The U.S. Environmental Protection Agency has doubled down on its provisional final decision for the Housatonic River PCB cleanup south on Pittsfield, blasting GE for its wide-ranging rejection of the proposal.
The 132-page document posted on Wednesday sets the stage for a potential, prolonged legal confrontation over the scope and cost of removing most of the likely cancer-causing chemicals from hot spots, primarily along a 10.5 mile stretch between Fred Garner Park in southeast Pittsfield and Woods Pond in Lenox.
"EPA has afforded GE and the public an extraordinary degree of participation and input on the Rest of River cleanup decision," wrote Bryan Olson, EPA's director of site remediation and restoration, in a letter to the agency's regional counsel in Boston, Carl Dierker.
Citing the government agency's close scientific and technical scrutiny that led to the decision for a $613 million, 13-year dredging and excavation of toxic sediment and soil along the river, Olson took sharp exception to GE's efforts to cut $380 million from the bottom line.
The company proposed saving $250 million by depositing the waste into a landfill adjacent to the Lee-Lenox Dale line near Woods Pond or another potential site off Forest Street in Lee and at Rising Pond in the Great Barrington village of Housatonic instead of shipping it to a licensed out-of-state facility, as the EPA and the state of Massachusetts require.
GE also seeks an estimated $130 million savings through a far less extensive cleanup at Woods Pond that would remove 13 percent of the PCBs instead of 89 percent, as EPA's remedy would achieve.
Playing legal hardball against the company, Olson accused GE of challenging EPA's intended final decision "for one reason — to reduce its costs for cleaning up its PCBs."
He listed GE's "attempts to justify its challenge with three main claims:"
• "GE allegedly knows better than EPA how to select a remedy in the public interest;"
• "GE is allegedly entitled to virtually total certainty and finality in the cleanup, with uncertainties and additional costs all to be borne by the public;"
• "EPA allegedly misrepresented the [Consent] Decree in requiring restoration of natural resources."
The Consent Decree is the legal framework for the entire Housatonic cleanup approved by the U.S. District Court in Springfield in 2000.
In his letter, Olson declared that "none of these claims are justified and should be rejected. EPA's decision thoroughly considered GE's and others' viewpoints, and fairly balances all the relevant factors under the decree to produce a remedy that protects the overall public interest, not just GE's bottom line."
He also noted that "while GE objects that the remedy is too expensive, many others have commented that the remedy should go farther in removing contaminated PCB material even if it costs more to do so."
The most drastic approach considered but not adopted by the EPA would have cost the company about $1 billion and required 50 years to complete.
Olson depicted EPA's remedy as "somewhere in the middle that is implementable and provides GE with a level of certainty supported by the Consent Decree without subjecting the public to unnecessary risks or costs."
He also stated in no uncertain terms that "EPA — not GE — is in the best position to judge the appropriate level of analysis for selecting a remedy for the Rest of River that is in the public interest and protective of human health and the environment."
Olson declared: "Now is the time for GE to step up and honor its commitment to proceed with this important cleanup."
The executive summary of the government's position points out that "the remedy EPA selected includes a combination of excavation and capping of PCB-contaminated material, and disposal of the material at a suitable off-site landfill."
Noting that GE objects that off-site disposal is more expensive than on-site, the document states that the government considered and then rejected other alternatives for storing the contaminated material, including more expensive potential treatment technologies.
"GE failed to establish that any of its proposed on-site disposal locations, although cheaper, would be equally suitable compared to established off-site landfills," the EPA document states.
The government agency also dismissed GE claims that "the outpouring of public and governmental opposition to on-site disposal is irrelevant" to the EPA final decision.
"On-site disposal is opposed by many local residents and community advocacy groups, every Berkshire County city or town along the Housatonic, and at least seven state offices within Massachusetts," the document asserted.
The agency described the company's effort to construct a new PCB landfill in Lee or Great Barrington as "shifting the burden and risks of PCB contamination onto the Berkshires" in a drive to save the company money.
"EPA's experience at other cleanup sites supports the concern that coordinated opposition to on-site disposal at the Housatonic will unduly delay implementation and completion of the remedy," the agency added.
It also argued that the Consent Decree requires public comment to be considered, adding that "public participation would be meaningless if EPA could not consider public comments when selecting a remedy."
The EPA also notes that its final decision "may only be overturned if it is arbitrary, capricious or otherwise not in accordance with the law."
GE made those claims in its Jan. 19 rejection of the government's plan.
The company has a March 15 deadline for a final response to the EPA. Then, the "formal dispute resolution" case goes to Dierker, the EPA's regional counsel.
His final decision could be appealed by GE or other stakeholders to the EPA Environmental Appeals Board in Washington, D.C. If there's no resolution, GE or "any interested person" can file for a review by the U.S. First Circuit Court of Appeals in Boston.
Olson's letter was copied to two GE executives, three other EPA officials as well as to the Massachusetts Attorney General's office, the state Department of Environmental Protection and the environmental agency in Connecticut.
Other recipients include Pittsfield Mayor Linda Tyer and Pittsfield Economic Development Authority Executive Director Cory Thurston.
GE discharged PCBs into the Housatonic from its electrical transformer plant in Pittsfield from 1932 to 1977, when the government found the chemical to be a likely cause of cancer and then banned its use.
Contact Clarence Fanto at 413-637-2551.
Here are some additional arguments by the Environmental Protection Agency in response to GE's rejection of its PCB cleanup plan for the Housatonic River south of Pittsfield:
• "GE seeks to permanently locate a PCB landfill along the river in an area with no known contamination where such location, by GE's own admission, would require waiving permanently numerous environmental laws and regulations designed to protect the environment and natural resources such as wetlands, floodplains and a state-designated Area of Critical Environmental Concern."
• "To save money, GE objects to the removal of over 285,000 cubic yards of PCB contaminated sediment from Woods Pond. Instead of removing the material and permanently eliminating the risk of transport" downstream in the event of a dam breach or failure, "GE seeks to shift the burden and risk onto the public through the shallower removal followed by capping."
• "Clearly, the United States would not agree to a settlement that included selection of a remedy for a complex 100-mile river system without requiring any natural resources that were damaged by the cleanup to be restored. Such a hypothetical agreement would cost GE less but violates EPA practice and the terms of the Consent Decree."
• "The proposed remedy is necessary to protect human health and the environment from PCB contamination released by GE's Pittsfield facility. Peer-reviewed risk assessments have concluded that PCBs and other contaminants of concern pose unacceptable risks to human health and the environment in Rest of River. The remedy employs a variety of mitigation tools to remove PCBs and reduce the exposure risks, including excavating contaminated soils and sediments and isolating contaminated materials under engineered caps. In some areas, construction of the proposed remedy will have unavoidable short-term impacts, but the design of the remedy limits those impacts, particularly in habitats of sensitive species. The remedy also requires GE to restore all disturbed areas. Due in part to this restoration requirement, the long-term benefits of the remedy far outweigh the short-term impacts."