The legal confrontation between GE and the Environmental Protection Agency has escalated this week as the company outlined in stark detail its strong objections to the government's proposed "Rest of River" remedy.
In a letter to EPA officials, GE Vice President of Global Operations Ann Klee offered an olive branch: "GE remains committed to a common-sense solution that is fully protective to human health and the environment."
But Klee wrote that "unfortunately, EPA's intended Rest of River Remedial Action is not such a common-sense solution."
The company declared that it is formally adopting a legal strategy called "formal dispute resolution" in an effort to bridge the considerable gap between the EPA's plan and GE.
The EPA has proposed a $619 million cleanup of PCBs from more than 400 acres along 10.5 miles of Housatonic River from Pittsfield to Lenox. It would include dredging and trucking about 1 million cubic yards of PCB-contaminated soil and sediment to a licensed out-of-state facility.
GE labeled as "unlawful" several aspects of that remedy, including the requirement to send the sediment out of state.
The company is pushing hard for a less-expensive, less-extensive cleanup, primarily by dumping the tainted material excavated from the river and its banks in a nearby landfill. It estimated that its two major counterproposals would save the company about $380 million.
While acknowledging that an ongoing effort to resolve differences through informal mediation would continue until mid-March, the takeaway from the 62-page document suggests that a resolution through the government's Environmental Appeals Board that functions much like a court could be a more likely outcome.
Eventually, the case could wind up in the U.S. Court of Appeals if no agreement is reached.
The company blasted the EPA's Rest of River remedy as "arbitrary and capricious," and as a violation of the legally binding Consent Decree.
The decree, an agreement involving GE, EPA, Massachusetts, Connecticut, Pittsfield and other stakeholders, was filed in U.S. District Court, Springfield, in 2000. It outlines specifics of the PCB cleanup for the entire river downstream from the former GE transformer plant in the heart of Pittsfield.
"The company remains ready to resume the mediation process with EPA and is hopeful that we can reach agreement on a common-sense solution for the Rest of River that GE would implement without the need for further dispute resolution proceedings," the letter stated.
Significantly, in its footnoted legal document, charts and exhibits attached to the letter, the company stated that cleanup criteria contained in the Consent Decree "do not include state and community acceptance."
GE accused the EPA of breach-of-contract and of exceeding its authority by including cleanup requirements that are not part of the original decree.
The company, which leached likely cancer-causing PCBs into the Housatonic from its Pittsfield electrical transformer plant from the 1930s until the United States banned the chemical in 1977, labeled the EPA's plan to remove contaminants from the river and its banks along "hot spots" between Fred Garner Park in southeast Pittsfield to Woods Pond in Lenox as "inconsistent" with previous government remedies.
"The anticipated benefits of EPA's unstudied approach are overstated," GE argued, "and the actual benefits achievable by approaches that have been studied are either ignored or downplayed."
The GE document also contended that "the inevitable negative impacts of EPA's Rest of River remedy are dismissed and cost considerations are ignored."
As a prime example, the company insisted that the government's requirement that GE dispose of more than 1 million cubic yards of sediment and soil to an out-of-state site "cannot be reconciled" with previous EPA positions on the issue.
According to GE, "the EPA has repeatedly admitted out-of-state disposal will be no more protective of human health or the environment than on-site disposal in a secure, state-of-the-art facility." In the past, the government agency has emphasized that disposal in the Lenox or Lee area "would be very difficult, if not impossible, to implement" because of widespread community opposition.
But Klee's letter contended that shipping the contaminated material out of state by rail or truck will cost "about a quarter of a billion dollars more which the EPA also admits." GE pointed out that the EPA has approved the disposal of such material "at many other sites in the U.S.," including a landfill near the Allendale School in Pittsfield as well as other locations in the state.
Another prime GE objection to the government plan is the EPA's requirement that Woods Pond in Lenox, the most intense "hot spot" for PCB infiltration, be deepened to 6 feet with the installation of a cap during the cleanup.
The added cost of removing about 340,000 cubic yards of sediment from the pond "ostensibly to reduce concentrations of PCBs in fish in the pond and downstream reaches of the river" would be an estimated $130 million "for no environmental benefit," the company wrote.
GE asserted that EPA's own studies show that the same reductions of contaminants could be reached by removing "only 44,000 cubic yards of sediment with capping of the entire pond."
The EPA's response to the GE broadside is expected by Feb. 29.
The entire GE document can be viewed at http://semspub.epa.gov/src/document/01/586218.
GE's key points ...
• "EPA has twisted its discussion of the Rest of River remedy selection criteria in an effort to support its intended decision to require out-of-state disposal as the commonwealth has insisted. In fact, the Rest of River remedy selection criteria compel selection of on-site disposal. EPA's selection of out-of-state disposal would conflict with those agreed-upon criteria and therefore violate EPA's Consent Decree obligations, and it would be arbitrary, capricious and unlawful."
• "EPA's Intended Remedy is not necessary to protect health and would cause overall environmental harm and therefore violates the Consent Decree."
• "EPA's Remedy goes beyond what is necessary to protect human health ... EPA's Remedy would cause overall harm to the environment. "
• "EPA's intended Rest of River Remedial Action violates its Consent Decree obligations, exceeds EPA's statutory authority, and is arbitrary, capricious and otherwise unlawful. To eliminate these legal defects, that decision should be revised in the respects discussed in this statement."
What's next ...
Feb. 29: The EPA responds to GE 's statement.
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.
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.