New York State Threatens Lawsuit Over EPA Hudson River Decision

Apr 12, 2019

Thursday’s decision by the U.S. Environmental Protection Agency regarding General Electric’s cleanup of the Hudson River has drawn strong reaction from politicians and environmentalists, with New York state officials threatening to sue the federal agency.

The U.S. Environmental Protection Agency issued a “Certification of Completion of the Remedial Action” for GE’s dredging of toxic PCBs from the Hudson River.

The company discharged the contaminants from its facilities in Fort Edward and Hudson Falls for decades.

EPA Region 2 Administrator Pete Lopez says the certification is for the terms of a 2006 consent decree with the company. GE dredged contaminated sediment from a 40-mile section of the river from Fort Edward to Troy, placed concrete caps on certain areas, and performed habitat restoration work. Long-term monitoring will continue. Lopez said GE will remain on the river for decades. 

“GE is not off the hook. And even for the work that it’s done – if we find the work that was done is not protective, they may be called on to do more. It’s very possible.”

Lopez describes the Certification of Completion for the Remedial Action as a “legal receipt” for the tasks required of GE for the Superfund Cleanup in the consent decree.

The move has drawn pointed criticism from local, state and federal lawmakers. Governor Andrew Cuomo and Attorney General Tish James, both Democrats, announced that the state would sue EPA over its declaration.

New York State Department of Environmental Conservation Commissioner Basil Seggos called EPA’s decision a “total failure of leadership at the federal level.”

“This is a giveaway to a corporate polluter at really one of the largest and most visible Superfund sites in the country.”

Seggos points to PCB levels in fish samples, showing concentrations higher than EPA’s acceptable range. He says EPA could have paused its decision to allow for more investigation on the river.

“But instead they issued the COC and it contains such things as a ‘covenant not to sue,’ which is going to make their lives and our lives very difficult if we need to secure more dredging and more cleanup in the future,” said Seggos.

Environmental organizations and politicians up and down the Hudson are joining in condemning EPA, including Ned Sullivan, President of Scenic Hudson.

“It’s issuance of a Certificate of Completion flies in the face of science, the law, and its pledge to find a consensus position on the fate of the river with New York state and key stakeholders,” said Sullivan.

Republican Dutchess County Executive Marc Molinaro said the county will not allow the EPA to stand as-is.

“Dutchess County supports the governor, the attorney general, and the DEC’s action to hold the EPA accountable and, if necessary, would join in litigation. We know it is that important. It’s that important today, it is that important for the generations of people who will follow along perhaps what is the most significant waterway in America,” said Molinaro.

Lopez says EPA hopes the state would not pursue a lawsuit, but said EPA’s “strict interpretation” of the 2006 consent decree with General Electric is “accurate.”

“If they feel our interpretation is not correct and we can’t correct them and if they feel they need to move forward with a lawsuit, that’s OK, but we’re certain that we’re correct with our interpretation,” said Lopez.

In a statement Thursday, General Electric said it has met all of EPA’s commitments and that the declaration “confirms GE successfully completed the Hudson River dredging project.”

But also Thursday, in its second five-year review of the project, EPA said it would defer a determination on the protectiveness of the remedy for human and environmental health until more data is collected, including fish-tissue data.

Right now, it’s considered unsafe to eat fish from the Hudson more than once a month.

“Bottom line is if we see that the remedy is not performing, we put together our findings, we trigger the reopener provisions and that’s what drives the conversation. The issuance of the certification becomes immaterial to this whole discussion. It’s really data-drive and really back to the issue of protectiveness,” said Lopez.

Molinaro, however, contends EPA has weakened the position of the people of the Hudson Valley who have fought to restore the river’s health.

“They may want us to believe that it’s a wait-and-see, but there was no need to allow that,” said Molinaro.

Lopez said it could be 50 years before a final Certificate of Completion of Work is issued for the entire project.

In a related but separate issue, General Electric will continue to address PCB contamination in Hudson River floodplains, as per a 2014 consent decree.