Last week, I acknowledged my failure to become a biologist. This week, I admit that although I know a few lawyers, I am not one of them. So my idea about yet another lawsuit for our state is merely speculation.
This possibly crazy idea stems from rereading many of the critical United States Environmental Protection Agency (EPA) documents about plans for the ongoing cleanup of the Housatonic River. I have written a lot about this issue, most recently in “Whose Housatonic?” and in “Housatonic Hypocrisy,” but this time I focus on the role our state officials played in the ultimate decision to burden the citizens of Lee with a forever PCB dump.
Along the way, the expression “skin in the game” came to me. The phrase is often used to express the idea that someone has money at stake, but, more broadly, it is a way of saying someone is directly affected, or will be affected, by what happens. Now, not to be disrespectful, because I know firsthand how hard many of those who have worked on this EPA project take their responsibilities, but most of them—some based in Boston, others in Washington, D.C., and notably exempting Dean Tagliaferro—don’t have skin in the game. Not to the same extent as the people of Lee—or for that matter most of us in Berkshire County who care for our Housatonic.
The EPA did a remarkable job in calculating the verifiable effects of GE’s contamination of the Housatonic in fish, birds, animal, and plant life. In May 2014, this science helped produce “The Comparative Analysis of Remedial Alternatives for the General Electric (GE)-Pittsfield/Housatonic River Project Rest of River,” a cleanup plan that called for transporting all PCB-contaminated soils and sediments to a federally mandated off-site PCB landfill. While there were several aspects to the plan I found fault with (including the reliance on Monitored Natural Recovery and the decision not to implement a comprehensive treatment protocol, or at the very least, mandate a series of rigorous pilot tests for treatment regimes like Thermal Desorption), it is clear this plan respected many of our state’s most important environmental regulations, including the Commonwealth’s prohibition on permanent disposal facilities in the Housatonic Area of Critical Environmental Concern (ACEC). See the state’s website, as well as an account of the organizing efforts of Green Berkshires.
Having examined and compared several different approaches to the cleanup and the combinations of disposal/transportation (TD) options for the contaminated soil and sediment, the EPA favored the following option:
The EPA also noted in its discussion of “Control of Sources of Releases” that “placement of the removed PCB-contaminated sediment and soil in a permitted off-site landfill or landfills would effectively isolate those materials from being released into the environment.”
When addressing GE’s preference for creating PCB landfills either within the river system itself, a Confined Disposal Facility (CDF), or on nearby South Berkshire land, an upland disposal facility (UDF), EPA strongly argued:
“[T]wo of the potential locations for the TD 3 upland disposal facility, along with the CDFs, are in, or in close proximity to, a state-designated Area of Critical Environmental Concern (ACEC). As such, not all potential locations … will meet the requirements of 310 CMR 30.708 or the site suitability criteria in the Commonwealth’s Site Assignment Regulations for Solid Waste Facilities, 310 CMR 16.40(3)(4), which prohibit hazardous waste and solid waste facilities in an ACEC, or adjacent to or in close proximity to an ACEC such that it would fail to protect the outstanding resources of an ACEC. Furthermore, certain locations of TD 3 would not meet the Massachusetts Hazardous Waste Facility Site Safety Council Regulations (990 CMR 5.04), which provide criteria for evaluation of a notice of intent for siting a hazardous waste facility, including that it is not within an ACEC.”
Yes, site suitability and GE’s desire to build a PCB landfill “in close proximity” to the Housatonic ACEC, and the Commonwealth’s regulations regarding Solid Waste Facilities were disqualifying factors for the EPA in 2014: “Construction of either an in-water CDF (TD 2) or an on-site hazardous waste landfill (TD 3) would face considerable public opposition and would also potentially conflict with the designation of the area as an ACEC.”
The EPA again made clear these concerns in its June 2014 Statement of Basis:
“[T]he Proposed Remedial Action also includes provisions … to avoid, minimize and/or mitigate adverse impacts to state-listed species and their habitats regulated under the Massachusetts Endangered Species Act (MESA), and the ecosystem, a part of which has been designated as a state Area of Critical Environmental Concern (ACEC). In addition, an Adaptive Management approach is proposed to ensure that the cleanup is performed using the best available technologies and methods. EPA also proposes that contaminated material be shipped off-site to existing licensed facilities for disposal.” (Emphasis added.)
EPA also emphasized choosing the least invasive method of transporting the PCB-contaminated soil and sediment: by train.
With the EPA’s 2014 decision, the Commonwealth and the people of Berkshire County would get a cleanup of the river—even though many advocated for a more extensive cleanup—without the burden of hosting yet another massive PCB landfill.
On October 23, 2014, the Massachusetts Department of Public Health, Bureau of Environmental Health (MDPH, BEH) offered comments on the EPA’s plan:
On October 27, 2014, the Commonwealth’s Executive Office of Energy and Environmental Affairs (EEA) and its Department of Environmental Protection (DEP) and Department of Fish and Game (DFG) offered their comments:
“[T]he Commonwealth wishes to express our appreciation of EPA’s willingness to consider and address many of the Commonwealth’s concerns and priorities for the remediation of this unique ecosystem that is located within a Commonwealth-designated Area of Critical Environmental Concern (ACEC) and includes one of the richest and most diverse array of state-listed species protected under the Massachusetts Endangered Species Act, M.G.L. c. 131 A, (MESA) and the MESA regulations at 321 CMR 10.00.”
The Commonwealth emphasized “the off-site disposal at existing off-site licensed facilities of contaminated soil and sediment generated by the remediation, including maximizing the use of rail to transport such contaminated material; and the use of a broader adaptive management approach that will guide the phased implementation of the remedy and take into account new information, changing conditions, and the availability of innovative technologies.” (Emphasis added.)
The Commonwealth also stressed:
“[T]he Commonwealth, through DFG and the Division of Fisheries and Wildlife (DFW), owns one or both sides on approximately 85 [percent] of the land along the river’s bank … including the 818 acre George Darey Wildlife Management Area … spread across multiple parcels consisting largely of river-front and floodplain … one of western Massachusetts’ most heavily utilized wildlife management areas for all types of passive recreation including hunting, fishing, trapping, hiking, canoeing, kayaking, bird watching, and wildlife viewing …”
Massachusetts again stressed its chief concerns:
“As stated in our 2011 comment letter … we vigorously oppose the creation of new landfills, including the several on-site or near-site disposal facilities identified by GE … There are existing out-of-state, permitted disposal facilities that are equipped to accept this PCB contaminated material …” (Emphasis added.)
Massachusetts then agreed with the EPA’s concern that there was significant public opposition to building another GE PCB landfill. Again, emphasizing its preference for using the nearby railroad option rather than trucking PCB-contaminated sediment or soils:
After years of study, the EPA and Massachusetts regarded this as the best possible solution to the decades-long PCB contamination of the Housatonic River.
We jump ahead two years later, in its updated 2016 version of the cleanup plan, its RCRA Corrective Action Final Permit Modification, the EPA again called for off-site disposal:
The EPA then recognized the designation of the ACEC:
The EPA also notes that it was careful to comply with the Commonwealth’s Site Suitability criteria for solid waste facilities, 310 CMR16.40(3),(4):
“The remedy includes, among other components, the excavation of PCB-contaminated soil and sediment and the off-site disposal of such excavated soil and sediment at existing licensed facilities approved to receive such material. Portions of the remedy will be implemented in the ACEC, or in a Resource Area or Riverfront Area … For each area in which solid waste may be temporarily managed during remedy implementation, including those within the ACEC or Resource Area or Riverfront Area, the remedy includes provisions for restoration of what is disturbed by the temporary management of materials, and for final disposition of materials through off-site disposal.” (Emphasis added.)
Then, on pages 234 and 235 of its October 2016 “Response to Comments,” the EPA discusses the issue of off-site disposal:
“EPA received one set of comments objecting to EPA’s proposal for off-site disposal of excavated material, and many other comments which were supportive of EPA’s proposal. GE stated EPA’s proposed requirement that all excavated soils and sediments must be transported to and disposed of at an off-site, out-of-state disposal facility, rather than being disposed of in a secure upland facility, as GE has proposed, abuses the Permit’s remedy selection criteria and would be arbitrary, capricious and unlawful. In addition, GE believes EPA incorrectly selected off-site disposal and that an objective application of the Permit Criteria clearly favors the selection of on-site disposal. This is because: (a) both off-site and secure on site disposal would meet the Permit’s General Standards; (b) the Selection Decision Factors other than cost either favor on-site disposal or favor neither alternative; and (c) the cost factor strongly favors on-site disposal.
“Alternatively, many commenters, including all of the affected Massachusetts municipalities and the Commonwealth of Massachusetts, supported EPA’s proposed alternative of off-site disposal and opposed on-site disposal. However, some non-governmental commenters noted discomfort with any type of landfilling. In addition, several commenters supported the use of rail for off-site disposal. Specifically, the Commonwealth supports the Proposed Cleanup Plan requirement that GE maximize the use of rail to transport contaminated material to off-site licensed facilities. The Commonwealth further states the current freight rail system owned by Housatonic Railroad Company, Inc. runs adjacent to the portions of the Housatonic River subject to removal actions, including Woods Pond, and should be used to the extent feasible to transport contaminated media from the site. Maximizing the use of rail would reduce the impacts of the remedy on the surrounding communities, particularly with respect to truck traffic.” (Emphasis added.)
On pages 238 and 239, the EPA addressed in depth GE’s objection to off-site disposal:
“Pursuant to the Permit, EPA considered several factors in analyzing on-site vs. off-site permanent disposal. For example, on-site disposal facilities may be less effective at containing waste than an off-site disposal facility because the locations identified in the Revised CMS do not meet TSCA’s siting requirements for PCB landfills. See 40 C.F.R. § 761.75(b)(1). (Although it is possible for TSCA siting requirements to be waived, doing so would have to be based upon a determination by EPA that it is appropriate to do so, and EPA believes that it is not appropriate to do so here.) GE’s Revised CMS acknowledges that none of the three proposed landfill sites meet TSCA’s requirements for soil characteristics including permeability. In addition, Woods Pond is located near a drinking water source and is located above a medium yield aquifer. The Revised CMS also notes that none of the three sites meet all of TSCA’s requirements for a landfill site’s hydrological characteristics and all three sites are located within close proximity to the Housatonic River. By contrast TSCA requires that the bottom of the landfill liner be more than 50 feet above the historical high water table, that groundwater recharge areas be avoided, and that there is no hydraulic connection between the site and a surface waterbody. See 40 C.F.R. § 761.75(b)(3) …
“These TSCA criteria are meant to be protective of human health and the environment in the event of leaks or failure in the landfill technology. As explained in EPA’s Statement of Basis, ‘there is the potential for PCB releases to the Housatonic watershed if the landfills are not properly operated, monitored and maintained.’ … Moreover, the potential extended duration of the operation of the proposed on-site landfills, given the range of sediment and soil volumes at issue here and the length of remedy implementation, likely necessitates that the proposed on-site facilities operate for an extended period of time. Comparative Analysis at page 64. These factors increase the risks of potential future releases to the Housatonic watershed, compounded by the poor suitability of the proposed locations given such factors as soil permeability, proximity to the Housatonic watershed, and/or drinking water sources. Accordingly, use of on-site landfills would ‘rel[y] heavily on proper long-term operation, maintenance, and monitoring activities.’ Comparative Analysis at page 65.
“In addition, GE’s proposed on-site disposal sites are located within areas zoned for residential and/or conservation purposes and/or are within a designated Area of Critical Environmental Concern. By contrast, suitability and protectiveness of off-site facilities are not affected by such contrary zoning regulations or the ACEC designation, both of which call into question the protectiveness and suitability of on-site disposal locations. Indeed, an off-site disposal facility would pose no risk of release to the Housatonic watershed, and would be fully licensed and regulated under TSCA and/or other applicable federal and state requirements.” (Emphasis added.)
Every example I have cited in the pages above demonstrates how overwhelming the case for off-site disposal was for both the EPA and for the environmental agencies of Massachusetts. So what happened to those judgments and the persuasive case for not only off-site disposal but the call for a transportation plan that calls for using rail and not trucks?
We know that GE appealed the decisions made in the 2016 cleanup plan to the U.S. Environmental Appeals Board (EAB), as did several other parties, including the Housatonic River Initiative (HRI), the Housatonic Environmental Action League (HEAL), and Green Berkshires, the group responsible for the designation of the Housatonic ACEC. In its January 26, 2018 “Order Remanding in Part and Denying Review in Part,” the EAB ruled against those arguing for a more thorough cleanup and for the use of treatment technologies rather than landfilling.
Then, significantly, the EAB ruled in part with GE. Since the EPA routinely waives TSCA’s landfill regulations, the EAB ordered that the EPA reconsider its off-site disposal decision and more convincingly show why they weren’t waiving TSCA for this site.
It is important to stress that the EAB didn’t completely close the door on offsite disposal. In fact, this was a golden opportunity for the EPA and Commonwealth to join forces to protect our state’s critical environmental regulations, especially the provision of the ACEC, a project endorsed by thousands of Berkshire citizens. All they had to do was provide a more detailed and more compelling explanation and analysis of the clearly disqualifying characteristics of the proposed UDF at Woods Pond.
And, as I argued in “Housatonic Hypocrisy,” a close reading of the TSCA landfill regulations supports the recommendations of the Commonwealth and the 2016 decisions of the EPA:
For me, this was the perfect case when sentiment was inextricably intermixed with science. The Housatonic River Initiative had already presented critical evidence provided by former Williams College geoscientist/environmental scientist David DeSimone, who had examined the suitability of Lee site. His analysis was clear and concise and made a compelling case that the location didn’t meet TSCA requirements of impermeability. Here is a relevant excerpt:
In fact, in 2018, the Berkshire County Regional Planning Commission (BCRPC) made that very argument to EPA:
What happened instead was that the EPA and the BCRPC, through its created Rest of River Municipal Committee, entered into secret, confidential negotiations with GE. And, with the cooperation of the Commonwealth, the EPA completely surrendered its insistence on off-site disposal, waived its objection to constructing an on-site landfill within the borders of the ACEC, and, in the process, saved GE close to $200 million. Meanwhile, having received a cash settlement from GE, the Rest of the River Committee — even though some of its constituent local governments, including Great Barrington, Stockbridge, and Lenox, had made clear their opposition to any on-site PCB landfill within their borders — now voted unanimously to site the landfill in Lee.
It is instructive to widen our view and look at what else was going on in the state and nation as the EPA was refining its 2016 Remedy, while GE was shaping its appeal to the EAB, and during the time the EAB was hearing appeals, deliberating. and deciding. How about we start with a January 13, 2016 announcement from General Electric:
According to the Boston Globe, “An alliance of leaders helped lure GE to Boston.” Republican Governor Charlie Baker and Boston Democratic Mayor Marty Walsh involved local CEOs: former Governor William Weld, and New England Patriots owner Bob Craft. The Globe reports: “‘It was the total package,’ said Ann Klee, head of GE’s site selection committee. ‘When we looked at our subjective and objective criteria, Boston was a great fit.’”
And, it helped, as a May 2017 report from the Urban Institute demonstrates that there was “the more than $275 million economic development package that the Commonwealth of Massachusetts and City of Boston offered to General Electric to influence its relocation from Fairfield, Connecticut to Boston in 2016.”
Meanwhile, down in Washington, D.C., President Trump quickly remade the Environmental Protection Agency in his image, placing Scott Pruitt — a former attorney general of Oklahoma and recipient of large contributions from the fossil fuel industry and a self-described “leading advocate against the EPA’s activist agenda” — in charge of the agency.
According to USA Today, Scott Pruitt, in typical Trump-like fashion, was quickly found to have engaged in “all kinds of a series of ethical lapses, misconduct allegations and lavish spending that have prompted several Republicans to join Democratic lawmakers and environmental groups in demanding his ouster.”
Pruitt was replaced by his assistant, former energy lobbyist Andrew Wheeler. USA Today notes:
“Shortly after taking over in July, Wheeler’s EPA moved ahead with a plan to do away with the Obama-era Clean Power Plan and replace it with a proposed rule to set state guidelines for power-plant emissions of greenhouse gases that contribute to a warming planet … He also recommended freezing miles-per-gallon standards for cars and light trucks after the 2020 model year and preventing California and other states from setting tougher standards, saying it will improve safety and keep prices lower for consumers. ‘We haven’t slowed down and we haven’t missed a step,’ Wheeler told senators in August. ‘As you can see, we’re continuing the president’s agenda post-haste.’”
On August 22, 2019, U.S. Environmental Protection Agency (EPA) Administrator Andrew Wheeler announced the appointment of Dennis Deziel of Maryland to become regional administrator for our very own Region 1. Deziel had recently worked at the Dow Chemical Company as the Director of Federal Government Affairs, focusing on environment, energy, and regulatory affairs issues.
Perhaps the new political reality at the EPA combined with the imagined benefits of General Electric bringing new jobs and prestige to the Commonwealth affected the decision-making at the EAB, the EPA, and the Commonwealth. That might explain how and why they suddenly embraced policies and decisions they had previously argued against and rejected.
These reversals became even more evident when the EPA argued against and the EAB rejected a new round of challenges by both HRI and HEAL in February 2022:
“[T]he Region emphasized that the hybrid disposal alternative was part of a Settlement Agreement process that has led to the Region’s adoption of ‘numerous enhancements to the floodplain and sediment remedies, an expedited start to implementation [of the remedy], and community coordination and benefits’ that were not part of the off-site and on- site disposal alternatives considered for the 2016 Permit. Id. at 32. These factors, the Region concluded, ensure that hybrid disposal alternative will provide further protection of human health and the environment, better control of sources of releases, and more long-term reliability and effectiveness compared to the other disposal alternatives … Additionally, the Region emphasized that in terms of short-term effectiveness the hybrid disposal alternative, when compared to off-site disposal, will result in fewer greenhouse gas emissions, less truck traffic, and fewer remediation- related injuries and fatalities …” (Highlighting added.)
Quite the reversal. How can a gigantic local PCB dump better protect our public health than a dump hundreds of miles away? How can a gigantic local PCB dump better protect us from releases than a faraway dump? If you want to believe a PCB dump in the very Woods Pond site the Berkshire Regional Planning Committee said is inappropriate for a TSCA waiver is somehow better for us than a TSCA-approved off-site landfill, well I have got a bridge in Brooklyn I’m willing to sell you for a song.
Lastly, let’s just take a look at what other states are doing. At about the same time the EPA was issuing its 2016 call for off-site disposal, the State of Washington was beginning its attempt to hold Monsanto responsible for the PCB contamination of its waterways. Just to remind you, it was Monsanto who manufactured and sold the PCBs used by General Electric and Westinghouse, the very PCBs that have traveled the world and contaminated everything they came in contact with. And just for the record, they all knew in the 1930s how toxic their PCBs were.
While the EAB, the EPA, the Commonwealth of Massachusetts, and the Rest of River Municipal Committee were together saving GE close to $200 million, the State of Washington won a judgment of $95 million:
Two years later, on December 15, 2022, the attorney general of Oregon announced:
“[Monsanto agreed] to pay $698 million to the State of Oregon to resolve the State’s claims against the giant multinational chemical company for PCB contamination throughout Oregon. Monsanto, the sole manufacturer of PCBs in the United States, made and sold over 1.4 billion pounds of PCBs despite knowing they are toxic, bioaccumulate, and last effectively forever. This resolution follows four years of litigation in Multnomah County Circuit Court before the Honorable Benjamin Souede.”
How about in Pennsylvania:
“The Shapiro Administration has secured $100 million through a consent agreement with the Monsanto Company, Solutia INC., and Pharmacia LLC to resolve claims related to their production of products containing polychlorinated biphenyls (PCBs), which damaged waterways and other natural resources across Pennsylvania …
“The $100 million settlement recovers costs that the Commonwealth has incurred because of PCB contamination and will be used for further remediation efforts. Under the agreement, $8 million will be used specifically for the communities impacted by the spread of PCBs …”
In Virginia, on September 12, 2023:
“Attorney General Miyares has announced an $80 million settlement with Monsanto — a company that produces agricultural and chemical products — after it allegedly distributed harmful chemicals.
“The settlement alleges that the company emitted polychlorinated biphenyls, or PCBs, the manufacturing of which was banned by federal law in 1979, according to the Environmental Protection Agency (EPA).”
One of the qualifying factors, the EPA tells us, that motivated its decision to allow the Lee dump, is cost. Well, let’s see how GE uses it money. Instead of spending it to ship its PCB-contaminated waste out of town to a designated TSCA off-site landfill, The Boston Globe reported:
“GE shareholders rebuke company over huge pay package for CEO …The move was prompted by an unusual retention plan offered to chief executive Larry Culp that could be worth $57 million … [And] because nearly all of Culp’s reported $73 million in 2020 compensation will be in the form of GE shares, the precise value will depend on how well GE’s stock price fares.” (Emphasis added.)
That could be $73 million plus $57 million, or $130 million, for executive compensation rather than PCB disposal.
Oh yeah, there is one more reason why GE is probably laughing as it hurries to the bank. The Boston Globe of October 18, 2022 reported:
“General Electric is bidding farewell to its Fort Point headquarters only about three years after moving in, quietly closing a chapter in Boston business history that began with big hopes … The company notified employees Tuesday that it plans to vacate the 100,000 square feet it occupies in two renovated brick buildings at 5 Necco St. early next year and will seek smaller office space elsewhere in Boston. While the company initially envisioned an 800-person campus along Fort Point Channel, fewer than 200 people are based there now and many only come in on a part-time basis.”
Some states fight, and some states surrender. If you ask me, Massachusetts made a massive PCB mistake.
