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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~ ::::. 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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"" ' ," ,," ,. 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" "",:,,,"" , ""_" ~\, \\ 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