Washington — Serious questions about the nature of the Housatonic PCB cleanup were vigorously – but civilly – debated in Washington D.C. in an all-day hearing Thursday (June 8) at EPA’s Environmental Appeals Board (EAB).
General Electric Company (GE), which had a manufacturing facility in Pittsfield, disposed of polychlorinated biphenyls (PCBs) in the Housatonic River from 1932 to 1977. PCBs are carcinogenic and cause numerous neurological and reproductive harms to humans and animals. The company has finished cleaning up its plant and the first reach of the river, and is now responsible for cleanup of the so-called Rest of the River. It is contesting the corrective action in the final permit issued by EPA Region I in October 2016.
Only days before the hearing, rumors had swirled in Berkshire County that the parties were attempting to postpone the hearing in order to settle their differences without a legal fight. The hearing proceeded, however, and the EAB will now decide where contaminated soil will be disposed, the nature of the remedy, and GE’s responsibilities for post-remediation work.
Visitors to the EAB hearing room might feel that they were in an appellate court rather than a government agency. It is a grand and formal setting. The lawyers, reporters and curious EPA onlookers who packed the huge, wood-paneled hearing room were ordered to rise whenever the three judges swept in and out in their black robes.
A small Board that keeps a low profile outside the environmental world, the EAB nonetheless has considerable power and independence as the final EPA decision maker on administrative – as opposed to judicial – appeals under all environmental statutes that EPA administers. EAB decisions can be appealed to the federal courts, but cannot be overturned by the EPA Administrator.
PCB Waste Disposal in Berkshire County
Front and center in the arguments was GE’s insistence on on-site disposal at Woods Pond on the Lee-Lenox border, Rising Pond in Great Barrington, and near Forest Street in Lee. GE claims that the sites provide high levels of health and environmental safety equal to off-site disposal.
The judges, who had familiarized themselves with the briefs of the parties and a voluminous administrative record, appeared skeptical.
Judge Aaron Avila asked GE counsel, Andrew Nathanson, “If there are risks of failure at both on and off-site facilities, why wouldn’t it be better to not have failure at the area you’ve just cleaned up?”
Judge Mary Beth Ward pointed out to GE’s attorney that nowhere in the record had GE proved that it deserved on-site, risk-based disposal. The Judge voiced her concerns about the groundwater table, soil, landfill liners, and the slope of the sites.
Matthew Pawa, representing the Housatonic Rest of the River Municipal Committee, blasted GE for complaining about the $150 million cost of off-site disposal, saying scathingly, “GE’s Form 10-K shows that its 2016 revenue was $8.2 billion. EPA is allowed to take this information into account, and as a common sense matter, this is not a mom-and-pop operation. And GE apparently has insurance.”
Pawa continued: “This is where people live. A river is environmentally sensitive. You don’t plunk down landfills, and jam them into areas near rivers. That’s why you have licensed off-site facilities. Berkshire County is a tourist destination.”
He finished with, “All of these sites are close to the river…PCBs can flow into the river – It would be a disaster. Trucks carrying leachate can have accidents. One hundred and fifty million is a pittance to have the most protective remedy.”
The EAB had questions for EPA as well, however. The Justices asked Tim Conway, representing EPA Region I, how he could claim that off-site disposal was more protective when no decision had been made about which off-site facility would be used.
Judge Ward asked Jeffrey Mickelson, representing Massachusetts Department of Environmental Protection, “What if a Utah citizen said, “you can’t dispose here in Utah?”
Mr. Mickelson replied, “The Utah facility is an existing licensed facility.”
Judge Ward asked, “but what if it had to be expanded [for the Massachusetts PCB waste]? We’re talking about a finite universe and a Utah citizen could say we don’t want to use up our volume with Massachusetts waste. This is Mr. Nathanson’s point.”
Mickelson pointed out to the EAB that the Woods Pond site cannot be used as a legal matter as it is an Area of Critical Environmental Concern under state law. That is, it is an area that is recognized and protected for its natural resources and biodiversity.
Options for Treating the PCB-Contaminated Waste
The Housatonic River Initiative (HRI), represented by Dr. Peter deFur, argued that innovative treatment technologies should be used to treat the PCB-contaminated soil and sediment. Dr. deFur is an environmental scientist who holds a doctorate in biology.
HRI has closely tracked and participated in GE’s remediation efforts for more than 20 years, and strongly believes that “dig it up or cover it up” shouldn’t be the only cleanup options,” Dr. deFur said.
Dr. deFur described two sites that were using biothermal desorption to largely eliminate PCBs in soils – the Ward Transformer site near Raleigh, North Carolina and Danang Airport Base in Vietnam, where dioxins, which are chemically similar to PCBs, are being treated in sediments as well as soils.
Judge Ward noted that EPA Region I included provision for modification of the remedial work in the final permit and would allow use of different, new techniques if they were developed, a process called “an adaptive management plan.” Thermal adsorption could, therefore, be introduced at a later date.
Does the Remedial Action Go Far Enough – or Too Far?
EPA’s final corrective action requires GE to remove roughly 25 percent of the PCB-contaminated soils and sediments in the remaining stretches of the Housatonic. EPA projects the cleanup will cost GE $613 million and take 13 years.
Dr. deFur argued on behalf of HRI that the remedial action chosen by EPA left far too much contaminated soil in place.
Dr. deFur: “The current EPA remedial choice calls for removal of 990,000 cubic yards of contaminated soil out of 4 million cubic yards. The remaining PCB-laden soil will be there for perhaps 1000 years – no one really knows how long. PCBs will continue to leech and erode into the river.
Judge Avila: “How long will your remedy take?”
Dr. deFur: “HRI’s remedy would take at least 35 years.”
Judge Avila: “What’s clearly erroneous about the shorter, 13-year remedy?”
Dr. deFur: “My main concern is fish tissue. The remedy leaves more PCBs in fish (1 part per million) than the legal water quality concentration now (5 parts per billion). There are risks to human health and ecological harm.”
Dr. deFur also said that the decision to cut back on dredging and removal “goes to Massachusetts not wanting plants disturbed.” There was no real documentation or analysis of Massachusetts’ decision, he said. “Only four-five pages with no methods, materials, references, or any components of a scientific report.”
“And Massachusetts identifies plants that are supposedly endangered, but anyone could buy them at nurseries,” he added.
In contrast to HRI, General Electric’s lawyer and C. Jeffrey Cooke (a Pittsfield resident arguing for himself) argued that the remedy was too stringent.
Nathanson complained “nothing in the consent decree constrains EPA Region I from requiring GE to do additional work once the remedial work has been completed.”
He also asserted that the consent decree “can’t require us in the future to exceed the scope of the performance standards. [As the decree now stands] EPA can reopen it and require further response actions.”
“These exceedance provisions cross the line,” Nathanson said.
Judge Ward responded, “The line between what is permissible work and not is not a bright line – it’s blurry. We can’t advise in the abstract.”
Judge Stein was particularly concerned about failure of dams on the river with release of PCBs downstream, a concern that was echoed by the downstream state of Connecticut.
About Rising Pond Dam, Judge Stein said to Nathanson, “I’m struggling with your making this [dam failure] so hypothetical. The dam is over 200 years old. This is not so hypothetical that dam failure shouldn’t be taken into account.”
Nathanson conceded, “Well it will be our responsibility – but there are no data points.”
Taking the middle position and defending its choice of remedy, Timothy Conway, Senior Enforcement Counsel from EPA Region I, said, “EPA evaluated a large amount of site-specific evidence and chose a combination of monitored natural recovery and capping and excavation.”
In a nod to the concerns of HRI voiced by Dr. deFur, Mr. Conway admitted that the remedy “doesn’t get you to the Massachusetts water quality standards, but it gets you toward them.”
“We’ve tailored the remedy to the site and protection of human health and environment.” Both the attorneys from Massachusetts and Connecticut supported EPA, declaring that the remedy was not too extensive.
Sparring Over the Crucial, but Arcane, Matter of the Legal Standard
Much of the morning was taken up with arguments about the standard of review that the judges will use to decide for and against the arguments of the parties.
That is, when the EAB judges evaluate the arguments of the parties, how should they weigh the different arguments?
Normally, when weighing the arguments in a permit appeal, the EAB will support EPA’s decisions unless there is “clear error” in a finding of fact or conclusion of law. This legal standard is set forth in the Code of Federal Regulations, and the EAB applies it to permit challenges.
General Electric, however, argued that the consent decree that included the corrective action, or cleanup, was not a permit but a contract. And, as such, it did not give EPA the benefit of the doubt, or the “clear error” standard.
In addition to the standard of review, the judges were concerned that a narrow review of the consent decree alone would exclude certain important criteria from consideration that are required by the Resource Conservation and Recovery Act (RCRA) and its regulations.
The EAB, and Judge Stein in particular, attempted to understand what role, if any, the federal hazardous waste statutes played in interpreting the cleanup if the consent decree was considered only a contract.
Judge Stein: “To what extent can the contract limit – the consent decree limit – the statutes (RCRA and Superfund, or CERCLA)?”
Mr. Nathanson: “When the consent decree was approved by the federal district court [in 2000], then it became ‘private law.’
Judge Stein: “So if a consent decree as approved by the federal district court constrains EPA’s regulatory authority, that is OK?”
Mr. Nathanson: “Yes…the standard of review has to be interpreted and informed by contract principles.”
RCRA guidance, however, as well as the National Contingency Plan in the Superfund statute requires that community and state acceptance must be considered in the remedy selection along with seven other criteria.
All parties and the EAB judges appeared to support giving weight to community and state acceptance in the Housatonic cleanup. Only GE disagreed.
The Closing Arguments – and the Back Story
In their closing arguments, several parties mentioned the need for GE to maintain and monitor the Rest of the River “in perpetuity.” If GE were aggrieved by any maintenance requirement, they said, the company could go to federal district court.
Connecticut, Massachusetts and EPA all declared that there was no clear error here, and that EPA’s October 2016 remedy should be upheld.
Mr. Pawa, representing Great Barrington, Lenox, Stockbridge, Lee, and Sheffield, which make up the Housatonic Rest of River Municipal Committee, also supported EPA’s cleanup plan. He reminded the EAB, “GE is telling you not to worry, but this is not an existing licensed facility. Don’t forget Three-Mile Island. Accidents do happen. This area is special.”
And Dr. deFur ended his enumeration of things that EPA needs to fix in the cleanup by saying, “Cumulative risks matter – not only because of health, but also the psychosocial risks of having a landfill in your backyard.”
What will happen next? In ordinary times, the EAB would issue an opinion in the next few months and the parties would abide by it, upholding the process that has been in place for 25 years.
But these are not ordinary times. On May 22, the EPA Administrator, Scott Pruitt, issued a “CERCLA Memo Directive to Prioritize Superfund Cleanups.”
In the memo, Administrator Pruitt stated that EPA headquarters has taken back authority previously delegated to the 10 regional offices. Authority to select remedies estimated to cost $50 million or more at sites “shall be retained by the Administrator.”
The memo also states that the Administrator is establishing a task force to “provide recommendation on an expedited time frame on how the agency can restructure the cleanup process…to emphasize expeditious remediation, reduce the burden on cooperating parties…and encourage private investment in cleanups.”
The memo also says that the agency wishes to “streamline and improve the remedy development and selection process, particularly at sites with contaminated sediment…”
Apparently emboldened by the memo, it appears that one or more of the parties involved in the Housatonic cleanup attempted to postpone the EAB hearing for 90 days in order to discuss settlement.
Whether the current Administration could undercut a process that has been in the works for decades, and which has recently been the subject of a thorough EAB hearing, is not clear.
The EAB is, at any rate, an effective and independent entity. If there were last-minute changes to the remedy that arbitrarily “reduced the burden” on GE, the EAB and Berkshire County would not take that lying down.