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In our latest webinar, Jim Lang of the Waterfront Law Team and Joe Rieger of the Elizabeth River Project discuss the legal landscape of remediating contaminated sediments, how waterways become contaminated and the cleanup methodologies.

You can download the slides from this webinar here.

Legacy Contamination

Legacy contamination occurs when legacy sediment pollutants have been left in the environment and become reintroduced back to the overlying water due to storms, disturbances such as dredging or through continuous diffusion at the water-sediment site. Legacy pollutants are often very persistent in the environment and can be hard to break down and often are not soluble in water. The sediments often become hazardous to native plants and animals and can remain in the environment long after the source disappears.

In the northeast, there are 200 miles of the Hudson River that is a Superfund site due to GE discharging 1.3 million pounds of PCBs (polychlorinated biphenyls or industrial products or chemicals).

On a local level, we have several affected areas of legacy contamination. The Atlantic Wood Industries site is approximately 50 acres of land on the industrialized waterfront of Portsmouth, Virginia and over 30 acres of contaminated sediments in the Southern Branch of the Elizabeth River. From 1926-1992, a wood-treating facility operated at the site using both creosote and PCP (pentachlorophenol). Sediments in the Elizabeth River contain heavy metals and visible creosote. The groundwater and soil at the site are also contaminated with creosote and heavy metals.

Additionally, the Peck Iron & Metal site, 33 acres on Paradise Creek in Portsmouth, Virginia, hosts an inactive scrapyard which contains metals and radioactive material, and Paradise Creek connects to the Southern Branch of Elizabeth River in Portsmouth, Virginia has PCB contamination from upstream neighbors.

For a slice of good news, Money Point, 2 creosote plants on the Southern Branch of the Elizabeth River in Portsmouth, Virginia, is the first large-scale sediment remediation project by a non-profit.

Environmental Compliance

The 1970’s ushered in the age of environmental compliance with the adoption of NEPA (National Environmental Policy Act), the Clean Air Act, the Clean Water Act and the Resource Conservation and Recovery Act. CERCLA, adopted in 1980, deals with legacy hazardous waste contamination.

In the 1890’s William T. Love wanted to build a canal connecting the upper and lower Niagara Rivers so that power could be generated cheaply to fuel the industry and homes of his planned model city. The state assisted the project through use of condemnation to acquire land. Love started his canal but could not finish it – 1 mile, 15 feet wide, 10 feet deep. In 1942 Hooker Chemical and Plastics Corporation purchased the trench. Seizing on the industrial boom around WWII, Hooker manufactured plastics, chlorine, pesticides, caustic soda and fertilizers. During it’s 11 years of ownership, Hooker disposed of 21,000 tons of hazardous chemicals at Love Canal. By 1953, waste from Hooker, the US Army and the City of Niagara Falls has filled the canal. The canal was backfilled and covered in four feet of clay. By this time, Niagara Falls Board of Education wants to buy the property from Hooker to which Hooker disagrees, saying the school is not suitable. School officials threatened to acquire the property via condemnation. Hooker sold for $1.00 and full written disclosure of what lay underneath the ground. At this time, the Niagara Falls Board of Education builds the “99th Street School” on the site. Over time, 800 homes, 240 low-income apartments and 3 schools were built in the neighborhood. In 1978 there as a record rainfall and contaminants seeped into the homes and schools, toxic chemicals puddled on the ground and the air had a faint choking smell. By 1978, the New York Times published “Time Bomb in Love Canal” exposing tragedy. President Carter approves emergency financial aid and 98 families were evacuated and 500 homes were purchased by the federal and state governments.

Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)

Enacted in 1980 to clean up leaking hazardous waste disposal sites, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) or The Superfund Law was established to determine who would pay for the cleanup.

In the case of the Love Canal, the current owner and operator as well as the person who owned or operated Love Canal at the time when the disposal occurred.

  • 1983 – Hooker pays $20 million to homeowners
  • 1989 – Hooker accepts responsibility to clean up
  • 1994 – Hooker pays $98 million to the state government
  • 1995 – Hooker pays $129 million to the federal government

The Superfund cleanup exposed the amount of litigation and studies, the slow wait time and the high costs.

Elizabeth River Project Watershed Action Plan 2022

The Elizabeth River Project made it their mission to the restore the Elizabeth River to the highest practical level of environmental quality through government, business, and community partnerships. The action plan tagline says it, the “goo must go.” The action plan’s main goal is to clean up contamination in the river bottom while also reducing PCBs in fish.

The bottom of rivers form the foundation of the food chain and cleaning up remaining legacy contamination sites is very important. While Elizabeth’s bottom still harbors hotspots, scientists estimate as many as half of the river’s hotspots have now been addressed.

The ten-year goal is to reduce cancer in the indicator fish, to background levels in known hotspots by reducing PAH (polycyclic aromatic hydrocarbons), both toxic to marine life and also posing human health risks.

The five-year goals include achieving sediment cleanup goals for Paradise Creek and Atlantic Creosote in addition to cleanups already achieved and improving data collection and dissemination.

History of Contamination in the Elizabeth River

Creosoting became one of the predominate industries on the Elizabeth River because the river’s strategic location in southeastern Virginia (Yellow Pine Belt, located in the southeast United States, produces the trees and Norfolk is the northern most ice-free harbor with deep water access and located nearby military and other water dependent companies). Trees were placed in a large cylinder, air is withdrawn, and creosote is placed into the cylinder at a high temperature. Creosote is an insecticide used to reduce damage to wood from marine boring organisms. Before the clean Water Act, waste creosote from inside the cylinder was discharged to the river and there were many fires and releases to the environment. Additionally, the proximity of docks was also a contributor to the contamination.

Eppinger & Russell was a former creosote plant at Money Point. The Elizabeth River helped initiate and fund the cleanup at Money Point. Phase I saw dredging and wetland restoration take place for $1.3 million, Phase II saw central dredging and oyster restoration take place for $3.3 million and Phase III saw northern dredging and capping take place for $6 million. The sediment and fisheries result from Money Point speak for themselves with lower tPAH levels and an increase in fish species thriving at the location. Likewise, the cleanups at Atlantic Wood Industries and Paradise Creek saw favorable results as well, thanks in large part to the cleanup initiatives of the Elizabeth River Project.