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THE OTHER SIDE: We are East Palestine

Sadly, as I imagine the citizens of East Palestine will soon discover, no one can better protect their friends and neighbors and children than active and engaged—even angry—members of their own community.

Disasters come in all shapes and sizes. There’s something to be said for the sudden catastrophe. The massive publicity. The pressing need for politicians to pretend they care. The seemingly heartfelt apologies of those responsible, forgetting for the moment that they, of course, previously made the decisions to sacrifice public health for inflated profits.

On February 3, 2023, a Norfolk Southern train was travelling from Madison, Ill., to Conway, Penn., when 38 of its 150 railroad cars derailed. Unfortunately for the approximately 5,000 residents of East Palestine, Ohio, the train was transporting toxic chemicals.

The National Transportation Safety Board (NTSB) provided the following details: “Train 32N comprised 2 head-end locomotives, 149 railcars … [including] 20 placarded hazardous materials tank cars transporting combustible liquids, flammable liquids, and flammable gas, including vinyl chloride.”

NTSB explained: “Vinyl chloride is a flammable petrochemical used in the manufacture of polymer polyvinyl chloride, or PVC. When exposed to heat, vinyl chloride can undergo a rapid polymerization reaction, an exothermic chemical process that can pose an explosion hazard. Residues of some hazardous materials are considered flammable liquids; in this case, two placarded tank cars contained benzene residue.” Soon there was fire, spreading to even more cars, and a toxic plume filled the skies of East Palestine.

Drone photo from above the East Palestine train derailment. Photo courtesy of U.S. EPA.

Just several months before they were ordered to evacuate, East Palestine residents could enjoy a summertime blue sky above their downtown. The scene below could easily pass for South Street in Pittsfield.

Market Street (State Route 170) in Downtown East Palestine, Ohio. Photo courtesy of 636Buster via Wikimedia Commons.

On February 5, 2023, Ohio Governor Mike DeWine issued an urgent warning: “Within the last two hours, a drastic temperature change has taken place in a rail car, and there is now the potential of a catastrophic tanker failure which could cause an explosion with the potential of deadly shrapnel traveling up to a mile … While most individuals in the one-mile radius have already evacuated, local officials say that more than 500 people have declined to leave their homes. Those who have the means to leave are advised to immediately evacuate. Those who need help evacuating the area should call 330-426-4341. According to the Columbiana County Sheriff, those with children in their homes who decline to evacuate may be subject to arrest.” (Emphasis added.)

Governor DeWine’s Map of the Norfolk Southern’s Vent and Burn, February 6, 2023. Image courtesy of the Ohio Governor’s Office.

Then the governor revealed what was to come next: “the controlled release process involves the burning of the rail cars’ chemicals, which will release fumes into the air that can be deadly if inhaled. Based on current weather patterns and the expected flow of the smoke and fumes, anyone who remains in the red affected area is facing grave danger of death. Anyone who remains in the yellow impacted area is at a high risk of severe injury, including skin burns and serious lung damage.” (Emphasis added.)

Think about the utter lack of precision: “current weather patterns” and “the expected flow of the smoke and fumes.”

On February 14, 2023, the New York Times published an article entitled “Health and Environmental Fears Remain After Ohio Derailment and Inferno” noting: “concerns about the disaster’s effects on human health and the environment are growing, and experts warned that understanding the causes and consequences could require a more comprehensive investigation than what they have seen so far. ‘There’s just a lot of unknowns,’ said Donald S. Holmstrom, a former director of the Western Regional Office of the United States Chemical Safety and Hazard Investigation Board, the federal agency that investigates industrial chemical accidents.’”

But, there are a lot of knowns: “Five of the cars were carrying vinyl chloride, a colorless gas used in making plastic products that can cause dizziness, headaches and drowsiness when inhaled in the short term and a rare form of liver cancer after chronic exposure. ‘The volume is just stupendous,’ said Gerald Poje, an expert in environmental health and former member of the Chemical Safety Board. ‘It just is horrific to think about how much was released and how much was purposefully burned.’” (Emphasis added.)

Norfolk Southern Derailment on March 6, 2023. Photo courtesy of NTSB.

I suspect most East Palestine residents are new to what will likely be an ongoing struggle to figure out what is really going on—with their health, the regulatory agencies, and how best to protect themselves from exposure in the future. Having spent more than four decades dealing with PCB contamination in Berkshire County, I knew to consult the current Toxicological Profile for Vinyl Chloride at the Agency for Toxic Substances and Disease Registry at the Centers for Disease Control, or employing the alphabet soup terminology of governmental agencies, the ATSDR of the CDC. Its “Summary of Health Effects” states:

“Information on the toxicity of vinyl chloride comes primarily from a large database of occupational worker studies and inhalation studies in animals, with similar effects being exhibited in all species tested. Chronic oral studies of vinyl chloride in animals focus primarily on carcinogenicity; however, two studies reported noncancer effects in the liver … the most sensitive effects appear to be liver damage and carcinogenicity, exacerbated immune response, and delayed fetal ossification. Neurological effects are also commonly reported in humans and animals, although they generally occur at higher inhalation concentrations. A systematic review of the noncancer endpoints resulted in the following hazard identification conclusions:

    • “Hepatic effects are a presumed health effect for humans.
    • “Neurological effects are a presumed health effect for humans.
    • “Immunological effects are a suspected health effect for humans.
    • “Developmental effects are a suspected health effect for humans.”

And yes, you quickly discover there’s a new language to master: It is a challenge just to remember the technical terms and measurements of the chemical contamination that now impacts your life. With parts per million and parts per billion and the terminology of risk assessment and risk management. Not to mention the need to get used to hearing that you really shouldn’t worry because what you’re being exposed to is at acceptable levels.

I’ve learned along the way to beware those who reassure. Because so often, when it comes to “acceptable levels,” they don’t precisely know what level of exposure is safe for humans; and what they say they know is based on what happens to animals in a lab. Probably due to the inflated influence of the chemical companies, we haven’t done an adequate job of testing human beings.

And if you look closely, you’ll often see that the scientists keep lowering what is considered to be an unsafe level. When it comes to the PCBs we in Berkshire County have been exposed to since the 1930s, there really is no safe level. And yet Lee residents are repeatedly told the planned massive PCB dump close to the Housatonic River and close to their water supply is completely safe. As if the recent footage of the Mississippi tornado that tossed 18-wheelers like toothpicks and the earthquake that destroyed entire towns in Turkey and Syria hasn’t suggested that no man-made structure is reliably safe in the new universe of climate crisis-enhanced natural disasters.

The people of East Palestine will quickly discover that the authorities will contradict and disregard what they are feeling. Many in Berkshire County have learned over the last several decades, whether it’s the illnesses they suffer from or the sickness and deaths of their neighbors, their friends and families, even their pet dogs, well, they just don’t count. Their cancers are coincidental, merely anecdotal indicators, and the numbers of those afflicted, though shocking and devastating to the community, aren’t really a scientifically valid example of anything the authorities are willing to rely on.

The other agency East Palestine residents will have to familiarize themselves with is the United States Environmental Protection Agency (EPA). The EPA quickly announced their arrival in East Palestine:“EPA is committed to protecting the health and safety of the East Palestine, Ohio community. EPA personnel have been on the ground since the onset of the train derailment, working alongside federal, state, and local partners with response efforts.”

By March 23, 2023, EPA noted the following results: approximately 8,442 tons of contaminated soil shipped (an increase of 49 tons from the day prior); approximately 7.8 million gallons of liquid wastewater shipped (an increase of 181,347 million gallons from the day prior); 621 indoor air screenings; and 377 visitors to The Welcome Center.

EPA notes: “EPA and Norfolk Southern contractors continue to take soil samples at agricultural, commercial, recreational and residential properties in both Ohio and Pennsylvania. To date, 102 properties have been sampled. This soil sampling effort will help identify if contaminants, including SVOCs and dioxins, are present and may have been caused by the train derailment. EPA has reviewed preliminary data from some of the soil sampling related to the controlled burn that occurred during response actions to the train derailment in East Palestine. While final results will be available in the coming weeks, EPA’s review of the preliminary data indicates levels of semi-volatile organic chemicals and dioxins in the samples are similar to typical background levels.” (Emphasis added.)

Background levels are those levels of a toxic substance that a typical adult would be expected to have in his or her body without living near or working at a place where these chemicals are used or stored.

We in Berkshire County had our own disappointing experience with the notion of background levels: The reassurance that PCB levels found in those County residents who participated in a blood testing study conducted by the Massachusetts Department of Public Health (MDPH) fell within the range of background levels nationwide. But unfortunately, MDPH used the completely out-of-date and incorrect range of 4-8 parts per billion (ppb) when the correct figure was 0.9-1.5 ppb. And so, in reality, those folks had at a minimum of between four to eight times the expected amount of PCBs in their blood. GE rushed to take advantage of MDPH’s mistake and bought a series of full page ads in the Berkshire Eagle to proclaim that Berkshire County residents had no reason to be concerned about the extensive PCB contamination for which GE was responsible.

The UK Guardian raised the critical question of who the residents of East Palestine could trust:

“Newly released data shows soil in the Ohio town of East Palestine—scene of a recent catastrophic train crash and chemical spill—contains dioxin levels hundreds of times greater than the exposure threshold above which Environmental Protection Agency (EPA) scientists in 2010 found poses cancer risks.

“The EPA at the time proposed lowering the cleanup threshold to reflect the science around the highly toxic chemical, but the Obama administration killed the rules, and the higher federal action threshold remains in place.

“Though the dioxin levels in East Palestine are below the federal action threshold and an EPA administrator last week told Congress the levels were ‘very low’, chemical experts, including former EPA officials, who reviewed the data for the Guardian called them ‘concerning’.

“The levels found in two soil samples are also up to 14 times higher than dioxin soil limits in some states, and the numbers point to wider contamination, said Linda Birnbaum, a former head of the US National Toxicology Program and EPA scientist.” (Emphasis added.)

Another lesson: Republicans and Democrats alike can cater to powerful corporate interests, and by refusing to adopt more accurate threshold levels, fail to protect public health and safety.

The Center for Health, Environment and Justice (CHEJ), started by Lois Gibbs of Love Canal fame, offers this analysis of the dangers of exposure to vinyl chloride:

“Vinyl chloride is classified as carcinogenic to humans by the International Agency for Research on Cancer (IARC) and is significantly associated with multiple forms of liver cancer, brain and lung cancers, lymphoma and leukemia. Exposure to vinyl chloride occurs primarily in occupational settings—in PVC and vinyl chloride factories—or near landfills where other organochloride compounds accumulate and ultimately break down into vinyl chloride …

“Authorities handled the spill by burning the vinyl chloride to prevent an explosion (remember that vinyl chloride is extremely flammable), but by doing so they released dioxins—chemicals that are created from the combustion of vinyl chloride and other organochlorides. These dioxins … are extremely toxic and are linked to cancer, type 2 diabetes, heart disease, infertility in adults and impairment of the immune system.” (Emphasis added.)

I remind you that the Thermal Oxidizer in Pittsfield likely created dioxin on a daily basis. And the New England Log Home site in Great Barrington had/has significant levels of dioxin in its soils.

Disaster hit East Palestine in a moment. A sudden horrific shock that brought a president and an ex-president, two senators, a governor, and the national press to the scene of the tragedy to proclaim and posture and promise. But reassurance in the present doesn’t carry through to the future, and toxic contamination is a gift that keeps on giving. And not surprisingly, exposure to toxic chemicals can cause harm to the body that doesn’t surface until years later.

But here in the Berkshires, there was never that extraordinary moment of calamity. Rather a continuing assault on public health and the environment beginning in 1932 when General Electric (GE) brought Monsanto’s polychlorinated biphenyls (PCBs) and other toxic chemicals to its plants in Pittsfield. There is a very different public psychology when you’re being poisoned over the course of decades—when people you know and care for make their living by working, mostly unaware, with toxic chemicals.

Yes, it was the workers who were first exposed. At the time, PCBs were the perfect insulating fluid for electrical transformers and capacitors, the equipment the world needed to safely move electricity from place to place via the electric grid. There was a fabulous amount of money to be made by companies like GE and Westinghouse, and it seemed an unnecessary waste of profit to adequately protect those who worked with PCBs. Some in GE’s Pittsfield factories actually worked in the PCB oil up to their elbows. The floors of the factories were wet with oil, constantly replenished by spills as transformers were put under test. Crane operators spoke of the haze of fumes that reached from the floor to the incredibly high ceilings of their buildings. Workers could get a voucher to replace their boots because the bottoms would disintegrate. You can hear some of their personal testimony in my documentary film, “Good Things To Life: GE, PCBSs and Our Town.”

No, we didn’t have a controlled burn of toxic train cars in Pittsfield. But GE constantly burned PCB oil. GE installed a system of pumps to retrieve some of the massive amount of PCB oil that went down its drains and formed toxic underground lakes beneath East Street, contaminating ground water, Silver Lake, and the Housatonic River.

This photo offers just a snapshot of what GE and EPA discovered when it began the cleanup in 2000 of the first half mile of the Housatonic. This contaminated oil at the river bottom was discovered after extensive excavation. Photo courtesy the EPA.

GE built what some GE employees called Puff The Magic Dragon, right off Newell Street by a bunch of small businesses and a residential neighborhood, burning the extraordinary quantity of contaminated oil they kept pumping and inviting other users to drop off their PCB oil to be burned. A former GE worker told me they were pretty sure the sensor atop Puff was no longer accurately measuring the discharge.

Here’s a photo of Puff, GE’s Thermal Oxidizer, and the smoky plume that blew whichever way the wind took it:

GE’s Thermal Oxidizer. Photo by Mickey Friedman.

Folks were breathing in the fumes coming from Puff, and many told me of the constant acrid smell that lingered over Lakewood. Then dealing with the oil-soaked clothing of the workers that went into the GE washers and driers at home, as exposure quickly became a family affair. If it wasn’t the clothes, it could be the front and backyards of Pittsfield homes. Because GE offered its PCB-soaked wood flooring from its factories, and the Fuller’s Earth it used to filter the oil or to soak up the never-ending oil on its floors. Homeowners would use the Fuller’s Earth to fill in their wet property; the flooring to build decks and porches.

And because we in Berkshire County have been dealing with GE’s malpractice for so very long, many have put this continuing contamination in the very back of their minds. Sort of like the frog in slowly boiling water. From generation to generation, people have gotten used to the reality that they can’t eat the fish of the river, that the ducks have the highest level of PCBs in the country. People in Pittsfield have accepted the mountainous PCB dump across from the playing field of the Allendale School. And few today even connect the multiple cancers of those they know with GE’s PCBs.

How many appreciate that inhalation is a principal danger, that they’re breathing in PCBs that have volatized from the Housatonic River? Most Berkshire County residents haven’t had the expensive test that reveals the PCB levels that have accumulated in fat cells of their body. And because no agency has ever really performed rigorous public health studies here, we don’t know the true extent of death and injury we’ve suffered over the years from this contamination.

In his 2015 article for the Review of Environmental Health, Dr. David Carpenter wrote: “Polychlorinated biphenyls (PCBs) are persistent, lipophilic contaminants that are known to increase risk of a number of human diseases. Although ingestion of animal fats is a major route of exposure, there is increasing evidence that inhalation of vapor-phase PCBs is also important and may be as or even more important than ingestion under some circumstances. Methods: The evidence that inhalation of PCBs may cause cancer, heart disease, hypertension, and diabetes is reviewed and presented in this report.” (Emphasis added.) This paper is among a series of documents submitted by Attorney Judith Knight to the Lee Board of Health as she represents some Lee residents opposed to the massive PCB landfill planned for their community.

In a 2018 course for medical professional entitled “Case Studies in Environmental Medicine Polychlorinated Biphenyls (PCBs) Toxicity,” ATSDR explains:

“Environmental Contamination” section of ATSDR Case Study in Environmental Contamination PCBS, pg 22. Courtesy ATSDR. Highlighting added.

I wish the residents of East Palestine the best of luck when it comes to relying on their public health officials.

Unfortunately, it seems that these days, GE, the polluter, is no longer the chief target of the EPA’s anger. Rather, it’s the vocal and persistent environmentalists who most annoy those in the agency. It’s become remarkably inconvenient, even unreasonable in their eyes, to demand a complete and thorough PCB cleanup. To insist that GE take their contaminated soils and sediments elsewhere. To demand that Lee residents not bear the burden of living with what GE has poisoned.

The EPA doesn’t want to hear that, if human error could change East Palestine for years to come, it’s not unreasonable to imagine that a catastrophic failure of a massive PCB dump in Lee could poison their drinking water for decades and decades. That there are good reasons to doubt any guarantee that a dump built so close to an aquifer, so close to a thriving community, so close to nearby schools and nursing homes will last hundreds of years.

The inconvenient truth is that EPA’s willingness, along with the cooperation of several neighboring communities, to accept GE’s dump in Lee is a political decision and a response to GE’s threats to fight in court any insistence on public health considerations.

If ever there was a window into the priorities of the EPA today, it’s easy to find them in their efforts to prevent the Housatonic River Initiative (HRI) and the Housatonic Environmental Action League (HEAL) from participating in a lawsuit to overturn their ill-advised deference to GE, challenging EPA’s willingness to let GE violate the very spirit of our hard-won environmental regulations—Superfund’s obvious preference for destroying and treating PCB contamination not dumping it.

The EPA is claiming before the United States Court of Appeals for the First Circuit that HRI and HEAL have no legal standing to challenge their cleanup decisions. EPA, relying on a technicality that denies decades of their sustained advocacy, declares: “Even if Petitioners had established standing, most of their arguments are not preserved for judicial review because those arguments were not raised at the appropriate time in comments on the permits at issue, were abandoned by Petitioners on appeal to the Board, or were not raised until their reply briefs before the Board. Even if not waived, Petitioners’ arguments fail because they do not or cannot undercut EPA’s technical and scientific findings that support its comprehensive cleanup of the Rest of River. For the arguments preserved for judicial review, the result is the same. Petitioners fail to undermine EPA’s determinations supporting its cleanup.”

EPA repeatedly claims that HRI hasn’t adequately “preserved for judicial review” critical cleanup issues. The reality is that, from its founding, HRI has challenged the use of specious methods like monitored natural recovery (MNR) as an adequate cleanup methodology. GE has been advocating for MNR since the 1990s. But, as HRI has always pointed out, MNR is just a fancy way of saying let nature take hundreds of years to cover up the contamination. The mere fact that EPA has allowed GE to rely on MNR for large portions of the Housatonic without any insistence on clear and timely performance standards for cleaned sediment is a clear indication that they have surrendered the need to protect the environment to political expediency. To that you can add EPA’s decision to allow GE to dump rather than utilize the most effective disposal technology, thermal desorption.

EPA insists that, because HRI failed to mention its desire for pilot tests of innovative destruction technologies like Thermal Desorption in recent comments, it ought not be able to raise the issue again. But EPA knows well that beside that momentary lapse, HRI has spent years advocating for the complete cleanup of the Housatonic River. And from its founding, it has advocated for using innovative technologies to make that cleanup happen.

They know this because HRI has participated from the very beginning in the agency’s own Housatonic River Citizens Coordinating Council (CCC) and used meeting after meeting to proclaim the need to pilot and test alternative technologies. And they know this because HRI has provided comments for every official report and proposed plan offered by GE and the EPA since GE’s PICM plan in 1994 advocating for treatment.

Ironically, HRI is only asking EPA to keep the promise EPA Regional Director Mindy Lubber made in negotiations in 2000 to commission rigorous pilot tests for treatment technologies. If anything, HRI’s insistence has only grown stronger since the most recent use of Thermal Desorption technology exceeded all expectations in the U.S. Agency for International Development’s (USAID) dioxin cleanup of the Danang Airbase in Vietnam.

The underlying truth is that HRI’s opposition to the massive PCB dump in Lee threatens the deal EPA made with General Electric to find a much cheaper way to dispense with the PCB contaminated soil and sediment of the Housatonic River.

And so, at the end of the day, EPA falls back on its insistence that it knows best: “The two statutes most relevant to this proceeding are RCRA and CERCLA. RCRA grants EPA extensive authority and discretion: (1) to permit the treatment, storage, and disposal of hazardous waste,42 U.S.C. § 6925; (2) to require corrective action (i.e., cleanup) for releases of hazardous waste and hazardous constituents, 42 U.S.C.§ 6924(u)-(v); and (3) to include terms in RCRA permits that are ‘necessary to protect human health and the environment.’ 42 U.S.C.§ 6925(c)(3).”

But as those who have lived the history of this site know, the EPA has a spotty record in performing these jobs. For years, while EPA relied on GE’s false evaluation that 39,000 pounds of PCBs had infiltrated the Housatonic River system, HRI kept pressing for independent testing, then providing testimony from former Manager of Tests at GE Power Transformer Ed Bates and his assistant, Charles Fessenden, that their real-life experience and calculations led them to believe that at least a half million pounds were likely to remain in the River.

While EPA tells the Court, “CERCLA grants EPA extensive authority and discretion to respond to threats to human health and the environment caused by hazardous substances,” we know how critical active, engaged, and impassioned citizen involvement has been to force the cleanup in the first place. And, sadly, given EPA’s tendency to compromise the health of our environment and public health to protect its deal with GE, such citizen advocacy seems ever more critical today

The reality is that while the EPA is quick to credit itself with a process for ongoing public input, it now seems that they accept that input only when it meshes with their plans. A perfect example is the recent secret negotiations with GE and the Rest of River Municipal Committee—a creation of the Berkshire Regional Planning Commission of representatives who appear to lack any sustained track record dealing with the complicated issues of PCB contamination. Ultimately the towns they represent will receive financial considerations for surrendering any demand for treatment while agreeing to burden the citizens of Lee with a lifelong toxic waste dump above its aquifer. I’m guessing that most of those negotiating had little knowledge of GE’s and EPA’s several-decades-long failure to rigorously investigate alternative technology.

The Rest of River Municipal Committee mimics GE propaganda in its brief, mischaracterizing HRI’s advocacy for a thorough cleanup by claiming that “PCBs have remained uncontrolled in the Housatonic River for years because of successful litigation by one of these very stakeholders.” What “successful litigation”?

Clearly the members of the Rest of River Committee seem to know nothing of the real history of this cleanup. I’m also guessing that many of you don’t even know who they are. Meanwhile, they seem utterly convinced they represent the interests of their five towns. All the while, their meetings almost immediately go into secret executive session and there is no record of their deliberations. Their claim about HRI is nonsense. Nothing has ever prevented GE from performing a thorough cleanup at any point in the last 50 years. The fact is GE fought the process from the very beginning. It’s offensive to suggest that those most active in forcing the cleanup are responsible in any way for GE’s immoral inaction and EPA’s refusal to demand thorough remediation.

The EPA is convinced they know better than the rest of us how to protect our local environment, our local public health. And the Rest of River Municipal Committee believes it is fine to dispense with accountability and democracy. And yet there are remarkably quick to pat themselves on the back for accepting Monitored Natural Recovery while agreeing to forego a more permanent solution in favor of dumping: “Neither the additional PCB removal nor the expedited start would ever have been incorporated into EPA’s cleanup decision absent the Settlement Agreement.”

At the end of the day, it is profoundly sad that the Rest of River Municipal Committee, GE, and EPA have all turned their backs on the best solution for the Housatonic River: treatment. I submitted lengthy and detailed comments demonstrating that neither EPA or GE have done an adequate job of investigating possible treatment technologies over the last two decades. Unfortunately, GE, EPA, and the Rest of River Municipal Committee share a willingness to dispense with any treatment and destruction of the majority of the contamination in favor of the more economical, though far less protective, decision to dump. Sadly, the Rest of River Committee parrots the nonsensical claim of the EPA that “the liner system in particular ‘is recognized as a best available liner technology to contain waste materials and has been shown to have a service life of 400 [to] 800 years.’”

In reality, the EPA only established criteria for landfills in the late 1970s, and there has been no systematic testing of existing landfill liners in use for anything approaching that time. Their estimate is based on computer modelling and lab tests often contradicted by other experts. No reputable manufacture will guarantee their liners for any significant percentage of the time these landfills will exist. For a more extensive examination of the issues of the Lee PCB Landfill, please see my article titled “Dumping PCBs on/in Lee.”

EPA wants those fighting for a fishable, swimmable river to go away. They urge the Court: “For the arguments preserved for judicial review, the result is the same. Petitioners fail to undermine EPA’s determinations supporting its cleanup. For the foregoing and following reasons, this Court should dismiss or deny Petitioners’ petition.”

On February 3, 2023, Andrew Rainer, Stephanie R. Parker, Katy T. Garrison, attorneys for HRI and HEAL filed a “Reply Brief of Petitioners Housatonic River Initiative and Housatonic Environmental Action League” countering EPA’s claim:

“In our democracy, Petitioners and the other members of the public were entitled to have a critical decision about the environment in which they live made on the record, not in secret closed-door negotiations, by a neutral decision-maker that had not already committed itself to a decision in a Settlement Agreement. Both the Rest of River Committee and EPA rely on secret negotiations in which the overwhelming majority of Berkshire County citizens had little to no knowledge of. Berkshire County citizens were never consulted about their hopes and dreams for the River and whether they preferred treatment which would permanently remove PCBs from their environment.

“And these secret negotiations may ultimately determine the fate of the River and the burdens the citizens of Lee may bear for the rest of us. The attorneys for HRI make this critical point: “In this case, the Region, through its own statements at the time it announced the Settlement Agreement, and after, stated explicitly that its remedy selection was constrained by the Settlement Agreement. In proudly announcing the Settlement, the Region ‘pledged’ that it would select a remedy ‘consistent with the terms of the Agreement’ …

“Viewed objectively, without the constraint of the Settlement Agreement, the Region could not possibly have concluded that disposal of 1.3 million tons of PCB-contaminated waste in a Dump feet from the River is ‘more protective of human health and the environment’ than disposal in a licensed facility miles from the River and miles from the community that has suffered from PCB contamination for years.

“Notably, the Region and GE do not even attempt to defend the fact that the settlement negotiations that led up to the Settlement Agreement were conducted in secret, and not ‘on the record,’ as required by the Administrative Procedure Act. There is a fundamental democratic reason why the APA requires decisions to be based on a public record, and that is so that members of the affected public, like Petitioners, and this Court can judge whether the decision was based on proper considerations, such as the protection of public health and the environment, or on improper considerations, such as threats of indefinite litigation or large monetary payments to selected persons. This Court has never held—and it should not—that an important administrative agency decision can properly be based on secret communications with the agency that are not part of the administrative record, even if there is an opportunity for subsequent public comment on the decision.”

The lawyers note:

“The Region Has Utterly Failed its Statutory Obligation to Use Treatment Technologies to the Maximum Extent Possible. In its brief, the Region argues that all it needs to say to this Court is that thermal desorption and other treatment technologies are not suitable for remediation of the PCBs in the Housatonic, and this Court must defer to that judgment. Region Brief, at 69 …

“First, as detailed below, Petitioners urged the Region from 1995 to 2014 to test thermal desorption on Housatonic River sediments. The Region declined to do so … Then, in 2014, the Region rejected the use of thermal desorption as an appropriate treatment technology on the grounds that thermal desorption has ‘not been demonstrated on Housatonic River materials.’ … To base a decision on the fact that the technology had not been tested on Housatonic River materials, after steadfastly refusing to test the technology on Housatonic River materials, is clearly ‘arbitrary and capricious.’”

If only the community could swim in the beautiful Rising Pond in Housatonic. Photo by Mickey Friedman.

Those of us who dreamed of making Pittsfield and the Berkshires whole again, of a resurrected river, of a fishable, swimmable Housatonic, have learned the hard way that corporations like GE can get away with toxic murder. These days I often drive past the beautiful Rising Pond of Housatonic imagining that the community will able to swim there. But I quickly remind myself that the EPA (and for that matter the Rest of River Municipal Committee) will never help make that dream a reality.

Sadly, as I imagine the citizens of East Palestine will soon discover, no one can better protect their friends and neighbors and children than active and engaged—even angry—members of their own community. And sadly, based on the recent actions of the EPA, I must once again remind myself that we are East Palestine.


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