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Pollution costs the Navy $1.4 million

01:00 AM EST on Monday, November 20, 2006

IN THE LAST couple of weeks, one year after a final legal settlement, $1.4 million in federal funds flowed into the coffers of the State of Rhode Island. In the little-publicized case, the state 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), commonly known as the Superfund Act of 1980. The case was led by the state's environmental advocate, attorney Tricia Jedele of the attorney general's office, and Gerald McAvoy, the former chief of the Rhode Island Department of Environmental Management Office of Legal Services.

At the heart of the case was a claim that the 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 its permanent closure to shellfishing in 1984.

This case was interesting from a number of angles. First, it was the firt ever in which a state attorney general's office and state resource-management agency brought suit against the Navy for the loss of resource use as a result of toxic waste dumping at a former base.

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 the federal Environmental Protection Agency has supervised the cleanup and remediation of the dumpsite areas in numerous former military bases.

In classic The Mouse that Roared fashion, the Navy and the Department of Justice took this case very seriously, even though the amount of groundwater and shellfish contaminated here was relatively small compared with other contaminated sites in the country. Indeed, 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 -- and settlements could potentially reach into the billions of dollars.

Consistent with the concern federal agencies had, numerous fact-finding presentations, hearings and settlement negotiations were attended by at least three Justice department lawyers, as well as top-notch consulting experts in resource economics, shellfish biology and ecology and groundwater hydrology from Boston, Washington and North Carolina.

In contrast, much of the legal work and expert testimony by the state was accomplished in-house by cooperatively using legal, biological, environmental and economic expertise at the state Department of Environmental Management and the University of Rhode Island.

In addition to Jedele and McAvoy, 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 and 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 their expert shellfish biologist from the University of North Carolina.

The state 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 and discovery, presentation of facts and findings, offers and counter-offers, the case came to a close on Oct. 28, 2005 as a result of a federal mediation process. The just-released $1.4 million in federal funds are to be used by DEM for shellfish habitat restoration, fishery transplants, and shellfish population studies. North Kingstown will receive approximately $400,000 for 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.