Dredging battle goes to court

As the battle over a proposal to deepen Delaware River shipping lanes went to federal court yesterday, Gov. Rendell reaffirmed Pennsylvania's commitment to take any unwanted muck dredged from the river.

He said, however, that Pennsylvania had no control over where the U.S. Army Corps of Engineers stores that material while it dries, a process that can take up to 18 months.

At this point, the dredging project calls for the material - largely silt, sand, and mud - to be stored at sites in New Jersey and Delaware while it dries. That has angered some New Jersey residents and elected officials, who had believed the muck would head directly to Pennsylvania.

The $379 million project would dredge a 102.5-mile stretch of the Delaware River to deepen the shipping channel to 45 feet. It is now 40 feet deep.

The project is supported by Pennsylvania officials, including Rendell, who believe it will boost shipping traffic to Philadelphia's port and create more jobs.

It is opposed by New Jersey and Delaware for environmental reasons.

Yesterday, in Wilmington, U.S. District Judge Sue L. Robinson heard testimony in Delaware's suit seeking an injunction to stop the project.

Delaware Deputy Solicitor Jennifer D. Oliva said the Army Corps flouted federal and state clean-air and water laws - and Delaware's own permit process - by announcing it would begin dredging the river without a state permit.

Delaware contends removing more sediment from the navigation channel could release harmful toxics and pose a danger to aquatic life, drinking water, and the shores where dredge material is piled.

The Army Corps countered that Delaware lost its right to block the project by waiting eight years before it rejected the Army Corps' permit application in July.

The Army Corps told the court it would continue to seek a permit for the project but wanted to begin work now. Justice Department attorney Kent Hanson said the Army Corps would comply with federal clean-air requirements before starting.

In terms of environmental issues, Hanson said the Army Corps tested river sediments where the dredging will begin and they met Delaware water-quality standards.

As the project unfolds, he said, the Corps will pull water samples "and if they exceed standards" take steps to correct the problems.

"We will be reporting to the states," Hanson told the judge. "There's absolutely no evidence based on any data that there will be irreparable harm" if the project went forward, he said.

To get an injunction, Delaware must demonstrate persuasively that, if the Army Corps proceeds without a permit, the state would suffer significant and immediate environmental harm.

Environmental groups, in court papers filed to join Delaware's lawsuit, contended the Army Corps' environmental studies are outdated and inadequate.

The Philadelphia Regional Port authority, the project's local sponsor, said in court filings that the region's economy would suffer if the project is delayed.

It was a point noted as well by the judge.

"No one can realistically dispute the river is in danger of losing a substantial [commercial] market if it's not deepened," she said.

Robinson did not rule on the matter. She said she would issue an opinion after supplemental legal briefs were filed. She set a Dec. 22 deadline for the last of those.

New Jersey also joined in Delaware's suit, citing concerns about possible contaminants in dredge material that will be dumped initially in the Garden State.

It was the controversy generated by that material that prompted Rendell's news conference in Philadelphia.

Rendell challenged a story in Monday's Inquirer that reported that a deal between Pennsylvania and New Jersey for Pennsylvania to take the dredged material had "unraveled."

The story, quoting Rep. Rob Andrews (D., N.J.) and referencing a letter written by Corzine, suggested New Jersey officials believed Rendell had reneged on a pledge when they learned the dredged material would be stored at New Jersey sites while drying.

Rendell said the agreement, as he understood it, was that any unwanted dredged material would be taken by Pennsylvania after the Army Corps processed it. Neither Pennsylvania nor New Jersey has the power to tell the Army Corps where the material would be stored during that process, he said.

Rendell said Pennsylvania remained committed to taking any material New Jersey did not want for its own use. He said he called Gov. Corzine and Gov.-elect Christopher J. Christie yesterday morning to assure them of his commitment.

"It is Pennsylvania's intent to take 100 percent" of the dredgings, he said, "if New Jersey so chooses."

Rendell's assurances did little to satisfy Andrews, who has called moving the spoils to Pennsylvania "a fantasy."

"To date, Pennsylvania has done absolutely nothing to prepare to take dredge spoils from this project," Andrews said in a statement released by his office. ". . . I respect Governor Rendell and his views, but the people of New Jersey know that there are better ways to create port jobs than this wasteful and risky deepening plan. We will continue to oppose it."