Cuomo and James to Sue the United States EPA

NEW YORK – Attorney General Letitia James and Governor Andrew M. Cuomo recently announced that New York State intends to sue the U.S. Environmental Protection Agency after EPA issued the Certificate of Completion for General Electric’s cleanup of PCB contamination in the Hudson River. Late last year, the New York State Department of Environmental Conservation (DEC) released a study showing the cleanup of contamination in the upper Hudson River is incomplete and not protective of public health and the environment. At that time, the State demanded that EPA not issue the Certificate of Completion, as PCB – or polychlorinated biphenyls – levels in fish are still above EPA’s own acceptable risk range. EPA’s decision to issue the COC is contrary to the law and could make it much harder for EPA to require GE to implement more dredging or other remedial measures in the upper Hudson River, as needed to protect public health and the environment. EPA issued the COC on April 11.

“The Hudson River is critical to the environment and economy of New York,” said Attorney General Letitia James. “Despite the EPA’s stance, the facts remain crystal clear: the cleanup of PCBs is incomplete, and allowing GE to walk away without accountability is dangerous to the health and welfare of New Yorkers. Once again, the EPA has failed to protect the environment, and failed to protect the residents of our state, but my office will work tirelessly to ensure the cleanup and restoration of the Hudson River carries on.”

“Time and again the Trump Administration puts corporations and polluters’ interests ahead of public health and the environment,” said Governor Cuomo. “The Hudson River is the lifeblood of communities from New York City to the Adirondacks but we know PCB levels remain unacceptably high in the riverbed and in fish. Since the EPA has failed to hold GE accountable for fulfilling its obligation to restore the river, New York State will take any action necessary to protect our waterways and that includes suing the EPA to demand a full and complete remediation. Anything less is unacceptable.”

Before announcing the State’s intent to sue, New York – through DEC and the Attorney General’s Office – made numerous requests to EPA to fully assess the nature and extent of contamination left behind after six years of dredging to remove PCBs, which was required by EPA in order to meet the goals of the 2002 Record of Decision (ROD). In August 2016, DEC challenged the effectiveness of EPA’s cleanup remedy for the Hudson River. In November 2016, DEC called for EPA to conduct additional sampling to ensure a legitimate cleanup of PCB contamination. In December 2016, DEC released its independent analysis challenging the EPA’s remedy to clean up PCBs and called on EPA to expand its investigation to the lower Hudson River. In June 2017, DEC Commissioner Basil Seggos told EPA that it had failed New York by determining the dredging remedy effective. In August 2017, after EPA failed to expand their investigation, DEC conducted its own sediment sampling, and in November 2017, DEC and the Attorney General wrote separately to EPA’s then-Administrator Scott Pruitt, urging EPA to deny GE’s request to certify the cleanup of the upper Hudson River complete.

In March 2018, the Attorney General wrote EPA specifying an appropriate legal alternative to issuing a Certificate of Completion, and in October 2018, DEC and the Attorney General in a joint letter, requested that EPA withhold the Certificate of Completion until it can be determined based upon appropriate data that the remedy is complete and protective of human health and the environment. In December 2018, DEC released its study of the contamination left behind by this failed cleanup project.

“EPA is failing in its mission to protect our environment,” said Department of Environmental Conservation Commissioner Basil Seggos. “EPA is obligated to direct GE to meet the cleanup goals set when the dredging remedy was selected. The federal government’s failure to protect New York’s environment and New Yorkers is unacceptable, and we are doing what we must to compel EPA and GE to finish the job and protect public health, the precious and irreplaceable Hudson River environment, and the communities that depend on a clean and healthy river.”

In the absence of federal leadership, DEC conducted a comprehensive analysis to collect hundreds of new sediment samples, confirming that elevated levels of PCBs remain in the surface sediment of the Hudson River. DEC found that the average sediment PCB concentration varied significantly between different reaches of river, indicating there are still certain areas in the upper Hudson where PCB contaminated sediments remain. In addition, DEC collected nearly 230 fish samples and evaluated fish data generated by the EPA and GE during and after the dredging project. DEC found that fish PCB concentrations are not recovering at the rate anticipated by EPA. DEC also found that fish PCB concentrations in the lower Hudson have not recovered as a result of the remedial work in the upper Hudson.

To determine how much additional sediment cleanup is necessary to achieve the cleanup objectives in the ROD, EPA must direct GE to collect additional data to understand how to successfully meet the goals set in the ROD. EPA must also refine its understanding of the relationship between the remaining PCBs in upper Hudson sediments and the fish PCB concentrations in the upper Hudson to determine where and how much further sediment cleanup should be required of GE. DEC is also calling on EPA to compel GE to fund a full investigation of the lower Hudson or EPA should fund the work.

EPA admits that dredging work in the upper Hudson will have little to no beneficial impact in the lower Hudson. In its May 2017 draft Five-Year Review of the remedy’s effectiveness, EPA stated that human and environmental risks from PCBs in the lower Hudson remain unacceptable and are not expected by EPA to improve because of the work in the upper Hudson. DEC is also calling on EPA to direct GE to collect additional data to determine if another round of sediment remediation is needed. In addition, EPA must compel GE to fund a full investigation of the lower Hudson, where PCB concentrations in fish have not recovered. If GE refuses, EPA should fund this necessary work.

DEC and environmental organizations have repeatedly rejected the findings of EPA’s Five-Year Review Report on the Hudson River cleanup remedy and called on EPA to not issue the Certificate of Completion to GE.

Under the Comprehensive Environmental Response, Compensation, and Liability Act and the National Contingency Plan, EPA is required to monitor effectiveness of the remedy to affirm that it is meeting the goals set by the ROD. EPA must take additional remedial action if the remedy fails to meet the goals required by the ROD.