What would you say if I told you that the latest cleanup decisions for the Housatonic River were arbitrary, capricious, an abuse of discretion and, last but not least, contrary to law? You can say the same thing about the Environmental Protection Agency’s (EPA) decision to allow GE to build a massive PCB dump in Lee, Massachusetts.
On March 5, 2021, three Boston attorneys made those claims on behalf of the Housatonic River Initiative (HRI) and the Housatonic Environmental Action League (HEAL) before the EPA’s Environmental Appeals Board (EAB). [1]
Based in Berkshire County and Connecticut, HRI and HEAL are contesting the final cleanup decisions for the “Rest of River” downstream from the confluence of the East and West Branches and two miles from the GE plant. The Environmental Appeals Board is the last venue for trying to influence the cleanup decision within the EPA process. The last resort would be to contest the decision in federal court. [2], [2b]
Since I helped with research, and my most recent comments about the EPA decision is attached to the brief, I am by no means an objective reporter. [3] I’ve spent almost four decades fighting to make GE clean up its toxic polychlorinated biphenyls (PCBs) from Pittsfield neighborhoods and the Housatonic River. I was a founding member of HRI. In 2000, I made “Good Things To Life,” a documentary about how former GE workers, Pittsfield homeowners, sportsmen/women, and environmentalists united to pressure GE to spend many hundreds of millions of dollars on a cleanup of contaminated backyards, a children’s playground, and the first two miles of the Housatonic. [4]
GE tested their large transformers under pressure, and Pyranol, GE’s trademarked PCB-oil, routinely spilled to the floor. Much of the excess oil went down the drains, creating underground pools that spread to the basements of homeowners and businesses across East Street, then into the river. GE had to dispose of great amounts of Fuller’s Earth, a kitty litter-like material they spread on the floors of their large factories to absorb the oil.
GE workers and independent truckers contacted HRI, many anonymously, with detailed information about where they had dumped 55-gallon drums of discarded Fuller’s Earth and Pyranol. Oftentimes the agencies wouldn’t believe HRI about these sites. But HRI pressured the Commonwealth to create the anonymous 1-888-VIOLATE number, and with sustained community action, GE was forced to clean hundreds of homes and the Dorothy Amos Children’s Park.
For so long, Pittsfield (and by extension Berkshire County) had been a company town, and so many people — those who worked with PCBs making transformers and capacitors, blue and white collar workers in other GE divisions, local businesses who provided supplies or fed GE workers in their restaurants — were dependent on the money the company provided. And for years, politicians — local, state, even federal — deferred to GE, recipients of the extraordinary amount of money the company provided to political campaigns.
GE’s influence extended to environmental regulators, and there was an active revolving door of state and federal employees who, in a second life, found themselves on the GE payroll. GE also provided many nonprofits important funding, including local arts organizations like the Berkshire Museum and Shakespeare & Company. So, there was always considerable concern that pressing for a complete and expensive cleanup would push GE to leave Berkshire County. Not that GE needed a reason to leave; they abandoned their profitable Pittsfield transformer business because they could make more profit in communities without an active trade union movement.
This has always been a David vs. Goliath struggle. From the very beginning, GE controlled what the public knew about the extent of PCB contamination. GE consistently understated the extent and seriousness of the problem, and local organizations like the Berkshire Regional Planning Commission — even state and federal regulators — echoed GE’s claim there were only 39,000 pounds of PCBs in the entire Housatonic River system.
I learned from Ed Bates, a manager at Power Transformer, and Charles Fessenden, supervisor of calculations, that based on their weekly losses and spillage over the years, they estimated that at least a million and a half pounds of PCBs had made their way into the river. And HRI for years fought for more thorough, independent testing, resulting ultimately in the EPA’s demand for split sampling so their lab could verify GE’s results.
HRI advocated for those who were/are exposed: the workers, their families, Pittsfield homeowners with contaminated backyards, those in the Lakewood neighborhood who lived close to GE’s incinerator right off Newell Street, and those who live close to the river and Silver Lake exposed to PCBs that volatilize into the air.
As the EPA Technical Assistance Grant Recipient for the GE/Housatonic River Site, HRI brought experts from across the country to the Berkshires, holding multiple workshops about remedial technologies, and the health effects of PCBs. HRI came to believe that only by removing massive amounts of PCB-contamination would the community stand a chance of regaining a fishable, swimmable river.
This consistent advocacy was met with considerable opposition from Pittsfield political officials and many in the business community — including the local newspaper, The Berkshire Eagle. GE adapted its 1991 playbook from its battle against a Hudson River PCB cleanup, insisting the real threat was the unnecessary pressure from overzealous river advocates and environmental regulators. There was no real need to excavate (which GE translated to “devastate”) any portion of the river, advocating instead for natural recovery — that over time not-really-dangerous PCB-contaminated sediments would be covered up and buried deeper with additional sediment, becoming less available to the food chain.
With research about leaking dumps and the limited long-term viability of landfill liners, HRI realized that landfilling PCB-contaminated soils and sediments was the least effective solution to the problem. In every official communication with GE, the EPA, and the Commonwealth, HRI cited the EPA’s own CERCLA guidelines [the Comprehensive Environmental Response, Compensation, and Liability Act], and advocated for pilot studies and the ultimate use of treatment technologies.
HRI opposed the 2000 Consent Decree guiding the PCB cleanup of the first two miles of the Housatonic, arguing for removing additional contamination, while vigorously opposing the expansion of Hill 78, an existing unsafe, unlined landfill, and the construction of Hill 71, a new adjoining landfill across the street from Pittsfield’s Allendale Elementary School and a residential neighborhood. In return for GE turning over 52 acres of its facility and approximately 25 million dollars, the powers that be in Pittsfield agreed to the dumps.
HRI filed a suit in federal district court opposing the Consent Decree, then engaged in negotiations. HRI ultimately settled, after strengthening some aspects of the agreement, including greater liability provisions for homeowners and small business owners with contaminated properties, and securing a promise from Mindy Lubber, the administrator of Region 1 of the EPA to test new treatment technologies. Several administrators later, a promise EPA has yet to keep, except for barely testing one technology unlikely to work.
Despite successfully cleaning the first two miles, even as EPA and GE negotiated a cleanup plan for the rest of the river, GE spent great amounts of money insisting that cleaning the river would actually destroy it. And, mimicking their Hudson River strategy, GE’s PR campaign worked with many members of the sportsmen/women community, and even a few environmentalists.
HRI never wavered from the belief that only a comprehensive cleanup would adequately address the constant threats to public and environmental health. While recognizing the pressure to continue the clean the Rest of River, GE committed to minimizing its costs. Eventually saving almost 200 million dollars. In its 2014 proposal, GE identified three possible PCB landfills in Lenoxdale, Great Barrington, and Lee near to the river. In response, HRI and the Stop the Dumps movement organized extremely successful demonstrations. After receiving many public comments, the EPA, in its 2016 revised cleanup plan, mandated the transportation of the contaminated soil and sediment to an out-of-state landfill. [5] [5b]
This prompted GE’s appeal to the EAB. Having already won EPA approval for its two PCB landfills in Pittsfield in 2000, GE argued that the EPA was now disregarding both science and its own precedent.
HRI appealed as well, arguing for a more comprehensive cleanup, and making the case that treating PCB contaminated soils and sediments would effectively make landfills unnecessary. [6] They reminded the EAB of the United States Agency for International Development’s (USAID) most recent highly successful remediation of dioxin-contaminated soils in Danang, Vietnam, which provided new evidence of the effectiveness and appropriateness of thermal desorption as a remedy.
The EPA countered with a technicality, insisting that since HRI hadn’t specifically raised the issue of thermal desorption in its most recent public comments re the Draft Permit, they shouldn’t be allowed to raise it now on appeal. EAB ruled for the EPA and against HRI [7]:
So HRI lost, but GE won reconsideration of the landfill issue:
Having to reconsider out-of-state landfilling prompted a series of secret negotiations between the EPA, the states, Jeffrey Cook, the Berkshire Environmental Action Team, Massachusetts Audubon, and the Housatonic Rest of River Municipal Committee, a coalition of representatives from the Berkshire towns bordering the Housatonic. HEAL was dis-invited when it admitted it wouldn’t keep the negotiations secret from its members. HRI withdrew when it became apparent that Executive Director Tim Gray couldn’t inform HRI members and the community at large or consult with them about the large landfill being planned for Lee, Massachusetts.
The EPA justified their process: “In February 2020, EPA and seven other mediation parties concluded negotiations with a signed Settlement Agreement … speeding up the initiation of Rest of River response actions, enhancements to the cleanup, a hybrid disposal approach, economic development and other community benefits, and coordination and consultation regarding the cleanup …” [8]
“Specifically, the most contaminated soils and sediments … averaging equal to or greater than 50 milligrams per kilogram (mg/kg, or parts per million (ppm) … will be shipped out of state for disposal, while the remaining excavated soils and sediments will be consolidated into a protective local Upland Disposal Facility [9] … with a maximum design capacity of 1.3 million cubic yards. The landfill consolidation area shall have a maximum footprint of 20 acres and a maximum elevation of 1,099 feet above mean sea level.” [10]
So, 20 years later, the Rest of River Municipal Committee has agreed with the EPA and GE to ignore alternative treatment options while accepting another massive PCB dump: “By compromising on the disposal of PCB sediments and soils, the following were gained: greater clean-up of PCB contamination; strengthened and defined sampling and averaging techniques; additional safeguards for the communities; and additional community input on how the clean-up will be accomplished. The improvements in the Agreement are significantly better than what was in the 2016 Revised Permit and would be lost if no Agreement were reached. GE might have prevailed on the landfill issue before the Environmental Appeals Board or federal court and then all the contaminated soil and sediment would have been placed in a landfill in the County, without any of the benefits in the Agreement.” [Emphasis added]
As part of the negotiated Settlement Agreement, the Housatonic Rest of River Municipal Committee received “substantial compensation”:
- GE is providing $55 million to the Rest of River Towns of Great Barrington, Lee, Lenox, Sheffield, and Stockbridge, who have determined the distribution of these funds amongst themselves …
- GE is donating a 149-acre site adjacent to Rising Pond to the Town of Great Barrington or its designee for conservation and/or development
- GE is releasing use limitations on the Hazen Paper Mill site in Great Barrington
- GE commits to prioritize use of local labor to the extent feasible and economical [11]
In addition, GE will pay $8 million to the City of Pittsfield and donate more of its land. [12]
This is what GE will save: “In current year dollars, the 2016 Permit estimated clean-up costs are $774 million (or $613 million in 2010 dollars as reflected in the 2016 permit). This is a decrease in cost of $198 million versus the cleanup outlined in the 2016 Permit (or a change of $157 million when comparing in 2010 dollars). [13] [Emphasis added]
And so HRI and HEAL are challenging the revised permit before the EAB with the able and generous help of three highly skilled attorneys: Andrew Rainer of Brody, Hardoon, Perkins & Kesten, LLP; Stephanie R. Parker of O’Connor, Carnathan & Mack, LLC; and Katy T. Garrison of Murphy & Riley, PC. While some of this is technical, I urge you to consider what I believe are critical issues that will impact us and our environment for generations to come:
- EPA Region One’s decision to reverse course and require onsite disposal is arbitrary, capricious, an abuse of discretion, and contrary to law
- The region’s failure to incorporate thermal desorption or bioremediation technologies into the Rest of the River remedy is arbitrary, capricious, and contrary to law
- The extent of the cleanup is not protective of human health and the environment
When talking about the environment and environmental regulations, it helps to know the alphabet soup of abbreviations: RCRA = The Resource Conservation and Recovery Act; CERCLA = 1980 Comprehensive Environmental Response, Compensation, and Liability Act, commonly known as Superfund; TSCA = The Toxic Substances Control Act of 1976; and the NCP [National Oil and Hazardous Substances Pollution Contingency Plan].
The first argument: “In 2016, the Region … considered and rejected three proposed on-site disposal locations, including a former sand and gravel mining area (the ‘UDF Site’) located approximately 1,500 feet from Woods Pond. Woods Pond is within a portion of the River that was designated by the Commonwealth as an Area of Critical Environmental Concern (‘ACEC’). The UDF Site is approximately 1,000 feet uphill from the River and adjacent to October Mountain State Forest, the largest state forest in Massachusetts … The Region found that there was a ‘nonzero’ potential for an onsite landfill to fail to control PCB releases in the long term. The Region recognized that onsite disposal would burden the Housatonic watershed with the associated risks and costs, including ongoing monitoring and maintenance far into the future. The Region also weighed the fact that there was persistent and vigorous community opposition to onsite disposal, noting that GE stood ‘alone’ in advocating for onsite disposal …”
“The Region recognized that the Decree, consistent with RCRA and CERCLA, envisioned active public participation in the remedy selection process, and that public participation would be ‘empty’ if the Region did not consider the wishes of the community. The Region cited prior decisions where offsite disposal had been selected largely because of strong community opposition. The Region specifically mentioned the work done by Petitioner HRI and noted its opposition to on-site disposal. The Region also found that onsite disposal would be less effective at containing waste because an onsite facility would not meet the siting requirements for PCB landfills under the TSCA. The Region found that it would not be ‘appropriate’ to waive the TSCA’s requirements.” [Emphasis added]
The brief addresses the confidential negotiations and settlement: “The public was not privy to any proposals that were considered or the positions of the parties during the negotiation, and no administrative record of the proceeding was made.” [Emphasis added]
Of course, the towns along the river deserve an important say in helping shape the cleanup. But I suspect few people in Berkshire County even know about the Rest of River Municipal Committee or know who is representing them and their town. And had they cared about true representation, they would have made a sustained effort to determine the desires of their constituents, and held a series of public meetings to solicit input before entering into secret negotiations. Not only don’t they consult with their community members, but the Committee routinely votes to go into executive session, in effect denying the public the opportunity to know what they’re doing or the critical ability to influence their work. To democratically participate. [14]
Having negotiated with the EPA, the Commonwealth and General Electric, I challenge the contention that openness, and more fully involving the public, would have compromised their negotiating strategy. The fact is, there is nothing new they might have asked for, no demand that HRI hasn’t made decades ago. The issues haven’t changed. Where to remediate? How to remediate? How much to remediate? To treat or to dump? There isn’t anything the Municipal Committee could have said that I and other members of HRI or members of the public haven’t said twenty times over. There was never ever a legitimate need to keep proposals from the public.
Somehow, the EPA and the Committee’s attorney has imbued the Rest of River Municipal Committee with the notion that their compromise won a better cleanup — an illusion that ignores almost four decades of history. The most effective strategy, the dynamic responsible for all the major victories in the fight to get GE to clean up PCBs, and/or to effectively pressure a sometimes-recalcitrant EPA and DEP was the extraordinary work of thousands of citizens, and their very public advocacy: the marches and demonstrations, the petitions, and letter writing. In fact, the very small increased removal of PCB contamination the Committee boasts about for some stretches of the river are simple demands the EPA could easily have ordered GE to perform years ago.
Ironically, what the Committee unknowingly aided was making it easier for the EPA, GE, and the Commonwealth to disregard the hard-won protections many sportsmen/women fought several years for: the 2009 designation of a large section of the river and the surrounding watershed area, including the land they’ve designated for the new dump, as an Area of Critical Environmental Concern. What the Committee unknowingly aided was to make it easier for the EPA and GE to postpone/deny, yet again, thorough and rigorous pilot projects for alternative remedial technologies, let alone the timely adoption of a thermal desorption treatment regime. A solution which, while it might cost GE more money, would finally destroy the vast majority of the contamination without the need to bury it in Lee.
So, very sadly, they were convinced they couldn’t win a decent cleanup without accepting a massive landfill. So they decided to compromise without consulting the citizenry. GE got exactly what it wanted — another Berkshire County PCB dump, and the towns opposing HRI, not GE. Don’t forget GE’s PR strategy for the Hudson River: develop “friends” and organize their support.”
Not surprisingly, in their 2021 Amicus Brief in Support of Selected Remedy submitted to EAB, the Housatonic Rest of River Municipal Committee argues against HRI’s contention that the confidential mediation process excluded the majority of the public: “Moreover, the public did have a seat at the table: the elected representatives of the affected municipalities, here acting through the Committee, were and are the best voices of the people in our democratic system. And all of the municipal Select Boards voted unanimously in favor of the settlement; none has wavered from that decision in the intervening year … The approach the Region took in 2020 was a sincere attempt to engage stakeholders and, if anything, was in the best tradition of public service. It was not erroneous.” [15] [Emphasis added]
After the last four years, I’m no longer surprised by arrogance. Or misstatements. Like this remarkable, nonsensical claim: “As the Region pointed out, UDF liners are expected to work for 400 to 800 years. See 2020 RTC at 18. HRI says liners ‘eventually fail,’ but even if this is true, in this case ‘eventually’ means really far into the future.”
PCBs were first developed in 1929 in the United States. It took years to recognize the threat of landfilled toxic chemicals to infiltrate and endanger groundwater. GE routinely sent tractor-trailer loads of PCB-contaminated waste to the unlined Pittsfield dump. The Solid Waste Disposal Act, which first introduced criteria for disposal of hazardous waste, wasn’t passed until 1965. Hazardous waste landfills have been permitted under RCRA Subtitle C since 1984. There isn’t a lined landfill that’s 100 years old, let alone 400–800 years old. The fact is, even the EPA acknowledges the limited data set available to perform a comprehensive study of “Post Closure Performance of liner Systems at RCRA Subtitle C Landfills.” [16]
So how likely is it that people with little experience negotiating with GE and the EPA, no track record winning critical victories with GE in Berkshire County, little knowledge of treatment technologies or the health effect threats of PCBs, can best represent us?
Back to the brief’s second argument – the region’s failure to incorporate thermal desorption or bioremediation technologies into the Rest of the River remedy is arbitrary, capricious and contrary to law:
“The Petitioners, and other members of the public, have been urging for years that the Region incorporate alternative treatment technologies into the remedy for the Rest of the River, rather than landfill all the excavated PCB wastes. Yet, in the three years after the remand, just as in the 17 years prior, the Region still did not conduct or order even a single pilot test of bioremediation or thermal desorption treatment technologies on River sediments …”
The third issue: The extent of the cleanup is not protective of human health and the environment. The brief notes: “The Permit provides for removal of an estimated mass of 50,500 pounds of PCBs from the River … a fraction of the PCBs that currently remain in the River. Using the Region’s lowest estimate of 100,000 pounds, only about half of the PCB mass in the River will be removed, and using its high-end estimate of 600,000 pounds, only 8% of total PCB mass will be removed … [Emphasis added]
“Although the PCBs in the River are resistant to degradation and will remain in the River for centuries, the only remedy proposed by the 2020 Permit for numerous long ‘reaches’ of the River is ‘monitored natural recovery.’ Indeed, even where the 2020 Permit proposes ‘monitored natural recovery,’ it does not establish performance standards, it does not establish a timeline to meet performance standards, and it does not contain a contingent solution if performance standards cannot be met.”
Now onto some of the more detailed legal arguments.
“The Region’s decision to require onsite disposal is based upon a complete reversal of its prior factual findings without any new investigation or change of circumstances. That is the very definition of arbitrary and capricious agency conduct. See, e.g., Indigenous Envt’l. Network, 347 F. Supp. 3d at 583-84; Friends of Alaska, 381 F. Supp. 3d at. Prior to the secret settlement negotiations in 2020, the Region concluded that onsite disposal was inappropriate because it was less protective of human health and the environment than offsite disposal. The Region based that determination on numerous factual findings, including: the fact that the UDF Site was not suitable because of soil permeability and its location near a drinking water source and above a medium yield aquifer; the fact that the UDF Site was in an ACEC; the fact that onsite disposal posed a risk of release to the River; the strong community opposition to onsite disposal; and the fact that TSCA requirements would not be met by onsite disposal … [Emphasis added]
“Even assuming the Region has justified its new finding that a TSCA waiver is warranted, none of the other factors it previously relied on in support of offsite disposal has changed: (a) the Region has not demonstrated the suitability of the UDF Site, despite previously concluding that that site was unsuitable; (b) without explanation, the Region has abandoned respect for Massachusetts’ prohibition against siting a toxic waste landfill within an ACEC; (c) the Region has not resolved its prior finding that disposing of PCBs near the River poses long-term risks of re-contaminating the River; and (d) the Region has disregarded overwhelming community opposition to onsite disposal of the PCBs. The Region’s complete reversal of these findings, dictated by its secret Settlement negotiations, is arbitrary, capricious, and contrary to law …
“Despite these prior findings, the Region did not conduct further study before selecting the site for the UDF in 2020. In fact, as set forth in the report of Petitioners’ expert, Dr. David J. DeSimone, the UDF Site is a ‘textbook example of where not to locate a landfill’ … Critically, the Region does not challenge Petitioners’ description of the geology of the site in its Response to Comments or offer any contrary evidence. Nor does the Region claim that it engaged in its own geologic assessment following the remand to support its change of position on the suitability of the UDF Site. Instead, the Region asserts that the UDF will have certain safeguards to reduce the risks of releases to the River …
“In fact, however, the remedy selection process for the Rest of the River was not the result of applying governing remedy-selection standards, such as those set forth in the NCP, to facts; instead, the remedy for the Rest of River was the result of secret negotiations without any actual opportunity for public input …
“Nor did the Settlement Agreement comply with the provisions for settlement agreements under CERCLA, which require judicial review and entry as a consent decree. When the Settlement decision was announced, the public was outraged at being excluded. In public meetings, hundreds of citizens spoke out against the Settlement, and in particular against onsite disposal. By contrast, the entities speaking in favor of onsite disposal were municipalities and organizations receiving millions of dollars under the Settlement …
“Moreover, public comments that revealed what happened in the secret settlement negotiations – which were not made part of any administrative record – make plain that the decision-making process in the negotiations bore no resemblance to the application of statutory standards to environmental facts. A municipal official who had been involved in the negotiations expressed that the selectmen were concerned ‘that GE would exhaust us’ through litigation or would ‘find an ally of the [Trump] administration in Washington.’ He worried that if GE fought and won, there would be three new landfills in Berkshire county instead of one … The Region gave a similar reason for its onsite disposal decision in a ‘Frequently Asked Questions’ sheet it published in July of 2020. In response to the question ‘Why not take all of the dredged material offsite for disposal?’ the Region said:
If EPA moved forward with the 2016 Permit without changes, there was a chance that the EAB or a federal court would again remand our decision selecting off-site disposal exclusively, which would lead to indefinite delays, and a possibility of a decision allowing disposal of all materials on site in the three GE-proposed disposal locations in the Berkshires.
“That is not a valid decision-making criterion for selecting a remedy.
“It was only after the decision as to the remedy was already made – by settlement negotiations –that the Region sought public ‘input.’ The Region’s information sessions and public comment period just gave lip service to RCRA’s requirement of notice and comment … Despite years of strenuous opposition to onsite disposal by not only the public and the Commonwealth, but also the Region itself, the Region suddenly decided that constructing an onsite disposal facility near the River was the only viable remedy. For this additional, compelling reason, the Region’s remedial action decision was arbitrary, capricious, an abuse of discretion, and not in accordance with law …
Next: The region’s failure to incorporate thermal desorption or bioremediation technologies into the Rest of the River remedy is arbitrary, capricious, and contrary to law.
“The 2020 Permit violates CERCLA’s preference for treatment that ‘permanently and significantly reduces the toxicity, mobility, or volume’ of contaminants, and its mandate that the agency ‘shall’ select a remedial action that utilizes alternative treatment technologies to the ‘maximum extent practicable.’ 42 U.S.C. § 9621(b)(1). As the First Circuit Court of Appeals has recognized, where an EPA action violates an interrelated statute or regulation, without a reasoned explanation for the divergence, the decision is arbitrary, capricious, and hence invalid. Natural Resources Defense Council, Inc. v. EPA, 824 F.2d 1258, 1281-82 (1st Cir. 1987). The failure to consider reasonable alternatives to a proposed action is also ‘antithetical to reasoned decision making’ and established principles of administrative law. International Ladies’ Garment Union v. Donovan, 722 F.2d 795, 815 (D.C. Cir. 1983). Indeed, the failure of an agency to consider obvious alternatives has led uniformly to reversal … [Emphasis added]
“HRI and HEAL have been urging the Region to incorporate thermal desorption and other bioremediation techniques into the remedy for the River since before the 2000 Consent Decree was entered … In all these years, the Region has required GE to do exactly one pilot study of an alternative technology on the site, and it was of a chemical extraction technology … When Petitioners raised the Region’s failure to consider thermal desorption and other bioremediation techniques in the prior 2016 appeal to the EAB, the Region responded by urging the EAB to reject this challenge on the procedural ground that it was not raised ‘during the 2014 comment period,’ and, astonishingly, argued that ‘[r]aising an issue prior to the public comment period does not suffice.’ Perhaps not recognizing the extent to which this challenge has been diligently and repeatedly pursued by Petitioners since the 1990’s, the EAB ruled that Petitioners’ appeal based on the failure to incorporate thermal desorption and other bioremediation techniques into the remedy came too late …”
The brief quotes from EPA’s 2020 Response to Comments detailing EPA new initiative [17]:
The brief continues: “The fact that the Region has now committed to do what it should have done 20 years ago does not fulfill CERCLA’s mandate to select a remedy that utilizes alternative treatment technologies to the maximum extent practicable. Nor does this after-the-fact commitment fulfill the Region’s obligation to exercise considered judgment in issuing RCRA permits. The Region’s decision is thus arbitrary and capricious. The Region’s current permit decision is also “contrary to law.” 5 U.S.C. § 706(2)(A). Section 9621 of CERCLA, which applies to the Site, requires the use of alternative treatment technologies to the ‘maximum extent practicable.’ The Region argues that there is an exception to the treatment requirement for complex sites with very large quantities of contaminated sediment or sludge. The Region also notes that the agency has not selected treatment technologies at large sediment sites for over a decade. These are false constraints. There is absolutely no question that thermal desorption can be and has been used on large sites to destroy, rather than to landfill, PCBs. It has been proven effective to accomplish mass reduction on multiple large sites.
“Moreover, the use of innovative treatment technologies is not an all or nothing proposition. If thermal desorption or bioremediation cannot effectively treat all of the contaminated sediments that the Region proposes to dump in the on-site UDF, it could be used to treat some of them, with the balance going off-site …
“If the 2020 Permit goes forward, GE would be building a new landfill next to a state park, over the objections of residents, and constructing a massive hydraulic pumping system to pump PCBs out of the River into that landfill. These actions can still be avoided if the EAB orders the Region to do now what it should have done in the first place – consider alternative technologies before making a decision and select a remedy that utilizes treatment technologies to the maximum extent practicable.”
I’ve been writing for a while about the promise of treatment versus landfilling, most recently in September 2020 for The Berkshire Edge [18]. My most recent comments to the EPA include an analysis of how the EPA, over many years, failed to rigorously investigate and test remedial technologies.
Most importantly, James Galligan, Sr. Vice President of TerraTherm, the company involved in the very successful cleanup of dioxin-contaminated soils in Danang, Vietnam, explained in an attachment to the brief how thermal desorption could successfully treat Housatonic PCB contamination:
This is one of the most positive developments I’ve seen in decades. If anything, the Rest of River Municipal Committee and the selectboards from all the towns along the river ought to be insisting that we test this technology before we force the citizens of Lee to live forever with a massive dump.
Remarkably, the EPA has asked the EPA to disallow Galligan’s letter, an analysis of the geology of the dumpsite, and other attachments to the HRI/HEAL brief. To keep critically important information from the EAB and from the public. With a total lack of irony, terming them “a distraction and source of confusion to reviewing bodies and the public.” And prompting a quite compelling response from HRI/HEAL’s legal team:
“Indeed, case law is clear that appellate reviewers may look beyond the administrative record and consider ‘extra-record’ documents when evaluating agency decision-making. These circumstances include, among others, where there is a need for expert testimony in a technical matter and/or where the agency failed to consider all relevant factors in rendering its final decision. See Emhart Indus. v. New Eng. Container Co., 2016 U.S. Dist. LEXIS 13688, at *46- 48 (D.R.I. Feb. 2, 2016) (explaining, in case involving challenge to EPA remedy selection, that information outside the administrative record may be considered where there is a need for the testimony of experts in a highly technical matter, a record that is incomplete, and/or a showing that an agency failed to consider all relevant factors); Ruskai v. Pistole, 775 F.3d 61, 66 (1st Cir. 2014) (citing 9th Circuit decision for proposition that a court may consider extra-record materials when necessary to determine whether the agency considered all relevant factors in making its decision or when necessary to explain technical terms or complex subject matter); Strahan v. Linnon, 966 F. Supp. 111, 114 & 117 (D. Mass. 1997) (considering biologist affidavit because it showed facts agency should have, but did not, consider and explained technical, scientific procedures); see also City of Waltham v. United States Postal Service, 786 F. Supp. 105, 117 (D. Mass. 1992) (a reviewing court should review evidence outside of the administrative record when the plaintiff presents previously available evidence that the agency should have considered but did not).” [19]
The brief concludes with this PRAYER FOR RELIEF:
“For the foregoing reasons, the 2020 Permit and remedy selection are arbitrary, capricious, and not in accordance with law. Petitioners respectfully request they be remanded and that the following relief be provided:
- Given the balance of risks and costs and the lack of support for onsite disposal, the Region should be directed to select an offsite disposal option for all untreated PCB waste.
- The Region should be directed to fully and fairly evaluate bioremediation and thermal desorption and to select a remedy which utilizes these proven technologies to the maximum extent practicable.
- The Region should be directed to conduct a detailed analysis of whether MNR can achieve long-term protection within a reasonable timeframe. If the Region determines that MNR can achieve long-term protection within a reasonable timeframe, then performance standards, the reasonable timeframe, and provisions for a contingent response should be included in the permit. Otherwise, the Region should select a remedy that will be effective.”
Finally, we all deserve much better than a cleanup that’s arbitrary and capricious.
You can find all the briefs in this matter before EAB at this website.
