Article updated Thursday, July 27 9:50 a.m. with a quote from HRI Executive Director and Housatonic Riverkeeper Tim Gray.
In a July 25 ruling, the U.S. Court of Appeals for the First Circuit rejected a petition that would have forced a review of the United States Environmental Protection Agency action in issuing a 2020 permit to clean up polychlorinated biphenyls (PCBs) from the Housatonic River, a permit petitioners Housatonic River Initiative (HRI) and Housatonic Environmental Action League (HEAL) maintain was negotiated behind closed doors and without public input. The case stems from PCBs being emitted by GE into the waterway from its Pittsfield electric transformer plant for decades prior to the toxins being banned by the EPA in 1979. The case was elevated from an Environmental Appeals Board decision that upheld the permit provisions in full, prompting HRI and HEAL to appeal its ruling with the U.S. Court of Appeals.
The appeal included General Electric and the Housatonic Rest of River Municipal Committee as Intervenors, or those interested in the outcome of the case. According to the Berkshire Regional Planning Committee, the Housatonic Rest of River Municipal Committee was created in 2013 to push for increased EPA cleanup of the waterway, with its members appointed by their respective five Berkshire town governments: Great Barrington, Lee, Lenox, Sheffield, and Stockbridge.
The EPA defines the “Rest of River” as the third segment of the Housatonic River to be remediated, an area that covers nearly 125 miles from the confluence of its East and West branches from Pittsfield to Connecticut.
“I’m very pleased with the decision,” said Rene Wood, a member of the Sheffield Select Board and the town’s representative to the Rest of River Municipal Committee. “It is what I had hoped for given the Environmental Appeals Board decision.”
She praised the committee’s attorney, Matthew Pawa, as doing an “excellent job” before the First Circuit, “bringing together numerous pieces that had not been taken up [previously].”
HRI Executive Director and Housatonic Riverkeeper Tim Gray has a different take on the oral arguments that led up to the Court’s ruling, a decision he said was “disappointing.”
“The Rest of River lawyer, [Matthew] Pawa, didn’t tell the truth to the judge,” Gray said. “That really dismays us.”
According to Gray, Pawa’s statements in oral arguments reflected that the five Berkshire County towns involved in the remediation were “united” in their approach to the disposal facility and cleanup plan.
“[That’s] not true at all,” Gray said. “The town of Lee has been against it for five years now.”
He said attempts have been made for a unified approach to the plan “but the other towns seem to be very happy that Lee’s getting the dump and they’re not.”
Although “disappointed,” Bob Jones, chair of the Lee Select Board and the town’s representative to the Rest of River Municipal Committee, said he anticipated the verdict. “The courts have been going along with the narrative that the EPA and GE have, sort of, conjured up that this is going to be a step in the right direction and that they have every right to do it,” he said. “The fact that it’s legal doesn’t make it right or ethical or effective. And that’s what the argument has been all along because we’re going to be left with still a river that’s not anywhere near as clean or pristine as we would like it to be. We’re going to end up—if this goes all the way—with a toxic waste dump with highly-toxic forever chemicals in the town of Lee.”
How we got here
A 2016 permit provided that the removed PCB-contaminated materials would be transported to an off-site facility, but the permit was denied on appeal. In December 2020, a new permit was approved, allowing for a hybrid approach to remediation so that sediment and soil extracted from the river containing higher levels of PCB contamination would be transported off site, while less contaminated materials would be sent to an on-site facility near Woods Pond in Lee. The permit also required GE to remove more than 1.1 million cubic yards of contaminated material but left areas further downstream to naturally void themselves of PCBs over time and didn’t require the removed materials to be treated before being disposed.
In February 2022, HRI and HEAL filed an appeal of this permit with the Environmental Appeals Board.
The basis of the Court’s ruling, Part 1
After finding that HEAL and HRI met the requirements to file a federal court appeal, the Circuit Judges looked at the merits of the case. HEAL and HRI argued the permit was mediated off the record, closed to the public, and without a notice or comment period prior to mediation.
The 76-page Court opinion states, however, that a notice and a comment period occurred before the draft permit was issued; the final permit doesn’t require public input before mediation, nor an administrative record of the negotiations. The Court found that public notice and an opportunity for comment only applies to the draft permit and not the mediation stage of the process, and that the EPA was within its purview to choose what parts of those comments to the draft to incorporate into the final permit. “Accordingly, we conclude that the mediation and resulting Settlement were procedurally sound,” the opinion stated.
Jones disagrees. “The entire arrangement of this agreement was structured in such a way to keep the public in the dark,” he said. “It was done behind closed doors with a single representative from each of the towns … The final decision, it was pre-ordained. We all knew what the outcome was going to be.”
The Court found that all the requisite parties—including GE, HRI, HEAL, the Rest of River Municipal Committee, and others—were invited to participate in the mediation.
Wood responded to The Berkshire Edge’s questions about the 2020 permit’s confidential mediation at which she was present. “It was a confidential mediation,” she said of the process brought by the EPA. “They knew what was going on in the sense that a confidentiality agreement was required, and the mediator was very strict on making sure that those confidentiality agreements were kept.”
Wood, who said she listened to the oral arguments in the case, said an appellate judge stated that the negotiations—conducted with the parties involved and not in public—“were not against the law.”
The basis of the Court’s ruling, Part 2
HEAL and HRI also challenged the permit’s remedial actions, objecting to allowing some PCBs to be disposed of naturally, over time, as opposed to being removed, not treating the PCB-laden excavated sediment and soil before it was disposed of, and the hybrid disposal process that reversed the 2016 permit’s fully off-site disposal method.
The opinion states that the EPA, as an agency, can change its position, including PCB treatment options, “as long as [it] provide[s] a reasoned explanation for the change.” The Court declined to question the validity of the EPA’s data that it relied on to promote the natural disposal method and found that the agency’s reasons for why it chose to not treat the excavated sediment before disposing of it were sound. The opinion stated that treating the removed material could adversely affect the environment and was the “most expensive alternative.”
For the Court, the EPA’s remedy satisfied regulations that the process be “both ‘protective of human health and the environment’ and ‘cost effective.’”
HEAL and HRI argued that not all of its information—including a report that should the disposal facility’s double liner and other protective measures fail, PCBs could be discharged—was considered by the EPA when drafting the 2020 permit. The Court disagreed, finding that the report was prepared after the EPA issued the 2020 permit and, substantively, contained nothing new the EPA had not already identified.
The Court’s opinion discusses the reasons the EPA previously preferred a fully off-site disposal system over a hybrid disposal plan: a lower risk of PCBs being inadvertently released, lesser impact to local habitat from building an on-site disposal facility, and fewer regulatory and zoning restrictions. However, the opinion cites the benefits of an on-site disposal facility relied on by the Court to show that the EPA didn’t act “arbitrarily or capriciously” in changing its plan: the ability to permanently isolate contaminants, potential to house a “much higher concentration” of PCB-laden materials, no risk that the off-site disposal sites may lack enough capacity in the future to accommodate the Housatonic River matter, fewer greenhouse gas emissions due to fewer truck trips, less risk of transportation-related injuries and fatalities, and “significantly less” cost than fully off-site disposal.
Finally, the Court concluded that HEAL and HRI didn’t advance any reasons to show that fully off-site disposal would “‘result in greater risk to human health and the environment’ than hybrid disposal.”
The opinion praised HRI and HEAL’s “dedication to the remediation of the Housatonic River, and their decades of civic engagement in relation to that process.”
What’s next
Jones said local officials have put forward better solutions and sought conversations towards that end with GE, the EPA, and affected towns, but to no avail.
On March 30, Lee filed a lawsuit against Monsanto for its manufacturing of PCBs. That lawsuit was subsequently dropped, but the case will be refiled “in the very near future,” Jones told The Edge. “We’re going to continue on,” he said. “The town of Lee still has some irons in the fire.”
