Whether Hudson River PCB dredging was conducted safely in Phase 1, and whether Phase 2 feasibly can be undertaken safely and beneficially, are two issues of urgent public concern that a special Peer Review Panel advising EPA should judge… but the way things stand now, it won’t. The Panel’s long-awaited report, due on 6 August, finally came out in draft form on the 16th, 10 days late. Many anxiously awaited it, expecting expert, unbiased guidance on whether Phase 2 of PCB dredging should be undertaken as planned, given the disastrous performance of Phase 1. As soon as the report was issued, it was misinterpreted as endorsing Phase 2, because it does indeed lay the groundwork for further dredging.
Laying the groundwork for further dredging was the Panel’s narrowly defined job. That is, it was the only thing the Panel could do. EPA did not ask the Panel to answer the urgent questions posed above, essentially whether Phase 2 should or should not be undertaken. EPA instead asked the Panel to answer four highly specific, highly technical questions about how, not whether, Phase 2 should be undertaken.* EPA was interested in learning the truth, and nothing but the truth, about its technical questions, but not in learning the whole truth about the safety and net benefit, if any, of further dredging.
You might think that EPA’s failure to demand the whole truth was just an oversight. You might think that the Panel, knowing the urgency of public interest in the questions of dredging safety and benefit, could answer them even though they were not asked. You would be wrong. The whole truth about whether to dredge further is precisely what EPA instructed the Peer Review Panel NOT to tell. Here are EPA’s startling and troubling instructions as quoted by the Panel, notably and conspicuously on page 3 of its report: “The Peer Review panel will not evaluate… whether Phase 2 should be implemented.” Clearly, EPA was concerned, I think justifiably, that the Panel’s unambiguous answer would be “No,” or worse, “No way.”
I have warned for years of EPA’s systematic underestimation of public health and environmental risks potentially posed by dredging, but EPA still apparently does not want the whole truth to come out about these issues either: “The Peer Review panel will not evaluate whether the Remedial Action [dredging] will, or may, achieve the human health and/or environmental objectives of the ROD” [EPA’s ‘Record of Decision’ under the Superfund Law]. Clearly, EPA was concerned, I think justifiably, that the Panel’s unambiguous answer would be that dredging Phase 2, if undertaken, would increase environmental risks to Hudson River ecosystems, and increase public health risks to Hudson River communities, just as dredging Phase 1 evidently did.
EPA’s ‘don’t-ask, don’t tell’ instructions to the Peer Review Panel amount to an EPA gag order regarding these issues of urgent public concern. The truth is, dredging has not been the transparent process it has been portrayed to be. It remains as murky as the waters being dredged. Notwithstanding EPA’s gag order, however, the Panel’s 100-page report is not completely silent on the issues raised above. Far from supporting Phase 2, the report says implicitly that which it was prohibited from saying explicitly: that Phase 2 cannot feasibly and safely be completed in the allotted five-year timeframe using available data, models, and criteria for success:
“There is a very real need to set an allowable load limit for the Hudson River dredging project, but neither the data nor tool(s) needed to do so currently exist. To that end, the project must develop a set of models that incorporate hydrodynamics, sediment transport, fate and transport of PCBs, and bioaccumulation of PCBs in the Upper Hudson River (from Fort Edward to Troy Dam)” [page 36].
What the Panel is saying, if you listen, is that dredging can be conducted safely… but only if you slow it down a lot (and also do some other things). Years of additional time, I would say many years, will be needed to complete dredging safely:
“Since the total volume to be removed is not known, it is not reasonable to project what the annual production would be based on a 5-year schedule for Phase 2” [page 76]… and, therefore:
“the 5-year productivity criterion should be dropped to provide more flexibility to complete the work in a manner that protects the integrity of the project and its risk reduction objectives” [page 86].
The Panel also found that other things, which I won’t go into here, also must be done, given that:
“Phase 1 showed that the 2004 EPS [Engineering Performance Standard] for Resuspension, Residuals, and Productivity were not met individually or simultaneously during Phase 1 and cannot be met under Phase 2 without substantive changes. EPA and GE proposed changes to the EPS but the Panel finds that the new proposed standards from either party would not contribute to the successful execution of Phase 2” [page 84].
In short, the Hudson River PCB dredging Peer Review Panel’s findings and conclusions clearly do not constitute an endorsement of dredging. They do not constitute endorsement of past dredging in Phase 1, nor of future dredging in planned Phase 2. Understanding the constrained, overly narrow scope of the Panel’s report is crucial if you want to know the truth about dredging… which brings to mind the 1992 blockbuster movie “A Few Good Men,” in which Lieutenant Junior Grade Daniel Kaffee (Tom Cruise) demands the truth from superior officer Col. Nathan R. Jessep (Jack Nicholson), who famously responds: “You want the truth? You can’t handle the truth.”
EPA should fulfill its responsibility to the environment, to public health, and ultimately to the public. It should tell the Peer Review Panel that it now can handle the whole truth. It should ask the Panel for the rest of the truth: whether or not Hudson River PCB dredging was conducted safely in Phase 1, and whether or not Phase 2 of the dredging project feasibly can be undertaken safely and beneficially. The public expects no less.
“14. Peer Review
a. The Peer Review will evaluate the Phase 1 Evaluation Reports. The Peer Review will be conducted in accordance with EPA’s Science Policy Council Handbook: Peer Review (December 2000), or any applicable updates thereto; the Office of Management and Budget’s Final Information Quality Bulletin for Peer Review (December 16, 2004), or any applicable updates thereto; and the provisions of this Paragraph.
b. The Peer Review panel shall, at a minimum, address the issues raised by the following questions:
(1) Does the experience in Phase 1 show that each of the Phase 1 Engineering Performance Standards can consistently be met individually and simultaneously?
(2) If not, and if EPA and/or Settling Defendant has proposed modified Engineering Performance Standards, does the experience in Phase 1 and any other evidence before the panel show that it will be practicable to consistently and simultaneously meet the Engineering Performance Standards that are being proposed for Phase 2?
(3) If the experience in Phase 1 and other evidence before the panel does not show that it will be practicable to consistently and simultaneously meet the Engineering Performance Standards that are being proposed for Phase 2, can the Phase 1 Engineering Performance Standards be modified so that they could consistently be met in Phase 2, and, if so, how?
(4) If EPA and/or Settling Defendant has proposed modifications to the monitoring and sampling program for Phase 2, are the proposed modifications adequate and practicable for determining whether the Phase 2 Engineering Performance Standards will be met?
d. The Peer Review panel will not evaluate whether the Remedial Action will, or may, achieve the human health and/or environmental objectives of the ROD, nor will the Peer Review panel evaluate whether Phase 2 should be implemented.”