George:

Those who are apologists for the gag order concerning the Ivy Landfill imposed by the City of Charlottesville, Albemarle County and their municipal landfill authority (RSWA) generally say that the plaintiffs who settled did so "voluntarily." This is false.

The Plaintiffs who live on the western side of the Landfill and those to the north (Peacock Hill) have legitimate fears that their water will become contaminated with carcinogens from the landfill. RSWA refused to provide written guarantees for water protection unless the plaintiffs dropped the lawsuit and agreed to the gag order. To claim that this settlement is "voluntary" reflects a profound ignorance or denial of the realities of the situation.

It is not disputed that hundreds of thousands of gallons of solvents now known to be hazardous were dumped on the ground in the landfill in the 1970's, primarily in an area called "the paint pit." It is not disputed that these contaminants are in the groundwater and are moving in "plumes" toward the west and north. It is not disputed that the groundwater has been contaminated at levels of TCE (a suspected human carcinogen) and vinyl chloride (a known human carcinogen) at hundreds of times above the maximum level set by EPA for safe drinking water. It is not disputed that these toxic materials have migrated beyond the landfill boundaries onto adjacent property (this is why RSWA purchased an adjacent farm for $900,000). The only issue in dispute is the rate at which these toxins are moving, the precise locations they will move to and the likelihood that they will be diluted and/or degraded before they are consumed by humans.

Under those circumstances, how could the actions of the plaintiffs be viewed as "voluntary?" The only way that the plaintiffs could get written and specific assurance that their water would be monitored and they would get clean water if their wells became contaminated, was to sign the Settlement with the "gag order."

If a government agent put a gun to your head and said you should sign a gag order, and you did it, perhaps our elected officials would also call that "voluntary" and say that the plaintiffs "knew what they were signing." Of course they knew. But it wasn't "voluntary" in any meaningful sense of the word.

When confidentiality agreements are entered into in Civil cases, people also agree to things that they don't want to, as part of a larger settlement that they feel is on balance beneficial. However, government does not have the right to barter away constitutional freedoms. The constitution and the Bill of Rights do not restrict what private parties can agree to among themselves. It restricts what government can do, and government cannot constitutionally negotiate for silence -- any more than it could demand that people convert to a particular religion as a contractual condition.

However, even if one disagrees with the issue of the constitutionality of the "gag order" perhaps one can question the rationale for imposing it: what are RSWA, Charlottesville and Albemarle afraid of? Could it be that they are trying to prevent the public from knowing the following:

1. The landfill operates on a fraudulent permit. DEQ agrees and has ordered the existing waste burial operations to be shut down by the end of this year.

2. To get around that, RSWA plans to build a new garbage cell right on top of the paint pit -- an action that will make clean-up and accurate monitoring impossible.

3. The new garbage cell will be only for Construction and Demolition Debris. All household garbage will be shipped out (as it currently is) to properly sited landfills in Amelia and Henrico. Only the developers will be the direct beneficiaries of the new garbage cell.

Michael Weber (electronic mail, April 3, 2001)