Statement Of The Office Of The New York State Attorney General On The Environmental Protection Agency's Proposed Remedy For Contaminated Sediments In The Hudson River

The Attorney General's Office strongly supports the United States Environmental Protection Agency's decision to dredge sediments from the most contaminated areas of the Hudson River. Fish throughout the Hudson River, from Hudson Falls to the Battery, are contaminated with PCBs. Wildlife is contaminated. Humans are exposed and are also contaminated with PCBs. It is time to address that problem. We applaud EPA Administrator Carol Browner and the staff of EPA Region 2 for the care and thoroughness they exhibited in reaching this conclusion. And we applaud DEC Commissioner John Cahill and his staff for the time and effort they have expended in studying the River and reviewing EPA's proposal.

Congress made a decision 20 years ago, and has repeatedly re-affirmed it since then, that there is a compelling need to clean up toxic waste sites. Companies responsible for the contaminants must clean them up, preferably by removing them. The Hudson River, after decades of study, is long overdue for a cleanup.

Based on the extensive evidence in the record, and EPA's and the State's technical and scientific review of that evidence, four points are clear and should be indisputable:

  1. PCBs cause harm to humans and wildlife. That harm includes immune, reproductive, nervous, and endocrine system injury as well as cancer.

  2. PCBs in the River sediments are available to fish and other animals and from there can be ingested by humans. We know as fact that people are still eating contaminated fish from the Hudson River.

  3. The River is not "cleaning itself" of PCBs. While the River is cleaner now than it was 30 years ago, that is largely because the State has expended tremendous resources to reduce sewage and other industrial discharges. The PCBs that remain in the River, however, are invisible. The PCB levels in the fish have only decreased marginally in the over 20 years since GE stopped using PCBs at its Hudson Falls and Fort Edward plants. Over the last seven years, they have remained essentially stable. Unless the PCBs are removed from the River, the fish will remain contaminated.

  4. Dredging the "hot spots" in the River will remove large quantities of PCBs and, in conjunction with control of the continuing discharges from the Hudson Falls plant, will lead to major improvements in the River. This remedy will dramatically decrease human health risks, particularly in the upper valley. It will also cut almost in half the flow of PCBs over the Troy dam, significantly assisting the recovery of the 150 miles of the lower Hudson River. These long-term benefits far outweigh the limited short-term impacts that may result.
In addition, we believe that, based on long-existing law, it is fair and legal to require GE to clean up its PCBs from the Hudson River. For twenty years companies big and small have cleaned up their toxic discharges under the federal Superfund program and its state equivalents, whether legally discharged or not. There is no reason to treat GE differently. And, in any event, GE's discharges were not, contrary to the common misperception, always legal. To taxpayers who will have to pay for the cleanup if GE does not, to those towns and industries who have done their share to clean the River, and to New Yorkers who long for a cleaner Hudson, fairness demands that GE remove its toxic waste from the Hudson River. We save the River by cleaning it, not by leaving it polluted.

PCBs pose significant risks to humans and wildlife.

There can be no real dispute that PCBs pose significant risks to human health, wildlife and natural resources. EPA and many others have carefully evaluated the health effects of exposure to PCBs and the ways in which people may be exposed to them. PCBs have been demonstrated to cause a variety of adverse health effects on the immune, reproductive, nervous, and endocrine systems. There has been no real doubt raised as to these findings.

This office is particularly concerned about the children of the State and the effects of PCB exposure on their development. PCBs have the potential to affect the way a child's body and brain develop. Studies of infant exposure to PCBs have shown that PCBs are passed from mothers to infants both in the womb and by ingestion of breastmilk. These are serious health concerns, which should trouble all of us.

Cancer risks of PCBs have been carefully studied by many health organizations including the International Agency for Research on Cancer, the National Toxicology Program, EPA and the World Health Organization. After review of the relevant data, these agencies found conclusive evidence that PCBs cause cancer in animals and suggestive evidence that they cause cancer in humans. These agencies concluded that, considering all of the studies, the weight-of-evidence indicates that PCBs are probably carcinogenic to humans. The National Institute for Occupational Safety and Health has determined that PCBs are a potential occupational carcinogen. Against this vast body of data, there is only one dissent - one GE-funded study, a study criticized by numerous independent scientists. It would be irresponsible for the governments to delay a needed cleanup on that basis, especially since the New York State Department of Health explicitly found GE's study insufficient to conclude that PCBs are not human carcinogens.

PCBs in sediments are being ingested by fish, resulting in human exposure.

The fish in the Hudson River are contaminated with PCBs. There is no dispute about that. Much of the wildlife along the River is also highly contaminated with PCBs. In fact, some of the animals are so highly contaminated that if their carcasses were thrown out, they would need to be treated as hazardous waste.

Unfortunately, the fish are not getting much cleaner. The PCB levels in fish, after dropping significantly when GE stopped using PCBs at its plants, have decreased only marginally over the past 20 years. Over the past seven years, PCB levels have remained statistically stable. Discounting a brief surge and decline in the early 1990s due to PCB releases at the Hudson Falls plant, the level has remained fairly constant for ten years.

Extensive studies by EPA and the State government have tried to determine the source of PCBs ingested by the fish. Are they coming solely from the leakage from GE's plant sites in Hudson Falls and Fort Edward, as GE suggests, or are they coming from the River sediments themselves? EPA looked to water column PCB concentrations at many sites in the River; the concentration and specific types of PCBs in the fish, the sediment and the water at different locations; the concentration of PCBs on the surface of, and within, the sediments; and the concentration and types of PCBs in the sediment-dwelling worms and insects. EPA's analysis covered many years and relied on thousands of samples. It was the most extensive scientific review by far for any site in New York, or indeed in the country. All of these different methods of analysis come to the same conclusion: the PCBs are coming largely from the River sediments. For that reason, EPA and State scientists believe that to address the PCB levels in fish, we must address the already contaminated sediments as well as the leakage from the GE plant sites, which continues to contribute PCBs to River sediments.

Because of the PCB contamination, the commercial fishery on the Hudson has been closed for almost twenty-five years for most species of fish. In addition, the New York State Department of Health has advised people to not eat any fish from the upper River, and to limit consumption of fish from the lower River. The State advises women of child-bearing age and children not to eat any fish from anywhere in the River.

Surveys conducted by the New York State Department of Health and others, however, show that not everyone knows about the advisories. In fact, fewer than half of surveyed anglers were aware of them. The advisories are not always visible or understandable. We also know that many people eat the fish regardless of the advisories, and that some people fish in order to eat. Many people, especially those with low incomes, and those in the lower Hudson Valley and New York City, report eating the fish they caught and sharing the fish with women and children. Some estimate that as many as 100,000 people fish and crab in the Hudson. Simply, contaminated fish are contaminating people.

Some would argue that the best response to the contaminated fish is to just post more and better advisories. But this approach would merely consign the Hudson to contamination. We would be accepting continuing harm to humans, because advisories can never be completely effective. We would be allowing the otters and owls, the mink and the swallows to continue to be contaminated by PCBs because, of course, advisories do nothing to protect them.

At a time when the State is trying to revitalize the Hudson River, through tourism, through the Governor's Hudson River Institute, through cleanup of sewage and other wastes, and through increased public access, the government would violate its public trust to ignore the greatest source of the River's toxic pollution. We cannot abandon the Hudson River and the communities that live along its shores.

The River is not cleaning itself sufficiently.

Once in the environment, PCBs remain there because they do not biodegrade into harmless products. Indeed, PCBs are so persistent that they can be carried all around the globe. PCBs also become airborne (volatilize) from water and sediment containing PCBs. The airborne PCBs can then land elsewhere to contaminate other areas.

Since PCBs do not break down to safe levels, the only way they can become less available to fish in the upper Hudson River is either by being removed or by being buried by clean sediment. We know that PCBs are in fact being removed from the upper River by flowing over the Troy dam and moving downstream. This means, however, that they are contaminating fish from the Troy dam to the Battery and beyond. Leaving them to pollute an even larger section of the River cannot be the best answer.

GE has stated that the River is cleaning itself because clean sediments are burying the contaminated ones. That argument is irrelevant with respect to the navigational channel, which State law requires to be kept at a depth of 12 feet. Sedimentation in the channel needs to be removed, so contaminated sediments there cannot be buried.

More important, however, on the basis of thousands of samples, federal and State government technical and scientific staffs have determined that while contaminated sediments are being buried in a few places, that is not the case throughout the upper Hudson. Despite over 20 years of sedimentation since GE stopped large-scale discharges of PCBs, PCBs remain easily available to fish through the sediments in many parts of the River.

Even if some PCBs are getting buried, that could easily be only a temporary matter. As numerous independent peer reviewers of EPA's proposal found, a river is a dynamic system. It changes. It floods and recedes. It alters course. A river is not like a lake or even like an ocean. Areas that may now have clean sediment over PCB-contaminated sediment could later be scoured; the PCBs would be re-exposed. In a changing system as powerful as the Hudson River, nothing short of PCB removal will ensure that we and future generations will be able to enjoy the River knowing that the fish and wildlife will be uncontaminated.

The proposed remedy promises to lead to major improvements.

EPA has proposed a two-part remedy, with which the scientific and technical staff of the State agree. In one part, EPA will shut off the ongoing source of PCBs from the soil and bedrock under the GE Hudson Falls plant. GE apparently does not contest this part of the remedy. In the other part, EPA would require the removal of 100,000 pounds of PCBs from the River.

EPA has calculated that dredging the "hot spots" in the River will dramatically reduce cancer and non-cancer hazards to humans and risks to wildlife. In comparison to just controlling the Hudson Falls discharge and waiting, the proposed removal should reduce these dangers by 70-90 percent. EPA Administrator Browner has emphasized that the fish will be safe to eat a generation sooner.

Dredging would cut almost in half the discharge of PCBs over the Troy dam to the lower Hudson River. This is important because PCBs spreading down river contaminate another 150 miles of river, 150 miles with millions of people along the shores and innumerable opportunities for revitalization of shoreline communities. The magnitude of this reduction and its positive effects are very significant benefits of this proposed remedy.

It is reasonable for persons who live near where the dredging will occur to raise concerns about the disposal of dredged material and the dredging itself. EPA, however, has flatly stated that the sediments will not be disposed of in the Hudson Valley. DEC intends to ensure that local disposal does not happen. This office also will hold EPA to its word: There will be no local landfill.

EPA and State technical personnel also both say that the dredging can occur relatively quickly. EPA has examined dredging projects around the country and on the basis of this experience, expects the remedy to take five years to complete. There is no basis to suggest that the dredging will take decades.

Moreover, experience from numerous other dredging projects indicates that dredging can be and has been undertaken without substantial re-suspension of contaminated sediments. While experience shows that there is likely to be some small increase in PCB concentrations in the water immediately after dredging, this proposed remedy is for the long-term. Over the long-term there will be major reductions in contamination levels and cancer and other health risks.

Over the last two decades, dredging technology has advanced dramatically. Recognizing this fact, DEC a decade ago proposed to dredge even more of the River than EPA now proposes. And now in 2000, technology has progressed still further. Indeed, dredging projects elsewhere in New York, such as the recently completed Cumberland Bay project in Plattsburgh, have proceeded without disrupting local community life or the local economy; in fact, the dredging project proved to be a boom to the local economy.

It is important to realize that environmental concentrations of PCBs cannot be seen even though they are present in water and sediment. What people do see is algae and sewage and floating garbage. Fortunately these problems have been dramatically reduced over the years. Laboratory analysis of samples, however, shows that similar dramatic improvements have not occurred with respect to PCBs. Today, the Hudson River and the wildlife that live in and near the River are contaminated with high levels of PCBs. It is time for us to take action on this aspect of Hudson River pollution.

 

It is fair and legal to require GE to clean up its PCBs from the Hudson River.

There is no question that there are PCBs in the Hudson River and that those PCBs come from GE. GE, however, erroneously argues that all its discharges were legal, and thus that it is somehow unfair to make GE clean up the PCBs in the River. This argument is wrong for many reasons.

Most importantly, Congress decided 20 years ago in passing the Superfund statute that the best way to clean up toxic sites is for the companies that put the waste there to perform or fund the cleanup, and not waste time arguing about fault. The alternative is to have taxpayers pay for the cleanup, and Congress decided that the companies were in a better position to do so. Numerous states, including New York, made the same decision. Under this system, hundreds of sites in New York and thousands across the country have been cleaned up by responsible parties. Indeed, GE itself has performed or paid for cleanups at other sites, all in accordance with the Scheme Congress and the states have established. There is really nothing new here. Overall, this country has decided that this remedial approach is the fairest and fastest way to get these toxic sites cleaned.

It is worth noting, however, that not all of GE's discharges were legal. A portion of GE's discharges occurred before current regulatory programs were adopted and, during that over 20 year period, GE's discharges were never approved by the government. Later, after GE obtained a permit for the first time in 1975, a state administrative law judge found that GE's discharges in the early 1970s through 1975 violated State law. And for the 25 years since the large-scale discharge of PCBs has been stopped, PCBs have continued to leak into the Hudson River from the soil under GE's plants, also without any permit.

There are other, larger Superfund sites in the country. There are more expensive cleanups. And, indeed, this cleanup could probably be less costly than anticipated if GE were to decide to do the cleanup itself, since private cleanups are almost always less expensive. In many ways, it is GE itself that is making the cleanup expensive by spending tens of millions of dollars to oppose the cleanup through advertising, lobbying, and other means. These costs do not include the tremendous damage to GE's corporate image. By raising unsubstantiated fears, GE is making the process more difficult. Other sites are cleaned up without all the vitriol. There is no reason for that added expense and delay here.

When GE argues that it is not fair to require it to clean the Hudson River of PCBs it put there, one can only ask whether it is not more unfair to ask New Yorkers to let yet more decades pass before Hudson River fish are safe, before the environment is cleaner. A cleanup will provide many local jobs and allow New Yorkers to more fully utilize and enjoy the River.

Every year, the State reaches agreements with dozens of companies who agree to clean up sites contaminated with their waste. The bills may be smaller, but so are the companies. Is it fair to them to make the taxpayer foot the bill for GE's cleanup, but not theirs? Or is it fair to them to let GE's pollution remain in the River while the State required others to perform or pay for a cleanup?

The State and federal governments have spent billions of dollars reducing sewage and other discharges from the Hudson River. Is it fair to those taxpayers to have all that effort undercut because GE refuses to clean up its own pollutants? Should we not finish the job of cleaning up the Hudson River? To really save and revitalize the River and the communities that live along it, we must clean it up, not leave it contaminated.

We call on GE today to join us in supporting this sound and fair remedy for the Hudson River. Together, we can make progress and leave our children and grandchildren a legacy we can all be proud of.

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