When it comes to PCBs in the Hudson River, it’s time for EPA to do its job.
That, in a nutshell, is the conclusion of a lengthy report released this week by the New York State Department of Environmental Conservation (“DEC”) regarding the decades-old cleanup of the millions of pounds of the toxic chemical dumped by the General Electric Corporation in the Hudson River (a 2-page letter summarizing the report is here).
As we’ve blogged about before, the writing has been on the wall for a long time that the plan EPA devised 14 years ago—and completed in the fall of 2015—would likely fail to protect New Yorkers. In 2010 the National Oceanic and Atmospheric Administration ("NOAA") and the U.S. Fish and Wildlife Service warned that that the EPA cleanup plan, unless modified, would leave the "equivalent to a series of Superfund-caliber sites" in the Hudson. Then in 2015, NOAA did its own computer analysis, which predicted, unsurprisingly, that the cleanup would fail to meet key health and safety cleanup targets for significant portions of the river.
Following a letter sent to EPA in August, and a September letter from the New York Attorney General, this latest move by DEC may be the strongest and clearest indicator to date that EPA’s own rosy statements suggesting that its cleanup “remedy” is protective of human health and the environment are fishy at best. As DEC’s put it, “it is clear that under current conditions, the remedy is not protective.”
To understand why DEC’s new report is so crucially important now and what, exactly, it says, here are some key points
- Critical Timing – Currently, the EPA is performing it’s Five Year Review (the “Review”) for the Hudson River PCBs Superfund Site—scheduled to be completed in April 2017—at the end of which EPA must determine whether the remedy is “protective” or “not protective” of human health and the environment. If the remedy is deemed not protective, EPA must order additional cleanup, or, if it’s unclear, EPA must order additional testing and scientific study.
- It’s All About the Fish – Because of EPA believes the main source of PCB exposure from the Hudson is through eating contaminated fish, whether it finds the remedy “protective” or not should depend on how the cleanup affects PCB levels in fish. EPA established clear numeric targets and specific timeframes to meet those levels—even rejecting several alternative cleanup plans that would have hit the same levels, but taken 10 years longer or more in doing so.
- The Fish Aren’t Safe to Eat – All though not all the data is in, from what we do know, the fish appear nowhere near safe to eat, and EPA’s 2002 prediction—that some fish could be eaten safely on occasion in as little as four years from now—is looking more and more like a pipe dream.
- “Trickle Down” Cleanup Not Working – The EPA cleanup was limited to the upper 40 miles (from roughly Glens Falls to Troy) of the 200-mile Superfund site (stretching all the way to the Battery in New York City). The thought was that by cleaning up the upper river the benefits would literally flow downward. From what we know, however, any cleanup effects on fish appear to be confined locally to where the cleanup occurred. In other words, to get clean fish in the other 160 miles of river (including near New York City), you actually need to clean there.
- More Data Needed – Overall, much more data is needed to really know what’s going on—including whether additional cleanup is needed up and downriver. That’s why DEC states that if EPA is unwilling to do the additional necessary testing (and it appear that they are), DEC will do the job itself.
Again, the Cliff’s Notes summary of the report, is that while much more information is needed, knowing what we know currently, EPA has no business declaring the river to be “protective” of New Yorkers and the state’s environment any time soon.
All and all, the state deserves tremendous kudos for standing up for the health and safety of its citizens and for offering to perform the necessary scientific testing and analysis if EPA remains unwilling.
As for EPA itself, if it’s considering any New Year’s resolutions for 2017, a good one would be to take its head out of the sand and heed the good advice of its two sister federal agencies and the state of New York. With the Review slated to finish in April, it’s certainly not too late.