To the editor:
Imagine commuter trains running along the beautiful Housatonic River, carrying workers and tourists among the towns from Pittsfield to Sheffield. At the depots, electric shuttle buses bring them into the centers of town and to places of work and entertainment, and electric rental cars wait for tourists who arrived on the Berkshire Flyer.
It is not surprising that the Environmental Protection Agency (EPA) did not include such a vision in its basis for the Revised Final Permit of December 2020: There is no mandate for the EPA to consider what is most advantageous for the future economy of the Berkshires. In its July 25, 2023 decision, the United States Court of Appeals for the First Circuit summarized the constraints the EPA must work under according to the Consent Decree of 2000:
The Consent Decree laid out a phased process for selecting the Rest of River remedy, including the performance of new and various studies and investigations by both GE and the EPA. Of particular importance to this petition for review, the Consent Decree required the consideration of, ‘[a]t a minimum,’ nine criteria (the ‘Selection Criteria’) in selecting the remedy. The Selection Criteria are as follows: (1) ‘Overall Protection of Human Health and the Environment’; (2) ‘Control of Sources of Releases’; (3) ‘Compliance with [ARARs]’; (4) ‘Long-Term Reliability and Effectiveness’; (5) ‘Attainment of Interim Media Protection Goals’; (6) ‘Reduction of Toxicity, Mobility, or Volume of Wastes’; (7) ‘Short-Term Effectiveness’; (8) ‘Implementability’; and (9) ‘Cost.’ The Consent Decree envisioned a remedy that would be ‘best suited to meet the [first three criteria] . . . in consideration of the [latter six criteria] . . . including a balancing of [the latter six criteria] against one another.’ (United States Court of Appeals for the First Circuit, No. 22-1398, PAGE 8.)
Pay attention to Criterion (9) “Cost”, and read in its place (9) “GE.”
The future of the Berkshire economy for most of us does not benefit from the passage of 47,500 trucks carrying poisonous substances through our beautiful hills and towns for 13 years. The trucking and road-construction companies will realize a multimillion-dollar windfall. Tourists sitting outside at streetside cafes may wonder what is being transported, but the rest of us will know. Few tourists who inhale the diesel fumes will be thus inspired to return to the Berkshires. Just one spill and …
The EPA deserves considerable credit for getting it right the first time around in 2016. After years of scientific research and open public discussion, EPA decided to put as much waste material as possible on trains. After all, the EPA’s website begins rhetorically, “Why cleanup the GE Site and the Housatonic River?” A few paragraphs later it explains, “EPA’s greatest concern in the area is the possibility of coming into direct contact or ingesting PCB contamination.”
Now, the railroad runs along the whole length of the river immediately adjacent to or near the areas of planned excavation, away from public activity and view almost the entire way. The trucks, on the other hand, will drive right through the middle of our towns. Considering its greatest concern, risk of direct contact with PCB contamination, no wonder the EPA originally decided on rail transport.
GE protested the 2016 EPA decision, and a federal environmental appeals board (EAB) sided with GE. Thereafter, having been thrown under the bus by the EAB, the EPA formed a small mediation group to meet behind closed doors with GE, to determine the fate of the Berkshires. Not surprisingly, this group gave in to GE’s biggest demands, at the expense of most of the rest of us. Before the confidential meetings, the EPA had decided rail was the better means of transport; after the confidential meetings, the EPA had to defend its new decision to use trucks.
So, regarding Criterion (8) “Implementability”: Why the change from rail?
The EPA’s efforts to provide adequate public notice and opportunity for public comment began in February 2020 and culminated in September 2020 when it closed the public comment period.
Only one comment during 2020 discusses the option of railroad in detail. The Housatonic Railroad Company (HRC) advised the EPA that railroad could handle all the transport required, both to the local UDF in Lee and, for the more contaminated material, off site as originally planned. HRC put forth details of three potential methods to accomplish the transport and further indicated that it was willing to participate in objective discussions regarding implementability, including objective cost assessment. The EPA never took advantage of HRC’s offer to provide such information. HRC also indicated that railroad expenditures required for transport could be utilized toward future upgrades required by commuter-train service. Furthermore, the Commonwealth already owns the rail and has invested several million to improve it for passenger service.
Meanwhile—and I am sure we all want to forget—in early 2020, the COVID-19 pandemic was rapidly worsening in Massachusetts and nationally, prompting, on January 31, 2020, United States Health and Human Services Secretary Azar to declare a public health emergency for the entire United States; Governor Baker, on March 10, 2020, to declare a state of emergency in the Commonwealth; and, on March 13, 2020, the President to declare a national state of emergency, for all states and territories.
The attendant restrictions on public gatherings and governmental meetings had never before been encountered by the residents of Berkshire County and presented extraordinary challenges and impairments to normal daily activities, including but not limited to restrictions on public transportation, on normal use of the post office, on normal access to government buildings and posted agendas, on access to normal maintenance medical care for chronic illnesses, on access to normal care during pregnancy, on children going to school and daycare, on shopping for medications in pharmacies, on shopping for groceries and household supplies, and on many other usually straightforward daily activities. A major sector of the Berkshire economy—the service and hospitality industry—was shut down. People lost their jobs. Businesses closed or were forced to carry on their activities in a significantly abnormal fashion. The healthcare sector—another major sector of Berkshire County economy—underwent major revisions of the services it provided and the protocols required of its personnel. Elective surgeries were canceled. People carried on daily affairs wearing masks and social distancing. People with symptoms or contact with the already sick were required to self-isolate and continue for 10 days after symptoms cleared. Visiting-nurse services closed or were limited. Diagnostic tests and vaccines were not available during 2020. No specific treatment was available.
Beyond the regulatory restrictions during 2020, the pandemic itself provoked major behavioral changes. Church and synagogue services and gatherings were curtailed. Senior centers closed. Parties, weddings, funerals, sports activities, parades, and myriad other social affairs were canceled. Grandparents did not see their grandchildren. Pregnant women could not see their care providers. Families worried about the unborn babies and the effects of coronavirus. The sick were not visited by family and friends. Emergency response personnel, police, fire department workers, and hospital workers bore inordinate risk of disease. Increasing numbers of people became sick and died. The first wave of the COVID-19 pandemic peaked in the Berkshires in the fall of 2020. Ultimately, over 300 people died in Berkshire County. Our local boards of health bore first-hand expert witness to the enormity of the burden of dysfunctionality carried by our communities and local leaders during 2020.
There was no way that the EPA provided an adequate or appropriate public notice or public comment period during 2020 because the citizens of Berkshire County were in no condition to receive such notice, appreciate it, discuss it, or comment about it publicly. EPA’s electronic opportunities, such as virtual participation, phone participation, and email participation, in our rural communities with patchy access to broadband and little experience with virtual participation, did not constitute an adequate accommodation for the impairments on communication and participation imposed by the emergency regulations or by the pandemic disease itself. The discussions the EPA has provided more recently are also inadequate because the public cannot really understand them or participate intelligently because we never had the prerequisite educational foundation that the EPA had intended to provide and was legally obligated to provide in 2020.
The First Circuit Court of Appeals noted that the EPA is required to give us adequate public notice and public comment period: (United States Court of Appeals For the First Circuit, No. 22-1398, PAGE 9 “FOOTNOTE 2 …. the Consent Decree further required that the proposed permit be subject to public comment. (see 42 U.S.C. § 124.10(a)(1)(ii))”
With all due respect to the EPA, its failure to provide the public notice and public comment period was no doubt unintentional, and perhaps, heretofore, not really appreciated by the EPA. Nevertheless, if the EPA is not willing to repeat in full the 2020 announcement and public comment period, in a proper way that permits adequate public education and input, as required under 42 U.S.C. § 124, is the December 2020 Revised Final Permit legally valid?
Understandably, the EPA’s original focus on the entire river included Connecticut and therefore warranted federal-oversight methodology. On the other hand, the method of transport of contaminated waste to a local UDF involves only the Berkshires. It is really first a concern of our local governments and local communities. The discussion should be completely transparent and subscribe to Massachusetts Open Meeting Law. It should involve the entire community, and include the railroad company. Our elected state and federal representatives and our governor should be involved. I believe our elected representatives failed to understand that the transportation of waste had such far-reaching implications for the communities of the Berkshires because we never really spoke up. Retrospectively, it is clear we could not speak up because we were dealing with a 100-year plague. As evidence that the citizens of our towns believe they did not get a fair opportunity to participate in their government policy decisions during 2020, there is a petition that just started to circulate in Stockbridge, Lenox, and Lee. The petition insists that the EPA stop its plan to use trucks; the petition further demands ” … a more thorough public discussion of the alternative use of the existing railroad.” The petition already has 1,000 signatures and is rapidly beginning to circulate more widely.
Legal democratic process should not be forsaken because the EPA may want to get on with this. Whatever minor negatives might accrue from further delay are more than offset manyfold by the likely possibility of an alternative implementation solution that will truly benefit the Berkshires. We have the opportunity now to turn this entire half-century of divisive catastrophe into a positive legacy for our children.
If you agree with the 1,000 petition signers that Berkshire County first deserves a proper discussion of all the facts before we are forced to endure years of thousands of trucks, please call or write the EPA and your elected representatives and demand that they get involved and help us. Their contact information is listed below. You should do this now.
Charles Kenny, MD, Chair of the Tri-Town Board of Health
Stockbridge
Contact information for the EPA
EPA New England, Region 1
5 Post Office Square – Suite 100
Boston, MA 02109-3912
888-372-7341
617-918-1111
Community Involvement Coordinator
Kelsey Dumville (dumville.kelsey@epa.gov)
617-918-1003
COMMENTS: https://www.epa.gov/ge-housatonic/forms/contact-us-about-ge-pittsfieldhousatonic-river-site
Contact information for your elected representatives
Governor Maura Healey
State Office Building,
436 Dwight St., Suite 300, Springfield, MA 01103 (413) 784-1200 Boston (617) 725-4005
U.S. Senator Elizabeth Warren
Staff: Mendoza, Nikko Nikko_Mendoza@warren.senate.gov
Springfield (413) 788-2690 Boston (202) 224-4543
U.S. Senator Edward J. Markey
Morfill, Katherine – Katherine_Morfill@markey.senate.gov
Springfield: (413) 785-4610 Boston: (617) 565-8519
U.S. Representative Richard E. Neal
Staff: Russett, Matthew: Matthew.Russett@mail.house.gov
Pittsfield Office: (413) 442-0946
Massachusetts Senator Paul Mark
(413) 464-5635 paul.mark@masenate.gov
Constituent Service Director: Casey Pease casey.pease@masenate.gov
State Representative (3rd District) William “Smitty” Pignatelli
(413) 637-0631 repsmitty@mahouse.gov
Legislative Aides: Ben Wohl (Benjamin.wohl@mahouse.gov)
Caroline Szatkowski (Caroline.szatkowski@mahouse.gov)
