On September 13, 2022, the EPA and General Electric (GE) agreed on a plan to study the effects of polychlorinated biphenyls (PCBs) in the Hudson River PCBs Superfund site. The deal represents a step forward in plans to understand and evaluate the conditions at the site as well as potential contamination in the Hudson River. It could also serve as a model for other Superfund cleanup efforts.
- The EPA regulates cleanups of hazardous substances through the 1980 Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The EPA will designate sites to the National Priorities List (NPL) for cleanup under CERCLA. CERCLA authorizes two types of removal and cleanup for sites: (1) short-term removals for releases or threatened releases that require a prompt response, or (2) long-term remedial response actions that significantly lower the severity of release or prevent future threatened releases.
- The NPL is a list of sites that the U.S. considers a national priority based on known releases or threatened releases of hazardous substances in the U.S. As of September 2022, the NPL contains 1,334 sites and an additional 39 proposed sites across the U.S. and its territories.
- Polychlorinated biphenyls (PCBs) are carcinogenic compounds that were widely used in industrial uses until their production was banned by the Toxic Substances Control Act of 1979 (TSCA). PCBs do not readily break down in the environment and can remain cycling through the environment for long periods of time.
- The Hudson River PCBs Superfund Site (the Superfund Site) includes an almost 200-mile stretch of the Hudson River in New York State. The Superfund Site stretches from the town of Hudson Falls to the Battery area of New York City, as well as the floodplain of the Upper Hudson River. From the 1940’s until 1977, GE facilities in Ford Edward and Hudson Falls used PCBs to manufacture electrical capacitors, causing significant subsurface contamination surrounding the facilities which was discharged into the Hudson River. The Superfund Site is divided into two sections: the Lower and Upper Hudson River. The Upper Hudson River includes the river’s floodplain and five remaining PCB deposits; the Lower Hudson River includes 160 miles of the river’s estuary system, from the Federal Troy Dam to New York City.
- The EPA placed the Superfund Site on the NPL under CERCLA in September 1984. The EPA has since addressed contamination issues at the site in specific phases known as Operable Units (OUs). These actions have included implementing fishing bans, excavating contaminated soil, and dredging certain parts of the river. The OUs have addressed remaining deposits of PCBs and other issues. In 1990, GE and the EPA entered into a consent decree (similar to a legal settlement) where GE implemented specific remedial actions from a 1984 EPA decision to address remaining deposits of PCBs in the Upper Hudson River.
- In 2006, GE and the EPA entered into another consent decree to dredge PCB-contaminated sediments from the Upper Hudson River. This project was completed in 2015 after GE dredged a reported 2.65 million cubic yards of sediment from the river, disposing of it in approved landfills.
- The Lower Hudson River site is the fifth OU to address PCB contamination in the area. According to the September 2022 scope of work attached to the settlement agreement, current data suggests that fish in the Lower Hudson River are not recovering as fast as fish in the Upper Hudson River.
The Settlement Agreement
- On September 13, 2022, the EPA and GE entered into an administrative settlement agreement for testing and investigating PCB contamination in the Lower Hudson River. The most significant action from the agreement is a Sampling and Analysis Plan (SAP), which will include a description of environmental sampling requirements that focuses on sediment research.
- The supplemental studies in the scope of work detail sampling and investigation of the water column, sediment, and fish based on the settlement agreement. Once the sampling pursuant to the settlement agreement has been completed, the EPA and GE will discuss whether additional data is necessary to support the cleanup.
- The studies will focus on the concentrations of PCBs in the water column, sediment layers, and fish in the Lower Hudson River. Within 60 days of the effective date of the agreement (or Monday November 14, 2022), GE will submit the SAP to the EPA for review. The SAP will include an explanation of potentially required permits, environmental sampling requirements, a quality assurance plan for the sampling program, as well as several additional plans.
- Based on its review of the SAP, the EPA will approve, disapprove, or require GE to make specific changes to the SAP. Once the EPA has informed GE of the requirements, the company will have 30 days to make the required revisions to the plan. Within 15 days of the EPA approving the SAP, GE will begin the sampling work described in the scope of work.
- The EPA plans to take several water column testing samples at multiple locations in the Hudson River on a monthly basis over the course of at least a year. The collection will begin after the SAP is approved by the EPA. GE will also conduct water monitoring activities in the Lower Hudson River in the future.
- In 2023, GE and the EPA will collect beryllium-7 samples to evaluation spatial variation in PCB concentrations across the Hudson River. The EPA had originally conducted beryllium-7 concentration research in 1992, and will use that original research to determine how the surface sediments have recovered over the last 30 years.
- The settlement agreement represents a partial close to a long chapter in the debate over the Superfund Site. The new scope of work and water sampling should provide significantly more information on what exactly the next steps for PCB cleanup in the region will look like. This settlement will likely lead to additional cleanup efforts, but those cleanup efforts will most likely be more focused than efforts that would not include the sampling period described by the settlement agreement. The EPA considers GE to be legally responsible for PCBs that migrated into the Hudson River, and will continue to require the company to fund cleanup efforts in the future.
- This settlement agreement could form the basis for other similar settlement agreements for longtime superfund sites, where an agreement between the EPA and the site owner could lead to better clean up collaboration and understanding. The EPA prefers to negotiate with site owners to fund cleanup operations rather than releasing an order to clean up the sites and recovering the costs later.
- The EPA’s traditional format for settling Superfund sites begins when the EPA sends a general notice letter to the site owner informing them of potential liability. The site owners then have 60 days to respond to the notice letter, either responding with a good faith offer to conduct or pay for cleanup work. After that, the EPA and site owner can spend time negotiating a settlement to the benefit of both parties to plan for cleanup at the site. These finalized settlement agreements are enforceable in the court system if either party fails to deliver on its agreed-upon promises.
- Companies that are facing Superfund designation of a site should expect to receive a notice letter from the EPA. Based on the EPA’s requests in the letter, the company can decide whether or not to accept the requests or respond with a good faith offer and enter further negotiations with the agency.