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Heather Bellow
The Housatonic River as seen from Bridge Street in 2015. After weighing both the EPA and GE positions, the EPA’s regional counsel issued a decision that favors the agency’s approach to the company’s legally mandated cleanup of PCBs from the Housatonic River. GE says it will probably fight the decision.

Decision favors EPA in Housatonic River cleanup; more legal battles with GE likely

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By Thursday, Oct 20, 2016 News

Great Barrington — The U.S. Environmental Protection Agency (EPA) gained serious traction last week in its quest to compel the General Electric Company (GE) to clean the rest of the Housatonic River of toxic chemicals after the EPA’s regional attorney ruled in the agency’s favor.

Carl Dierker, EPA's counsel for the New England region, favored EPA's approach and analysis for GE's cleanup of the Housatonic River. GE is threatening to appeal Dierker's decision. To his left is EPA Regional Administrator Curt Spaulding. Photo courtesy Boston Bar Association.

Carl Dierker, at right, EPA’s counsel for the New England region. GE is threatening to appeal Dierker’s decision. To his right is EPA Regional Administrator Curt Spaulding. Photo courtesy Boston Bar Association.

GE will likely appeal the decision. In an emailed statement, a GE spokesperson said if the EPA doesn’t agree to change certain “shortcomings” in its cleanup proposal, the company will go to court.

“GE will clean the Housatonic Rest of River,” the statement read. “The only question is how it will be cleaned.”

If this decision — and any future rulings — holds strong against what will likely be a protracted legal fight from GE, the $613 million cleanup will eventually go forward, and the PCB (polychlorinated biphenyl)-contaminated waste will be shipped out of state.

In a final administrative decision over GE’s dispute with the EPA about how the agency says the company should clean the river and dispose of the waste, Carl F. Dierker, EPA counsel for the agency’s New England region, wrote that “while I can appreciate GE’s disagreement with EPA’s exercise of its discretion in making complex scientific, technical and engineering decisions, and with the way it has weighed and balanced other important factors, I find that overall EPA’s reasoning, rationale and analysis are sound and adequately supported by the data and information it has carefully considered.”

A 1999 legal agreement bound GE to rid the river sediment of PCBs deposited there over decades in the process of manufacturing electrical transformers at its Pittsfield plant. While GE remediated the areas around the plant and the section of river to Fred Garner Park, it has locked horns with the EPA over how much of the rest of the river—to the Connecticut border–it will clean and how.

The river at Wood’s Pond in Lenoxdale last March. The river here has high levels of contamination. Photo: Heather Bellow.

The river at Wood’s Pond in Lenoxdale last March. The river here has high levels of contamination. Photo: Heather Bellow.

GE also wanted to save $200 million by depositing the removed PCB sludge in three designated landfill locations in Lenoxdale, Lee and Housatonic, something that has caused local outrage and other related problems as, for instance, local real estate agents have had to disclose the possibility of a PCB dump to potential homebuyers.

GE says it won’t take this one lying down. “We remain committed to a common sense solution for the Housatonic Rest of River that protects human health and the environment, does not result in unnecessary destruction of the surrounding habitat, and is cost effective. EPA’s Intended Final Decision doesn’t meet this standard,” said the company’s statement.

In its dispute GE argued, for instance, “that EPA’s cleanup approach ‘goes beyond what is necessary to protect human health.’ ”

Housatonic River Initiative’s (HRI) Benno Friedman said that it is natural for GE to take this decision to court. “Because years of litigation are less expensive than actually proceeding with the remediation.”

At Fred Garner Park in Pittsfield where GE has successfully cleaned the river. From left: Housatonic River Initiative's Tim Gray and Benno Friedman with Denny Alsop, who paddled on the Housatonic River to Boston to draw attention to the river. Photo: Heather Bellow.

At Fred Garner Park in Pittsfield where GE has successfully cleaned the river. From left: Housatonic River Initiative’s Tim Gray and Benno Friedman with Denny Alsop, who paddled on the Housatonic River to Boston to draw attention to the river. Photo: Heather Bellow.

For this reason Dierker’s decision is not quite a touchdown, but Friedman, who is also on the EPA’s Citizens Coordinating Council, said there are bits and pieces of a silver lining. He said, for one, this decision makes the threat of PCB dumps in the Berkshires even more remote. “This was one element that got people very excited and off their couches and into the streets,” he said. “It’s a big relief, and a big win for Berkshire County.”

Friedman also said that he could “speculate with a dash of hope” that a drawn out legal battle may increase the “likely possibility” of a new remediation technology or “improved solution” that will make the cleanup less messy, disruptive and expensive. In such a case, he added, it’s a win even for GE.

Friedman said an official HRI statement on the decision was forthcoming.

And EPA spokesperson Jim Murphy said the agency would make “a minor tweak or two” to its final draft and have it ready next week.

Mary Douglas, an Edge correspondent and environmental attorney said, while she had no doubts GE would appeal, the decision “looks like a home run for EPA — not surprising considering who wrote it, but an excellent result for the river.”


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