Parties wearily embrace Housatonic River remediation settlement

The parties know that this cleanup could be better, but they have balanced the waste reduction improvement, the monetary compensation and expeditious start of cleanup against the risks of continued litigation.

Decades after General Electric stopped dumping PCBs into the beautiful, beleaguered Housatonic River, environmental groups and the Rest of the River Municipal Committee – made up of town leaders from Great Barrington, Sheffield, Lee, Lenox, and Stockbridge –  voiced muted support for the settlement that will clean up of the Rest of the River.

The parties who signed the agreement said that it was the most realistic outcome, one that offered a cleanup that was more more protective than EPA’s previous permit.

The Berkshire Environmental Action Team (BEAT), Mass Audubon and the Municipal Committee supported the removal of about 100 more acres of PCB contamination than was in the previous permit as well as the opportunity to avoid delay in moving forward with the cleanup and avoiding further administrative and judicial battles.

The poison pill, however, is that under the terms of the settlement, a new local dump for contaminated sediment, called the Upland Disposal facility in the settlement, will be located at the Lane Construction quarry in Lee.

Berkshire County residents had been bitterly opposed to the three dumps located near the river that GE had originally sought. The settling parties, however, succumbed ultimately to one local dump rather than embracing the serious and expensive risks of continued administrative and legal skirmishing.

Still, the Housatonic River Initiative (HRI) under the leadership of Tim Gray of Lenox Dale, has continued publicly to protest the settlement because of the inclusion of the Upland Disposal site in Lee, which the HRI insists will ultimately fail to sequester the toxic PCB sludge.

Sunday afternoon (March 8), HRI sponsored a protest at the Mass Pike “Welcome to the Berkshires” off-ramp in Lee.

“This is the first of many planned protests Berkshire County residents will use to demonstrate their unhappiness with the way the settlement was reached, and the dump slated for Lee/Lenox Dale/Lenox,” declared HRI’s invitation. “Townspeople implore GE, the EPA and their selectboards to reconsider the deal and find alternative methods for cleaning the river without having a toxic landfill in our backyards! The Housatonic needs to be restored to its chemical free existence as it was prior to GE knowingly poisoning our water and our county.”

At the Lenox Community Center last week, Tim Gray of the Housatonic River Initiative explains his groups opposition to the recently announced settlement between the EPA, General Electric and Rest of River Municipal Committee.

Washington DC attorney John Bickerman led the mediation process that culminated in the settlement. After negotiating more than a year and a half, the parties agreed on a package that includes $63 million compensation by GE to the affected towns, out-of-state disposal of the most toxic PCB-contaminated sediments (greater than 50 parts per million) and actual removal, rather than capping, of sediments at 15 new locations in the river.

Joining the settlement in addition to the environmental and municipal groups were GE, EPA Region 1, and C. Jeffrey Cook, a Pittsfield lawyer and board member of the economic development group 1Berkshire. The Commonwealth of Massachusetts did not participate in the settlement and the Housatonic River Initiative (HRI) chose not to sign the agreement.

EPA will now revise its permit for cleanup in accord with the terms of the settlement. The public will have an opportunity to comment on the revised permit and there will be a public hearing.

Once the revised cleanup plan is finalized, it can still be challenged. If this fairly remote possibility comes to pass, the arguments of the parties seeking relief will again be heard by the Environmental Appeals Board (EAB) of EPA, a small but powerful board that is the ultimate decision-maker on all administrative – as opposed to judicial – matters arising under environmental statutes.

A disappointed party can appeal an adverse EAB decision to the First Circuit Court of Appeals and ultimately to the U.S. Supreme Court.

HRI has not ruled out challenging the settlement agreement, which could occur after the revised EPA permit is finalized this summer.

Andrea Wadsworth, assistant superintendent of the Mount Greylock Regional School District, has filed a citizens’ petition with the town of Lee. Ms. Wadsworth seeks a vote by Lee residents on the planned PCB dump at the town meeting in May.

Although a member of the Lee Selectboard signed the settlement agreement, the town residents did not actually vote on it. Ms. Wadsworth wants to record their opposition, regardless of whether or not there is an official challenge. 

A skeptical EAB expressed doubts about the need for off-site disposal

In June 2017, the parties contesting the final EPA cleanup permit made their arguments before the EAB in Washington, DC.

EPA, the Rest of the River Municipal Committee, the Housatonic River Initiative, and Massachusetts as well as BEAT and the Audubon Society argued that local dumps posed serious environmental dangers.

Jane Winn, at left, of the Berkshire Environmental Action Team at a PCB cleanup presentation at Monument Mountain Regional High School.

The EAB judges, however, were not convinced. One of the judges appeared concerned about “Not in My Backyard” syndrome in the Berkshire communities.

Judge Ward asked the counsel for the Massachusetts’ Department of Environmental Protection, “What if a Utah citizen said, “You can’t dispose of your PCBs here at our waste dump in Utah?”

When counsel responded that the Utah facility was an existing licensed facility under the Toxic Substances Control Act (TSCA), the federal statute that regulates PCBs, Judge Ward asked, “But what if it had to be expanded for the Massachusetts PCB waste? We’re talking about a finite universe and a Utah citizen could say that we don’t want to use up our volume with Massachusetts’ waste.”

The EAB’s subsequent written opinion, released in February 2018, explained that it found EPA’s rationale for advocating out-of-state disposal unpersuasive.

The EAB pointed out that the administrative record reflected that over the years EPA had changed its position about the necessity for off-site disposal without explaining why.

The board also appeared to agree with GE that there was precedent for EPA to grant a waiver of some TSCA requirements to allow local dumping, as the agency had done with other disposal sites. It noted that EPA had merely stated in its brief that a waiver was “not appropriate…here.”  A single conclusory sentence by EPA was an inadequate explanation, the EAB said.

Remanding the disposal issue to EPA, the board admonished the agency to exercise considered judgment and include adequate explanations in its permit concerning the necessity for off-site disposal. The board also tasked EPA with explaining the significance of the concern caused by placing an on-site landfill outside the 500-year flood zone but still in close proximity to the river.

Although EPA could have revised the disposal argument to address the EAB’s concerns, adding technical and legal information to bolster the off-site disposal argument, the agency did not do so. It did not attempt to make the considered judgments that the EAB invited it to make.

Agency attorneys and others may have thought that the arguments would not be strong enough. For example, it might have been difficult for the agency to explain why it had granted TSCA waivers to other waste disposers but not GE.

As for the board calling out EPA’s inconsistent positions on local dumping, why had EPA argued at the Draft Permit stage that both on- and off-site disposal would provide high levels of protection to human health and the environment?

And what had caused it to change its mind about the adequacy of containing contaminated material in an upland disposal facility on-site? The answers remain unclear. The agency might have struggled to explain.

The EAB, at any rate, appeared to set a high bar for EPA to establish that local dumps at all three locations were certain to be worse for the environment – that is, the broader, national environment — than off-site disposal.

As for GE, it was clear that the multinational conglomerate would have litigated the disposal issue in the EAB, and would have appealed an adverse decision to the First Circuit Court of Appeals. If it lost there, it might ultimately have appealed to the U.S. Supreme Court. In BEAT’s estimation, litigation could have dragged on for three to seven years.

And as it dragged on, the Housatonic would remain in its degraded state. No cleanup would commence. The river itself would continue to serve as an unlined, uncapped disposal site for PCBs as it has for close to a century, with PCBs lining its soils, sediments and banks.

Faced with the risk of failing in court and the certainty of delay, EPA summoned attorney Bickerman to once again lead a mediation process that would attempt to settle the parties’ grievances.

As reported in the Boston Globe, State Senator Adam Hinds, a Pittsfield Democrat, said about the settlement, “Our laws and regulations allow for less than a full cleanup, and as a result, the municipalities were threatened with endless litigation they could not afford. The alternative to negotiation was bleak.”

Benefits for the towns and environmental groups

Although the risks of failing to settle were huge, there were clear benefits to settling.

The settlement requires GE to pay $63 million to six towns. Lee and Lenox are slated to receive $25 million each because their communities will be most impacted by the cleanup. Pittsfield will receive $8 million, and Great Barrington, Sheffield and Stockbridge will receive $1.6 million each.

GE will pay Mass Audubon $500,000 to offset disruptions at its Canoe Meadows Wildlife Sanctuary. The organization will negotiate a separate Access Agreement with GE that will provide for a more thorough cleanup of Canoe Meadows Wildlife Sanctuary than in the previous permit, including more PCB removal and remediation.

BEAT noted that locating the dump at the former Lane Construction quarry means that it will be 1,500 feet from the river in an area that has already been highly disturbed. The organization, which has been a strong environmental advocate in the Berkshires for 17 years, also said that the dump would be built at least 15 feet above seasonal high groundwater level to specifications for a high-level TSCA waste dump with double liner, cap and leachate collection.

New technologies for destroying PCBs

Both Mass Audubon and BEAT support GE’s commitment to further research alternative technologies to treat and degrade PCB’s. In the agreement, EPA specifically commits to “identifying opportunities to apply existing and potential future research resources to PCB treatment technologies.”

HRI’s Executive Director Tim Gray has steadfastly argued over the years that PCBs need to be rendered environmentally benign with cutting-edge treatment methods that, he believes, are currently available and effective, such as thermal desorption or bioremediation. These technologies would obviate the need for a PCB waste dump by transforming the chemical composition of the waste.

The EAB, however, ruled that the technologies have not yet been adequately tested and proven.

Mr. Gray has pointed out that the liners for waste disposal pits will eventually decompose and has noted that PCBs are persistent in the soil, air and water. He notes that scientists simply do not know how long it takes for them to break down, with some claiming that it will take hundreds of years for them to degrade naturally.

HRI has initiated a Go-Fund-Me campaign to raise money to employ a lawyer and may decide to challenge the permit that EPA will now revise in light of the settlement.

Before the dump controversy, the dredging-or-monitoring controversy

For 45 years, GE dumped PCBs from its Pittsfield manufacturing plant into the Housatonic, stopping in 1979 when EPA banned the practice. PCBs, or polychlorinated biphenyls, are carcinogenic and cause a variety of other adverse health effects on the immune, reproductive and nervous systems.

In 2000, a consent decree negotiated between GE and EPA divided the river into three segments for cleanup purposes.

By 2008, GE had completed the cleanup of its Pittsfield plant and the first two miles of the river, up to the confluence of the East and West branches at Fred Garner Park in Pittsfield.

From 2007-2010, GE developed a Corrective Measures Study and Corrective Measures Report for EPA.  EPA, GE, Massachusetts and Connecticut held discussions about the remedial action.

Meanwhile, while its corrective action work was proceeding in 2008, 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 beautiful scenes of the river.

The Commonwealth began to voice its agreement with GE. According to Tim Gray, biologists with the Massachusetts Fish and Wildlife Department argued in public meetings that ecologically sensitive areas of the river should not be disturbed. Other Massachusetts officials began to embrace the “monitored natural recovery” plan advocated by GE.

Many of the 3,000 members of the Berkshire County League of Sportsmen wanted the river to “heal itself,” without the disturbance of PCB dredging.

Much of the public and many experts, however, strongly disagreed with “monitored natural recovery.” Comments on GE’s 2009 Rest of the River Work Plan by the National Oceanic and Atmospheric Administration (NOAA), the U.S. Fish and Wildlife Department and the State of Connecticut flatly disagreed with GE’s do-nothing approach. NOAA wrote EPA Region I that “much good comes from removing as much PCB sediment as possible.”

The agency received more than 2,000 pages of comments from the public on its proposed plan, most of which expressed strong opinions on the “monitoring” vs. dredging question.

The final EPA cleanup plan, however, called for far more monitoring and capping than dredging. Released in 2016, it required GE to spend $613 million over a 13-year period.

GE will now spend somewhat less under the terms of the settlement, although the savings it will realize by dumping much of the waste locally will be offset by the $63 million it will pay to the towns and Mass Audubon.

EPA’s 2016 plan also called for roughly 75 percent of the PCBs to be left in the river – monitored or capped – and about 25 percent to be dredged and removed.

Now, however, last month’s settlement requires 100 more acres of PCB removal, shifting those percentages to 50-50. The amount of sediment left in the river will be reduced to about 50 percent.

In sum, the parties know that this cleanup could be better, but they have balanced the waste reduction improvement, the monetary compensation and expeditious start of cleanup against the risks of continued litigation. They have reluctantly accepted the local dump, mindful of its protective specifications.

GE has committed to revisiting the settlement terms if alternative technology for degrading PCBs advances.

The parties have made a wary peace with the Rest of the River cleanup.