Opposition mounts to GE’s insistence on Berkshire PCB dumps

Berkshires –– The Housatonic River Initiative (HRI) wants Berkshire County residents who oppose local dumping of PCB waste to remain vigilant as General Electric continues to appeal EPA’s chosen remedy.

HRI is sponsoring a rally on Tuesday, April 25, from 7 to 8:30 pm at the Unitarian Universalist Meeting located at 1089 Main Street in Housatonic. The rally is intended to “rekindle the fire” of opposition to GE’s PCB dumping and cleanup plans. according to HRI Executive Director, Tim Gray.

Although EPA’s final remedy requires General Electric Company to transport and dispose of PCB waste in a federally approved landfill, the company is fighting tooth and nail to dispose of contaminated waste locally.

Asked whether he could confirm that EPA still stands by its original conclusion that GE must transport PCB waste to an approved landfill out of state, EPA spokesman, Jim Murphy replied, “Nothing has changed regarding the final permit for the Housatonic Rest of River.” In other words, out-of-state disposal is still required — despite the new administration of the EPA.

A section of the bank of Rising Pond in Housatonic, Mass., is owned by General Electric, and is intended to become a PCB dump. Photo: David Scribner

The multinational conglomerate, however, has chosen three local locations: the first is close to Woods Pond near the Lee-Lenox border; the second is off Forest Street in Lee; the third is on the banks of Rising Pond in Housatonic Village.

Waste disposal is not the only issue raised by EPA’s so-called Rest of the River cleanup plan. HRI and others believe that the final remedy chosen by EPA leaves far too much contaminated soil in the Housatonic.

The litigants line up 

In January 2016, GE formally objected to EPA’s final decision on the cleanup remedy, challenging the agency’s directive to transport and dispose of the PCB waste off-site. GE also argued that EPA’s remedy required unnecessary dredging in the Woods Hole area. 

Not surprisingly, EPA’s Regional Counsel upheld the agency’s remedy, issuing an opinion last October.

GE then appealed that decision to the Environmental Appeals Board (EAB) at EPA Headquarters in Washington, D.C. Oral arguments are scheduled for June 8.

If the EAB also upholds EPA’s permit, GE is likely to appeal to the United States Court of Appeal for the First Circuit in Boston.

A number of friends of the court, or amicus curiae, briefs have been filed on behalf of EPA.

The Housatonic Rest of River Municipal Committee (the Municipal Committee) submitted a brief on behalf of the cities of Lenox, Stockbridge, Lee, Great Barrington and Sheffield. The City of Pittsfield filed separately.

A sign posted near Rising Pond, a vestige of the protests against the creation of a toxic dump in the village of Housatonic.

Joining the Municipal Committee brief, as amici were the Berkshire County League of Sportsmen, the Berkshire Environmental Action Team, Berkshire Natural Resources Council, Berkshire Regional Planning Commission, the Housatonic Valley Association, and the Massachusetts Audubon Society – which also submitted a brief of its own.

The Municipal Committee mounted a strong attack on GE’s plan to dump PCB-laden soil and sediment in local landfills, pointing out a number of serious environmental risks to leaving PCB waste near the river and its floodplains.

The group noted that GE has already disposed of almost 3 million cubic yards of PCB sediments dredged from the Hudson River in off-site landfills, costing almost $2 billion, and that “Berkshire County deserves to be treated just as well as the communities along the Hudson.”

Some also want a more effective cleanup

The EAB also heard from those who were not aligning with EPA. Although they support off-site dumping, the Housatonic River Initiative (HRI) and the Berkshire Environmental Action Team (BEAT) strongly oppose EPA’s chosen remedy which they believe doesn’t go far enough.

The two groups urged the EAB to require the EPA to adopt a far more aggressive, large-scale remediation plan by removing PCBs from the river by far more dredging than is currently proposed. The groups believe that dredging and removal is the effective way to eliminate PCBs from the riparian bio-system.

A tale of two rivers – and two states

A shuttered GE plant in Hudson Falls, N.Y., a source of PCB contamination in the Hudson River. Photo: EPA

The Housatonic in Massachusetts and the Hudson River in New York were both contaminated by General Electric’s PCB disposal for decades, and both rivers have been the focus of federal and state cleanup efforts for more than twenty years.

But a snapshot of current cleanup efforts shows New York State authorities now pursuing a more protective cleanup than that supported by EPA Region II. Massachusetts, on the other hand, convinced EPA Region I to embrace a “cleanup lite” plan for the Housatonic that leaves much of the PCB waste in the river.

Massachusetts preferred ‘Monitored Natural Recovery’

Tim Gray, Executive Director of Housatonic River Initiative, recalls that EPA decision-makers, together with Massachusetts, wanted a strong cleanup involving significant PCB removal in 2007.

In 2008, however, GE started a public relations campaign touting the benefits to the river of a noninvasive cleanup approach, publicizing its message –“don’t destroy the river to clean it” – in online videos featuring background music and beautiful scenes of the river.

The Commonwealth began to voice its agreement with GE. A biologist with the Massachusetts Fish and Wildlife Department, Mark Tisa, argued persuasively in public meetings that ecologically sensitive areas of the river should not be disturbed. So-called “Monitored Natural Recovery” would be more protective, he and other state officials believed.

Tim Gray recalls that Mr. Tisa “seemed to hold uncanny powers over the Massachusetts Department of Environmental Protection – and then over EPA Region I.”

Another influential voice may have been Robert Durand. Former Massachusetts Secretary of Environmental Affairs until 2003, Mr. Durand had become a GE lobbyist around the time that cleanup options were being evaluated.

Canoe Meadows in Pittsfield, an Audubon refuge from which PCBs will have to be removed. Photo: David Scribner

For whatever reason, EPA’s aggressive approach to cleanup began gradually to erode. The Commonwealth convinced EPA in 2008 to require GE to include a Corrective Measures Study option that did not cause ecological damage from construction activities – the so-called Ecologically Sensitive Alternative (ESA).

In 2009, GE’s Rest of River Work Plan raised the eyebrows of many who commented on it.

Dr. Kenneth Finkelstein of the National Oceanic and Atmospheric Administration (NOAA) wrote to EPA Region I:

‘The entire Ecologically Sensitive Alternative (ESA) process has routinely puzzled me since its inception in late 2008… Much good comes from removing as much PCB sediment as possible and the authors fail to mention that benefit. In fact, they report that replacement of riverbanks post sediment removal is not practicable and that’s just not true.”

Woods Pond in Lenox Dale from which PCB-saturated sludge would be dredged.

The United States Fish and Wildlife Department commented on the Work Plan, “…We do not agree that PCB removal and habitat restoration is impractical or incapable of restoring a large-degree of the functions and values of impacted habitats over the long-term.”

The State of Connecticut wrote the Vice President of GE’s Corporate Environmental Programs, “While we agree that any action must…be sensitive to the [river ecology], that does not preclude active remediation to remove large amounts of source material.”

Don’t eat the fish. At all. For a long time.

Massachusetts continued its campaign for a Monitored Natural Recovery with limited dredging into 2011. In July 2011, the Commonwealth submitted comments on fish consumption and other issues to EPA’s National Remedy Review Board.

The Secretary of Energy and Environmental Affairs, joined by the Commissioners of the Department of Environmental Protection and the Department of Fish and Game wrote, “Region I has indicated to the Commonwealth that a key driver for the scope of river excavation and bank stabilization…is the need to ensure that the public is adequately protected from the human health risks associated with consuming fish and waterfowl taken from the river.”

“We understand that EPA Region I may be focusing on the…goal of restricted fish consumption, i.e. 14 meals a year…. Yet there would still need to be warning against fish consumption in excess of that amount…This sends a diluted and ambiguous message…In contrast, signage warning against any fish consumption is clear and unambiguous, and much less likely to be transgressed.”

The Commonwealth thus advocated keeping the “Do Not Eat the Fish” signs rather than cleaning up to point where some fish could be consumed.

In November 2011, the Hill Country Observer reported that the DEP’s call for a scaled-back cleanup effort along the Housatonic was unusual among polluted sites around the nation.

A spokesman for EPA Region I was reported as saying, “I don’t know of another situation in which a state environmental protection agency is asking the EPA to do less, rather than more…We are engaged with the DEP on many cleanups in Massachusetts where we collaborate – except here.”

New York State pushes EPA for stronger PCB cleanup

Across the border, the state-federal dynamic is flipped, with New York officials pushing EPA Region II hard to continue its cleanup of PCB contamination in the Hudson River.

PCB sludge being dredged from the Hudson River near Hudson Falls, N.Y.

The Hudson was contaminated by General Electric’s direct disposal of PCBs from 1947 -1977 at its manufacturing plants in Hudson Falls and Fort Edward.

EPA is now close to publishing its second “Five Year Review Report” on the PCB cleanup, and New York has come out swinging.

In a blistering December 2016 letter to the EPA Region 2 Administrator, Judith Enck, the Commissioner of New York’s Department of Environmental Conservation (DEC), Basil Seggos, urged that EPA undertake additional investigations, sampling, and remedial work

Commissioner Seggos wrote scathingly, “EPA has failed to recognize the importance of supporting environmental decisions with sound science,” and stated that “New York State will conduct the sampling given you are unwilling to compel GE to act.”

A rail line was built to transport the PCB sediment from the Hudson River to a treatment facility.

The letter also admonished EPA for largely ignoring PCB contamination of the Lower Hudson River, saying, “DEC believes that EPA must expand the investigation to include performance of a Remedial Investigation/Feasibility Study for the lower portion of the Hudson River between the Federal Dam at Troy and the Battery in New York City.”

In complete contrast to Massachusetts, New York – and EPA Region I – had previously considered and rejected the Monitored Natural Alternative remedial option.

New York explained in an Executive Summary accompanying its comments on EPA’s Five-Year Review Report that it had concurred with EPA’s original dredging remedy because “EPA concluded that dredging was needed to accelerate the time it would take to reach the remedial targets for [PCBs in] fish flesh in order to quickly reduce human health and ecological risk.”

Again contrasting starkly with Massachusetts, which found “institutional controls” – signage warning people not to eat fish – to be an effective remedy, New York reached a different conclusion, stating:

“Available information indicates that people continue to eat fish despite the institutional controls, and that these exposures represent human health risk beyond the EPA acceptable risk range.”

The current focus: Rejection of local dumps

Last May, protesters gathered at the cemetery in Housatonic before marching to the shore of Rising Pond to oppose a proposed PCB dump.

By and large, the litigants and amici who have filed before EPA’s Environmental Appeals Board are focusing their efforts on urging that GE be required to transport PCB-contaminated waste off-site to an approved federal landfill, an EPA requirement that is supported fully by Massachusetts.

At least two litigants, however – the Housatonic River Initiative (HRI) and the Berkshire Environmental Action Team – continue to urge the EAB to look not only at dumping, but also at the adequacy of the cleanup remedy itself. HRI urges the EAB to “choose the remedy most protective of public health and the environment.” For HRI, a protective remedy would be the so-called SED8FP7 remedy…”which would require the removal of 2,252,000 cubic yards of toxic sediment rather than only 890,000.”

Whatever the outcome, environmentalists in New York may well feel fortunate that their state officials are aggressively acting to protect their interests, while those in Massachusetts may question whether their health and that of the Housatonic are receiving commensurate attention.