September 23, 2005

Stephen L. Johnson
EPA Administrator
Ariel Rios Building
1200 Pennsylvania Avenue, N.W.
Washington, DC 20004

Alan J. Steinberg
Region 2 Administrator
United States Environmental Protection Agency
290 Broadway
New York, NY 10007-1866

David King
U.S. EPA Hudson Falls Field Office
421 Lower Main Street
Hudson Falls, NY 12839

E-mail to:
David King David Kluesner
Leo Rosales
Hudson River Field Office

Re: Comments on Phase I Intermediate Design Report

Dear Sirs,

Please have the following submitted on behalf of Riverkeeper, Inc. as our comments on the Phase I Intermediate Design Report (hereinafter “IDR”).

Riverkeeper is an independent, member-supported, not-for-profit environmental organization. Our mission is to protect ecological, recreational and commercial integrity of the Hudson River and its tributaries, and to safeguard the drinking water supply for New York City and Westchester County.

Please note that we strongly protest the short comment period afforded us under the circumstances.

With regard to every aspect of the IDR, we demand to know how GE will adequately fill the data gaps, and demand that GE put forward the technical justifications for the arbitrary remedial action components that have been chosen.

Unwarranted Datagaps
The IDR contradicts and abrogates the Record on Decision (hereinafter “ROD”) in many instances. The biggest concern is the data gaps that allow for sampling methods that change the ROD’s requirements and rely on guesswork rather than science.
Sampling is proposed by the IDR in an 80’ triangular grid. The ROD implicitly contradicts this “hit-or-miss” approach by its direction of “Removal of all PCB-contaminated sediments within areas targeted for remediation.” ROD p. 95. How will the residual sampling determine the success of the dredging as mandated by the ROD if interstitial sampling all along the riverbank is not performed? EPA has requested interstitial sampling over a broad area to remedy this flaw in the IDR. What is the technical basis for omitting the sampling?

Capping is Impermissible
Following removal of sediment to the cut lines only the sediments that are >50 ppm at the election of GE would be removed or the remainder would be capped. No such election is authorized. The ROD states that all sediments containing PCBs would be removed and the idea of “capping” was rejected by the EPA in the ROD. “[C]apping does not satisfy the CERCLA statutory preference for treatment. In addition, there is no reduction in the toxicity or volume of the PCBs under the cap.” ROD p. 81. This also contradicts the ROD: Once triggered, GE is obligated to take out all the PCB-laden sediments, that is the removal standard. GE has adopted the residual standard as a substitute for the removal standard. By what authority has GE changed the ROD to allow capping? What is the technical basis for capping when the ROD mandates taking all the PCBs out of the River?

Loosened Performance Standards Abrogate the ROD
The residual performance standard has also been abrogated in the IDR. The ROD required that the dredge take all the scoops necessary and then take two residual scoops. The IDR requires only two scoops and two residual passes. Once again the IDR has replaced the removal standard with the residual standard. By what authority has GE changed the ROD? What is the technical basis for this decision?

Guessing Should Not Replace Scientific Methods
The method of determining “local uncertainty” has also been altered, the scientific method being replaced with arbitrary figures. For example the IDR arbitrarily opts for a formula of dredging 2 feet down on the riverbank and proceeding at a 3 to 1 slope toward the river channel. What is the technical basis for the arbitrary figures used in the IDR?

The Flood-Plain Clean-up is Essential to the Success of the River Clean-up
The flood-plains will continue to recontaminate the river, a concerted effort must be made to restrict run-off during the clean-up while simultaneously cleaning the PCBs throughout the flood-plain. In addition, the arbitrary limitation on dredging cells on the riverbank will leave adjacent property owners with PCB-laden sediments without any remedy. What is the technical basis for this decision for limiting the dredging upon the identification of PCBs in a cell adjacent to the river?

Notification Plan Fails to Alert Public
In the event of detectable resuspension, the IDR provides that “[i]f the monitoring shows an initial occurrence of a PCB concentration in excess of the Standard Level, GE will
promptly notify EPA, but no later than 3 hours after receipt of the data. If subsequent sampling confirms an exceedance of the Standard Level, GE will: 1) again promptly notify EPA, but no later than 3 hours after data receipt; 2) temporarily halt dredging and other river-based operations that caused the exceedance; 3) perform an engineering evaluation; and 4) develop an engineering solution as described above under Control Level.” This protocol requires no notification of local officials and holds the option of ceasing operations as one of the later alternatives.

Dredging Choices are Arbitrary and Capricious
The IDR purports to show that there is essentially no difference between the numerous dredging methods considered with regard to their ability to limit resuspension. It is simply incredible that each and every dredging system from mechanical to hydraulic received similar ratings for “sediment resuspension.” How can that be?

Dredged Area Reduced
By what authority has the ROD been changed to allow a 20% reduction in the area dredged?

GE Has Incentive to Fail in Dredging
EPA must address the possibility that GE will use the Phase I operation as a demonstration of its long-held position that dredging without significant resuspension is impossible. This is especially important in light of the failure of GE and the EPA to reach agreement on the completion of Phase II. EPA’s level of supervision over this project is wholly inadequate and will add to the failure. EPA must reveal how it will monitor the project to ensure that it is conducted and completed in good faith.

Habitat Issues are Not Adequately Addressed
Habitat issues are virtually not addressed in the IDR and those that are gloss over the ROD requirements for such things as fish sampling in critical habitat areas. P. 99 of the ROD is not addressed, but the IDR allow simply the use of 1 foot of backfill + 15% (2 inches) to address restoration, this essentially allows capping to substitute for restoration. Wetlands will be destroyed when dredged up to 9 feet and replaced only with 1 foot of backfill. What is the technical basis for this?

EPA Must Have Recourse Against GE Until a Satisfactory Clean-up Pursuant to the ROD is Completed
GE is establishing guidelines and techniques that are arbitrary at best. There is little or no data gap analysis to determine whether, after the fact, the dredging has been effective. Yet there is no provision to hold GE accountable for a failed clean-up. GE must be held accountable for the effectiveness of the clean-up. Allowing them to leave the site without recourse, especially in the absence of comprehensive, scientifically-based data gap analysis, is scandalous.

Major Changes: ROD Procedure Has Been Violated
As per the ROD these are major changes to the selected remedy, and may not be made in the absence of a memorandum in the administrative record, an ESD or a ROD amendment. No effort has been made to reconcile the IDR with the ROD, and every effort has been made to mask the departures by truncating the comment period, and the blatant failure to cross-reference the two critical documents. This violates agency procedures, the Administrative Procedure Act, and the due process clauses of the U.S. Constitution. By what authority is the EPA unilaterally changing the ROD and allowing GE to dictate its performance thereunder?

This IDR, and any future consent order based upon it, will become the legacy of those at the EPA who allowed it to proceed and veer so dramatically from the ROD.

Please mandate that GE base their clean-up on science rather than guesswork, using EPA staffs’ own sampling-site maps, and enforce the ROD without compromise.

Sincerely,


Robert Goldstein
Senior Attorney &
Hudson River Program Director

cc.:
Senator Charles Schumer
Senator Hillary Clinton
Rep. Sherwood Boehlert (R-New Hartford)
Rep. Eliot Engel (D-Bronx)
Rep. Maurice Hinchey (D-Saugerties)
Rep. Sue Kelly (R-Katonah)
Rep. Nita Lowey (D-Westchester/Rockland)
Rep. John M. McHugh (R-Pierrepont Manor)
Rep. Mike McNulty (D-Green Island)
Rep. Jerrold Nadler (D-New York)
Rep. Charles Rangel (D-New York)
Rep. Jose Serrano (D-Bronx).
Rep. John E. Sweeney (R-Clifton Park),
Governor George Pataki
Attorney General Elliot Spitzer
Comptroller Alan G. Hevesi