SUPERFUND:

End draws near for long, bitter cleanup battle

After nearly a decade of wrangling, one of the Superfund program's largest and most politically volatile cleanups could soon be entering a new era of cooperation.

In practical terms, the future of the 40-mile stretch of the Hudson River tainted by polychlorinated biphenyls (PCBs), likely carcinogens that are now banned in the United States, will remain uncertain until Jan. 14, 2011 -- when General Electric Co. must decide on participating in a second phase of dredging chemicals from the iconic New York waterway. But environmentalists who have long pushed for the strongest possible Hudson cleanup standards are optimistic that GE and U.S. EPA will be on the same page come spring.

The compromise approach taken by EPA's Region 2 in its requirements for the second stage of Hudson restoration leaves GE with "no excuse not to opt in and complete the job," said Natural Resources Defense Council (NRDC) attorney Larry Levine in an interview.

EPA's plan for the five-year "phase two" of Hudson restoration, released Friday, was crafted to "both protect the river and ... create something that GE would be comfortable with -- comfortable enough to sign on by the Jan. 14 deadline," said Manna Jo Greene, environmental director at the New York-based Hudson River Sloop Clearwater.

That phase-two framework allows the company to cap PCBs along the river's bottom, a less costly alternative to dredging, in up to 21 percent of the cleanup area (Greenwire, Dec. 17). Green groups had opposed capping outright, warning that the Hudson could be vulnerable to recontamination if ship movements or natural shifts pried loose the caps.

Nonetheless, advocacy groups viewed the EPA capping decision as a bid to bring GE to the table after a long-running court battle that saw the world's second-largest corporation mount a high-profile court challenge to the agency's Superfund authority.

The process envisioned by the new EPA standards "is not the cleanup that was promised" in 2002, when the agency issued its formal call for the removal of PCB-laden sediment, Riverkeeper Executive Director Paul Gallay said. "That has been softened and is going to lead to thousands of additional pounds of PCBs left in the water. ... It is better than it could have been, but not as good as it should have been."

Rep. Maurice Hinchey (D-N.Y.), whose congressional district includes areas affected by the cleanup, echoed the green groups' concern in a weekend statement on the EPA cleanup framework.

The agency's plan "will help restore the health of the Hudson River as likely best we can given that this is a problem that began more than six decades ago," Hinchey said. "The EPA has made it clear to me that it will only allow capping in cases where it is absolutely necessary."

At stake in the Hudson cleanup's second phase is the health of the 315-mile river, where GE facilities released an estimated 1.3 million pounds of PCBs over several decades, but perhaps also the health of Superfund itself.

If GE chooses to disengage from the cleanup, EPA would be left with the hard choice between issuing an administrative order to force compliance and embarking on the expensive next stage with its own funds at a time when its Superfund coffers are taking in less real money (Greenwire, Dec. 10).

Should GE opt out of the phase-two cleanup, Superfund law empowers the agency to pursue triple damages from the company to cover its costs. Yet that process is unlikely to be simple, given the corporation's long-running challenge to the constitutionality of EPA cleanup authority that some predict GE could attempt to take to the Supreme Court -- despite its loss in federal district court as well as on appeal (E&ENews PM, June 29).

"If they opt in, it shows the bigger-picture [Superfund] system is working, that corporations will do what they need to do and government will do what it needs to do," said Greene of the Clearwater group.

For its part, GE said it would "carefully evaluate" EPA's phase-two standards and decide by the deadline. "If we determine that the plan is consistent with our technical discussions with EPA, that it is based on sound science, and that it is feasible to achieve, we expect to move forward with Phase 2," the company said in a statement.

'Only option is to opt in'

That GE response to the Hudson plan also referenced a subtle shift that is helping raise environmentalists' hopes for collaboration on the second phase of cleanup. The company told investors before EPA's standards were released that it would "adjust its reserves as appropriate" in order to "take the matter of Hudson dredging costs off the table."

NRDC's Levine described that GE move, which company CEO Jeffrey Immelt said last week would "eliminate [the cleanup] as a potential long-tail head wind," as a sign that the middle-ground approach taken by EPA would bear fruit.

"They don't want to have this on their books anymore as a contingent liability of unknown size," Levine said. "The only option is to opt in."

Opting in would commit GE to several notable changes from the one-year first phase of Hudson dredging, when the company was permitted to cap up to 37 percent of the total cleanup area. EPA's new standards also call for permanent maintenance of the river caps to ensure their viability and aim to limit the number of dredging passes to avoid the resettling of PCB-tainted sediment in the water column.

Indeed, the engineering and management challenges posed by the Hudson cleanup -- for which GE paid an estimated $561 million during the first phase alone -- are so complex that some Superfund observers say the site may prove more symbolic than instructive.

"This case is sui generis," said Seth Jaffe, a Boston-based litigator for Foley Hoag LLP and veteran of several major Superfund cases. "It's so big and so public that I'm not sure how many lessons it holds for the program as a whole."

The company's options to change the fundamental elements of the EPA cleanup plan, Jaffe added, are likely constrained by the fizzling of their legal challenge: "On a certain level, this is why GE brought the litigation and this is why it matters that they lost. They don't hold many cards."

If the Hudson plan proves any guide for future Superfund projects, then, it may portend a heightened emphasis on engaging with stakeholder groups on both sides of the debate.

The agency "did spend a significant amount of time consulting with environmental organizations focusing on the cleanup, getting their input, answering their questions," said Gallay of Riverkeeper. "And so we're looking for future determinations, not just by Region 2 but by EPA as a whole, to take the same opportunity to be transparent with the environmental community."