Federal judge calls lawsuit an ‘overreaction’
A federal judge last week dismissed a lawsuit filed by New York State against the federal Environmental Protection Agency over General Electric’s cleanup of pollution it dumped over three decades into the Hudson River, calling it an “overreaction.”
In a ruling issued on March 11, Judge David Hurd wrote that although “New York’s motives for bringing the case were good ones,” the state should have raised its objections earlier. “This lawsuit comes too late and is based on improper theories,” he wrote. “It must therefore be dismissed.”
Both the state Department of Environmental Conservation (DEC) and the state Attorney General’s Office said they would continue to “pursue all remaining legal options.” A spokesperson for the EPA’s Hudson River office said the decision “speaks for itself” and declined further comment.
The state lawsuit centered on the EPA’s 2019 decision to issue General Electric a “certificate of completion of the remedial action,” certifying that the company had completed the required dredging as part of its court-ordered cleanup of what is thought to be at least 1.3 million pounds of polychlorinated biphenyls (PCBs), a toxic human-made substance linked to several types of cancer and a host of other maladies, in the upper Hudson.
In 2002, the EPA ordered General Electric to remove at least 2.65 million cubic yards of PCB-contaminated sediment. After years of legal wrangling, the company began dredging in 2009. In stopped in 2017, saying it had fulfilled its obligations. The EPA issued the certificate of completion in 2019, saying it had no choice based on the advice of its legal counsel. The head of the Region 2 office said he welcomed any lawsuits over the decision as “part of our democratic process.”
New York did sue, contending that the cleanup had been shown to be ineffective and that the baseline measurements were inaccurate because they weren’t dredging the actual river bottom but a layer of detritus from a paper mill.
Chris Bellovary, the staff attorney for the environmental organization Riverkeeper, said that while he was disappointed with the ruling, he was not entirely surprised.
“When you’re going up against the EPA in federal court over Superfund [cleanup], that’s always a tough fight,” he said.
Hayley Carlock, the director of environmental advocacy and legal affairs for Scenic Hudson, noted that the EPA will continue to collect data and should issue a report within five years on whether GE reached the cleanup goals set in 2002.
“We think it’s pretty clear that they didn’t,” she said.
Noting that data collected by the DEC about the effectiveness of the cleanup is at odds with that issued by the EPA, Bellovary said the federal agency “does have reasons for wanting to believe that the work is done. The DEC is sitting in a different position and has every reason to think it’s not.” As long as data continues to be collected, the truth will become evident, he said.
If the EPA decides that the cleanup was not effective, it could order General Electric to resume dredging, a fact that Judge Hurd noted in his ruling. “The language of the consent decree leaves a clear opening for the government to come after the company with the full force of the law to get the job done,” he wrote.
GE will also be ordered at some point to provide a cash settlement as part of a claim made by the federal government against the company for the damage it caused to the river, a sum that Carlock said will probably be in the billions of dollars. With those funds, she said the state “could get projects built on the river that will help restore it and improve public access and recreation.”
In the meantime, both Carlock and Bellovary said the EPA needs to turn its attention to the Lower Hudson, including stretches in the Highlands. The agency’s data shows that the cleanup has had a negligible effect on the elevated PCB levels in that part of the river, even if they are still lower than those measured above the Troy Dam.
“That they have still not done a full exploration of the nature and extent of the contamination [down river] is kind of ridiculous,” Bellovary said.