HUDSON RIVER – A federal judge has dismissed New York state’s lawsuit challenging the U.S. Environmental Protection Agency’s finding that General Electric’s cleanup of PCB contamination in the upper Hudson River was complete after dredging ended in 2015.
The ruling Thursday by U.S. District Court Judge David N. Hurd in Utica stops the state’s case against the EPA, unless the state seeks to appeal Hurd’s ruling to a higher court.
An appeal is possible, DEC officials said Thursday afternoon. “DEC is reviewing the court’s ruling and assessing all legal options regarding an appeal,” a DEC statement said. “DEC remains committed to ensuring that a comprehensive cleanup and full restoration of the Hudson River is completed as expeditiously as possible and that the polluters are held responsible.”
The state, which filed its lawsuit against the EPA in federal court in 2019, argued in court that the EPA improperly issued a certificate of completion to GE after the company finished its $1.7 billion EPA-supervised dredging project. The work dredged “hot spots” of contamination in sections of the river between Fort Edward and Troy, with work occurring between 2009 and 2015.
The certification of completion was issued in April 2019, and the state — which had already made clear its unhappiness with the EPA conclusion — filed its lawsuit that August. The EPA and GE sought to have the case dismissed, leading to Thursday’s ruling.
In a 35-page decision dismissing the case, Hurd wrote that the state’s lawsuit “comes too late and (is) based on improper theories.” He added, however, that the state had good motives in bringing the case, and he believes GE remains responsible if the river needs additional cleanup work in the future.
“Not withstanding New York’s overreaction to the Government’s issuance of the Certificate of Completion, the Court remains dedicated to upholding the purpose of the consent decree issued under its authority and seeing those responsible for the river’s soiling correct the harm they caused,” Hurd wrote in his conclusion.
The state’s underlying contention is that the river isn’t yet sufficiently cleaned of the toxic PCBs — polychlorinated biphenyls — discharged by GE capacitor plants in Hudson Falls and Fort Edward between 1946 and 1977, when the suspected carcinogen was banned.
With the Hudson River being at the heart of New York’s human history and environmental legacy, the decision to sue the EPA was announced jointly by Gov. Andrew M. Cuomo and state Attorney General Letitia James the same day the certificate of completion was issued. The case was actually brought in the name of the state Department of Environmental Conservation.
In response to the lawsuit, the EPA said it was legally required to issue the certificate of completion once it acknowledged that GE had lived up to its commitments under the 2002 EPA record of decision. That is the decision in which the EPA ordered dredging to remove PCB concentrations from the 40-mile stretch of the river between Hudson Falls and Troy.
Prior to the record of decision being issued, GE had fought hard against the dredging plan, including an extensive media advertising campaign in the late 1990s contending that the dredging would do more damage to the environment than leaving the PCBs in place in river-bottom sediments.
Part of the “carrot” for GE to enter a legal consent order to implement the decision, Hurd said, was an EPA commitment not to further sue GE if GE met the terms of the consent order, and that if the terms were met, the project would meet the legal definition of completion.
Over the six years of work, GE contractors removed 2.75 million cubic yards of sediment. Of the 1.3 million pounds of PCBs released by GE, the EPA said, the dredging recovered about 310,000 pounds. Much of the rest likely washed out into the Atlantic Ocean years earlier, an EPA official said in 2019.
In its lawsuit, the state argued that the EPA went beyond its legal authority in issuing the certificate before determining whether the dredging has actually been “protective” of the river. It also argued that the decision was arbitrary and capricious. But Hurd said an earlier consent degree made clear that if GE complied with the terms, it would get the certificate — and if the state objected to that provision, it should have said when it was negotiated.
“As much as New York would like to frame this case as challenging the Government’s implementation of the consent decree rather than challenging the consent decree itself, the government has no discretion in issuing the Certificate of Completion,” Hurd wrote.
GE could still be held responsible for additional cleanup work, though it would require a new consent decree agreement between GE and the EPA. Many Hudson River environmental organizations have argued more PCBs need to be removed from the river.
Meanwhile, the EPA and other federal agency continue to study the impact of PCBs on the river and whether the dredging was effective enough to be “protective.”
The EPA continues to test fish and sediment samples drawn from both the upper and lower sections of the river, and study whether floodplain areas in the upper Hudson need a separate cleanup due to PCB contamination.
GE issued a brief statement on the court decision: “We will review the decision in detail. We are pleased that environmental conditions in the Hudson River continue to improve. GE will continue to meet its commitments to EPA and New York State on Hudson River-related projects.”