Congressman Maurice Hinchey (NY22) :: Press Release :: Hinchey & Lowey Strongly Criticize EPA/DOJ Consent Decree with General Electric

Washington, D.C. - U.S. Representatives Maurice D. Hinchey (D-NY) and Nita M. Lowey (D-NY) yesterday sent a strongly worded letter to the Department of Justice (DOJ) and the Environmental Protection Agency (EPA) raising serious questions regarding current plans by the General Electric Company (GE) to clean up polychlorinated biphenyls (PCBs) in the Hudson River. The letter, addressed to Assistant Attorney General Sue Ellen Wooldridge, in charge of the Environment and Natural Resources Division at the DOJ, and EPA Administrator Stephen Johnson, expressed concerns that the EPA has weakened its stance and allowed GE to dictate the terms of the cleanup based on its own interests.

"We urge you to reconsider the terms of the consent decree and order a revised design report that reflects the concerns and comments provided by other federal agencies and the public," Hinchey and Lowey wrote to Wooldridge and Johnson. "The Hudson River ecosystem and communities along the river have suffered from PCB contamination for decades, and the ROD [Record of Decision] was the product of many years of study, scientific review and evaluation. Deviations from the ROD that reduce the overall effectiveness of the cleanup and threaten the natural resource recovery of the river are unacceptable. This cleanup is too important to be compromised by agency retreats from the original ROD. We look forward to your prompt attention to this matter."

Hinchey and Lowey criticized the federal agencies for failing to ensure that GE complete the entire Hudson River PCB cleanup, which has been decades in the making and was ordered by EPA in 2002. Under the terms of the current consent decree, GE has agreed to conduct only the first phase, or approximately ten percent, of the overall cleanup. The letter also highlighted that EPA and DOJ failed to insist on a waiver of future legal challenges from GE regarding the remainder of the cleanup, did not stipulate penalties in the event that GE refuses to undertake the second phase of the cleanup and allowed a peer review process tilted in favor of GE.

The House members cited a recently leaked interagency memo to the EPA from a natural resources expert at National Oceanic and Atmospheric Administration (NOAA) which highlighted significant deviations between the PCB cleanup process called for in EPA's 2002 Record of Decision (ROD) and GE's cleanup process detailed in their Phase 1 Intermediate Design Report (IDR). Hinchey and Lowey noted that if the consent decree were finalized, the remedy detailed in the IDR would replace that chosen by EPA in the original ROD. NOAA's document noted that the IDR appears different from the ROD and detailed twenty significant discrepancies between the ROD and the Phase I IDR. These include the fact that while the ROD calls for removal of contaminated sediments and active restoration of disturbed habitat areas, the IDR allows GE to cap up to 80 acres of river bottom and avoid full habitat restoration.

Hinchey and Lowey questioned why EPA and DOJ had withheld this and possibly other important documents and failed to address the significant issues raised by it. The Congressional Members urged Woodridge and Johnson to take immediate steps to:

Hinchey and Lowey have been longtime advocates for a comprehensive cleanup of PCBs in the Hudson River left from decades of discharges by General Electric Company at Hudson Falls and Fort Edward. The two representatives wrote to the EPA earlier this year urging the EPA not to delay the cleanup or compromise the objectives set forth in the 2002 Record of Decision. Hinchey also personally expressed his concerns to top EPA officials that they not allow GE to compromise the cleanup or duck their responsibility for paying for the cleanup. The EPA's 2002 Record of Decision calls for targeted environmental dredging and removal of approximately 2.65 million cubic yards of PCB-contaminated sediment from a 40-mile stretch of the Upper Hudson River.

The full text of Hinchey and Lowey's letter follows:

Hon. Sue Ellen Wooldridge     Hon. Stephen Johnson
Assistant Attorney General     Administrator
Environment and Natural      U.S. Environmental Protection
   Resources Division         Agency
U.S. Department of Justice     Washington, DC 20460
Washington, DC 20530

By Fax: 514-0557/501-1450

Re: United States v. General Electric Company, Civil Action No. 05-cv-1270, D.J. Ref. 90-11-2-529

Dear Ms. Wooldridge and Administrator Johnson:

We are writing to express our growing concerns regarding the consent decree that the Environmental Protection Agency (EPA) has negotiated with the General Electric Company (GE) for the Hudson River PCBs Superfund cleanup. This consent decree, and specifically the Phase 1 Intermediate Design Report (IDR), raises serious doubt about the effectiveness of GE's cleanup remedy and compliance with the 2002 Record of Decision. We urge you to reconsider the terms of the consent decree and order a revised design report that reflects the concerns and comments provided by other federal agencies and the public.

As you know, the 2002 Record of Decision (ROD) chose the remedy for cleaning up the Hudson

River after an exhaustive and lengthy process of evaluation, public comment and study. The ROD, which remains the official order of the EPA in this case, clearly stipulated the removal of the contaminated sediments by dredging over the alternative possible remedies evaluated and considered. The dredging alternative "REM-3/10/S", also described as "Removal Followed by Monitored Natural Attenuation (MNA), with Upstream Source Control," was chosen over other options, including capping contaminated sediments and leaving sediments alone.

On October 6, 2005, the EPA lodged a consent decree with the federal court in Albany where the case of United States v. General Electric Company was filed. The consent decree, if approved by the court, would become the order under which the remedy is carried out, with the methodology of the IDR replacing that chosen by the ROD. As evidenced by a recently revealed interagency document from the National Oceanic & Atmospheric Administration (NOAA), dated October 18, 2005, the cleanup proposed in the current IDR deviates profoundly from the remedy detailed in the ROD and other post-ROD documents.

The NOAA analysis of the IDR, leaked to The New York Times and subsequently provided to our offices, raises serious doubts about the remedy that may be used in the Hudson River and also raises questions about EPA's commitment to uphold the historic ROD. It is troubling to note that NOAA's assessment of the IDR was not made public by EPA, NOAA, or DOJ, and the detailed concerns raised in these comments have not been publicly addressed. This raises a host of questions, including whether there are other interagency comments regarding the IDR that raise similar objections to the IDR, and why EPA apparently ignored and refused to make public these concerns. We would like answers to both of these questions.

NOAA's comments to the EPA are strongly critical of the IDR, listing and detailing twenty different ways in which GE’s Phase 1 IDR deviates from the ROD. The report in fact concludes:

Rather than responding publicly to these important concerns or amending the IDR to reflect the critique by NOAA's expert, the EPA apparently withheld this memo and proceeded to move forward with a seriously flawed cleanup remedy. If EPA allows this IDR to stand without reconsideration and amendment and finalizes the consent decree, it is clear that unacceptable levels of toxic PCBs will be left in the Hudson River permanently and that the letter and intent of the 2002 ROD will have been seriously undermined.

The NOAA comments carefully and thoroughly document the many inconsistencies between the ROD and the IDR. As noted above, these deviations include two very critical elements: 1) allowing GE the option of capping sediments in up to 80 acres of the Upper Hudson River rather than dredging those sediments and 2) failing to provide for active habitat restoration in disturbed areas of the River, particularly in near-shore and sensitive wetland areas. Based on these two issues alone, we believe it is obvious that the IDR deviates dramatically from the carefully evaluated ROD.

The very heart of the ROD was the choice of a program to actively and aggressively remediate the PCB contamination in the Hudson River. GE fought long and hard to convince the EPA, and the public, that an active cleanup was not necessary or that a scaled-down cleanup would be acceptable. The EPA clearly rejected that position in the ROD and wisely stipulated a remedy removing contaminated sediments and actively restoring habitat areas. Unfortunately, it seems that the EPA has compromised its earlier decision and allowed GE to dictate the terms of the cleanup based on its own interests.

Additionally, other terms of the consent decree seem to evidence problems with the cleanup process. EPA's failure to insist on a waiver of legal challenges to the cleanup from GE is troubling. The lack of stipulated penalties in the event that GE opts not to undertake Phase 2 is also unacceptable, particularly since we currently have no assurance that GE will finish the final 90% of this cleanup. Concerns have also been raised regarding the use of a peer review process for the cleanup that EPA rejected earlier in this case – a process that affords GE great advantages. These and other issues raised by NOAA and the public suggest that there is reason to question EPA's commitment to a full and comprehensive cleanup.

In light of the evidence that the IDR is inadequate to meet the goals and requirements of the ROD, we urge you to move expeditiously to:

     · Revise the flaws in the IDR to remedy its deviations from the ROD;
     · Require GE to finish the entire cleanup and stipulate penalties if it fails to comply; and
     · Revise the Phase 1 Peer Review Process so that it is not tilted in GE’s favor.

The ROD requirements, including methods, timeline, and results, ought to be stringently enforced by the EPA. The discrepancies documented by NOAA should be addressed before the consent decree is finalized and the IDR replaces the ROD remedy.

The Hudson River ecosystem and communities along the River have suffered from PCB contamination for decades, and the ROD was the product of many years of study, scientific review and evaluation. Deviations from the ROD that reduce the overall effectiveness of the cleanup and threaten the natural resource recovery of the river are unacceptable.