One of the most highly anticipated environmental law rulings in Glynn County in years occurred on a day when most people were busy with holiday plans — Wednesday, U.S. District Judge Stan Baker gave the court’s OK on a consent decree for the Terry Creek site in a decision that ultimately went against the wishes of the city and county governments, other local elected officials and a significant number of residents.
“As explained more fully below, (the Comprehensive Environmental Response, Compensation and Liability Act) and the precedent surrounding the act limit the role the court must play in reviewing the Consent Decree,” Baker wrote. “It would be improper for the court to review the EPA’s selection de novo or for the court to substitute its judgment for the judgment of the EPA on these technical decisions. The court cannot modify the consent decree or craft a better plan.
“Further, the court’s inquiry is not whether the selected remedy is the best plan or the plan that the court itself would have selected. Rather, the court’s only decision is whether to accept or reject the consent decree. In making that decision, the law requires the court to give substantial deference to the EPA’s judgments and selected remedial action plan as well as the parties’ proposed resolution. The court can only reject the decree if it is unlawful, unreasonable or inequitable.”
Baker explained that the court wasn’t in a position to grant direct relief beyond that which the federal government requested in the complaint filed in May 2018. Although governed as a Superfund site under CERCLA, the Terry Creek outfall and associated areas never went on the National Priorities List as a Superfund site.
“Through the proposed consent decree, the United States obtains from Hercules the entirety of that requested relief without the need for protracted, costly and uncertain litigation,” Baker wrote. “In other words, the consent decree represents the ‘best result’ the United States could receive in this litigation.
“Further, as explained below, if the court were to reject the consent decree, there is no certainty that the EPA would eventually propose a remedial action different from that proposed in the consent decree, much less any certainty that Hercules would be required to perform that action. The only certainty that would come with a rejection of the consent decree would be that the cleanup efforts at Operable Unit 1 — and likely the entire site — would remain mired in bureaucratic and litigation-based delays for years to come.”
Two weeks ago, the Terry Creek site received mention in the Georgia Water Coalition’s annual Dirty Dozen report, an effort that seeks to bring attention to environmentally compromised areas throughout the state.
“Long a polluted burr in the side of residents in Glynn County, things got worse this year when the U.S. Environmental Protection Agency went against recommendations of local governments and agreed to the cheapest proposed cleanup plan for this toxic site,” the GWC’s Joe Cook said at the time. “EPA’s preferred plan will thwart local desires to redevelop the area and keep toxins in place that will continue to contaminate fish and wildlife.”
The commissions for the city of Brunswick and Glynn County both passed resolutions against the current plan, advocated for a more-complete cleanup of the site, and then filed amici briefs with the court backing up these arguments.
Rachael Thompson, executive director of the Glynn Environmental Coalition, said she wasn’t surprised at the court’s decision, considering the judge’s job isn’t to act like a subject-matter expert.
“There’s two things I would take home — from the beginning, it’s really important to have a unified voice from our community, in the beginning of the process, going with the proposed plans, the record of decision and things like that, from our community as a whole,” Thompson said. “And that’s where we’re at with LCP Chemicals and the proposed plan.”
Megan Desrosiers, CEO of One Hundred Miles, said her organization had hoped efforts by the city and the county would have made more of a difference.
“But the cards were stacked against us,” Desrosiers said. “Unfortunately, the federal government gives a lot of power to the polluter and it is often the case, as in this instance, that local communities suffer as a result.”
Thompson said that Hercules has the ability to go further in the design phase for the proposed remedy than what’s specified in the consent decree, if the company so chooses.
“Hercules and the city of Brunswick have both been having conversations, or planning to have conversations, on actually implementing some of the requests from the city in the design phase, specifically the box culvert,” Thompson said. “So, just because this is getting filed in the courts doesn’t necessarily mean that Hercules can’t come back and say, ‘OK, we want to meet the needs of the community, and we understand that the box culvert was a really important piece — among other things — the reason why the city was so opposed to the other plan.’”