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HR Complaint W Index No
HR Complaint W Index No
The State of New York, the New York State Department of Environmental
“the State”), through their attorney, Letitia James, Attorney General of the State of
PRELIMINARY STATEMENT
assures protection of human health and the environment. In 2006, EPA entered into
a Consent Decree with General Electric Company (“GE”) to settle GE’s CERCLA
liability as the party responsible for contaminating the Hudson River Superfund
perform the remedial action selected by EPA, which primarily consisted of dredging
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select areas of PCB-contaminated sediments from the bed of the Upper Hudson
2. GE completed remedial dredging in the fall of 2015, but EPA has found
the remedy is not presently protective of human health and the environment. In
fact, EPA has concluded that it does not have sufficient information to determine if
or when the remedy will be protective. Nonetheless, on April 11, 2019, EPA issued a
action gives rise to a covenant not to sue pursuant to the Consent Decree.
Procedure Act (“APA”) and the federal Declaratory Judgment Act for a declaration
capricious, and unlawful and inconsistent with CERCLA’s requirements. The State
seeks vacatur of the Certificate and the covenant not to sue that arises upon the
4. This Court has jurisdiction over the subject matter of this action
Completion is subject to judicial review under the APA as a final agency action for
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The Upper Hudson River extends from the federal dam at Troy, New York upstream to the GE
facilities that discharged PCBs into the River.
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which there is no other adequate remedy. 5 U.S.C. §§ 702, 704. The relief sought is
5 U.S.C. § 703 and 28 U.S.C. §§ 1391(e)(1)(C) because this action is brought against
agencies of the United States and officers of the United States acting in their official
PARTIES
6. The State of New York, as a body politic and sovereign entity, brings
this action as plaintiff on behalf of itself in its proprietary capacity and as parens
patriae, trustee, guardian, and representative of all residents and citizens of the
State, including those individuals who use the Hudson River’s resources and live in
the vicinity of the Hudson River Superfund Site. The State has a compelling
interest in the protection of the public and the environment of the State from
dangers posed by contaminants. The State owns the land under the Hudson River
and the fish and other wildlife contaminated with PCBs. Additionally, the NYSDEC
covered by CERCLA, including the Hudson River, and the fish and other wildlife
contaminated with PCBs. The State directly manages its wildlife and natural
remedial action at Hudson River Superfund Site are within EPA’s regulatory and
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STATUTORY BACKGROUND
A. CERCLA
42 U.S.C. § 9621(b)(1)(G).
attain a degree of cleanup … which assures protection of human health and the
remedial actions that address the contamination. 42 U.S.C. § 9622(a). Section 122(f)
permits EPA to provide settling responsible parties with a covenant not to sue
concerning further liability to the United States shall not take effect until the
President certifies that [the] remedial action has been completed in accordance with
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12. Further, CERCLA Section 122(f)(6)(A) requires that any covenant not
to sue include an exception for future liability arising “out of conditions which are
unknown at the time [EPA] certifies under [Section 122(f)](3) that the remedial
13. The APA provides a claim for relief to challenge any final agency
action taken pursuant to any statute where the action is made reviewable by
14. The APA authorizes courts to review final agency actions and hold
unlawful and set aside final agency actions, findings, and conclusions when the
FACTS
containing PCBs at two of its facilities along the Hudson River, in Fort Edward and
Hudson Falls, New York. For decades, GE disposed of and released PCBs into the
Hudson River. As a result of GE’s releases, PCBs have migrated and come to be
located throughout the Hudson River and surrounding areas, extending from
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17. GE’s disposal and release of PCBs into the Hudson River from its
in 1975 and continuing to the present, which seek to limit human consumption of
Hudson River fish. NYSDEC also prohibited recreational and commercial fishing in
the Hudson River by regulation in 1976 and those regulations, with various
18. In 1984, EPA added the Hudson River to its National Priorities List as
a Superfund Site. The National Priorities List identifies the most highly-
contaminated sites throughout the United States and its territories, which require
Ranking System score developed by EPA to assess the relative threat associated
EPA issued a Record of Decision (“ROD”) that selected a remedial action to address,
among other things, contaminated Hudson River sediments. With regard to Hudson
River sediments, EPA’s 1984 ROD determined that no remedial action would be
19. In 1989, NYSDEC requested that EPA reassess its “no action” remedy.
In 2002, EPA issued a second ROD that selected a remedial action that included
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targeted dredging of areas of accumulated sediment in the upper Hudson River that
were found to contain high levels of PCBs. Also included in the 2002 ROD were
by targeted dredging that would assure the protection of human health and the
which would reduce PCB levels to 0.4 milligram per kilogram (mg/kg) within five
years of completion of dredging (i.e. 2020) and 0.2 mg/kg within sixteen years (i.e.
2031). Thus, a central purpose of the 2002 ROD was to address the PCB
and allowing the safe consumption of Hudson River fish by the public, thereby
21. NYSDEC concurred in EPA’s 2002 ROD and, anticipating that it would
PCB sources to the Hudson River will be abated, which should enable the State to
reduce the current fishing restrictions and consumption advisories [and] . . . the
selected remedy [will] be protective of human health and the environment, and will
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reduce public health and environmental risk.” 2002 ROD, Appx B (NYS
Concurrence Letter).
22. In 2006, EPA and GE entered into a Consent Decree, U.S. v. General
Electric, NDNY Index No. 05-1270, which required GE to perform the remedial
action selected by EPA’s 2002 ROD and concluded dredging in the fall of 2015.
24. The Consent Decree delineated the process for EPA to issue a
2006 Consent Decree ¶ 57(d). The Consent Decree provides a covenant not to sue or
connection with the Upper Hudson River.” Id. ¶ 98. The Consent Decree provides
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that the Covenant Not to Sue “shall take effect upon EPA’s issuance of the
25. The Consent Decree provides that if EPA at any time determines the
remedial action is not protective of human health and the environment, “EPA may
select further response actions for the Site in accordance with the requirements of
CERCLA and the NCP [National Contingency Plan].” Id. ¶ 23. However, after the
information or conditions before it may require further remedial action by GE. Id. ¶
101(b). The corpus of information or conditions that may be considered to make that
finding is limited in time and scope—the information or conditions must have been
information or conditions must indicate that the remedial action is not protective of
27. Because EPA has not found the remedy protective as required by law,
since 2016 and continuing to date, the State has objected to the issuance of the
28. In two key areas– the levels of PCBs in fish and in river sediment– the
remedial action has not proven effective. Accordingly, the Hudson River remedy is
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29. The most recent fish sampling data reveals that PCB concentrations in
Hudson River fish remain high– currently, three times higher than the 2002 ROD’s
remedial action objective of 0.4 mg/kg within five years of dredging completion (i.e.
30. Surveys conducted by the New York State Department of Health since
2008 have found that significant numbers of people, including women and children,
are eating fish caught from the PCB-contaminated portion of the Hudson River;
they were not heeding the annual Fish Consumption Advisories cautioning against
31. In the summer of 2016, two public interest groups, Scenic Hudson and
Sierra Club, also conducted a fish consumption survey, which also confirmed that a
significant number of people were eating fish caught in the Hudson River. Of the
survey respondents, sixty percent reported eating fish taken from the Hudson
River. Of those, twenty percent eat fish twice or more per month and eight percent
do so twice per week. Those groups provided that survey information to EPA.
performed by NYSDEC in 2017 show that many “hot spots,” or areas of high PCB
concentrations, remain in the Upper Hudson River and that re-deposition of PCBs
is occurring in and from dredged areas. NYSDEC completed that sampling in the
determine the amount of PCBs remaining in the river post-dredging were sufficient.
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NYSDEC provided its sampling data to EPA in the spring of 2018 and published its
33. EPA has explicitly addressed the efficacy of the remedy in its Second
Five-Year Review Report (the “Report”), issued on April 11, 2019 contemporaneous
with the Certificate of Completion. In the Report, EPA did not find the remedial
action protective of human health and the environment, and stated that it cannot
make that determination until further information is obtained. Report, at 76. By its
own admission, EPA believes eight or more years of post-dredging data on PCB
concentrations in fish tissue are needed in order to determine whether the remedial
34. Specifically, in its Report, EPA acknowledged that the agency has
insufficient data to determine whether PCB concentrations in fish will meet the
short-term (five years post-dredging, or 2020) remedial action objective of the ROD
at some point in the future. Id. Further, EPA has stated that it will take at least
fifty years to reach the ROD’s long-term remedial action objective for the protection
of human health with regard to fish consumption, but the agency also cannot state
with reasonable certainty that the long-term objective will in fact be met. Id.
35. Further, EPA acknowledged in its Report that the remedial dredging
left far more PCBs in river sediments than had been projected in the 2002 ROD
(Report, at 44) and, therefore, in fish. EPA’s evaluation of the data show that the
remedy left behind approximately thirteen tons more PCB mass in the River than
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the ROD anticipated. In total, approximately fifty-four tons of PCBs remain in the
Upper River. Compare id., at 5 with 2002 ROD, “Executive Summary,” at ii.
36. The State and Federal natural resource trustees– NYSDEC, the
United States Department of the Interior, and the United States National Oceanic
and Atmospheric Agency– have identified injuries to the following State and
Federal natural resources: mink, land birds, fish, surface water, groundwater, and
additional injuries caused by remediation. Because the remedy is not complete and
not protective of human health and the environment, those resource injuries will
persist indefinitely.
37. The State’s interests are presently harmed and adversely impacted by
Decree. Trends in PCB concentrations in Hudson River fish and sediments have
markedly failed to meet EPA’s remedial action objectives to protect human health
and the environment, and the Covenant Not to Sue legally restricts EPA’s ability to
commercial fishing are directly affected, as are other uses of the Hudson River. For
example, Fish Consumption Advisories remain in place for forty river miles of the
selectively dredged Upper Hudson River, which recommend that no fish be eaten.
downstream of the Upper River. Because PCB concentrations in fish have not been
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reduced to a safe level, the present restrictions for fish consumption will remain in
place. Moreover, the Certificate of Completion also harms the residents of the State
because it suggests to the public that all necessary remedial work is concluded and
that fish are now safe to eat, when in fact the consumption of Hudson River fish
contaminated with current levels of PCBs continues to present a known health risk.
38. The State repeats and re-alleges, as if fully set forth here, all
39. A covenant not to sue for remedial action under CERCLA must comply
Section 122(f)(3) prohibits the EPA from issuing a covenant not to sue unless and
until the agency certifies that a responsible party has completed the remedial action
degree of cleanup that assures protection of human health and the environment.
42 U.S.C. § 9621(d)(1). Because the Consent Decree provides GE with the Covenant
Not to Sue upon issuance of the Certificate of Completion, EPA must first make a
by GE in the future, under the Consent Decree is sufficient to protect human health
40. However, EPA has not made a finding that the remedial action
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to protect human health and the environment from GE’s contamination of the
Hudson River with PCBs. In fact, EPA cannot find that the remedial action
currently is protective, and cannot state with reasonable certainty that the action
of human health and the environment, EPA has acted contrary to the requirements
9622(c)(1), 9622(f)(3).
42. Under the APA, courts must hold unlawful and set aside agency action
43. Because EPA has not found that the remedial action implemented and
cleanup that assures protection of human health and the environment, as CERCLA
issuance of the Certificate, from which the Covenant Not to Sue arises, is outside
the scope of the agency’s authority under CERCLA and is ultra vires.
5 U.S.C. § 706(2)(C).
44. The State repeats and re-alleges, as if fully set forth here, all
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45. Under the APA, courts must hold unlawful and set aside agency action
5 U.S.C. § 706(2)(A).
46. Presently, EPA has not found the Hudson River remedy implemented
protective of human health and the environment and concedes that it cannot
otherwise not in accordance with law in that the agency failed to find the remedy
protective of human health and the environment before issuing the Certificate of
GE without a corresponding finding that the remedial action is now, or will in the
future be, protective of human health and the environment was without legal
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D. Declaring that the Covenant Not to Sue that arose upon EPA’s
the agency makes a determination that the remedial action implemented and to be
and proper.
Respectfully Submitted,
LETITIA JAMES
Attorney General of the
State of New York
Attorney for Plaintiffs
New York State Department of Law
120 Broadway
New York, New York 10271
s/ Brittany M. Haner
BRITTANY M. HANER
Bar Number: 700987
JAMES C. WOODS
Bar Number: 102843
Assistant Attorneys General
The Capitol
Albany, New York 12224
(518) 776-2389
[email protected]
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