The use of dredge
spoils in filling abandoned mine pits at Hazleton
is the latest in a series of environmental insults
hurled at the community stretching back through
the era of underground anthracite coal mining, an
attorney said in the opening minutes of a hearing
in Harrisburg Monday. It’s an issue of
environmental justice, attorney Michael Fiorentino
told state Environmental Hearing Board Judge
Bernard A. Labuskes in the opening minutes of
arguments in a case brought by Citizen Advocates
United to Safeguard the Environment, or
CAUSE. “Your honor, the people of Hazleton have
always seemed to get dumped on,” Fiorentino, of
the Mid-Atlantic Environmental Law Center said in
his opening remarks. CAUSE is challenging the
“determination of applicability” the state
Department of Environmental Protection approved in
allowing a developer to utilize spoils dredged
from the Delaware River in filling abandoned mine
pits on the city’s south side under a state
general permit. Another citizens’ group, Save
Us from Future Environmental Risks, or SUFFER, is
challenging the general permit itself but withdrew
from the case Labuskes will decide when it ran out
of funds to continue litigation. Defendants in
the case are the state, DEP, the Hazleton
Redevelopment Authority and Hazleton Creek
Partners, a subsidiary of Mark Development, of
Kingston, and the developer of an amphitheater
proposed for the property following its
filling. Fiorentino characterized the use of
dredge spoils at Hazleton as a “giant experiment”
in arguing that his client, CAUSE, has legal
standing to pursue the matter. And he said DEP’s
decision to grant a “determination of
applicability,” or DOA, went against “massive
public opinion” in the community. The
plaintiff’s attorney also noted that DEP never
intended the general permit be used to cover the
capping of old landfills. And he again argued that
the agency is treating the site that’s bordered
roughly by routes 309 and 924 and the old Route
924 as solely an abandoned mine when it should be
considered a partially closed landfill. He said
the site barely missed qualifying in the 1980s for
placement on the federal Superfund list of toxic
waste properties. Fiorentino, in his opening
statement, also said testimony will prove that the
use of dredge spoils will end up polluting both
surface and underground water supplies. The
plaintiff’s attorney also argued that the Hazleton
Redevelopment Agency is, in actuality, an arm of
the city government. Carolyn Martienssen and
her husband, Charles, of West Hazleton, were the
first to testify as the hearing got under way,
each telling the judge that they have been on the
site property 60 or more times through the last
two years. The couple lives on East Clay Avenue
in the borough, only one-eighth to one-quarter of
a mile from the property. Carolyn Martienssen, in
responding to Fiorentino’s questioning, said she
knew even before the filling project began that
wastes, including electric capacitors and drums of
waste, still littered sections of the property.
Liquid wastes were once dumped on the property
from tankers, she testified. She also recounted
how the concerns she shares with her husband and
others led them to form CAUSE, which has since
been incorporated as a non-profit organization.
And she and her spouse said they were present when
the CAUSE board of directors, of which they are
members, voted to pursue litigation. She said
she fears dust from the site will harm her health
and she recounted how rats scurried toward Clay
Avenue after the first hours of work on the site
being filled with dredge spoils. “Water. I’m
worried about water,” she testified. Carolyn
Martienssen also said she consistently notices a
“horrible odor” coming from the work site and dump
trucks used to haul spoils to the site are
constantly shedding bits of the material from
their tires as they drive onto Route 309, or South
Church Street, upon leaving the work zone. “The
smell is horrible,” she told Fiorentino from the
witness chair. The couple, under questioning
from their attorney, said they were never told to
leave the work site by anyone else present there
and never walked past a no-trespassing
sign. Carolyn Martienssen also recounted seeing
the rims of old waste drums “sticking out of the
ground.” And she said the work that’s taken place
since the DOA was awarded has changed the
appearance of the property, making it hard or
impossible to again spot capacitors or drums that
might still be present. “They’re still there,”
she said. And a network of old roads that once ran
over the property are gone, having been covered by
the fill that’s trucked in daily from Fort
Mifflin, a U.S. Army Corps of Engineers facility
in Philadelphia. Shown a series of aerial
photographs, Carolyn Martienssen pointed out
various features, including the old Crystal Ridge
landfill where two ponds remain, one of which
often dries up. “They’re dump trucks; big dump
trucks” driven by crews from different hauling
companies, she testified when asked how dredge
spoils are being delivered to Hazleton. Under
cross examination by HCP attorney Michael Kline,
the West Hazleton woman said she can partially see
the work area from her house, but that her view
would improve if a neighboring house were not in
the way. Carolyn Martienssen also noted, in
responding to Kline’s questioning, that an odor
coming from the scarred land was apparent well
before the filling operation began. Kline: “So
there’s always been an odor?” Carolyn
Martienssen: “That’s correct.” Kline, while
questioning the woman, told the judge that HCP is
objecting to CAUSE’s legal standing. Charles
Martienssen largely repeated his wife’s testimony
in responding to Fiorentino’s questioning, telling
the attorney that he began doing “a lot of
research” regarding the contents of dredge spoils
upon learning of the fill operation. And he said
his fears of water and air pollution were
worsened, not ameliorated, by DEP’s awarding of
the DOA. And he testified that there was no
rodent problem until the rats were disturbed by
the work and scurried of the property. “Me
personally, I’ve done a lot of legwork” in
visiting the fill zone and recording personal
observations of the land and what was on it before
the work began, Charles Martienssen
testified. Kline, in cross examining Charles
Martienssen, asked what precautions the man took
while walking on what he believes is fill
contaminated by toxins. Did “you take any
precautions to protect yourself?” the attorney
asked the witness. “No,” he responded. But when
Fiorentino asked him to elaborate, Charles
Martienssen said he did not handle any of the
material. Fiorentino and William Rinaldi, a
developer and manager of HCP, sparred repeatedly
as the man testified at length under questioning
from the plaintiff’s attorney. “I don’t
recall,” Rinaldi responded to an early question
from Fiorentino. And the witness repeatedly
referred the attorney to documents provided to
both sides during the discovery phase of the
hearing. Rinaldi, asked what his position is
with a subsidiary he established to contract with
haulers, said he wasn’t sure and that he doesn’t
keep track of such details. A consultant, he said,
would know the answers. “My purpose was to
reclaim abandoned mine lands and turn it into
something,” he told Fiorentino. “I made
commitments. I keep my commitments,” Rinaldi said
at another juncture in this testimony. “I made a
commitment with the town … with the Redevelopment
Authority.” Fiorentino showed a document he
said purports to show that sewage sludge, also
called biosolids, is under consideration as
additional fill material. But Kline objected, and
the judge ruled in the defense team’s favor,
ruling that the document could not be
introduced. Rinaldi said he will only use fill
state-approved fill material. “I might take it
from Alaska , whatever the state allows me to
take,” he testified. Fiorentino also questioned
two members of DEP’s headquarters staff, Eugene W.
Pine, licensed professional geologist of the
agency’s division of municipal and residual waste,
and Ronald Hassinger, chief of the agency’s
general permits section. Fiorentino questioned
Pine at length about the groundwater monitoring
wells while querying the other man about DEP’s
review process.
