Wakefield, RI.
By Michael A. Rice
In the last couple of weeks, one year after final legal settlement, $1.4 million in federal funds flowed into the coffers of the State of Rhode Island in a little-publicized case in which the State of Rhode Island brought suit against the U.S. Navy for several decades of dumping of toxic wastes into a landfill near Allen Harbor in the former naval base at Quonset Point. The settlement was a result of two years of legal wrangling in the Federal District Court in Providence under the provisions of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), which is commonly known as the Superfund Act of 1980. At the heart of the case, led by the State’s Environmental Advocate, Attorney Tricia Jedele of the Attorney General’s office, and Gerald McAvoy, the former chief of the RIDEM Office of Legal Services, was a claim by the State that the US Navy was responsible for the contamination of groundwater resources at the Allen Harbor landfill making those waters unfit for future drinking and other uses. The State further alleged that the Navy’s activities contaminated the shellfish in Allen Harbor and vicinity leading to permanent closure of the harbor to shellfishing in 1984.
This case against the Navy was interesting from a number of angles. First, it was the first case, ever, in which a state attorney general’s office and state resource management agency brought suit against the U.S. Navy for past pollution practices carried out on former military bases for loss of resource use as a result of the toxic waste dumping. Although CERCLA was passed in 1980, military bases and former bases were not included under CERCLA until the law was amended in 1986. Since that time there had been a number of base closings throughout the country and the US Environmental Protection Agency has supervised the cleanup and remediation of the dumpsite areas in numerous former military bases throughout the country. This Allen Harbor case is among the first in which a monetary claim was made by a state for loss of natural resources due to pollutants leaking from the dumpsite.
In a classic The Mouse that Roared fashion, the US Navy and Department of Justice took this case very seriously, even though the amount of groundwater and shellfish contaminated at Allen Harbor was relatively small compared to other contaminated sites in the country. Indeed, a number of states’ attorneys general offices throughout the country were watching the progress of the Allen Harbor case because in their states, contamination of groundwater resources at former military bases were thought to be much more extensive than here in Rhode Island and settlements arguably could reach into the billions of dollars.
Consistent with the level of concern the federal agencies had with the case, all numerous fact-finding presentations, hearings and settlement negotiations held in the Providence Federal Courthouse were attended by no less that three United States Department of Justice lawyers, and a group of top-notch consulting experts in resource economics, shellfish biology and ecology, and groundwater hydrology from Boston or flown in from inside the beltway of DC, or as far away as North Carolina.
In contrast, much of the legal work and expert testimony by the State was accomplished in-house by cooperatively utilizing legal, biological, environmental and economic expertise at DEM and URI. In addition to Jedele and McAvoy leading the effort, Richard Gottlieb and Paul Kulpa of the DEM Waste Management Division researched and provided historical information about use of the dump site, Margaret Bradley of the same division determined the volume and extent of polluted groundwater, Mark Gibson and Brian Murphy of the DEM Division of Fish and Wildlife undertook a study of shellfish populations and provided calculations of the numbers of quahogs and steamer clams contaminated by the toxins and lost to the fishery, Dr. Stephen Swallow and Dr. John Gates of the URI Department of Environmental & Natural Resource Economics provided economic estimates of the value of lost shellfish and water resources, and I served as an expert to rebut testimony of the Justice Department’s expert shellfish biologist from the University of North Carolina. The State even had even lined up for possible testimony the actual manager of the landfill and the operator of the bulldozer in the 1940s, both in their 80s and ready to testify: “yup…we buried just about everything in that landfill, except for dead bodies.”
After nearly two years of fact-finding or discovery, presentation of facts and findings, offers and counter-offers, the case came to a close October 28, 2005. As a result of a federal mediation process, arriving at an award of $1.4 million to the State. These just released federal funds are to be used by DEM for shellfish habitat restoration, fishery transplants, and shellfish population studies. The Town of North Kingstown will receive approximately $400,000 for and groundwater and aquifer protection activities. The involvement of personnel from multiple state agencies in winning the Allen Harbor case is an example of how the sharing of resources among state agencies can work for the greater good of the State. It was an honor and privilege to serve with such a talented team.
Michael A. Rice, an occasional contributor, is a professor of fisheries and aquaculture at the University of Rhode Island.