New York City Downtown. Photo: iStock

New York state filed a new lawsuit against the Trump administration Wednesday in response to a decision in April from the U.S. Environmental Protection Agency to clear General Electric, at least for now, from continuing to dredge the upper Hudson River for contaminants.

The lawsuit, announced by New York Attorney General Letitia James, claimed that the decision did not comply with federal law and should, therefore, be vacated.

“We will not allow the EPA to let big polluters like General Electric off the hook without a fight,” James said.

It’s the latest development in an ongoing conflict between officials from New York state and the federal government over the cleanup of the Hudson River, which has been ongoing for several years.

General Electric has worked with the EPA in recent decades to clear a portion of the upper Hudson River of polychlorinated biphenyls, which the company used and disposed of into the waterway for nearly three decades until the 1970s. The latest leg of that project ended in 2015, after which the EPA set out to evaluate how effective it had been.

That ended in a decision in April from the federal agency, which officially allowed GE to stop dredging that portion of the river, at least for the time being. They’ll still have to monitor contaminant levels on that part of the river, and may be required to perform more dredging if the EPA deems it necessary.

In the lawsuit filed Wednesday, attorneys for New York claimed recent data from the DEC showed that the river, despite the EPA’s findings, had not met the correct standards under the federal Superfund law to allow the cleanup project to stop.

“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,” the lawsuit said. “In fact, EPA has concluded that it does not have sufficient information to determine if or when the remedy will be protective.”

That was a reference to a section of the federal Superfund law, which directs the EPA to “select a remedial action that is protective of human health and the environment.”

The current conditions of the Hudson River, the state argued, do not rise to that requirement. That was Gov. Andrew Cuomo’s argument against the EPA’s decision in April, as well, which he repeated in a statement on the legal action Wednesday.

“The Hudson River is among New York’s most precious natural and economic resources, but despite years of dredging, levels of PCB contamination are still unacceptably high in the river and in fish,” Cuomo said. “We have an obligation to protect the health and vitality of both the Hudson River and the communities along its banks for current and future generations.”

Attorneys for the state are challenging the EPA’s decision in two ways. They claimed in the lawsuit that it was beyond the agency’s authority and made in violation of the federal Administrative Procedure Act.

The decision is the result of a consent decree entered into by GE and the EPA in 2006 over the latest cleanup project for the Hudson River. Under that decree, the federal government agreed not to sue GE after issuing a Certificate of Completion to the company, which is what the agency did in April.

At the same time, the state argued, the EPA can’t find that the work done by GE between 2006 and 2015 meets the standard of the federal Superfund law in being protective of human health and the environment. There are still areas of the upper Hudson River where fish can’t be eaten, for example, the state said.

The state’s argument is that the EPA acted outside of its authority by removing the option to sue GE, while the company’s cleanup has allegedly not been shown to comply with federal standards set by Congress.

“In fact, EPA cannot find that the remedial action currently is protective, and cannot state with reasonable certainty that the action will be protective in the future,” the lawsuit said.

The lawsuit argued that, for the same reason, the EPA violated the Administrative Procedure Act when it cleared the cleanup project. The state claimed that issuing the certificate to GE, while not meeting the requirements of the Superfund law, meets the APA’s standard of an “arbitrary and capricious action.”

Mark Behan, a spokesman for GE, said the EPA’s review of the cleanup project had found their work to be effective and that almost all of the locations sampled by the state had met the standard set more than a decade ago.

“EPA conducted a comprehensive review of the Hudson River dredging project and concluded that dredging successfully reduced PCB levels, no additional dredging is warranted, and GE met all of its obligations,” Behan said.

The challenge was filed in the U.S. District Court for the Northern District of New York, which is a rare venue for the state’s lawsuits against the federal government. In this case, it was filed there because that’s where the state Department of Environmental Conservation is headquartered.

A spokesman for the EPA declined to comment on the lawsuit, saying that the agency doesn’t respond to pending litigation.

READ MORE:

EPA Prepared to Defend Against Lawsuit From NY Over Hudson River Cleanup, Official Says

Cuomo Threatens Lawsuit Against EPA Over Hudson River Cleanup

NY AG James Leads Coalition in Interstate Smog Lawsuit Against US EPA