Con Edison could be in very hot water, after it was revealed that the utility giant regularly pumps millions of gallons of wastewater heated far above the natural temperature of the river and contaminated with chemicals like selenium, lead, chromium, copper and chloroform into the Hudson River at Pier 98.
Tom Fox, a member of the 50-person citizen’s advisory to the Hudson River Park Trust (HRPT), was appalled to learn of the power company’s polluting pier procedure. Fox told W42ST that he wasn’t looking for trouble when he stumbled upon the practice. “I’m a member of the Historic Preservation Working Group in the Hudson River Park Advisory Council, and we had just finished helping the trust decide what educational elements they could put into the programming for the Gansevoort Peninsula,” he said. “I’ve been around the block several times, and I knew this was a refueling facility but shortly after I visited the site, I read an article in the West Side Rag called “Not All Piers Are for Play” and it talked about the working history of Pier 98.”
The Con Edison pier is located between the future home of the public park at Pier 97 and the Sanitation Department’s Pier 99. “The article mentioned that it used to be a refueling facility, but now, 97 percent of the energy to the plant comes from natural gas and the pier is important to withdraw water from the river and cool electrical cables and return it to the river,” said Fox. “And I thought, ‘well, I’ve never heard of that.’ So I started doing some Freedom of Information Act requests.”
Searches by Fox and his fellow advisors uncovered some unpalatable answers. As first reported by the New York Times, Con Ed has been regularly collecting and then dumping the river water to cool pipes connecting the IRT Powerhouse on W58th Street to the W49th Street substation. The utility giant has permission to do so — Con Ed maintains an agreement to use the pier for this purpose by paying the Hudson River Park Trust $1 million a year in rent — but Fox and other advisors to the trust say the practice should be halted, citing a violation of the Clean Water Act due to the effects of the hot, potentially polluted output from the company. Water significantly hotter than the natural temperature of the environment produces more acid and less oxygen, which can be detrimental to marine life.
“The 1998 Hudson River Park Act, which created the Park, specifically designated all water within the Park boundaries as a unique ‘Estuarine Sanctuary’ entitled to special protection by DEC,” said Fox. “But for decades, Con Edison, with Department of Environmental Conservation’s and HRPT’s knowledge, has disregarded its statutory and regulatory obligations — ironically, while boasting in public advertisements of its commitment to ‘Clean Energy.’”
According to the Times, in 2010 the New York State Department of Environmental Conservation (DEC) found Con Ed liable for violating environmental regulations, fining them $5 million in damages. The company paid $1 million to the DEC and $4 million to HRPT for the creation of its educational Estuarium building, which is set to begin construction this year. In the 12 years since the ruling, the DEC has recorded multiple monitoring requirements and wastewater violations by Con Edison.
Though the Hudson can seem cleaner than it once was — as evidenced by the appearance of dolphins comfortable enough to swim in its waters last week — local leaders and advocates for the river urged the trust and the City to keep Con Edison accountable before any further damage was done. The trust has also recently come under fire for allowing the BLADE heliport (itself a polluting element) to operate from W30th Street in the park.
For their part, Fox, other advisors from the Hudson River Park advisory board and urban land advocacy group The City Club of New York (of which Fox is a part) have decided to keep the agency accountable by filing an intention to sue Con Edison, the Hudson River Park Trust and DEC under the Federal Clean Water Act, arguing that members of the trust — which include DEC Commissioner Basil Seggos — have failed the public by not handling previous violations sooner and determining that Con Ed’s next permit does not include wastewater dumping.
“Con Edison’s pollution of the Park is hard to believe, and the Trust’s failure to inform the public is irresponsible and dangerous,” said Dan Miller, Chair of the Hudson River Park Advisory Council. “Conflict of interest appears to be embedded in this controversy, and indeed in the statute: The 1998 Act requires the DEC Commissioner to serve as a Hudson River Trust board member,” added Richard Emery, a City Club board member and an attorney for the challengers.
The group stressed: “This pollution is not only detrimental to the Park’s aquatic habitat, it may have significant public health implications as well. The Park features four public boathouses that are among the most popular in the State, one of which [Manhattan Community Boathouse] is only 500 feet from Con Edison’s discharge pipes. The Trust also continues to encourage fishing from the Park piers, and it oversees in-water environmental education programs. This pollution must stop immediately. “
Con Ed has maintained that the entire practice is above board, and that the advisory group’s allegations contain “inaccuracies”, Con Ed spokesperson Allan Drury told W42ST: “We are proud of our environmental stewardship, and we take compliance with all rules and regulations extremely seriously.”
Drury added: “Con Edison is permitted to perform discharge activities at Pier 98, we are in compliance with our permit, and in the very infrequent cases where a deviation has occurred over the years, we transparently self-identify and report to the regulatory agency. We are reviewing the letter in detail and have noted numerous inaccuracies. For instance, our permit has not expired, and we have not exceeded the permitted temperature for discharged water. We will address these and other issues with the appropriate parties.’
In a statement to W42ST, the DEC said: “Since 2010, of the 4,400 sampling records at the Con Edison plant, DEC identified 27 reported exceedances and non-reporting of operational parameters unrelated to the outfall at the facility. These discrepancies were considered minor and quickly resolved. DEC has not undertaken enforcement action related to this facility since 2010.”
In a statement to W42ST, a spokesperson from the trust additionally responded to the controversy: “Con Edison began operating at Pier 98 under a lease with New York City in 1959 for uses deemed essential for operation of the City’s electric and steam system. In 2011, the Hudson River Park Trust conducted a transparent public review process consisting of a Community Board 4 briefing, posting the full draft lease on the Trust’s website, newspaper notices, a formal public hearing, and a public comment period. All of Con Edison’s permissible uses of Pier 98 were disclosed to the public at that time, and no one objected to the lease or any of these continuing uses.”
Fox and his fellow advisors dispute the details around the trust’s disclosure policy, arguing in a statement to W42ST that the original public wording did not include mention of the dumping practice: “In March of 2011 HRPT released a public notice of intent to sign a 30-year lease with Con Ed. ‘The proposed Lease would allow for Con Ed’s continued use of Pier 98 to dock vessels, load and unload fuel, transformers, equipment, materials and supplies thereto and there from, to maintain and operate its facilities thereon, and for such other purposes (including trucking of fuel, transformers, and other equipment and materials to and from the Premises) as may be necessary to carry on its public utility business’,” it read.
“In June 2011, HRPT signs the lease but adds wording not included in the public notice . ‘Tenant shall use and occupy the Premises solely to dock vessels, load and unload fuel, transformers, equipment, materials and supplies thereto and therefrom, to maintain and operate its fuel, cooling water and other facilities thereon, and for such other purposes (including trucking of fuel, transformers, and other equipment and materials to and from the Premises) as may be necessary to carry on the public utility business of the Tenant only.’”
Leaders from Manhattan Community Board 4 argued that in 2022, the priority for all involved was to find a clean water solution quickly. “A clean Hudson River benefits the whole city, and it’s especially important for the communities along Hudson River Park,” Jeffrey LeFrancois, chair of Manhattan Community Board 4 told W42ST. “If anyone, be it a private citizen or a giant utility company, breaks the law by polluting the River, that’s a problem and needs to be addressed by the State agency that regulates and ensures our waters are as clean as possible — especially since Hudson River Park is a marine sanctuary. CB4 looks forward to learning more about this issue from the State Department of Environmental Conservation and Con Edison.”
Fox agreed, noting that he wasn’t filing the lawsuit looking for excessive punitive action, but as a kickstarter for positive change. “From my perspective, it’s not about what’s gone bad in the past — it’s about, ‘how do we solve this issue in the future?’” he said. “The hope is that Con Ed, the trust and the DEC realize that they seem to be fumbling the ball — that they will rise to the occasion and work with the advisory council to address the situation.”