‘Twas the weeks before Christmas and through lower Bucks 
no noise could be heard except for a truck
Delivering mail and right to my door  
“It’s the FOIA response and it’s from the Corps!” 

It’s true (if not very artful; go to http://www.nyise.org/moore/ if you want the original).  We published two PU’s about what was going on at the John Pozsgai site [links].  In the first, we noticed some placement and grading of dirt and gave some background on the case.  We found out that Congress held a hearing on the Pozsgai case in October, 2000, and we summed up the PU’s with a letter to the Congressional committee and the three Federal agencies asking them about the restoration.  We received no mail so the second PU was announcing that we were submitting FOIA requests to the agencies.     

The first PU also announced the 10 year “birthday” of a wetlands map to which both the government and Pozsgai agreed (or “stipulated” if you prefer the legal jargon). Remember this event as you read the rest of this–that in 1991, the government and Pozsgai agreed to the areas of his property that were wetlands to be restored.  Pozsgai was permanently enjoined by the Federal District Court from filling without a permit from the Army Corps of Engineers. 

We’ve received no reply Congressman Burton to our letter of August 15.  To cut to the chase on our FOIA requests, we got little interesting information from either EPA or the US Fish and Wildlife Service.  The information we got from the Corps, however, makes interesting and long reading.  It tells the tale, in a way, of what has been happening since the wetland restoration plan was developed and the parties agreed to the map. 

 In 1991, the Pozgais’ co-defendents removed 5800 cubic yards of material, which was considered to be their share of restoration work.  Nothing seemed to happen at the site until 1995, when the Corps and their contractor went out to do a detailed survey and get other information.  What did they find? 

 In 1995, some wetlands were restored (by the co-defendents) and that Pozsgai was not implementing his share of the restoration work.  The Corps also observed “[r]egulated work, such as mechanized landclearing, excavation, and dumping activities in areas subject to Federal Jurisdiction...”  In other words, the Corps believed that instead of restoring wetlands, Pozsgai was disturbing and filling them... again!  The biologist that investigated recommended that he be sent a “cease and desist letter” and that the Department of Justice also be notified and that they order Pozsgai to stop.  There is nothing in the documents we received to indicate if either the Corps or the Justice Department sent Pozsgai orders to stop.   

 The record jumps up to 1998, with a copy of a letter from the Corps to Pozsgai, acting on his request for a permit to keep the 5.37 acres of fill that remained from his unauthorized work, and place yet another 1.29 acres of fill, for a total of 6.66 acres (Pozsgai’s site is 14.5 acres total, with approximately 10.5 acres of wetlands.  Remember that he knew they were wetlands before he bought the property and used that information to negotiate a lower price).  So he still wanted to fill over 60% of the wetlands on the site. 

This permit application attracted some attention.  The Corps did not note any public comments in favor of the permit application.  EPA, the Fish and Wildlife Service, and the PA Game Commission, among others, all commented negatively on his application.  We think the most interesting comment came from Morrisville Borough.  They were concerned that because the storm water collection system for a portion of the Borough discharged to the stream running through Pozsgais’ property, that any further filling would “severely” affect the system.  Here is a direct flood control purpose for these wetlands (at Pozsgai’s trial, people from Morrisville testified that they were flooded after the initial bout of wetland filling). 

The Corps asked Pozsgai for more information, including seeing if any nearby property would serve his purpose--to expand his truck repair business, although most of the filled wetlands would be used to park trucks and trailers (in fact the Corps noted that he was using the areas that he had filled; he wanted to expand his business even more).  This “alternatives analysis” is a requirement of a permit application. 

The alternatives analysis came up with no land in Pennsylvania within an 8 mile radius of the present property, which was enough to satisfy the Corps (seems like a pretty light search area to us).   So once there is “no practicable alternative” to the action, the Corps next step was to ask Pozsgai to prepare a compensation plan.  This is standard fare.  The Corps wasn’t picking on Pozsgai (in our view the guy has been treated with kid gloves since he got out of the slammer); this is the same treatment all people asking for a Clean Water Act fill permit get.  The formula goes (theoretically): avoid impacts (by doing an alternatives analysis); minimize impacts (by thoughtful design); mitigate impacts (by compensating for functions lost in the unavoidable impacts).

Pozsgai and his agent wasted no time in replying to this request–the letters are dated two days apart (September 8 and 10, 1998): “Pozsgai... states he lacks the financial ability to establish compensatory wetland mitigation...”.  Given the profile of this case, we are sure that his consultants explained the permit process to him, so the Corps’ request for mitigation shouldn’t have been a surprise.

This letter gets better.  The above quoted sentence continues: “he still disputes that any wetlands exist now or have ever existed on his property, except in and about the immediate vicinity of a few drainage ditches.”  Readers, please refer above to the “stipulated” map from 1991 where  Pozsgai agreed to the areas to be restored.   In 1998, however, he goes back on that.  He’s willing to get a permit--provided that it is simply a piece of paper that allows him to do whatever he wants.  He still refuses to believe that the Federal government can exercise any authority over his land.   

The one page letter gets even better!  It concludes: [i]f said permit is not forthcoming, on or before September 18, 1998, Mr Pozsgai will direct his Attorney to initiate litigation in Federal Court seeking compensation for the taking of his land.”  Wow!  We doubt if Pozsgai ever filed suit.  Can you imagine this?  This would be like a driver suing Penn DOT after their car failed to pass inspection, even though they continue to drive it. 

The Corps denied Pozsgai’s request for a permit because of the impacts to the wetland system and his refusal to consider mitigation to make up for the lost functions.  Again, this is the same treatment that everyone gets.  Because his permit was denied, the Corps told him to restore the site as ordered by the Court. 

The rest of the FOIA response deals with Representative Burton’s interest in the case (he asked a number of questions that indicate that he had only talked to Pozsgai) and some of the correspondence between him and the Corps.  One of his staff apparently went to the site with the Corps. 

At the same time when I got all this mail,  
Describing this case after the guy was in jail,  
I wanted to settle for a long winter's rest,
but another look down there turned out for the best

So what is going on there now?  Contrary to the first stanza of the poem, there’s plenty of noise in lower Bucks. Take a look at this photo [link to MVS-014S], taken the second week of December.  Compare that to a similar photo from July [link to pog2].  It looks like someone has been busy in here.  Here’s more photos from the site taken the second week of December [link to series, MVS-004S, 005S, 006S, 007S,  008S].   There is a lot of activity going on out there, and it doesn’t look like restoration to us. 

One central idea in having minimum Federal environmental standards is to create a “level playing field” and to ensure that businesses in one area don’t have an advantage over others. These costs of compliance, however, are passed on to all of us.  When you pay your sewer bill, you pay for costs of responsibly treating the waste.  The same thing when you buy orange juice or a CD player.  That is, if the firms are in compliance.  When you take your car (or truck) to a shop for repairs, the costs for that shop to comply with environmental regulations are built into their fee.  It is a cost of doing business.

Unless you take your truck to Pozsgai’s.  No wonder his agent said in one letter to the Corps, that Pozsgai provides “economical” service to the “trucking community.”  He can afford to be cheaper than repair shops that comply with the Clean Water Act.  In this case the costs are borne by those that get flooded (remember Morrisville Borough’s comment that additional flooding would affect their stormwater system?) and all of us who would benefit from wetland functions.  In his permit application, he wouldn’t compensate for the impacts he wanted a permit for.  Neither will he restore them to implement the Court’s order.  He’s too poor, he says.  But while pleading poverty, he’s using the filled wetlands as an integral part of his business in order to make more money. 

When the government calculates the penalty for violating a wastewater discharge permit, they usually calculate what economic benefit accrued to the violator by not complying.  The same should be done here.  Calculate how much money Pozsgai has made from his use of the illegally filled wetlands.  That money is wrongfully his.  And add to that to the estimated cost of restoration of the site.  Despite his serving time in jail, he still owes society a monetary debt.  If the total is greater than Pozsgai’s purchase price of $132,000, then the land should be confiscated.  As far as Pozsgai’s refusal to restore the site, and his apparent violation of the permanent injunction against filling without a permit, that should be up to the Court.  But that relies on the Department of Justice to get him before the Court. 

We have made a complaint to the Corps.  We hope that they and the Department of Justice promptly enforce the law. 

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