The Dismal History of Superfund's Water Body Sites

by Foley Hoag LLP - Environmental Law
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An article in the New York Times earlier this week reported on EPA's attempts under the Superfund program to address contamination in water bodies, such as rivers, lakes and harbors.  Although the article acknowledges that these water body sites are technically challenging, it does not remotely capture the tortured regulatory history of these sites or the dubious remedial approach that EPA is now pursuing.  It is not an exaggeration to say that some of the most notorious Superfund failures involve water body sites.

Typical of the course of water body sites under the Superfund program is the New Bedford Harbor Site in Massachusetts.  Like virtually all of these sites, the New Bedford Site involved manufacturing operations on the edge of a water body where large quantities of PCBs were allegedly discharged, causing the contamination of downstream sediments.  The Site was added to the NPL in 1983, which spawned a decade of hotly contested litigation and two decades of a tortuous remedy selection process with numerous false starts.  At the end of that process, EPA selected a remedy that neither treated nor destroyed the contaminated sediments.  Instead, EPA selected the lowest of low tech remedies -- the dredging of 900,000 cubic yards of contaminated sediments to be shipped out-of-state for disposal in a landfill.  After thirty years of working on the New Bedford Site, EPA recently reported that the dredging will likely take "40 years to complete at a cost of $1.2 billion." 

Again and again, EPA has been repeating the dismal history of the New Bedford Site at other water body sites.  At the Lower Fox River Site in Wisconsin, EPA's remedy solution after years of litigation and study is to dredge several million cubic yards of PCB contaminated sediments at a cost in the range of a billion dollars.  Likewise, at the Hudson River Site in New York, EPA, after epic litigation with GE, has elected to require the dredging of 2.65 million cubic yards of PCB-contaminated sediments.  At the Diamond Alkali Superfund Site in New Jersey, twenty five years after the site was placed on the NPL, EPA has completed the first phase of dredging what is estimated at over 2 million cubic yards of PCB and dioxin contaminated sediments.

In the first generation of Superfund cleanups, EPA often selected a remedy that was simply moving wastes from one location to another.  When waste began leaking at those new locations, the importance of  treatment and destruction technologies came into focus.  With respect to water body sites, EPA seems to be returning to its earlier approach of shuffling waste from one location to another at enormous cost.  It seems fair to ask whether it would not be far better for EPA not to spend billions dollars dredging and transporting contaminated sediments.  Instead, EPA could invest some of those saved costs in developing innovative technologies that might actually solve rather than relocate the problem.  At a minimum, EPA should be looking at a cost benefit analysis to determine whether capping in place would be a preferable choice to spending billions of dollars to dredging and transporting sediments.

 

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Foley Hoag LLP - Environmental Law
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