August 12, 2022

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Industrial Contamination

Corporations are responsible for cleaning up their industrial mess,
but should they set the standards?

By Cori Marshall

The people of Akwesasne, the federally recognized Saint Regis Mohawk Tribe, have been living with the effects of living near heavy industry since the turn of the twentieth century. From the late 1950s until the early twenty-first century Alcoa, Reynolds Metals (Reynolds), and General Motors (GM) all operated plants in Massena, New York. The height of their operations have come and gone, and in fact, only one plant is still in operation.

Reynolds and GM may be gone, and the Alcoa plant that opened in 1903 operates under a new name but all three sites have left a footprint of contamination in their surrounding environment. It is that legacy that the people of Akwesasne continue to live with.

Two of the three sites have undergone the remediation process and the former GM site now under the administration of Revitalizing Auto Communities Environmental Response Trust (RACER Trust), is currently under considerations for future uses “that are consistent with the environmental cleanup being done at the site,” according to the property information hub.

In our conversation with Sub-Chief Ken Jock, the question was put forward, with much of the remedial work done and environmental and health concerns still present what are the next steps, and challenges for the future? His response underlined the collaborative approach with state and federal agencies, though echoed concerns that were held at the beginning of the process.

“We need to continue to work with the EPA, DEC, and New York State,” Sub-Chief Jock said adding “we need to push them to show that the science says that they have to do more.”

The real challenge in achieving a cleanup that is protective of the community lies in the process itself. “I think we need to try to change the process,” the Sub-Chief said of the manner remediation efforts are identified and to what extent the cleanup should be. Right now, the EPA (Environmental Protection Agency) is the regulator, the actual cleanup is done by the responsible party.”

The view is that the process, in the way that it is presently structured, even though the responsible sources of contamination pay for and conduct the remediation it allows the responsible party to target the absolute minimum in terms of cleanup. In the case of the Superfund sites in the Akwesasne, Massena area we are talking about soils, sediments, and wildlife that have been contaminated with Polychlorinated Biphenyls (PCBs).

Sub-Chief Jock believed a shift in who undertakes the cleanup could help. “If it was something that was funded by the companies and was directed and done by the EPA or State DEC, it could be done to a standard that would be more protective of the community.”

The fact that the process has been called into question and has been cause for concern is not new. Some thirty-three years ago the very same issue of the responsible parties determining targets and cleanup standards was brought up as the remedial process for the GM site began.

Stephen Penningroth, Ph.D., a Visiting Associate Professor of Pharmacology at the University of Medicine and Dentistry of New Jersey, School of Osteopathic Medicine was contracted by the Akwesasne Mohawk Nation to conduct a review of the Remedial Investigation conducted by GM at the Central Foundry Division site in Massena. In May of 1988, he submitted his report to the Akwesasne Environmental Task Force.

The report entitled “GM-Akwesasne” The Probable Poisoning of an American Indian Nation at a Superfund Toxic Waste Site: A Critical Review of the Remedial Investigation at GM-CFD Massena Facility (USEPA Administrative Order on Consent, Index No. II CERCLA-50201), raised numerous concerns and flaws in the Remedial Investigation (RI).

Very early the report sets out the importance of the Remedial Investigation (RI). “The RI is crucial because it sets the stage for the FS [Feasabilty Study] and ROD [Record of Decision] by providing an estimate of the nature and the extent of contamination at the site.” If the RI fails to identify toxic substances, hotspots, and means by which people can be exposed they will be missed and not included in the site cleanup.

The report concluded that the RI contained insufficient data “to delineate three-dimensional spill boundaries in soil and sediment with 95% confidence.” Close to three hundred soil and sediment samples were taken, Penningroth’s report estimates that thousands more would have been needed. GM’s RI averaged “1 sample per acre of soil and 1 sample for every four acres of river sediment.”

The RI severely underestimated the health risks to Akwesasne. The review “distorts or ignores available data on levels and pathways of exposure, health risks other than cancer, and toxic substances other than PCBs.” It points out that “large amounts of data were excluded,” and the data that was included in the risk assessment was limited and its accuracy questionable.

It was further concluded that in the context of the RI the site was misclassified as a “restricted access or rural area” under the governing legislation. The accurate classification is important as it connects to the PCB cleanup targets. In this case, the study of the site would be correctly defined as a “‘nonrestricted access location’ with a numerical cleanup standard for uncomplicated PCB spills of 10 ppm.” Under the misclassification, the numerical cleanup standard is 25 ppm. Penningroth’s document went as far as questioning the RI’s scientific validity and it being a “serious factor” in the cleanup. It concluded that the data was of a “confusing presentation and biased interpretation.” The study found that the RI’s conclusions were “subjective, minimizing the scope of contamination suggested by the data.”

The Comprehensive Administrative Index for this contains correspondence concerning the study and calling on the EPA to take into consideration its contents in a revised RI report. In a June 1988 letter to the EPA, the United States Public Interest Research Group (USPIRG) and the Mohawk Nation of Akwesasne underlined the report’s suggestion that the “quality of many Superfund cleanups may be compromised by EPA’s inadequate oversight procedures that fail to deter corporations from underreporting the extent of their facility’s contamination in order to reduce cleanup costs.”

The groups also point out that GM was “encouraged to do its own investigation despite having assessed $400,000 fine to the corporation,” for illegal PCB disposal.

In their September 1988 response to the Tribal Chief Harold Tarbell, the EPA addressed the major issues that concerned the Mohawk Nation of Akwesasne and USPIRG.

On the issue of the numerical cleanup standard, the EPA stated that during the RI planning “no applicable, relevant or appropriate requirements (ARAR’s) concerning permissible levels of PCBs were Identified”. At the time GM used a “benchmark” level of 25 ppm which was found in a “draft EPA policy statement.” The federal regulatory agency then took on the responsibility to “determine the cleanup levels, or ARARs, for the GM site and the Reservation”

At the time at other sites in the State of New York, the EPA and New York Department of Environmental Conservation (NYSDEC) had agreed on a 10 ppm cleanup level. The EPA stated that there was no intent on the part of GM to arrive at the 25 ppm level, and it did not “represent a federal or state cleanup standard.”

The EPA also stated that under the Superfund “tribal governments” would be granted “substantially the treatment as State governments during the implementation of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).”

As procedural issues persist with the Superfund cleanup we reached out to the EPA and asked about their role and procedures.

The EPA explained that “cleanup levels are the more stringent of the federal or state cleanup standards and are selected in the cleanup decision documents.”

In the 1990 Record of Decision (ROD), the EPA selected a “PCB cleanup level of 10 ppm” for soil and sludge on the GM site. This numerical cleanup standard was arrived at based on it being “protective of the Mohawk population.” Facility personnel will have “unlimited” access to remediated areas and due to the impact of the contaminated soil on surface and groundwater. Targets set to clean up PCBs in the groundwater were 0.1 ppb.

The numerical cleanup standard chosen on Reserve was not the same as that decided upon for the GM facility. The EPA chose “a soil PCB cleanup level of 1 ppm,” and any soils on the Akwesasne territory that would be disposed of on the GM site would have to contain a PCB concentration of 10 ppm or less. This is directly related to the accordance of the same treatment as a State mentioned earlier.

Former Chief James Ransom said that “we’ve made tremendous headway in getting PCBs out of the environment, there are still problems but it’s better than when we started.” Under environmental laws at the federal level, Akwesasne was able to set its own PCB cleanup standards. Ransom said that “we set levels on reserve land as more stringent than off-reserve, that helped.”

In 1989 the Saint Regis Mohawk Tribal Council adopted TCR89-19, a resolution that established ambient standards for PCBs on reserve. The resolution set “cleanup standards for PCBs found in or upon the soils, lands, vegetation, air sediment, surface waters or groundwaters.” It was resolved that on reserve land the ambient PCB standard for sediments was set at 0.1 ppm, soils 1 ppm, surface water 1 ppt, groundwater 10 ppt, and air 5 nanograms per cubic meter.

When looking at procedure there was question of the role that the EPA plays. The agency said that the lead role for a particular site is decided upon between the “EPA and individual states.” Whichever would take on the lead role the other would provide support, and the “EPA makes the remedy decisions.”

The EPA addressed the issue of corporations, responsible for chemical and toxic contamination, to perform their own RIs and have the appearance that they set lower cleanup standards to reduce cost. “There is no provision under the Superfund law that allow those that are responsible to determine the extent of the cleanup liability or the cleanup objectives for sites.” Adding that “courts ultimately decide Superfund liability.”

In the case that a corporation sets numerical cleanup standards that do not meet those of the federal or state governments and need to be revised, “the remedy decision would have to be formally changed,” according to the EPA.

The EPA explained that in this specific case “the Tribe, as well as the State, function as support agencies.” The federal oversight body provides funding to Akwesasne in order to “hire staff, consultants, perform sampling, as well as other oversight functions.”

Process and oversight was an issue in the 1980s as efforts were made to identify and address the contamination at the GM site in Massena. They are still an issue in the present and looking toward the future of the PCB cleanup. It is definitely worth more attention as we continue to look at how a community deals with long-term PCB contamination.

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