WILLIAMWALDRON/GETTYIMAGES
CITY JOURNAL
Spring 2011
The Hudson River Destruction Project
by James Panero
How the EPA is harming nature and ruining communities
Visit Fort Edward, 200 miles up the Hudson River from New York City, and you’ll find the waste hard to miss. That isn’t because General Electric once used polychlorinated biphenyls, the chemicals known as PCBs, to manufacture electrical equipment at two local plants. Rather, the waste on display in Fort Edward—now boasting a 110-acre “dewatering” facility built on once-fertile farmland and dozens of ugly barges bobbing on the river—is the wastefulness of the Environmental Protection Agency, which is imposing a costly river cleanup that is both unnecessary and environmentally destructive.
By ordering a dredging operation along 40 miles of the Hudson, the EPA has created a disaster of governmental proportions in this quiet upstate community. For six months in 2009, floating clamshell diggers shoveled day and night, pulling sludge from the river bottom around Fort Edward and depositing it onto barges. Six days a week, 24 hours a day, these barges, containing a total of 286,000 cubic yards of sediment mixed with old PCBs, were offloaded into that massive dewatering facility. There the soggy material was treated and squeezed in giant presses. The cakes of compacted sludge were then moved by truck onto 81-car trains, parked on a new spur of the Canadian Pacific Railway extending into the site. Five of these trains were in constant rotation, circulating the 4,400-mile round trip between the facility and the final dump site in Texas.
It was a Herculean attempt at remediation but one that actually increased PCB levels in the Hudson for a time; it also wreaked havoc on locals’ lives and imposed huge costs on General Electric. And all this work was only “Phase I” of the EPA’s plans. The government is now compelling GE to spend billions of dollars on Phase II, an even larger and longer operation. Dredging will recommence this spring.
The mighty Hudson once secured New York City’s commercial dominance, linking it to Canada, the Great Lakes, and the American heartland via the Erie Canal. For centuries, the river also served as the drainpipe for companies in the Empire State—more often than not, with the government’s blessing. From 1947 until 1977, General Electric’s plants at Fort Edward and nearby Hudson Falls discharged up to 1.3 million pounds of PCBs—the overflow waste of production—into the Hudson, and they did so with the full approval of state and federal agencies, which issued GE all the necessary permits.
This complacency wasn’t surprising, because PCBs had long been regarded as miracle compounds. Developed as a by-product of gasoline refinement and licensed by the Monsanto Company in 1929, PCBs were oily substances that conducted heat but were also fire-retardant. They were mixed into everything from road pavement and carbonless copy paper to household caulking and insulation. Because of their fireproof properties, the power industry found PCBs especially useful as safe coolants for electrical generation and distribution. The chemicals therefore replaced organic, more volatile oils as insulators for electrical components—for example, in the cooling liquids found in those metal cylinders that you see atop telephone poles. The rapid, safe expansion of electrical transmission, which brought prosperity and lifesaving energy to all corners of the United States, took place in a bath of PCBs—sometimes, in fact, through components manufactured at the two GE plants on the upper Hudson.
But the chemicals’ renowned stability also rendered them an environmental hazard. PCBs break down slowly in nature. Soluble in oil but not in water, they can “bio-accumulate” in animals and be passed up the food chain, probably posing health risks to people who ingest them in high enough quantities. But the exact nature of those risks has never been identified. A recent New York Times description pushes the perils of PCBs as far as the fact-checkers allow: “In high doses, they have been shown to cause cancer in animals and are listed by federal agencies as a probable human carcinogen.” So the direct human-cancer link of PCBs is unproven, and the description “probable human carcinogen” comes from the federal agencies that, as we will see, have a vested interest in maligning the chemicals.
Congress banned the manufacturing, sale, and distribution of PCBs in 1976. A year earlier, New York State’s commissioner of environmental conservation had sued General Electric, arguing that state law prohibited the company’s discharge of PCBs into the river regardless of the permits that the state had issued. In the landmark settlement adjudicated by Abraham Sofaer, at the time a professor at Columbia University and now a senior fellow at the Hoover Institution, GE and New York divided responsibility on how they would clean up the remaining PCBs: GE undertook the remediation of its plants, and New York—because it had, after all, approved the original discharges into the Hudson—would deal with the PCB sludge in the river. The settlement specifically stated that GE would not be liable for any future river cleanup.
The company met its mandate well, scrubbing its plants clean and even digging out an ingenious network of tunnels beneath the bedrock of one of its plants to capture every last ounce of PCBs that had seeped into the ground. Meanwhile, the Clean Water Act of 1972 had already begun regulating the discharge of pollutants into American waterways. As the waste pipes were shut off along the Hudson’s banks and sediment began to cover the deposits of PCBs and other chemicals spread out along its bottom, the river began to clean itself, and the recovery of its water became an environmental success story. The federal standard for PCBs in drinking water is capped at 500 parts per trillion; the river now regularly flows with 30 to 50 parts per trillion in the upper Hudson and a tenth of that downriver. The river became cleaner of other pollutants as well. Fort Edward locals remember a time when the Hudson was tinted the color of whatever pigment a nearby paint plant was processing and discharging; today, the water is safe enough to swim in. Some towns along the river even began relying again on the Hudson for their municipal tap.
New York didn’t hold up its end of the 1976 decision as well as GE did. When the state’s Department of Environmental Conservation first tried to clean up the Hudson PCBs in the 1970s and 1980s, it went looking for a convenient dump site for dredged-up pollutants. It eventually settled on a 100-acre dairy farm located near the Champlain Canal, which would allow for easy transportation of the sludge. Sharon Ruggi still lives on the farm, where her husband was born in 1935. One “supper time in October” of 1985, she recalls, state regulators showed up and sat down at the kitchen table. They laid out their papers—agreements to sell—and told the Ruggis to sign. If the Ruggis resisted, the agents warned her, the state would seize the property by eminent domain—but just the farmland. The Ruggis would be left with their house, rendered worthless by its sudden proximity to a toxic dump site.
Despite the threats, Ruggi showed the regulators the door. She then became a full-time activist, joining a farmer-led anti-dredging group called Citizen Environmentalists Against Sludge Encapsulation (Cease). She notified her town about the regulators’ heavy-handed tactics. She wrote to her representatives and testified before Congress about the negative impact of a large-scale PCB cleanup. And she won the day. Without its dump site, New York State had to back off from its cleanup commitment.
But New York had a brilliant idea: passing the buck right back to GE, despite the terms of the settlement, through the new federal law known as Superfund. Officially called the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, the Superfund legislation empowers the Environmental Protection Agency to pursue whatever chemicals it deems unsafe and to force the “responsible party” to foot the bill for a cleanup, regardless of whether that party was a willful polluter or a good citizen discharging waste with the government’s approval. (Usually, the “responsible party” winds up paying after years of wasteful litigation: one-fourth of Superfund expenses go to “transaction costs,” fees to lawyers and consultants whom even the New York Times once described as “federal officials who spun through Washington’s revolving door to trade their Superfund expertise for private gain.”)
And so in 1984, New York got the EPA to declare the entire 200 miles of Hudson from Fort Edward to New York City a Superfund site. But the EPA also at first decided against dredging the river bottom, deeming it a risky, invasive approach that might stir up more PCBs. In 1989, however, New York appealed the decision, and 13 years later—the wait time alone testifies to federal inefficiency—the EPA finally agreed, calling on GE to conduct extensive dredging.
Its reasons were novel. The concentration of PCBs in the river water had dropped to safe levels, after all. So the EPA, searching for another justification for pursuing massive remediation, settled on PCB accumulation in the river’s fish. PCBs in river water, plants, and sediment could pass in incremental amounts to the fish around them (through ingestion and respiration) and then pass to the people who eat the fish, the EPA reasoned. But here, too, the river was showing stark improvements. In 1975, before the chemicals were banned, the concentration of PCBs in Hudson fish averaged 17.39 parts per million and could go as high as 50.7 parts per million, according to John Cronin, an environmentalist who worries about the dimensions and impact of the dredging project. By 2007, the mean concentration was 0.89 parts per million—well below the two parts per million that the Food and Drug Administration has set for commercially sold fish—and the maximum was 3.56.
Through the calculus of bio-accumulation, however, the EPA has learned to claim that even infinitesimal amounts of PCBs in the environment are major health concerns. A potential exists, says the agency, for PCBs to build up through gradual ingestion, even if that would require a superhuman consumption of a single food source for years on end. This was the argument that finally allowed the EPA to compel the multibillion-dollar cleanup of the Hudson by GE. As Hudson fish were already approaching acceptably safe levels for moderate consumption, the EPA set a new target of 0.05 parts per million in the river’s fish. Such numbers, argued the EPA, would allow for “unrestricted consumption” of Hudson fish by what the agency called “subsistence fishers.” It would be an undeniable achievement to restore the river to its antediluvian glory, with fish safe to pluck and eat at every meal. And the way to achieve that goal, said the EPA, was a massive dredging of the river bottom.
At what cost would such a pristine state be achieved? The dredging in Phase I alone cost General Electric about $500 million. If GE had contested its obligations to dredge, Superfund would have allowed the EPA to conduct the cleanup itself and then collect four times the cost from the company. “If it costs the state $1 billion, we could collect $4 billion, so that’s a pretty heavy stick,” says David King, director of the EPA’s Hudson River field office.
In addition to the $500 million, GE says that it has paid the EPA another $90 million so far to cover the agency’s oversight of the cleanup. In other words, the Superfund program produces windfalls for the government agencies that enforce it at both the federal and state levels. By mandating that GE dredge the Hudson, regulators who oversee the project can submit their own expenses to the company for reimbursement. Indeed, “what propelled the PCB case to the forefront is not just the toxicity of PCBs but also the significant financial resources of General Electric,” Cronin wrote in the New York Times. Superfund only works, needless to say, when there is a viable company to pay for it. (The Hudson site is one of 50 or so Superfund obligations that GE currently faces throughout the country.)
The cost of the EPA’s quest wasn’t just financial. Strolling through Julie Wilson’s daylily garden in Fort Edward last fall, I almost forgot the enormous dewatering facility that the federal government had located next door. This area of farmland, with Vermont’s Green Mountains rising in the distance, can be particularly radiant. Nearby, a steady stream of sailboats with lowered masts floated south from Canada through the last locks of the Champlain Canal into the Hudson. Thanks to regular watering, a mountain of chemical-laden dirt, dredged from the Hudson and still awaiting pickup just over the rise behind Wilson’s flowerpots, was releasing acceptably low levels of dusty contaminants in my direction.
When the facility was in full operation during Phase I, life for Wilson was quite a bit worse. Dredging is a dirty business. Because the river bottom was being disrupted, PCB levels in water, air, and fish all rose dramatically and exceeded federal limits. By every measure, the health of the river and the surrounding community deteriorated, at least temporarily, through the EPA’s intervention. The messiness of the operation was a necessary evil, the agency maintained, the collateral damage of doing good.
Such assurances mean little to Wilson, now 72, as she contemplates the start of Phase II. Even before the processing facility went into high gear, when the neighboring farm was stripped of its topsoil to make way for the construction of the dewatering facility, she had to confront clouds of dust. Her asthmatic daughter still can’t visit on bad days. As he was dying of cancer, Wilson’s husband, James, had to leave the homestead, overcome by the commotion. “There were so many noises, clanging and banging and shouting, motors and unloaders and dump trucks dropping rocks,” Wilson tells me. “You have no idea what it is like. Twenty-four hours a day. It can drive you crazy. The stress level can affect almost every function—cardiac, gastrointestinal, and elimination.” The beeping of the vehicle backup alarms, she says, was the worst.
Wilson’s property value is now down 50 percent. Keeping clients interested in her flower business has also been difficult. “I tried to do garden tours until I could no longer compete with the noise. When you have to raise your voice to shouting, you lose the effect of the tour.” She adds that birds and other wildlife have abandoned her property. “I have such a love of the land here that when I see the site over there, I could just weep.” The sentiment puts her in an unusual position. What do you do when the organization responsible for destroying your environment is none other than the Environmental Protection Agency?
Little stands in the way of Phase II; certainly the EPA itself isn’t likely to cancel the project. Under administrator Lisa Jackson—“the agency’s most progressive chief ever” and “one of the most powerful members of Obama’s Cabinet,” according to an admiring Rolling Stone profile headlined eco-warrior—the EPA has been flexing its regulatory muscle as never before. Because of its own “endangerment finding,” the EPA is attempting to regulate carbon dioxide emissions under the Clean Air Act, a move that could have a profound effect on American industry. The agency has also been raiding New York City public schools in search of PCBs in fluorescent lighting; it recently called for a remediation plan that could, the city initially said, cost up to $1 billion. The EPA is even attempting to impose regulations on the dairy industry by arguing that the Spill Prevention, Control and Countermeasure program, designed in 1970 to prevent oil discharges in waterways, also applies to milk fat spilled on farms.
The agency’s regional administrator in charge of evaluating the Hudson dredging project, Judith Enck, is another eco-warrior. Before taking on her federal post, Enck was head of a New York environmentalist lobby tasked in part with pursuing PCBs. One wonders if an activist—someone who has spun through that “revolving door” described by the New York Times—can be a judicious regulator of a multibillion-dollar project.
The regulators also have a formidable (and tax-exempt) public-relations wing. In 1966, the folksinger Pete Seeger built an antique-style sloop, the Clearwater, to ply the Hudson’s waters and draw attention to its contamination. Since then, Seeger’s environmental group, also called Clearwater, has been joined by Riverkeeper, Scenic Hudson, and the National Resources Defense Council, all of which raise funds by preaching the evils of PCBs.
Nor will GE itself be able to resist the EPA’s plans. Jack Welch, the company’s chairman and CEO from 1981 to 2001, occupied a middle ground, cleaning up the plant sites but arguing that extensive dredging would cause more harm than good. When Jeffrey Immelt, these days a top Obama economic advisor, succeeded Welsh, however, he rebranded the company with the term “ecomagination” to highlight GE’s innovations in green technology. A year later, GE signed on to the EPA’s decision to dredge the Hudson, and in 2005, it filed a consent degree in court to undertake the project. The company did quietly contest the rollout of Phase II, on the grounds that PCB resuspension in the river water during Phase I far exceeded the EPA’s own standards. But just as it pushed down its targets for PCB concentration in fish in order to compel the cleanup, the EPA reset its standards for resuspension, allowing PCB levels in river water to spike above federal safety levels during dredging.
After GE gave me a tour of the dredging operation, I found it difficult to doubt the company’s commitment to the project. Out on the Hudson, our pontoon boat passed by the long row of barges tied up and waiting for the start of Phase II. Downriver, we approached a vessel collecting core samples of sediment to be sent off for an analysis of contamination depth—one of 50,000 data points taken along the waterway. GE divers were rebuilding the pulled-up river bottom, an underwater ecosystem destroyed through the EPA’s mandate, by painstakingly restocking it with 70,000 individual plants, mainly wild celery and American pondweed harvested from local sources.
Once ashore, I looped around to the dewatering facility bordering Julie Wilson’s property. The site was empty and resembled an airless lunar base, with a manicured pile of PCB-laden sediment at the center. The facility’s main task at the time I visited was collecting and processing the rainwater that falls on the site. Not a drop here enters the earth. A sheet of plastic runs beneath the entire facility, collecting the water and feeding it through the same colossal filters used during active dredging to “polish” the water squeezed out of the dredged material.
When Phase II begins, General Electric will again employ 500 workers here and on the river. Once more, Wilson will watch as GE excavates tons of river muck, now buried under 30 years of sediment, and stages it for processing and transportation next to her residential neighborhood. “I view it as creating a new environmental disaster,” Ruggi says, and history suggests that she may be right. In one early dredging attempt, New York State created a PCB dump site at the tip of Rogers Island, just downriver of the plant. That area has now become its own toxic hazard requiring remediation.
“Government looks very good taking corporate USA to task,” Ruggi adds. “It makes great headlines. The sad part is the health of the Hudson loses out. We grow up thinking the government works for us. To come to the realization that it can work against us is shocking.”