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THE OTHER SIDE: Whose Housatonic?

Shouldn’t the decisions about what to do about our Housatonic be made by and for the people. While there is no denying democracy is important in Georgia and Washington, D.C., it is important in Berkshire County as well.

In Fulton County, Ga., Attorney General Fani Willis indicting for democracy: “Trump and the other Defendants charged in this Indictment refused to accept that Trump lost and they knowingly and willfully joined a conspiracy to unlawfully change the outcome of the election in favor of Trump.” (Emphasis added.)

In the U.S. District Court in Washington, D.C., Special Counsel Jack Smith put it this way: “Despite having lost, the Defendant was determined to remain in power.” (Emphasis added.) He, too, is fighting for democracy. It is a fairly simple proposition: the right of us common people to decide the important matters of our lives.

Now, I have dealt with some folks who are convinced that they know best, know better than most of us. They grab, wield, and hold onto as much power as they can. They flourish in universities, in business, fourth grade, on the playground, in small town government, and in Congress and the Presidency. Whatever they might say, they don’t really believe in democracy.

While I appreciate the critical importance of our elections, I also believe in the importance of the life of our river. I believe in the many ways it enriches the lives of those who live beside it, who partake of its wonders, fishing it, kayaking, watching wildlife, swimming one day (I dream), or merely walking beside it.

I have learned that the most powerful at General Electric (GE) never cared about the consequences of their actions. I have seen some at our public agencies—the U.S. Environmental Protection Agency (EPA), the Massachusetts Department of Environmental Protection Agency (DEP), and the Massachusetts Department of Public Health (MDPH)—make important mistakes without ever taking responsibility. It is regrettable that the scientists who worked on the Housatonic are gone while the attorneys remain. So, too, there are judges who fail to do the critically important job of dispensing justice without bias, or carefully and objectively weighing the evidence.

These are human failings we all can understand; mistakes have marked all our lives. But because some people exercise more power than others, their failings impact so many lives other than their own.

Lately, there has been a lot of pontificating about our river. But if you take the time to do some sustained research about the latest Housatonic River cleanup plan and how it came to be, you will find a disturbing pattern of incompetence mixed with arrogance, as well as crucial missed opportunities to treat and destroy the PCB contamination instead of temporarily covering it up or landfilling it.

Contaminated as it is, our river, the Housatonic, is beautiful. So my question for you is simple: Whose river is it? And shouldn’t the decisions about what to do about our Housatonic be made by and for the people. While there is no denying democracy is important in Georgia and Washington, D.C., it is important in Berkshire County as well. Yet, in all these places, there are people who believe democracy is way too inconvenient. And, as the people of Lee have been learning, if we don’t respond, they will impose their way on us.

The basic issue of democracy is too often obscured by those who re-package stale myths and misinformation. As Peter Most’s recent Viewpoints piece in The Edge reveals, it is easiest to direct one’s annoyance not at those who destroyed the river, GE, or those who haven’t enforced its thorough restoration, but instead at the people of Lee who are protesting those failures. And, of course, let’s not forget Berkshire Regional Planning Commission (BCRPC) and its faux democratic creation, the Rest of River Municipal Committee, who negotiated away our dreams for a fishable, swimmable river and accepted a massive landfill for Lee instead of demanding treatment.

Most relies on what he imagines as the expertise of the EPA; the decisions of the EPA’s own court system, the Environmental Appeals Board (EAB); and then the First Circuit to dismiss the claims of many that the final cleanup plan is deeply flawed. It is easy to counsel compromise if you are not aware of what all these folks got wrong. They approved a thoroughly unproven “remedy”: Monitored Natural Recovery. They allowed GE to discount the use of our nearby railroad—while they made a big deal of the constant truck traffic they argued would disqualify off-site disposal. They got wrong GE’s and the EPA’s joint dismissal of a treatment regime—Thermal Desorption—that has outperformed all expectations of the U.S. Agency for International Development (USAID). USAID’s choice of Terra Therm’s Thermal Desorption was extraordinarily successful in treating dioxin contamination in Danang, Vietnam (see here and here).

A close analysis of two decades of GE reports clearly reveals the shoddy job they did investigating the alternative technologies that they quickly dismissed. Yet, the EPA time and again relied on the false narratives GE offered. And despite EPA Region One Administrator Mindy Lubber’s promise in 2000 to conduct a series of pilot tests of remedial technologies on Housatonic soils and sediments, the EPA has continually refused to conduct such transparent tests. Why exactly hasn’t the EPA or the Rest of River Municipal Committee met with James Gilligan of Terra Therm?

And, of course, they got wrong the siting of the Lee Upland Disposal Facility (AKA The Lee Dump). Professor David DeSimone’s reasoned analysis reveals that this is a dreadful place for a toxic-waste landfill. Still, folks like Attorney Most are predisposed to accept the arguments of the EPA that DeSimone is wrong. Having lived through the multiple occasions when the EPA got it wrong, I have learned to appreciate second opinions offered by those not under the employ of either GE or the EPA.

There are good reasons why Lee residents are concerned about their health

As for Attorney Most’s attempted joke/advice to the people of Lee: “No one is asking you to like the compromise, but it is time for all the affected towns to row in the same direction. Work to make the Upland Disposal Facility the best darn toxic waste site it can be. That is your only play here, given that you are literally holding no cards …” The thing about comedy is you better have some damn good material, and, at the least, you better learn how to read the room.

Some of us actually know about what it is like to be exposed to polychlorinated biphenyls (PCBs). Some of us have seen the chloracne that covered the legs and chests of those exposed. I have spoken to GE workers who worked up to their elbows in PCB oil and then got sick. I have seen too many Pittsfield residents stick red pins in the Housatonic River Initiative’s (HRI’s) cancer map. I have listened to too many experts talk about endocrine disruption and the debilitating effects of PCB exposure on a child’s ability to learn.

Unlike Attorney Most, I have read too many studies about the links between a variety of cancers and a whole host of other diseases now linked to living close to contaminated waste sites. Let me address some of what he wrote to his fellow attorney, Tom Bosworth. First, “to succeed lawsuits require a causal connection between the alleged injury and the PCB exposure.” Most may not have made that connection, but juries have. Monsanto was forced to pay $700 million to the 20,000 residents of Anniston, Ala. whom it poisoned producing PCBs in their community. In a more recent case, Dr. David Carpenter’s testimony proved crucial in a $185 million verdict “in Erickson v. Monsanto, a 2021 Washington state court trial over PCB exposure at a school that plaintiffs claim left them with brain damage.”

While Attorney Most forgoes collegial respect to impugn Tom Bosworth’s professional ethics, he is quite mistaken:

“While you may be certain that low-level PCB exposure necessarily leads to all known cancers, the scientific community does not. Presumably, you have not engaged in fearmongering, but in light of the absence of scientific evidence that PCB exposure leads to all cancers, one might consider that it is a grave disservice to Lee and Pittsfield to raise potentially unsupportable PCB-related fears in these communities where none should actually exist.” (Emphasis added.)

Ever since the work of the Jacobsons, who studied pregnant women who ate fish from Lake Michigan then documented over time the subsequent effects of PCB exposure on childhood development, and the work of Theo Colborn, Dianne Dumanoski, and John Peterson Myers as portrayed in “Our Stolen Future,” we have known about the effects of low-level exposure on endocrine disruption and the ability of PCBs to mimic hormones. In reality, the whole notion of low-level exposure is a misnomer: There is absolutely no safe level of PCB exposure.

Several years ago, the leading PCB scientists in the country came to Pittsfield, and we have continued to meet with experts like Deborah Rice, Jacobson, Dumanoski, Ann Casey, and Dr. David Carpenter, one of America’s leading authorities on the health impacts of PCB exposure. Dr. Carpenter has shared his growing concern about the inhalation of volatilized PCBs, a very likely route of exposure for those of us living near the Housatonic. These experts counseled the residents of Berkshire County, and especially those living in Pittsfield, to be concerned about the many pathways of exposure: the contaminated front and backyards of Lakewood; GE’s Thermal Oxidizer, which for years burned PCB-oil and whose exhaust fumes spread across the businesses and homes off Newell Street; the contaminated grounds of the Allendale Elementary School; and the Hill 78 PCB dump across from the school. Not to mention the high levels of PCBs in Silver Lake and the Housatonic River.

Dr. Carpenter has demonstrated how exposure to PCBs has affected members of the Mohawk Akwesasne Nation in New York State:

Excerpt from Dr. Carpenter’s study of PCBs and their effect on cognitive function in Mohawk adults at Akwesasne. Highlighting added.

Here are some of the other studies written by Dr. Carpenter and his colleagues:

And here is a selection where Dr. David Carpenter highlights the health risks of volatilization:

“These studies confirm the hypothesis that PCB exposure is associated with elevated risks of all three diseases. Thus, these studies provide support for the conclusion that inhalation of PCBs is the major cause of the elevated rates of hospitalization. The implications of these studies are significant for several reasons. First, these results suggest that living near a PCB-contaminated waste site poses risk to health, and by extrapolation this applies also to attending a school with elevated PCBs in the air …” (Emphasis added.)

Closer to home, Dr. Carpenter and his team conducted indoor air testing coupled with PCB blood testing in Pittsfield:

“Pittsfield still has large landfills with PCBs, and air, soil and water still contain high concentrations of PCBs. While most monitoring of PCBs levels in environmental and human samples have focused on the more persistent congeners, our group has increasingly become concerned about vapor phase PCBs and with inhalation of PCBs as being a significant route of exposure. While many of the more volatile congeners are not persistent in the human body, if PCBs are present in air, especially indoor air, the exposure will be continuous and may pose health hazards that are not adequately identified by measurement of more persistent congeners in blood.” (Emphasis added.)

If the Rest of the River Committee had been more diligence in its study of the health effects of living close to a PCB-dump, they might have thought twice about agreeing to on-site disposal.

In “Hormones and Endocrine-Disrupting Chemicals: Low-Dose Effects and Nonmonotonic Dose Responses,” Laura Vandenberg and her co-authors reviewed the scientific literature on the low dose effects of endocrine and hormone-disrupting chemicals like PCBs, noting, “studies show that hormonally active agents may still induce significant biological effects even at extremely low concentrations and that presently available analytical methods or technologies might be un-able to detect relatively small magnitudes of effects.” (Emphasis added.)

As for relying on the expertise of our own regulatory agencies, I want to revisit the results of the 1997 Housatonic River Area PCB Exposure Assessment Study conducted by the Massachusetts Department of Public Health.

1997 MDPH Housatonic River Area PCB Exposure Assessment Study. Highlighting added.

And here is what MDPH incorrectly concluded from this data:

1997 MDPH Housatonic River Area PCB Exposure Assessment Study conclusions. Highlighting added.

Mean PCB blood level for Pittsfield adults aged 18 to 64 was 4.22 parts per billion (ppb), and for those aged 65 or older, it was 10.56 ppb. The PCB blood levels for those aged 18 to 64 living near the Housatonic was a mean of 3.56 ppb, and for those 65 and older, it was 5.78 ppb. But MDPH misrepresented the key statistic at the very heart of their conclusions. They misstated the national background level for serum PCBs, the statistic that registers the PCB levels in the blood of those people in America who haven’t worked with PCBs or lived nearby a PCB waste site, writing: “ATSDR reports that, in the United States, typical PCB levels, in the serum of non-occupationally exposed individuals range from about four to eight ppb …” (Emphasis added.)

GE ad in The Berkshire Eagle following release of MDPH study. Highlighting added.

This inaccuracy has provided false comfort for too many people in Berkshire County, especially those living near the river. And GE took immediate advantage of MDPH’s critical error by publishing a series of full-page ads in the Berkshire Eagle—ads the Eagle never corrected—assuring the community there was absolutely no reason to be concerned about PCBs (see right).

Soon after, James Cogliano, the former chief of the EPA’s Quantitative Risk Methods Group, told a Pittsfield audience that the national background level of PCBs in the blood was actually 0.9 to 1.5 ppb. So, those 18 to 64 years old had more than more than two to three times the national background level of PCBs in their blood, while those 65 and older had more like three to close to four times the levels of PCBs in their blood. So, contrary to what MDPH and GE were telling them, there were many reasons to be concerned.

On May 1, 2006, all 11 practicing pediatricians in Pittsfield wrote a letter to the mayor:

“Recently, a Berkshire Eagle article (dated Tuesday, April 25) declared the Allendale School ‘safe’ from PCBs … While it is true that the most likely way to become exposed to PCBs is through our food supply (and that probably holds true even for those of us who live next to a PCB contaminated site), those who live or go to school next to a PCB hazardous waste site face an additional threat from airborne PCBs. This may occur from breathing PCBs, both in the form of suspended particles in the air (dust) and as an invisible vapor (volatilized).

“Average ‘background’ PCB air levels in uncontaminated regions are about 1 nanogram/m3. A number of PCB air levels measured at GE’s On Plant Consolidation Areas have been substantially higher than that. The EPA claims that PCB air levels less than 50 nanograms/m3 (that is 50 times higher than background) do not expose children to excessive health risk. We do not share their comfort level. We feel that the EPA’s risk assessments are based on limited data. This data does not consider the latent health effects of endocrine disruption nor the fact that children will be exposed to additional PCBs through their food. In addition, no safe PCB exposure level has yet been determined for children …” (Emphasis added.)

While some imagine they can joke about toxic waste sites, those who take care of our children don’t think any of this is a laughing matter.

A short history of our PCB problem

In 1932, GE began to use Pyranol, its variety of Monsanto’s PCB oil, in the capacitors and transformers it was manufacturing in Pittsfield. Both Monsanto and GE knew almost immediately that PCBs had devastating effects on the health of their workers, but because Pyranol was irreplaceable, they chose profit over responsibility.

The first lie GE told was by never informing their workers or providing even basic protection for them. In a September 1936 article, Dr. Louis Schwartz, senior surgeon with the United States Public Health Service, stated: “Workers in chlorinated naphthalenes and diphenyls (PCBs) should be periodically examined for symptoms of systematic poisoning.” Schwartz suggested better ventilation and protective clothing separate from the clothes workers would wear home: “It has been estimated at one point that 6 cents a day per worker will take care of furnishing clean clothes each day.” GE never spent that 6 cents.

Reginald Meunier began working for GE in 1946:

“They never divulged to us what we were working with. Never told us the hazards. Never put any signs around, no warning labels on any of the containers, not to do this, not to do that. We never had any seminars or meetings to make people aware of the fact that they were in danger using these chemicals, which to me was a crime! To let people mishandle all these materials and shorten lives like they have.”

In my documentary, “Good Things To Life: GE, PCBs and Our Town,” Ed Bates, the former manager of tests at GE Power Transformer, talks about his years of unsuccessful and frustrating attempts to get an independent retroactive health study and financial benefits for those who got sick while working for him.

In spite of a 1981 consent agreement requiring GE to test the river and inform the agencies of any contamination that had left or would be leaving their plant, GE lied to them. The company repeatedly underestimated the massive amounts of PCB oil that went down their drains, forming underground plumes, then contaminating nearby homes and businesses—then poisoning Silver Lake and the Housatonic River.

GE’s friends in high places offered the City Dump for free. Six tractor-trailer loads a day dumped barrels filled with PCB-oil-soaked kitty-litter-like Fuller’s Earth. GE repaid Pittsfield with the leaking barrels that formed yet another underground lake, which traveled across the road to contaminate the city’s very large aquifer that lay beneath Berkshire Sand and Gravel.

Once the dump was filled, GE’s trucks went anywhere and everywhere there was land to dump on—land people eventually built a shopping center over, the Allendale Elementary School playground, the Dorothy Amos Children’s Park, or Pittsfield’s Softball Complex.

You can add GE’s free fill giveaway program. Knowing that so many of their workers lived on the wet land of Lakewood, GE offered its employees free Fuller’s Earth to fill their wet front and back yards and oil-soaked flooring to build their porches. They then had recipients sign a contract agreeing that they had received clean fill and relieved GE of any liability.

Now onto GE’s remarkable river lie, the lie that shaped so many years of inaction. Sadly, the EPA and Massachusetts repeatedly trusted GE to do the PCB testing. GE first convinced them there were only 20,000 pounds of PCBs in the Housatonic, then upped it to 40,000 pounds. And, not surprisingly, BCRPC willingly went along with the fiction. A 1982 EPA document reveals an awful lot about the relationship between GE, BCRPC, and the agencies charged with holding GE accountable.

EPA Water Quality Management Program Review Case Study, Housatonic River, April 1982. Highlighting added.

As for the EPA’s 1982 prediction that it would take “a few years” for us to get our fishable river, the EPA and the Rest of River Committee have just agreed to wait 15 years until after the completion of the cleanup work to validate the success of the remedy they selected for large stretches of the river. They call it Monitored Natural Recovery (MNR)—a fancy way of saying GE will do nothing except hope that less contaminated sediment naturally covers up the more contaminated sediment, at which point they will test the levels of PCBs in fish fillets. If I were a fisherperson, I would hold my breath and hold off on baiting that hook.

Here’s what Mike Palermo, who served with the U.S. Army Corps of Engineering, had to say about MNR at an EPA Workshop:

“The major disadvantages of MNR are that contaminated sediment is left in the aquatic environment for the long time it takes natural processes to reduce risks, and there is the potential for future disruption of buried contaminants by storms, floods, or other events.”

In October 1987, with funding provided by the state, the Berkshire Regional Planning Commission produced “PCB Contamination in the Housatonic River,” which stated: “The estimated 39,400 pounds of PCBs clinging to the bottom and backwater sediment of the Housatonic River accumulated over a 40-year period.” At least one local agency was making money off the PCBs.

Even as late as 1994, MassDEP was assuring hundreds of concerned citizens in Lenox that there were only 39,000 pounds of PCBs in their river—a figure I knew by 1990 was off by almost a half a million pounds. Back to my documentary, in which Ed Bates details GE’s on-going misuse of PCBs and offers his best estimate that, after accounting for spillage and other factors, “about a million and a half pounds of PCBs have been plowed into that river. I imagine a good 30% is left.” (Emphasis added.)

But everything changed for the community in 1992, when Massachusetts Department of Fisheries and Wildlife (DFW) Chairman Gige Darey, George Wislocki of Berkshire Natural Resources, State Representative Chris Hodgkins, educators like Don Roeder, sportsmen and women, environmentalists like Tim Gray and Benno Friedman, and GE workers like Al Bertelli and Dave Gibbs all joined together to form the Housatonic River Initiative (HRI). They formed a strong coalition with those who lived in Lakewood and discovered that portions of their property had been filled in with PCB-contaminated fill; former Mayor Remo DelGallo; sportsmen like Mark Jester; Pittsfield residents like Barbara and Charles Cianfarini, who created Citizens for PCB Removal; and Bobbi Orsi of Get Real.

Together they created a powerful counterbalance to GE, and soon current and former truck drivers came in confidence to HRI with specific information of where they had dumped PCB-contamination. When DEP questioned the evidence, HRI insisted on an anonymous 800 number and the phone rang off the hook. While DEP has set the acceptable level of PCB exposure in soil in residential settings at 2 parts per million (2 ppm), the levels found in the front- and backyards of Lakewood reached as high as 20,600 ppm at the surface, and as high as 44,000 ppm at depth. Over 250 properties had levels above 2 ppm, and, ultimately, 180 properties had to be remediated by GE.

More reasons why it makes no sense to trust GE to supervise the safe running of Lee’s PCB landfill

Unlike Attorney Most, I don’t have access to the LexisNexis database, but I did discover several reasons why a reasonable person might question the decision to trust GE with the responsibility of safely managing a toxic PCB landfill:

On March 13, 1992, the Nuclear Regulatory Commission (NRC) issued a $20,000 fine against General Electric for violations of regulations at the fuel fabrication plant in Wilmington, N.C. Then Reuters wrote in 2011, “GE Hitachi Nuclear Energy has warned operators of boiling water reactors (BWR) worldwide—including 35 in the U.S.—that the plants could fail to shut automatically during an earthquake, potentially risking the safety of the power plant.”

The next month: “The NRC also identified multiple violations which indicates a significant lack of management attention to ensuring compliance with safety regulations …”

GE paid a $92,000 fine for failing to report toxic releases at its silicone manufacturing plant in Waterford, N.Y.; released radiation from the Hanford Nuclear Reservation that it managed; plead guilty for fraud; and was found guilty by a jury of overcharging the Army for a battlefield computer system.

As for safety, “The U.S. Department of Labor’s Occupational Safety and Health Administration issued two repeated and three serious violations to General Electric.” I don’t have time to go through all of GE’s OSHA violations, but maybe you do.

As for audacity, back home, GE tried another tack in hopes it could walk away from the river: suggesting that cleaning the Rest of River would actually destroy it. And as David Scribner reported, GE’s previous financial contributions to community organizations immediately paid off. Its extraordinary power was apparent once more as The Berkshire Eagle, The Norman Rockwell Museum, The Colonial Theatre, and the Berkshire Creative Council and 1Berkshire, thanks to a hidden $3 million contribution from GE, all parroted the bizarre and completely unscientific claim that cleaning PCB sediments would destroy the river. Had they done any independent research, they would have realized that GE had just successfully dredged the first two miles and proved that, with rigorous restoration efforts, all sorts of life had returned and were thriving in the cleaned river.

From off site to on site: The EPA flip-flop

HRI’s constant advocacy was joined by the efforts of many others. With her campaign to create the Great Barrington River Walk, Rachel Fletcher motivated many hundreds and hundreds of volunteers to restore the river and re-establish its central importance in the life of Great Barrington. And Eleanor Tillinghast and Green Berkshires mobilized several thousand folks in Berkshire County to create the Housatonic Area of Critical Environmental Concern (ACEC), a 13-mile corridor of the Housatonic River, including 12,276 acres of river, its floodplain, and the western slopes of October Mountain State Forest.

When GE purchased and leased land in three communities for prospective PCB-dump sites, HRI created its online petition. Two thousand people quickly urged the EPA to use alternative remedial technologies to treat and destroy PCBs rather than landfill them. There were packed meetings and hundreds marched in Great Barrington, which is why the Great Barrington Selectboard and its chairperson, Steve Bannon, issued a press release expressing opposition to the proposed landfill at Rising Pond because it would not only threaten “a decrease in the quality of life for our residents, but will continue to serve as a toxic resting ground for material that has negative effects on the environment …”

The campaigns had a major impact on EPA decision-making. Its June 2014 Statement of Basis for EPA’s Proposed Remedial Action for the Housatonic River “Rest of River” acknowledged the popular will, and unambiguously required GE to transport its contaminated Housatonic River material out of state:

June 2014 Statement of Basis for EPA’s Proposed Remedial Action for the Housatonic River. Highlighting added.

And again, in September 2015, the EPA emphasized this critical decision:

EPA’s Reissued RCRA Permit, September 2015. Highlighting added.

On February 29, 2016, the EPA again explained its decision to order out-of-state disposal:

“(1) permanent on-site disposal at one of GE’s preferred locations would not meet TSCA landfill siting requirements and/or require waiver of ARARs designed to protect wetland habitat and/or an ACEC; (2) unlike on-site disposal, off-site disposal does not entail the potential siting of a new landfill in an area that may not meet all the suitability requirements for such a landfill, such as proximity to drinking water sources, hydrology, and soil permeability; (3) on-site disposal would require the creation of a new landfill in an area with no known contamination whereas off-site disposal will place contamination in a pre-existing area licensed to accept hazardous substances; (4) on-site disposal faces significant state and local opposition that threatens the implementation of the remedy; and (5) while off-site disposal is more expensive than on-site disposal, it is less expensive than other alternatives requiring the treatment of contamination …”

Then the EPA acknowledged the impact of the wide-ranging public opposition:

2016 Statement of Position in Support of the Intended Final Decision on Reissued RCRA Permit. Highlighting added.

GE immediately appealed the decision to the EPA’s Environmental Appeals Board (EAB), who found that the EPA was too hasty in its decision not to waive federal TSCA landfill regulations. While EAB made clear that it wasn’t suggesting it had a final ruling in mind, they ruled that the EPA hadn’t made the clearest case for off-site disposal and ordered them to reconsider.

Sadly, the EPA refused to promote the relevant analysis of HRI geology expert and former Williams College Professor David DeSimone, who asserted that the Lee landfill site failed to fulfill the relevant TSCA regulatory guidance that PCB landfills should be “located in thick, relatively impermeable” formations.

DeSimone wrote:

“There is no indication of till present beneath the sand and gravel in significant thickness or continuity to present a barrier to subsurface flow of contaminants. Ice contact stratified drift sediments are very poor locations for landfills due to their high permeability. My primary concern for this site as a landfill is that a leak in the liner and leachate collection system will eventually occur; then, leachate will have no natural sediment barrier to flow in the subsurface. EPA has stated ‘First, even the best liner and leachate collection systems will ultimately fail due to natural deterioration…’ (53 Federal Register 33345, August 30, 1988). The sand and gravel aquifer will become contaminated and leachate will easily infiltrate underlying bedrock. This is a poor site for a landfill …” (Emphasis added.)

GE combined its threat of litigation with a willingness to pay off the towns and divide the opposition. The EPA failed, as the EAB had advised, to adequately amplify its case, failing to argue convincingly that the combination of a vulnerable aquifer beneath the site and the fact that the site was located within in a protected ACEC made it a poor site for a PCB landfill. It became clear that both EPA and the Commonwealth—GE had recently moved its corporate headquarters to Boston—were preparing to once again concede. The EPA quickly agreed to secret and confidential negotiations with GE.

The only remaining issue was the EPA’s past recognition of, even reliance on, the very apparent public opposition to an on-site dump—which is where BCRPC and its Rest of River Municipal Committee came in. Somehow, GE and the EPA and BCRPC would create the appearance of a new-found public enthusiasm for a Berkshire dump—to replace fact with fiction yet again.

In fact, the members of the Rest of River Municipal Committee were never elected; they were appointed by the Selectboards of Sheffield, Great Barrington, Lee, Stockbridge, and Lenox. So far as I know, none of them ever thought it necessary to hold public meetings to accurately assess what the townspeople wanted for their river. They hid behind the confidentiality and secrecy GE and the EPA required. Can you actually name your representative to the Rest of River Municipal Committee?

But that is the beauty of authoritarianism: These people don’t believe they have to explain. They know they are qualified, even if you don’t believe it. They resist criticism and dismiss those who question their competence or ability to adequately represent the many thousands of other South County residents.

What they did was endorsed only by the very few members of the Selectboards who appointed them in the first place—one undemocratic act multiplied by another.

While they imagine they have done a good job, the reality is that GE outmaneuvered and out-negotiated them at every turn. Whatever concessions GE made they were fully prepared to make beforehand, extraordinarily pleased that the EPA hadn’t demanded these basic actions long ago. The most obvious example is that, while GE handed out meager gifts of more than $60 million to the Rest of River towns, they still saved a bundle:

Housatonic River, Rest of River Settlement Agreement. Highlighting added.

Based on GE’s own testimony in 2014, EPA and the Rest of River Committee saved GE between $200 – $300 million dollars, minus the $60 million.

GE’s 2014 comments on the EPA’s Draft RCRA Permit Modification for the Housatonic River, Rest of River. Highlighting added.

But, of course, the EPA and the Rest of River Committee were well aware of the fragility of their claim that the public now endorsed the on-site dump. The citizens of Lee quickly made clear that they were appalled by the decision to place the PCB dump within their borders.

On March 29, 2023, in an article entitled “As court date nears, Lee PCB ‘dump’ opponents turn up the heat,” The Berkshire Eagle reported:

“Lee Selectman Bob Jones, a fierce critic, noted that the intermunicipal agreement setting up the Rest of River Committee and payments from GE to the five towns was signed by three now-former Select Board members in 2019; without the acquiescence, permission or support from the citizens of the town. The voters didn’t have a say. The meetings were held in secret … Describing a ‘backlash’ from town voters, Jones said 77 percent of elected town representatives supported overturning the intermunicipal agreement in 2020, and 74 percent voted to rescind it in 2021.” (Emphasis added.)

On April 20, 2023, The Eagle reported that the Lee Selectboard was sending a letter “to the Rest of River Municipal Committee protesting its use of an attorney to work against Lee’s interests.” The letter stated, “We feel that supporting GE was contradictory to RoR’s mission to ‘advocate common Housatonic River cleanup goals for the Rest of River to the EPA.’”

Not only would the EPA and Rest of River Committee not acknowledge this reality to the public, but they would not even to the U.S. Court of Appeals during oral arguments for The Housatonic River Initiative v. U.S. Environmental Protection Agency.

And, apparently, the three justices of the U.S. Court of Appeals couldn’t imagine what anyone familiar with GE’s history here knows: that GE’s gift of close to $60 million was instrumental in the decisions of four towns to accept a deal that would pay them off while gifting their Lee neighbors with the very dump they had all vehemently refused for their very own towns.

When questioning Matt Pawa, the attorney for the committee, Judge Sandra Lynch asked: “Counsel, the core of the opposition’s argument is kind of cynical, the towns were bought off. You got money and that’s all that was important to you? Do you want to respond to that?”

To which Pawa responded, “We got a lot more than money.” (Emphasis added.)

Perhaps Judge Lynch lives a blessed life, in a world where greed, and influence peddling don’t exist. A world where fellow justices don’t seem to care that Justice Clarence Thomas can receive unreported gifts totaling many hundreds of thousands of dollars from multi-millionaires with many interests before the Court. Well, in that case, it is a universe far removed from the people of Lee who will now endure a toxic-waste dump for decades.

In reality, Matt Pawa was offering up self-serving exaggerations. The “we got more than money” gains he mentioned were requirements the EPA would have insisted on no matter what: like the bond GE had to post, the two liners, monitoring for leaks, the removal of contaminated soil from residences along the remediation route, removal of contaminated sediments behind the dams, extra care with the vernal pools and the use of activated carbon (GE had already done this kind of work with the first two miles), hydraulic dredging or pumping, the most feasible solution to removal of river sediments, or its Quality of Life Plan, and coordination with local officials about work plans and schedules. Crediting the Rest of the River Committee for these “enhancements” must have brought a big smile to the faces of GE’s executives and attorneys who once more got the best of their adversaries. If you to listen to the proceedings before the Court, you will realize that the happiest guy in the room was GE Counsel Akowuah.

I am not an attorney, but is it possible that both Mr. Pawa and Jeffrey Hammons, the attorney for the Department of Justice, might have misled the court when they claimed that, aside from the litigants, HRI and HEAL, the residents of Berkshire County were enthusiastically in support of the deal?

HAMMONS: “In 2016 there was strong community opposition to the on-site options considered. Fast forward to 2020 and the Municipal Committee which represents the five towns which are going to be most impacted by this cleanup support hybrid disposal. That support for hybrid disposal is due in part to—unlike in 2016, there’s a limit to the number of PCBs that are going to be put in the Upland Disposal Facility and the highest level of PCBs are still going to be shipped out of state. And while Counsel for petitioners is right approximately 91 92 percent of the overall sediment will be disposed in the Upland Disposal Facility, that’s not looking at the volume of PCBs.”

JUDGE: “You mentioned like five towns support hybrid disposal. Are there any towns that are not supporting it. Obviously, I don’t see any as intervenors or plaintiffs—so when you say five towns, is it all the towns affected support the hybrid disposal?

HAMMONS: “ … my understanding is that at the time the settlement agreement was entered, for example, all five towns including the Municipal Committee, which represents them, was on board and they signed the settlement.”

Then: “May it please the Court, Matthew Pawa from the Rest of River Municipal Committee, which is comprised of the five towns of Great Barrington, Lee, Lenox, Sheffield, and Stockbridge. Your Honors, this cleanup is supported by these communities and has been supported throughout this process through the mediation and the new permit because of substantial benefits that this new permit and new cleanup to the River and to these communities that the communities helped to negotiate.”

(Emphasis added.)

In fact, on June 22, 2023, the Lee Select Board made it clear that they thought the chairman of the Berkshire Regional Planning Committee and the Rest of River Committee’s Attorney, Matthew Pawa, had acted unethically by attempting to exclude and deceive the representative from Lee.

As Leslee Bassman of The Berkshire Edge reported on August 16, 2023: “Lee Select Board members signed a complaint letter to be submitted to the Housatonic Rest of River Municipal Committee alleging misconduct, violations of state laws, and attempts to deceive town officials regarding action taken by Chair Tom Matuszko …”

Finally, let’s hear from Eleanor Tillinghast of Green Berkshires:

“I find it heartbreaking that, under the approved plan, the river will be scoured, with habitats destroyed and innumerable creatures displaced, along with the truly miserable disruptions for all the people who live near the river, and the result after all those years of destruction will be a river still carrying PCBs and off limits for people who want to eat the fish. How safe is a river if you can’t eat the fish? Meanwhile, most of the collected PCBs will be stored next to the river, near downtown Lee. One thing I have learned from my decades of environmental advocacy is that engineers assemble plans that meet regulatory requirements and bureaucrats sign off on them, and when something goes wrong—which happens more than is acknowledged—the engineers and bureaucrats are long gone and no one is accountable. The plan approved by the EPA should absolutely not be happening to a wonderful little town like Lee.”

So often those who imagine themselves indispensable come to love their positions of power. And so, the Rest of the River Committee isn’t done. On August 18, 2023, New England Public Media reported, “[While] delegates from the town of Lee, Massachusetts are calling for a committee, focused on the cleanup of the Housatonic River, to dissolve before the end of the year … Rene Wood, who represents Sheffield on the committee, suggested the towns who do wish to keep meeting, sign an agreement do so. And those who don’t—not sign. ‘There’s still value in continuing to meet,’ she said.”

As Leslee Bassman reports, Jones told the other members of the Committee, “We see no reason for the towns of Sheffield, Great Barrington, Stockbridge, and Lenox to be involved in a toxic waste dump within the borders of the town of Lee … The town of Lee is your neighbor. The town of Lee is not your colony … We don’t want you to oversee anything regarding this dump.”

Bassman continued:

“However, committee member Chris Rembold representing Great Barrington disagreed with Jones and said the committee ‘serves an important purpose.’ He explained, ‘I don’t think any one town … [has] the expertise on staff, but I think together—working together and pooling our funds—making sure the EPA is doing what the permit says it’s going to do, I think that’s an important role.’ He added that his town’s Select Board would like to see that continue.”

As a many-decades-long resident of Great Barrington, I find it close to hilarious that our assistant town manager and representative to the Rest of River Committee, along with our Selectboard, imagine they are capable of helping another town deal with toxic contamination. Ours is a town that for several decades sent its children to schools directly across from the completely unlined New England Log Home toxic-waste site with significant amounts of dioxin, a chemical more toxic than PCBs, being blown about by the wind. And rather than pay to completely dig up the contaminated soil and ship it to a licensed off-site toxic-waste facility, the town agreed to cover it with clean soil and build affordable housing over it. And if that is not evidence enough, this same town government has done absolutely nothing year after year for the many hundreds of residents of Housatonic who cannot safely drink the water for which they pay exorbitant rates. If I lived in Lee, I would run as fast as I could from any help Great Barrington will be offering. Remember, it was the Great Barrington Selectboard that was enthusiastically opposed to a PCB landfill within its border, but quickly endorsed a dump for Lee:

Housatonic River, Rest of River Settlement Agreement. Highlighting added.

Maybe I’m being too harsh. Just maybe the Great Barrington Selectboard will team up with Attorney Most “to make the Upland Disposal Facility the best darn toxic waste site it can be.” Or maybe I’m not being harsh enough, because the Rest of River Committee and their few apologists have done a disservice to all who care about the river, who dreamed and still dream of a fishable, swimmable Housatonic, who fought as hard as they could for treatment and against a local dump. Betrayal, no matter how hard you try to excuse it, is just that.

If there was any doubt, these folks are convinced the answer to the question “Whose Housatonic?” is them.

Unless and until we disabuse them of that notion and take our river back.

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