INJURIES TO HUDSON RIVER SURFACE WATER RESOURCES RESULTING IN THE LOSS OF NAVIGATIONAL SERVICES

A REPORT ISSUED AS PART OF THE HUDSON RIVER NATURAL RESOURCE DAMAGE ASSESSMENT

NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION U.S. DEPARTMENT OF THE INTERIOR

JULY 31, 2006

Available from: U.S. Department of Commerce National Oceanic and Atmospheric Administration Hudson River NRDA, Lead Administrative Trustee Damage Assessment Center, N/ORR31 1305 East-West Highway, Rm 10219 Silver Spring, MD 20910-3281 HUDSON RIVER PCB IMPACTS ON NAVIGATION . R 5.0 D 3.0 E 1.0 . C 4.0 I 2.0 N 1.3 P 1.2 T 1.1 T NJURY ABLE XECUTIVE HE OLYCHLORINATED EFERENCES AMAGE AVIGATION ONCLUSION T RUSTEES D D ETERMINATION S ETERMINATION

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PCB IMPACTS ON NAVIGATION 1 seq., et et seq. (see et et To ensure that ensure To 1 because polychlorinated biphenyl 2 Act (TSCA), 15 U.S.C. § 2601 U.S.C. 15 Act (TSCA), . The a natural as State, resource trustee the State of the State removed periodically York New the Interior (DOI), and the State of York. New the Clean Water Act, 33 U.S.C. § 1251 § Act, 33 U.S.C. the Clean Water all uses of been have PCBs and their manufacture S AND RELEASES OF PCBS TO S AND RELEASES OF PCBS TO S AND RELEASES OF PCBS TO S AND RELEASES OF PCBS TO S AND RELEASES OF PCBS TO Act (CERCLA), 42 U.S.C. § 9601(14) (see Table 302.4, 40 302.4, Table § 9601(14) (see 42 U.S.C. Act (CERCLA), gan in the United States in 1929. For some years, PCBs were some years, gan in 1929. in the United States For natural resources ofresources natural are ecosystem the Hudson River the U.S. TSCA also mandated a ban on the manufacture and processing of a ban on the manufactureTSCA also mandated and processing tion, virtually gisla TED BIPHENYL TED BIPHENYL TED BIPHENYL TED BIPHENYL TED BIPHENYL te's claim for damages. AVIGATION ORINA ORINA ORINA ORINA ORINA N ements for PCBs. PCBs. ements for ON

YCHL YCHL YCHL YCHL YCHL equir MPACTS POL POL THE HUDSON RIVER THE HUDSON RIVER POL THE HUDSON RIVER POL POL THE HUDSON RIVER THE HUDSON RIVER Fenimore Bridge in Hudson Falls (River Mile 197.3) to the Federal Dam at Troy (River Mile 153.9). Fenimore Bridge in Hudson Falls (River Mile 197.3) to the Federal Dam at Troy (River Dredging occurred at an uncontaminated location in the Canal at the mouth of the Hoosic River. Dredging occurred at an uncontaminated location in the Canal at the mouth of the Hoosic The terms "Upper Hudson River" and "Upper River" refer to the Hudson River and Champlain Canal from the The terms "Upper Hudson River" and "Upper River" refer to the Hudson River and 1.2 1.2 1.1 THE TRUSTEES' AUTHORITY 1.1 THE TRUSTEES' AUTHORITY 1.0 EXECUTIVE SUMMARY 1.0 EXECUTIVE SUMMARY 1.0 EXECUTIVE 40 C.F.R. § 401.15). C.F.R. 40 the Canal continued to perform this valuable role, role, perform to the Canal continued valuable this sediment that naturally accumulated in the navigation channel. In approximately 1980, however, the In approximately 1980, however, accumulated in the navigation channel. sediment that naturally with one exception, State terminatedactivities, its maintenance 1.2 1.1 THE TRUSTEES' AUTHORITY 1.0 EXECUTIVE SUMMARY 1.0 EXECUTIVE PCB I 2 1 widely used as fire preventatives and insulators ofwidely in the manufacture preventatives used as fire and electrical transformers The of toxicity capacitors. of PCBs has been a subject With least the 1950s. since at concern impacts on human health and the environment, effective increasing concerns about the compounds' Substances Control 1977 CongressJanuary passed the Toxic Commercial of production PCBs be The responsibility for restoring natural resources that have been injured by hazardous substances lies The responsibility for restoring natural Trustees of the heads include as Trustees. with certain heads known certain governmental agency officialsThese as stewards act of government agencies. and Federal Indian tribes, State agencies, for holding these resources in trust for the public. The entities natural resources and are responsible for the Trustees by represented Department Department of of the U.S. Commerce, The Champlain Canal was opened to boat traffic in 1916 and historically provided an effective means provided an in 1916 and historically to boat traffic Canal was opened The Champlain through transport and commercial Hudson River. the Upper travel for recreational which required the United States Environmental Protection Agency (EPA) to establish labeling to establish and Agency (EPA) Protection Environmental the United States which required disposal r PCBs. ofAs a result PCBs. this le prohibited in the United States since 1979. Environmental PCBs are hazardous substances as defined in Section 101(14) of the Comprehensive Compensation, and LiabilityResponse, pollutants under and as toxic § 302.4(a)), C.F.R. (PCB) contamination from the General Electric Company (GE) made the cost of disposing of the (GE) made the cost of disposing from the General Electric Company (PCB) contamination in the has continued to accumulate expensive. Over time, sediment dredged sediment prohibitively making navigation more and dangerous Canal, difficult acting on behalf of the public, is responsible for assessing injuries to natural resources from the injuries to natural resources from the public, is responsible for assessing acting on behalf of ofdischarge lost servicesrestore to how determining and for as navigation such river PCBs into the public's by GE have adversely affected the report describes how PCBs released of the Canal. This the Canal for navigation and documents Hudson River and the Champlain ability to use the Upper legal basis for the Sta 1.2 1.2 1.1 THE TRUSTEES' AUTHORITY 1.1 THE TRUSTEES' AUTHORITY 1.0 EXECUTIVE SUMMARY 1.0 EXECUTIVE SUMMARY 1.0 EXECUTIVE HUDSON RIVER 2 PCB IMPACTS ON NAVIGATION 1.3 1.3 problems ( problems Substantial researchhasalsolinkedPCBexposuretodevelopmentalandotherhumanhealth Hudson River. canal, .[and]theChamplaincanal."Thus,navigation isa"committeduse"oftheUpper abandon .thenowexistingorfutureimprovedbarge canal,thedivisionsofwhichareErie York 15,TheArt. §1, New pro Constitution, Canal L.§6(1). Authority, andthentoitssubsidiary, York theNew (CanalCorporation). State CanalCorporation in1992, Transportation and, totheNew (NYSDOT) York State Thruway of State Department responsibility to maintain the Canal. In 1967, that responsibility In1967, was that tr responsibility tomaintaintheCanal. of theU.S. HealthService)of andthe World Public (see, HealthOrganization health organizations,such astheEP PCBs arealsoclassifiedasaprobablehumancarcinogenbynumerousnationalandinternational in the spring of 1916. The New YorkThe 1916. State De in thespringof Canal linkingTroy 1). andLakeChamplain(seeFigure The UpperHudsonRiverwasmadesuitablefornavigationbytheconstructionofChamplain 1.3 the GE plant sites are the single largestthe GEplantsitesaresingle PCBstotheriver(N contributed negligible amountsof NYSDEC haspreviouslydemonstratedthatnon-GEsourcesofPCBsintheUpperHudson PCB-contaminated oilsandsedimentsthere. nearGE’s HudsonFallsgate structure plant(EPAresulted failure of inarelease This 2000a). Fort theseseeps plantsite. Edward In1991, bedrock attheHudsonFallsplantsiteandthroughmaterialplacedunderanoutfallpipe Additional PCBshaveenteredtheHudsonRiverviamigrationofPCB-contaminatedoilsthrough PCBsintotheriver (EPA least1.3millionpoundsof at 1991a,1997). Altogether, thetwoGEmanufacturingin facilities located wastewater and sewers as collectionsystemssuch and ultimatelytotheHudsonRiverbydisposingofmanufacturingwastesinnearbylandfills from bothplants(NYSDEC1975).Inaddition,GEreleasedPCBstotheHudsonRiverwatershed water totheHudsonRiver in1975alsorevealed discharges storm discharges PCB-contaminated Environmental York of Department State about 30poundsperday 11,000poundsperyearor at (EPA about Newbeen estimated 2000a). were by betweenpermit. notauthorized 1956and1975from Discharges pointsources any have (see Figure1).Thesedirectintentionaldischargescontinueduntil1977.Mostofthese New Edward, York,plant inFort andbe GE dischargedPCB-ladenwastewatersdirectlyintotheHudsonRiverbeginningin1947fromits at 2-52). 1.3 1.3 4 3 discharge ofoilor releaseofahazardoussubstance isdetected." which thereisa documentedlegal,administrative, budgetary,orfinancialcommitment establishedbeforethe defined in43C.F.R.§11.14(h) as "either:acurrentpublicuse;orplanneduseofnatural resourcefor 50 percentofthein-placeandrecently depositedPCBinventory"(EPA2000b). this percentageisquitecloseto 100 percent.InthesalineHudson,GE-relatedcontaminationrepresents perhaps contamination represents80to100 percentofthein-placeandwater-bornecontamination.In UpperHudson, The term"committeduse,"which isaprerequisiteforcertaininjuries,see,e.g.,43C.F.R.§ 11.62(b)(1)(iii), is In itsPhase3ReportFeasibilityStudy(page1-42),EPAstates: "InthefreshwaterHudson,GE-related MAINTENANCEDREDGING MAINTENANCEDREDGING NA NA MAINTENANCEDREDGING NA MAINTENANCEDREDGING MAINTENANCEDREDGING NA NA VIGA VIGA VIGA VIGA VIGA id. at 37).manyid. PCBscantake decadestobreak down intheenvironment (EPA 2002b, 4 TION INTHEUPPERHUDSONRIVERAND TION INTHEUPPERHUDSONRIVERAND TION INTHEUPPERHUDSONRIVERAND TION INTHEUPPERHUDSONRIVERAND TION INTHEUPPERHUDSONRIVERAND A, the Agency for Toxicfor the AgencyA, otiuo fPCBstotheentire river. contributor of ginning in 1952 from its plant in Hudson Falls, New York itsplantinHudsonFalls, New ginning in1952from were augmented by the partial failure of theAllenMill augmented bywere failureof thepartial vides in pertinent part: "The legislature shallnot. "The legislature vides inpertinent part: . . ateto Pub partment of Conservation (NYSDEC) investigations of plant (NYSDEC) of investigations Conservation municipal treatment wastewater plants(EPA 1997). YSDEC 1976 at 22), andEPAYSDEC 1976at22), found that has TheChamplainCanalwasopenedtotraffic Fort Edward andHudson Fallsdischarged Substances and Disease Registry (anarm Substances andDiseaseRegistry lic Works w ansferred PCB I as originally with charged e .g MPACTS 3 ., EPAat 36). 2002a, to theNew York

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PCB IMPACTS ON NAVIGATION 3 ANAL C HAMPLAIN C HE 1 T IGURE AVIGATION F N ON

MPACTS PCB I HUDSON RIVER 4 PCB IMPACTS ON NAVIGATION NYSDOT regularly performed suc performed NYSDOT regularly atleastthatmuchrequire typicall example, for boats, Tug §155.2). (21 NYCRR navigational channelinaccordancewiththeStateConstitutionandregulation. But forthepresenceofPCBs,NYSDOTandCanalCorporationwouldhavemaintained (mechanical). dredging, treatinganddisposingofPCB-contaminatedsedimentsisover$300percubicyard dredging. mechanical However,approximately inthecaseof thecostof $35percubicyard, onsite disposalisonlyapproximately$6percubicyard,inthecaseofhydraulicdredging,and to theCanalCorporation,unitcostfornavigationaldredginginuncontaminatedwaterwayswith maintenancedredging prohibitively sediments madethecostof that timethepresenceofPCBsandregulatoryrequirementsfordisposalPCB-contaminated Champlain Canal with a water depth of 12 feet Champlain Canalwithawater depth of required byregulationtomaintaina200-footwidemainchannelintheriversectionsof maintenance dredgingtomakethechanneldeepenoughfornavigation.TheCanalCorporationis Due tonaturalsedimentation,thenavigationalchannelinChamplainCanalrequiresperiodic 7 6 5 as CommentS-2.1): Hudson River PCBReassessment inEPA Remedial Investigation/Feasibility Study (reprinted 1991b NYSDOT Commentdated October22, 1991ontheEPA inconnectionwiththe PhaseIReport Thisdepthiscalculatedinrelation toafixed‘canaldatum’orelevationbasedonnearbyspillway surfaceelevations. vessels beingdrawn dangerouslytowardthedam bythecurrent. southbound inthis stretch,includingvesselsstriking theconcretepilingsattempting tosteerintothelandcutand Subsequent tothe submissionoftheNYSDOTComment, italsobecameapparent thatthereareproblemstraveling dredging anddisposalofPCB-contaminated dredgespoilsintheChamplainCanal. many othercriticalprojectsin those waterwayscouldnothavebeenundertakenbecauseof the highcostsof waterways besidestheChamplain Canal.IfitslimitedbudgethadbeenusedforPCB-contaminated dredgingareas, The CanalCorporation,likeitspredecessor, NYSDOT,isresponsibleformaintainingtheErieCanal andothermajor Ft Edwardhasbetween275,000and300,000cubicyardsofrefill theBarge Canal. of Champlain Canalportion The PCBcontaminatedsedimentshavecausedusnottocomplywithourdutiesinthe [barge] MobilChamplainandthusthebridgewasclosed. the buildupofshoal,NorthumberlandBridgepierhas beenstrucktwicebythe northbound vesselstoperpendicularlyenterthecanalizedriver fromthelandcut.Since There isnowalargePCBcontaminatedshoalattheintersection thathasforcedthe river. the canalized of sothevessels intothecurrents angle transition hadagradual becomes acanalized river. river intersection withthecanalized This was designedat aflat South oftheNorthumberlandBridge,landcutcanalentersHudsonRiverand prohibiting this. Canal ismandatedtosupporttrafficwitha12footdraft.ThePCBcontamination approaching effecting[sic]therecreationaltraffic(fixedkeelsailboats).TheChamplain having averynegativeeffectonthecommercialtrafficcanalandisrapidly sediments. haslimitedtheamountof This could. Therefillhasrecentlybecomesowide,thebargescannolongerpush In pastyearsthebargeshaveplowedtheirwaythroughyearlyrefillasbestthey hascausedmany complications.This thePCBcontamination. becauseof not bedredged restricting ourcanal. Contaminated sedimentsarecontinuallysettlingoutinour canalandareincreasingly (Army Corps of Engineers 1990, Appendix B, Engineers1990, atB-7). of Corps (Army h dredging intheChamplainCanaluntilappro h dredging * * draft, thus cargo thebarges cancarry. is This thuscargo draft, 5 as specified intheNew asspecified More specifically, thecanalchannel below eur 01 eto draft, andbarges y require 10-12feet of 7 expensive. For example, according [or silting] PCB I York Sta MPACTS ximately 1980. At 1980. ximately 6 Accordingtoa that can

ON te regulations N AVIGATION HUDSON RIVER

PCB IMPACTS ON NAVIGATION 5 ecord quality resulting from the from quality resulting Yacht Basin, the draft is only Basin, Yacht Leblanc v. Cleveland, 198 F.3d 353, 360 (2d caused measurable, elevated PCB elevated caused measurable, substance . . . ." 43 C.F.R. § 11.14(v). The § 11.14(v). substance .. ." 43 C.F.R. . TION TION TION TION TION changes in chemical in chemical changes ALUA ALUA ALUA ALUA ALUA 9 ational dredging to be conducted in certain areas (EPA 2002a, areas (EPA dredging to be conducted in certain ational TION AND EV TION AND EV TION AND EV TION AND EV TION AND EV physical quality . of quality . . . physical naturala or resource directly either resulting hazardous substances have hazardous between Route 197 Bridge and Ft. Edward between requires navig TERMINA TERMINA TERMINA TERMINA TERMINA vigational dredging. AVIGATION N 8 ON

ter resource," 43 C.F.R. § 11.14(pp). resource,"ter 43 C.F.R. which has caused navigational dredging and disposal costs to be prohibitive; which has caused navigational dredging have been the subject of consumption resources in the river, such as fish, which advisories and regulatory closures; and River. y from exposure from .y . to . a release of a hazardous MPACTS t-term, or in the chemical (1) There has been an adverse chemical change in the sediments of the Upper River, (1) There has been an adverse chemical River constitutes a pathway to the injury of other (2) The surface water of the Hudson water quality criteria and standards in the Hudson (3) There have been exceedances of The Upper Hudson River constitutes "waters of the United States." Cir. 1999). "Surface water resources" are defined in the Natural Resource Damage Assessment regulations adopted by the U.S. "Surface water resources" are defined in the Natural Resource Damage Assessment regulations the sediments suspended in Department of the Interior, 43 C.F.R. Part 11 (the DOI Regulations), to include ". . . water or lying on the bank, bed or shoreline. . . ." 43 C.F.R. § 11.14(pp). 2.0 INJURY DE 2.0 INJURY DE at iii). However, the navigational dredging currently anticipated to be done pursuant to EPA's R to EPA's pursuant to be done anticipated currently dredging the navigational However, at iii). Canal navigational dredging identified by the address a significant portion of the of Decision will not Corporation for na concentrations in surface water and sediment. 3 feet. of approximately 500,000 cubic yards Corporation identified reaches containing This year, the Canal to be River in the future. The remedy be dredged from the Upper Hudson sediment that must EPA administered by the 2.0 INJURY DE PCB I 9 8 The Hudson River has sustained measurable long-term has sustained measurable The Hudson River historical and ongoing of releases and Fort Edward. the GE plants in Hudson Falls PCBs from the releases of Specifically, The surface waters of the Hudson River have been injured by the discharge of PCBs in three The surface waters of the Hudson principal ways. Each year the Canal Corporation publishes a Notice to Mariners of reduced depth in the canals for of reduced depth to Mariners publishes a Notice the Canal Corporation Each year within the to numerous reaches alerted mariners 2005 the Notice is responsible. In which it There are 12-foot depth. than the mandated draft was shallower Canal where the Champlain (west, middle in three locations was measured and each of them the Canal, reaches throughout 57 were 12 feet. In fact, 21% of the total of the measurements were less than and east). Over 72% or less.feet In one reach, 9 One of the consequences of the injury to surface water in the Upper Hudson River is the loss of One of the consequences of the injury services. navigational in part as ". . . a measurable adverse change, either long- or The DOI Regulations define "injury" shor Upper Hudson River and its sediments are both a "natural resource," 42 U.S.C. § 9601(16); 43 C.F.R. and its sediments are both a "natural resource," 42 U.S.C. Upper Hudson River resources . . . "), and a § 11.14(z) ("natural resources" include "land, . . . water, . . . and other such wa "surface indirectl 2.0 INJURY DE 2.0 INJURY DE HUDSON RIVER 6 PCB IMPACTS ON NAVIGATION The Trustees, thesurface The therefore, concludethat contaminatedabove thoselevels.sediments are disposal cost.Suchsignificantlyincreasesthetotalcostofadredgingprojectwhere PCBs has been “adverse” withinthe PCBs hasbeen“adverse” in thechemicalqualityofUpperRiversedimentsasaresultbecomingcontaminatedwith of thecanalbypreventingmanytypesvesselsfromsafelynavigatingcanal.Thus,change theUpperHudsonRiver.200 feetwide)throughout Thishas in thefailureofchanneldimensionstomeetState-mandatedspecifications(12feetdeepand maintain thecommitteduseofthisresourcehasbeenpostponedbyCanalCorporation,resulting Due totheaddedcostsresultingfromPCBcontamination,navigationaldredgingthatisnecessary spoils. dredge associated sedimentanddisposingof dredging costof increased due tothegreatly theUpperHudson use of to maintainthecommittednavigational These changesareadversebecausetheyhaveimpairedtheabilityofStatetomeetitsobligation 11 10 (nominally 50ppm,butinpracticeaslow32ppm ThepresenceofPCBsindredgedsedimentsabovespecifiedconcentrations Added disposalcosts: Ad procedures, significantly significantly procedures, and 6NYCRR§371.4(e).Theserequirements,includingwatercolumnmonitoringotherspecial thedredgedsediment.See40C.F.R. § of that wouldbeexposedtothewatercolumnfollowingdredging,andproperlymanagesdisposes resuspension ofcontaminatedsediment,monitorsforandcontrolsresidualsediment contaminated HudsonRiversedimentmustbeconductedinamannerthatmonitorsforandcontrols in surface water, in surface banksorsediments. Biological resour § 11.62(b)(1)(v),surfacewatersareinjuredifbiotabyexposuretohazardoussubstances closures. subjected toconsumptionadvisoriesandregulatory constitutes apathwaytotheinjuryofotherresourcesinriver,suchasfish,whichhavebeen ser navigational water witharesultinglossof surface There aretwoadditional,independentbasesforconsideringwhetheraninjuryhasoccurredto to naturalresourcedamagesclaim). and publicusetemporarilylostbyclosureofwaterwaytomaritimetrafficcausedoilspillgiverise etn h eurmnso TSCAorincineration, 40 of meeting therequirements 40 C.F.R. §11.62(f)(1)(iii). appropriate Statehealthagencyhasissueddirectivesto limitorbanconsumptionoftheresource, sediments sufficienttocausethebiologicalresource exceed levelsofthatsubstanceforwhichan by thereleaseofahazardoussubstanceresultingin concentrations insurfacewaters,banksor 1996 U.S. LEXIS8500(S.D.N.Y, Dist. 90CIV. by PCBreleases. a resultofmeasurableadversechangesinthechemicalqualityUpperHudsonRivercaused lower levels, below 32ppmTotalPCBs,tohave greatercertaintythatcontraventionofFederalregulationswill notoccur. disposal (NYSDEC,2004). According toNewYorkStateguidance, contaminatedsedimentscontaining0.1ppmTotalPCB requirespecial Landfill operatorshaveinformedEPAthattheyrequireincoming materialtotestbelowtheTSCAlimit, ded dr edging costs: Underapplicab edging costs: 11 inanon-TSCAlandfill.Bycontrast,cleansedimentscanbereusedwithoutany See generally, nraetecs fdredgingPCB-contaminatedsediments. increase thecostof Ma meaning of theDOIRegulations. meaning of tter of le State and Federal regula le StateandFederal 6.1& 6. dfnto f"PCBremediationwaste") 761.61 &§761.3(definitionof theComplaintof 5702 (KMW), June5702 (KMW), 18, 1996) waters of the of waters 10 vices. The surface water of theHudsonRiver vices. of Thesurface water ) requirestransporttoanddisposalinalandfill ces canbeinjured inseve C.F.R. §761.61(b)(2), Under the DOI Regulations, 43C.F.R. UndertheDOIRegulations, adverselyaffected use thenavigational MontaukOil Hudson River have tions, navigational River, law, required under State as PCB I (surface waters injured (surface waters T r for, if MPACTS r anspor ral ways, including beeninjuredas contamina rdigo the dredging of

ON ta N tion Cor AVIGATION i.e., ator ted at p ., HUDSON RIVER

PCB IMPACTS ON NAVIGATION 7 12 protect lished to ttery in Manhattan has Manhattan in ttery the process of preparing ve been estab ve y closures ofy closures The the fishery. ecreational fishery resource ofresource fishery ecreational the tional services that would have been tional services have would that River provide injuredThe River is navigation. TION TION TION TION TION injury-to-biota definition ofinjury-to-biota definition water surface The Trustees are in will also be considered. ptember) at the Thompson Island Dam-West station the Thompsonptember) at Island Dam-West § 11.62(b)(1)(ii) and (iii). For example, the average PCB the average example, For § 11.62(b)(1)(ii) and (iii). minations minations ovided by the Champlain Canal and maintaining those services by ovided TION AND RESTORA TION AND RESTORA TION AND RESTORA TION AND RESTORA TION AND RESTORA State water quality criteria thatStateha water to their baseline condition, 43 C.F.R. § 11.83(c). The § 11.83(c). will Trustees The 43 C.F.R. to their baseline condition, compensated for the loss of for compensated naviga documenting exceedances of State and waterdocumenting exceedances criteria quality Federal TERMINA TERMINA TERMINA TERMINA TERMINA ederal and ederal ustees conclude that the elements ofustees conclude that the AVIGATION ehensively N ON

surface water of water surface to the Ba Hudson Falls from the Hudson River surface waters in the Hudson River (e.g., from exceedance of exceedance from (e.g., water Hudson River quality criteria and in the surface waters MPACTS ace waters (sediments) have caused a loss of caused a loss ace waters have (sediments) navigational services because PCB sediment Hudson River contains PCBs at levels above 50 ppm. Such concentrations were determined by NYSDEC to be Hudson River contains PCBs at levels above 50 ppm. Such concentrations were determined Therefore, under the sufficient to cause the sediment to be listed as a hazardous waste. 6 NYCRR § 371.4(e)(1). as well. DOI Regulations, 43 C.F.R. § 11.62(b)(1)(iv), the sediment was injured for that reason In addition, as noted above, at a number of locations the sediments in the navigational channel of the Upper In addition, as noted above, at a number of locations the sediments in the navigational 3.0 DAMAGE DE 3.0 DAMAGE DE developed for protection of aquatic life, piscivorous wildlife, and for human consumers of fish. developed for protection of aquatic life, a report compr designated uses of the river. See 43 C.F.R. designated uses of See 43 C.F.R. river. the from the surface of the river to its bottom, for a three-month concentration in the water column, i.e., period in the summer of Se through 1998 (June of quality standard water 134 nanograms the EPA Thiswas per liter (ng/l). far level exceeded 2002a at forng/1 24). life freshwater14 (EPA aquatic injury set out at 43 C.F.R. § 11.62(b)(1)(v) have been met for the entire have § 11.62(b)(1)(v) length ofinjury set out at 43 C.F.R. Hudson River the and regulatory closures have continued Because the consumption advisories PCB Superfund Site. It is likely that the advisories and closures, has existed over that same period. since 1976, the injury well into the future. to the surface water, will continue and the resulting injury ofOne the services of that the surface waters the Hudson surf required for navigation, and the navigational channel in concentrations prevent maintenance dredging shallow to support navigation by many recreational and the Champlain Canal has become too vessels. commercial the Finally, been injured in a third way as a result of the ongoing release of PCBs because PCB concentrations been injured in a third way as a result F exceed in the river provided by this injured resource between the time of the discharges and the time when those provided by this injured resource between the time of the discharges are resources returned fully estimate the amount of with this natural resource damages associated reports. injury in future of fully restoring Analyses will likely include the incremental cost attributable to PCB contamination pr servicesthe navigational previously in the future. Additional damage deter in the future. 3.0 DAMAGE DE PCB I 12 The public is entitled to be The public While the service in this report loss addressed is navigational, other service with losses associated injury to in future reports. be addressed may standards) Hudson River has been injured by virtue of the fact that the levels of PCBs in the fish have caused of PCBs in the fact that the levels by virtue of the has been injured Hudson River advisories consumption Statethe regulator and issue fish to continued length in one form the entire since 1976, over have consumption advisories or another, of levels of The elevated Falls. Hudson below the advisories caused fish PCBs in the the river that PCBs, fish to other resources which contain have resulted from exposure of the to be put in place of and sediments banks, water, including surface the Hudson River. As a result, the Tr In a June 2001 report entitled "Injuries to Hudson River Fisheries Resources: Fishery Closures and Resources: Fishery River Fisheries "Injuries to Hudson 2001 report entitled In a June Trustees determined the thatr the Restrictions," Consumption 3.0 DAMAGE DE 3.0 DAMAGE DE HUDSON RIVER 8 PCB IMPACTS ON NAVIGATION 5.0 5.0 4.0 CONCLUSION 4.0 CONCLUSION 5.0 4.0 CONCLUSION New York State Department of Envir New Yorkof State Department Environmental Conservation (NYSDEC). 1976.YorkNew Interim State Department of PCB 1975. Environmental Conservation (NYSDEC). YorkNew of Department State that substantiallyincreasethecostofdredgingremaininnavigationalchannel. restrictions onitsuseareexpectedtocontinueintothefutureaslongPCB-contaminatedsediments andthe totheresource spoils. PCB-contaminated injury dredge The handling anddisposingof caused thesuspensionofrequiredmaintenanceduetoprohibitiveexpenseassociatedwith the ChamplainCanalfornavigationhasbeenseverelycurtailedbecausereleaseofPCBs Hudson Riverare injured dueto the HudsonRiverThe Natural ResourceTrustees resources water conclude thesurface of that U.S. Environmental Pr York theNew Engineers, Buffalo District.U.S. 1990. ChamplainCanalof Corps of Army U.S. Environmental Pr U.S.Environmental (EPA). Protection Agency 1991b. ResponsivenessforSummary theEPA U.S. Environmental Protection (EPA).Agency U.S. EnvironmentalAgenc Protection U.S.Environmental Protection (EPA).Agency 2000b. –Feasibility Study. Phase3Report U.S.(EPA).Environmental Agency Protection SiteCharacterization and Further 2000a. 5.0 5.0 4.0 CONCLUSION 4.0 CONCLUSION General ElectricCompany." 9, 1976. February York New by of theState of theEnvironmental Conservation Law and 11-0503of Opinion andOrder,"IntheMatterofAllegedViolationsSections17-0501,17-0511, Monitoring intheUpperHudsonRiver Basin.Di State BargeCanal,EconomicBenefitsofOperation. Sediment andDredgedMaterial.November2004. Operational GuidanceSeries(TOGS) In-Water 5.1.9. of andRiparianManagement Investigation/Feasibility Study. Phase IReportinconnectionwiththeHudsonRiverPCBReassessmentRemedial FS.II,York. Region New August. - InterimCharacterizationandEvaluationReport:HudsonRiverPCBReassessmentRI/ 2002. December. Inc. for U. S. EPARegion IIandU.S. Engineers, CityDistrict. Kansas Corps of Army Prepared by TAMSConsultants, 6. Hudson River PCBsReassessment Book1of RI/FS. Engineer U.S.of Corps Army Tech, & Associates Inc., and Tetra Menzie-Cura Tech,for U. Inc. S.EPA Region IIand Reassessment RI/FS. by TAMS Prepared Books1through 4. Consultants, Limno- Inc. Analysis: Volume 2D: BaselineModelingReport:Revised HudsonRiver PCBs New York.Region II, February. Data– Evaluation andInterpretation Report. HudsonRiver PCBsReassessment RI/FS. Decision. REFERENCES REFERENCES REFERENCES REFERENCES REFERENCES otection (EPA).Agency 1991a.PhaseIRe otection (EPA).Agency 1997.Review Copy. Phase2Report: Volume 2C itrclado-on eesso PCBs. ability touse The public's releases of historical andon-going s, Kansas City District. January.s, KansasCityDistrict. y (EPA).dated1, FebruaryDecision 2002a. Recordof onmental Conservation (NYSDEC). onmental Conservation 2002b. Responsiveness vision of Pure Waters. Pure October1975. vision of port -Review port Copy.Volume 1 PCB I Summary,of Record 2004. Technical & MPACTS

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