Complex negotiations between the U.S. Environmental Protection Agency and General Electric are moving into a decisive phase on the scope of the Rest of River PCB cleanup along the Housatonic south of Pittsfield.
While informal, confidential discussions are continuing with a mediator in Washington, D.C., both sides also are moving into a formal "dispute resolution" procedure in order to seek a potential agreement within the next several months.
"We want to stay on track, keep the mediation process moving but also move into the formal phase with a timetable," said Boston-based EPA official Jim Murphy.
The agency's "intended final decision" on the plan was issued three months ago in consultation with environmental agencies in Massachusetts and Connecticut.
In a recent letter to the EPA's senior environmental counsel, GE attorney Thomas Hill confirmed an agreement by both sides to extend the informal mediation effort until March 16, unless either party chooses to terminate it sooner. The previous deadline for the talks had been Dec. 18.
The Dec. 9 letter, made public late last week, also states that the formal attempt to resolve differences has a series of upcoming deadlines. By Jan. 19, GE must issue its written position statement on the dispute.
Then the EPA responds to GE by Feb. 29. Both statements will be made public.
The third and final exchange has a March 15 deadline — GE's reply to the EPA's response.
In a November letter to the EPA, GE identified the three major issues under discussion with mediator John Bickerman of Bickerman Dispute Resolution in Washington:
• The location of a disposal facility for PCB-contaminated material to be dredged from the river and excavated from the flood plain along the Housatonic between Fred Garner Park in southeast Pittsfield and Woods Pond in Lenox. The pond is the site of the most extensive infestation of the chemical believed to cause cancer.
• The scope of PCB removal from Woods Pond, the extent of dredging required, and the depth of the pond once operations are completed.
• What GE terms "open-ended requirements" for monitoring and maintenance of the 10.5 mile stretch of the river to be cleaned up, including the company's obligations in case of any remaining flow of PCBs.
The company has strongly opposed the EPA's recommendation that PCB waste be shipped to an out-of-state, federally licensed disposal facility. GE contends that a local site would save the company $250 million.
But the federal agency has stated that, because of "community opposition and state regulations," on-site disposal cannot be implemented, even though the EPA considers a local, capped landfill for PCB disposal "just as safe" as a distant facility, Murphy pointed out.
GE discharged PCBs into the Housatonic from its Pittsfield electrical transformer plant from the 1930s until 1977, when the U.S. government banned the use of the chemical.
Bickerman, whose 20-plus years of mediation experience includes major environmental superfund sites, told The Eagle on Monday that "we've had very constructive discussions" but, citing confidentiality requirements, declined to describe the extent of progress made so far.
He described the informal mediation and the formal dispute resolution approaches as "very independent processes."
"Elsewhere in the [United States]," he said, "it's not uncommon to pursue two tracks at the same time."
After the March 15 deadline for comments on the formal dispute resolution procedure, the EPA would designate a senior official in Boston to review the documents and issue a binding decision. There's no timetable for issuing that ruling, Murphy said.
If the hearing official calls for revisions in the EPA's proposed Rest of River plan, the agency would open a period for public comment.
But if no significant revisions are required, the agency would issue its final permit for the cleanup operation.
If GE or the EPA are dissatisfied with the Boston hearing officer's decision, either or both sides can take the dispute to the EPA's Environmental Appeals Board in Washington, D.C., which functions much like a court, Murphy said. Individuals, organizations or local governments that have submitted comments on the EPA's proposed cleanup plan also would be eligible to file appeals to that board.
Once the board upholds the EPA's plan or seeks revisions, legal appeals could be filed to the U.S. First Circuit Court of Appeals in Boston, "the court of last resort," as Murphy described it.
As proposed, the $613 million, 13-year project would involve excavation, dredging and removal of contaminated sediment and soil from eight miles of the river, including Woods Pond. Two miles of less extensive PCB removal would stretch from the Pittsfield-Lenox border south to Roaring Brook in Lenox.
Most of the major work would take place over the first eight years.
The dredging, excavation and capping of soil and sediment from the waterway, riverbank, backwaters and floodplain would eliminate 89 percent of the toxins that now spill over the dam at Woods Pond, according to the EPA. The plan calls for Woods Pond to be dredged and then refilled to a greater depth, up to 6 feet, compared to the current 3 feet.
The procedure for resolving the differences between GE and the EPA was outlined in the Consent Decree, a legally binding U.S. District Court settlement reached in 2000 that laid the groundwork for the cleanup of 1.5 miles of contamination in Pittsfield just south of the company's former electrical transformer plant.
Murphy emphasized that municipal leaders from Pittsfield to Sheffield, as well as concerned members of the public, are still welcome to comment or inquire about the settlement talks.
"If people want to take a position, this is a critical time," he noted.
What's next ...
Efforts to resolve differences between GE and the EPA on the scope of the Housatonic Rest of River PCB cleanup project are moving ahead on two tracks:
Jan. 19: Now that both sides have invoked the formal dispute resolution process, GE is due to submit a written statement outlining its position.
Feb. 29: The EPA responds to GE's statement. Both will be made public.
March 15: Deadline for GE's response to EPA's response.
March 16: Deadline for informal mediation discussions, unless either side chooses to end the talks sooner.
TBA: An EPA-designated senior official in Boston evaluates the statements and issues a binding decision.
TBA: If either side disputes that decision, an appeal can be filed to the EPA's Environmental Appeals Board in Washington, D.C.
TBA: If either side, or other parties to the dispute, disagree with that board's ruling, the case could be routed to the U.S. First Circuit Court of Appeals in Boston.
Information: Jim Murphy, who serves as spokesman as well as community involvement coordinator for EPA New England, can be reached at firstname.lastname@example.org or at 617-918-1028.