The Newburgh Clean Water Project met for its monthly “teach in” session on Wednesday, August 26 where they discussed the best strategies to obtain clean water for Newburgh using a legal framework.
Newburgh is continuing to handle the 2016 per and polyfluoroalkyl substances (PFAS) chemical contamination from the Stewart Air National Guard.
The session considered questions like “what are the best legal tools and avenues we can use to demand a meaningful cleanup of the Airbase? Who do we need to petition at the Federal level and what is the State’s responsibility in all of this?”
Sharmeen Morrison, an Associate Attorney with Earthjustice’s Northeast Regional Office, described that there are four legal processes that have some bearing on the cleanup on Stewart.
These are federal superfund (or Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)), New York State superfund, litigation brought by the City of Newburgh, and the Defense Environmental Restoration Program (DERP).
“Neither the international guard base or the civilian airport are listed as federal superfund sites,” said Morrison. “In fact, on EPAs website, the base has a designation of ‘no further remedial action planned’ and I couldn’t find a status entry for the airport.”
However, the base is listed as a New York State superfund site, but the airport is not.
“DEC [Department of Environmental Conservation] has not signed any cleanup oversight document with DOD [Department of Defense],” said Morrison. “This means there is no official agreement about who’s responsible for the contamination and the cost of cleanup.”
The City of Newburgh filed a lawsuit in federal court back in August of 2018, but in December 2018 the case was transferred to South Carolina, where it was consolidated with several other similar PFAS cases.
They are continuing to monitor the case, however Morrison said, “if anything happens it would be pretty far down the line.”
Despite all of this, most of the current cleanup is happening under DERP.
“We’re still trying to figure out what DOD is allowed to do under DERP and what recourse we have if they fail to comply,” said Morrison.
Alok Disa, a Senior Research and Policy Analyst with Earthjustice, brought up the concern regarding the selection of the air base for cleanup. The DOD uses a Relative Risk Site Evaluation (RRSE) where it chooses “worst first.”
There are currently 75 PFAS investigations across the national guard.
RRSE uses three evaluation factors: contaminant hazard factor, migration pathway factor and the receptor factor.
“They [DOD] are trying to say that this is a small isolated thing that doesn’t affect offbase places,” said Disa. “This is a possible area of contention that we need to be aware of.”
Looking further down the road, Disa also discussed how to ensure the water source is properly cleaned up when chosen.
The state and federal government have different maximum contaminant levels (MCL). The Environmental Protection Agency uses a MCL of 70 parts per trillion while the state has an MCL of 10 parts per trillion for PFAS.
The Clean Water Project wants to ensure that it adheres to the state level instead of the federal.
“MCLs are maximum contaminant levels for drinking water,” explained Victoria Leung, an Associate Staff Attorney at Riverkeeper. “They are in a more limited scope, it’s only drinking water. There is a possibility that the DOD pushes back on this and says it doesn’t apply to a general site cleanup.”
Water quality standards, instead of drinking water, can also be considered. These are set by the DEC, while MCLs are set by the Department of Health.
Christine Santillana, who serves as Legislative Counsel for the Healthy Communities program at EarthJustice, was also on the call to discuss the importance of legislative work and advocacy at the federal level.
“It’s very obvious that the DOD is not treating this with any urgency,” said Santillana. “We really need to get the ball rolling on that.”
She described the importance of a political foundation and advised that the Clean Water Project create a strategic plan to build a relationship with Senators Schumer and Gillibrand and Congressman Delgado.
“Our efforts would be more fruitful and successful if you’re hitting them from the ground and we’re hitting them from D.C.,” said Santillana. “You need someone on the Hill to back any legislation.”
Newburgh Clean Water Project holds a variety of different meetings to advocate for clean water in the area. Stay up to date on their Facebook page for more virtual events.