the application may
not be providing full details of the impact.
The location of the New London Dump is in the worst
location in Long Island Sound. It is in the narrow throat of
a funnel through which many billions of gallons of sea water
must flow out of the eastern end of Long Island and Fishers
Island Sounds (an area of approximately 4 miles x 100 miles
and 2 ~ feet of water) through the space between Orient
Point, Plum Island, Gull Islands, and Fishers Island, to the
Atlantic Ocean twice and return from the Atlantic back over
the dump into the sounds twice each day. The inertia
resulting from the velocity of this large body of moving
water continuously causes minute erosion. During storms, the
high seas with increased inertia, further agitates and
scourers the bottom as can be evidenced by the piles of sea
weed on local shores and beaches. If contaminated dredged
s~oils continue to be dumped here, in the long term this dump
s~te will grow into a superfund site as did upland dumps
which resulted from a "little bit more", "you can't stop
progress", "alternatives are too expensive" or "its for
national security" syndromes.
Obtaining clean spoils for capping material from the
Thames River between Electric Boat Shipyard and the 1-95 and
railroad bridges is most surprising. This area was the
recipient of outfalls of nearbr industrial wastes such as
lead, chrome, and cadmium plat~ng of submarine parts by
former Christy plating, discarding of used and unwanted
materials and chemicals by the military and shipyards during
and after World War II.
Alternatives, such as building the new dock for the new
ARDM-4 out of concrete tongue and groove spiles should be
considered. Spiles in a double barrier configuration will
assure immediate detection of any leakage. The new dock
could be filled with the dred~ed spoils and capped with a
concrete deck. The area of r~ver bottom coverage or change
to current flow would not be significantly different than
those presently existing with the large number of submarines
moored there.
It is recognized that the entire coastal community
agrees that dumping of hazardous spoils into coastal waters
is not a cure but a band aid. Since we are not at war and
-
-~.
st. of CT. Department of Environmental Protection
Office of Long Island Sound Programs
Page 3
Nov. 9, 1994
urgency is not a controlling issue, it behooves us to
undertake an appropriate solution now and not leave it for
our children to correct.
We wish to express our thanks for giving the City a 10
day extension of the comment period resulting from the
oversight of the city not being on the distribution of the
notice.
Sincerely,
q>:,~~ J ~~
La ene f Chmura /t~
Cha rman
LJC/lalc
CC: Mayor Catherine Kolnaski, city of Grot~n
city of Groton councilors .
Mayor Delores Hauber, Town of Groton
Town of Groton councilors
state Senator cathy Cook
State Representative Nancy DeMarinis
state Representative Lenny Winkler
Arm~ Corps of Engineers
Env1ronmental Protection Agency
McQU~GI.?
Connecticut Fund for the Environment
Michael A. Horne, P.E., Diversified Tech Corp.
Shipman & Goodwin Counselors