In August New York State Department of Environmental Conservation (DEC) Commissioner Basil Seggos sent a letter to Judith Enck regional administration region 2 EPA challenging the effectiveness of EPAs remedy to clean up PCBs from the Upper Hudson River.
“Unacceptably high levels of PCB contaminated sediment remain in large portions of the Upper Hudson River” Commissioner Seggos said. “The job is not done and the remedy as implemented may not achieve the targeted reductions of PCB levels in water and fish tissue within the timeframes originally anticipated by EPA. EPA must ensure the remediation conducted by General Electric is effectively protecting public health and the environment from exposure to PCBs.”
Questions were raised after dredging was completed in November 2015 that the model on which the 2002 record of decision to clean up the river contamination was flawed. On September 28 2015 the National Oceanic and Atmospheric Administration (NOAA) and the U.S. Department of Interior as the Federal Hudson River Natural Resource Trustees sent an initial letter to EPA that said the initial modeling dramatically underestimated the level of contamination and overestimated how quickly PCBs were decaying. The trustees said PCB concentrations could be three to five times higher than EPA expected. EPA said it had not certified that GE has completed its re-medial action and would not do so until completed a post project five-year review.
In a March 2016 white paper responding to the NOAA technical report EPA says the NOAA analysis and conclusions are not sup-ported by the full range of available evidence. The EPA report said NOAA used two data sets (1991 and 2002 to 2005) to draw conclusions about sediment water and fish recovery. NOAA did not consider more recent data collected between 2011 and 2013 or the data from 1998 that was used by EPA to develop its computer model estimates. EPA said the more recent data paints a different picture than the data from 2002 to 2005. NOAA’s two data sets yielded the slowest recovery rate (three per-cent) compared to the fastest recovery rate (14 percent) based on the most recent data sets. EPA said the recovery rate it used in its 2002 Record of Decision (eight percent) is generally representative of the range of recovery rates. Similarly EPA said the data sets used in the NOAA analysis were collected for the specific purpose of evaluating changes in PCB concentrations over time rather than the sampling program and procedures for monitoring PCB levels in fish and water. EPA said the recovery in fish and water as observed in actual fish and water data is consistent with the recovery rate for sediment (eight percent) predicted by EPA.
EPA also argues that NOAA’s conclusions regarding delayed fish recovery were also based on an analysis of a limited number of fish species collected in one location rather than available fish data from all species collected from several locations in both the Up-per and Lower Hudson River. Overall EPA said NOAA’s conclusions did not reflect fish and water data that have been collected over a long period of time. EPA said: “A major assumption in the NOAA analysis was that the higher concentrations measured in pre-dredge sediment would relate directly to higher water concentrations and longer fish recovery times. NOAA did not fully compare their model results to available water and fish data.”
The newest input from DEC is encouraging EPA to use the five-year review to thoroughly quantify the trends based on all available fish water and sediment data as well as predict future trends. The letter said that analysis by NOAA and others illustrate that recovery rates for fish in the lower Hudson may be far longer than EPA anticipated. “With the significant amount of contamination left behind it is likely the state can no longer concur that the remedy is effective” the letter stated.
Under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) and the National Contingency Plan (NCP) EPA is required to monitor effectiveness of the remedy to affirm that it is meeting the goals set by the Record of Decision (ROD). In March EPA committed to per-forming the five-year review which it expects to issue in the spring of 2017. EPA must take additional remedial action if the remedy fails to meet the goals required by the ROD including the reduction of PCB levels in fish within the timeframe EPA originally anticipated.
In August the EPA responded directly to the letter from NYDEC citing its March 2016 response to the NOAA letter and noting “As is widely understood it is not possible for the fish to recover immediately after the conclusion of dredging – that recovery will take decades. The cleanup plan with which the NYS-DEC concurred has therefore always relied on the continuation of fish advisories during this extended recovery period. EPA said the five-year review process would be “robust open and transparent.” The team including representatives from DEC the New York State Department of Health the Federal Trustees and members of the Community Advisory Group meet monthly. A public workshop was held in May 2016 and another is being scheduled for October.