Washington — The Environmental Appeals Board (EAB) has released its Order addressing General Electric Company’s challenge to the EPA Region I cleanup permit for the Rest of the River Housatonic cleanup.
Although much of the Region’s permit was upheld, the EAB remanded the crucial issue of the waste disposal location with admonitions to the Region on its lack of explanations, and advice on how to cure the deficiencies in the permit.
Although Berkshire residents might conclude that the EAB’s remand is an alarming setback, the disposal question is still up in the air. According to Tim Gray of the Housatonic River Initiative, “Reports that the disposal focus has turned to local dumps seem premature – anything could still happen. ”
The Region advocated transporting the waste out of the State to an approved landfill in the corrective action permit it issued to GE, and in its written and oral statements to the EAB.
The EAB found, however, that the total administrative record before it demonstrated that the Region has vacillated on where to dispose of the waste, and has failed to articulate the reasons for its ultimate decision to require off-site disposal. In its 154-page order, the EAB repeatedly exhorted EPA to “exercise considered judgment.”
The Rest of the River Cleanup Moves Forward – Very Slowly
The Order is a stride forward in the slow march toward cleanup by GE of the polychlorinated biphenyls (PCBs) that the company dumped in the Housatonic River from 1932 to 1977 as a part of its transformer manufacturing operations in Pittsfield.
PCBs are carcinogenic in animals and, as classified by EPA for many years, “probably” carcinogenic in humans. They cause numerous neurological and reproductive harms to both humans and animals.
The company had cleaned up its plant and the first reach of the river by 2006.
Provisions for GE’s cleanup of the Rest of the River are contained in the corrective action permit issued by the Region in October 2016 under the authority of the Resource Conservation and Recovery Act (RCRA).
GE promptly challenged the permit on a number of grounds, and, following a dispute resolution process and a procedurally required review and affirmation of the permit by the Region, the company petitioned the EAB.
The EAB is a small but powerful entity in EPA Headquarters in Washington, DC whose purpose is to resolve contested issues relating to permits issued under many environmental statutes.
Although the EAB generally upheld the Region’s cleanup plan, it concluded that the Region had not made reasoned arguments in support of its decision to require GE to transport waste out of state.
On-Site Disposal? “Region Contradicted Itself with No Justification”
The EAB’s remand requests from the Region better, fuller legal and technical explanations of why on-site disposal in the Berkshires poses more risks than off-site disposal. Without such explanations, the EAB may be implying, the Region’s choice will not withstand judicial scrutiny if challenged.
The EAB identified two main concerns with the Region’s rationale for requiring off-site disposal.
First, the Region never addressed the arguments GE advanced as to how the Company could meet the requirements of the Toxic Substances Control Act [TSCA], which sets forth requirements for PCB disposal. GE also argued that EPA has routinely granted waivers of some TSCA requirements at other disposal sites. The Region also did not address why GE could not receive certain waivers as well.
Specifically, the Region had only stated in the permit that the three Berkshire County disposal locations did not meet TSCA landfill regulation’s requirements on soil permeability or hydrologic conditions…and a waiver of these requirements “is not appropriate…here.”
The EAB Order held that the Region’s justification of its decision to decline a waiver with “a single conclusory sentence” was inadequate.
Second, the Region’s statements about the protectiveness of on- and off-site disposal were inconsistent.
At the Draft Permit stage, “the Region did not note any concern with the protectiveness of on-site disposal, concluding that both off-site and on-site disposal ‘would…provide high levels of protection to human health and the environment because [if disposal was on-site] excavated contaminated material would be contained in an upland disposal facility.”
At a later stage, however, the Region’s view shifted. In the Response to Comments on the Draft Permit, the Region stated that TSCA compliance concerns with on-site disposal demonstrate “clear distinctions” between off-site and on-site disposal as to the protectiveness of these alternatives.
In remanding the disposal aspect of the permit, the EAB stated, “The Region’s failure to adequately explain its TSCA waiver determination and its failure to reconcile seemingly inconsistent statements on the protectiveness of on-site disposal do not reflect considered judgment.”
The EAB stated, “The Board takes no position on the ultimate resolution of this question.”
The EAB Largely Supported Region’s GE Permit
Apart from the disposal question, the Region prevailed against the claims of the petitioners. The EAB squarely upheld all of the Region’s permit requirements on the nature and extent of the so-called Rest of the River remedial actions, including the deep dredging of Woods Pond before placement of a cap, and dredging of Rising Pond.
The States of Massachusetts and Connecticut had both submitted response briefs opposing GE’s petition and supporting the Region’s choice of remedy.
Petitioners who wanted a more protective cleanup than EPA’s – the Housatonic River Initiative (HRI) and the Berkshire Environmental Action Team – were disappointed. So was the private citizen, Jeffrey Cook from Pittsfield, who thought the cleanup went too far.
The Region concluded that any marginal additional protectiveness that HRI’s preferred remedy would provide in the long-term was outweighed by the amount of time it would take to complete the remedy, as well as by the significantly higher adverse impacts the remedy would have on local communities in the short term and the remedy’s significantly higher cost.
HRI had also advocated treating the waste before disposal to reduce its toxicity. This, too, was denied by the EAB.
The Rest of the River Municipal Committee did not prevail in its effort to require GE to comply with the Massachusetts Hazardous Waste Facility Siting Act. Nor did the Region commit clear error in refusing to impose on GE inspection and maintenance requirements “in perpetuity.”
The Board agreed with the Region that GE must continue to monitor and maintain downstream dams, undertake additional cleanup of PCB levels if performance standards are exceeded, and comply with the Massachusetts Endangered Species Act.
In agreeing with the Region on most points, the EAB applied the “no clear error” legal standard, under which the Region’s permitting decisions prevailed unless the EAB found its conclusions clearly erroneous.
While most of the Region’s permit decisions met the legal standard, the out-of-state disposal decision did not. The EAB found that it was clearly erroneous.
EAB Urged the Region to “Develop the Record” on Disposal Location
The Region reached its decisions on the remedy by (among other things) considering Nine Criteria set forth in the Superfund statute.
These criteria for evaluating alternative remedies are:
- Overall protection of human health and the environment
- Compliance with applicable or relevant and appropriate requirements under federal environmental laws and state environmental or facility siting laws.
- Long-term effectiveness and permanence
- Reduction of toxicity, mobility, or volume through treatment
- Short-term effectiveness
- Implementability
- Cost
- State acceptance; and
- Community acceptance
The EAB discussion points the Region in the right direction toward adequate discussions of these criteria.
For example, the Region claimed that all three local areas did not meet the No. 2 criteria above. The Board found the Region’s arguments relating to Woods Pind were persuasive, but that “for both the Forest Street and Rising Pond locations, the Region asserted…that [applicable federal and state laws] were ‘potentially implicated.’”
The EAB stated, “The Region, on remand, should…identify actual compliance issues” rather than “potential” ones. “Without appropriate consideration of this criterion, it is difficult for any party to meaningfully understand the basis for the Region’s determination.”
As for the argument that proximity to the River is riskier than elsewhere, the EAB again deplored the lack of development of this issue.
The EAB stated, “Because the Region failed to exercise considered judgment in evaluating on-site versus off-site disposal, the record does not include information sufficient to evaluate the significance of the concern raised by placing an on-site landfill outside the 500-year flood zone but still in close proximity to the River.”
“Additionally, the way in which EPA has applied the TSCA Landfill regulations to PCB landfills…proposed to be placed near a river” should be discussed by the Region as relevant to determining the risks of such a facility,” the EAB stated.
Zoning and Community Acceptance Are Relevant – But Have Not Been Addressed Adequately by the Region
The EAB agreed with the Region, the Municipal Committee, and Massachusetts that, even though CERCLA preempts the need to obtain local zoning permits, the substance of zoning requirements can be considered under the Nine Evaluation Criteria above.
Massachusetts stated in its briefs that local zoning for the three proposed sites, Forest Street, Woods Pond, and Rising Pond is predominantly, “Residential” and “Conservation-Residential.” The Municipal Committee claimed that all three sites have homes nearby, and “all are located near beautiful conservation/recreation areas.”
On remand, the EAB advised, “the Region should explain how consideration of such concerns is consistent with RCRA’s standard for corrective action permits and [should] provide record evidence on the content of zoning requirements and their application in practice.”
Again helping the Region to revise the deficiencies in its permit, the EAB also coached it to consider on remand the extent to which state and community acceptance of the proposed corrective action is permissible under the implementability criterion.
The EAB pointed the Region to RCRA guidance stating, “Some technologies will require state or local approvals prior to construction…In some cases, state or local restrictions or concerns may necessitate eliminating or deferring certain technologies from consideration in remedy selection.”
Next Steps
What the Region and the petitioners do next is largely a matter of conjecture.
Region I EPA spokesman, Jim Murphy, said, “the legal folks are still evaluating the Order.” He noted that February 5 is the deadline for Motions to Reconsider the Order. Any party can file such a motion. As of this writing, no party has yet done so.
Founding member of the Housatonic River Initiative (HRI), Mickey Freidman wrote, “my guess is that GE and EPA will begin a new round of negotiations and GE will use this to leverage a less complete cleanup –agree to off-site for whatever the EPA will agree to.”
Tim Gray, also a long-time champion of the River with HRI, said that about a year and a half ago, an official from EPA Region I had “floated the idea” of consolidating PCB waste in the GE-proposed Lenox Dale site in return for more excavation and removal of waste.
Although the reaction from the Citizens’ Coordinating Council was negative, and EPA soon after embraced out-of-state disposal, Mr. Gray is unsure what EPA may do now in light of the EAB opinion.
EAB regulations require the Regional Administrator to issue a final permit decision, and publish notice in the Federal Register, before any party can challenge the permit judicially. Here, the First Circuit Court of Appeals would be the reviewing court if the final permit were challenged.
Meanwhile, the political optics of the cleanup are daunting. GE has relocated to Boston, where many corporate leaders and State and federal officials are acquainted with each other.
In Washington, DC, EPA Administrator Pruitt has rolled back numerous environmentally beneficial regulations and policies.
Last June, Administrator Pruitt released a memo stating that EPA Headquarters has taken back authority previously delegated to the 10 regional offices. In particular, he noted, “authority to select remedies estimated to cost $50 million or more at Superfund sites shall be retained by the Administrator.” The Rest of the River GE site is a RCRA corrective action site rather than a Superfund site, but the memo raises questions about possible Headquarters involvement.
On the other hand, the new EPA Region I Administrator, Alexandra Dee, is, in the words of one employee, “a wonderful surprise.”
And communities in the Berkshire, and the State of Massachusetts, continue to steadfastly oppose local dumping near the Housatonic River. The Nine Criteria under Superfund regulations require State and local acceptance to be weighed and evaluated by the Region. Zoning and other local regulations are relevant indicators of community acceptance – or rejection – of a remedy.
Finally, the EAB has shown Region I exactly how to shore up their previous efforts to make the case for out-of-state disposal.
If the Region were to roll up its sleeves, as it were, and revise the remanded permit, the Housatonic could yet remain free from the risks and burdens of PCB landfills.
