General Electric is hanging tough on its dismissal of the U.S. Environmental Protection Agency's $613 million, 13-year cleanup plan to cleanse the Housatonic River of most toxic PCBs between southeast Pittsfield and Woods Pond in Lenox.
Its final rejection of the proposal posted on Wednesday ensures that the gulf separating the two sides is headed into the legal arena, beginning with what the federal government describes as "formal dispute resolution."
In a strongly worded letter, GE's Vice President for Global Operations Ann Klee intensified the company's opposition to the agency's "intended final decision" to dredge, excavate and remove soil and sediment from the river and its banks containing the likely cancer-causing chemicals.
"GE's position is clear and unchanged," Klee stated in her letter to the EPA's Boston-based regional counsel Carl Dierker. "We will implement, at considerable cost, a common sense solution to the PCBs remaining in the Housatonic Rest of River" in line with legal requirements imposed by the overall river cleanup Consent Decree filed in late 2000 at U.S. District Court, Springfield.
"Despite EPA's lengthy efforts to salvage its intended Rest of River Remedial Action, that intended decision would violate EPA's Consent Decree obligations, exceed EPA's statutory authority, and be arbitrary, capricious, and otherwise unlawful," company attorneys asserted in a 40-page legal document accompanying the letter.
"EPA's posturing does nothing to advance the cleanup," Klee wrote, "or justify indefensible elements of its intended final decision."
The next step is a final cleanup order to be issued by the EPA's Dierker, though no deadline is set. "We look forward to your decision in this dispute," Klee wrote.
If GE rejects the decision, the case goes to the EPA's Environmental Appeals Board in Washington, D.C., and potentially to the U.S. Circuit Court of Appeals in Boston.
The company sharply disputed the EPA's position, supported by the state Department of Environmental Protection, that contaminated soil and sediment must be shipped to a licensed out-of-state facility rather than to one of three potential dump sites on the Lee-Lenox Dale border, off Forest Street in Lee and at Rising Pond in the Great Barrington village of Housatonic.
Citing the Consent Decree, Klee insisted that the EPA's own Rest of River cleanup standards "dictate on-site disposal" of the sediment and soil. She pointed to an Eagle article last December quoting the agency as stating that on-site disposal is "just as safe" as shipping the material out-of-state.
But the EPA cites state regulations forbidding the dumping of PCBs in Massachusetts as well as overwhelming community opposition to creating another landfill such as Pittsfield's Hill 78 near the Allendale School as a capped storage site for the toxins.
GE has acknowledged that on-site disposal would save the company about $250 million. Klee's letter claims that the additional cost offers "no benefit other than placating local opponents, which is not a remedy selection criterion."
"EPA's attempt to now distance itself from the remedy selection criteria, and its selection of on-site disposal, "is the height of arbitrariness," she wrote.
The 40-page legal document accompanying her letter states that "the challenge for EPA is that 'community and state opposition' is not a legitimate factor" and that the Consent Decree exempts an on-site disposal landfill "from the need for any state or local permits or approvals."
Another sore point with GE is the federal agency's requirement for an extensive cleanup of Woods Pond in Lenox, a top "hot spot" of contamination.
The company finds the EPA plan to remove nearly 90 percent of the pollutants from the pond, which collects PCBs flowing downstream from Pittsfield, as inconsistent with the Consent Decree.
"EPA's own model establishes that much less removal in Woods Pond is equally protective," Klee wrote. The GE counterproposal would eliminate only 13 percent of the PCBs in Woods Pond and save the company about $130 million.
GE accused the federal government of being motivated "by an interest in garnering community support for its intended final decision."
The company also disputed EPA's contention that GE "seeks only to 'reduce its costs' as totally inconsistent with the history of GE's engagement" with the federal agency and the two states.
"GE has spent hundreds of millions of dollars on the remediation of the river, GE's former Pittsfield facility and surrounding areas," the letter asserted.
The company discharged the pollutants into the Housatonic from its Pittsfield electrical transformer plant from 1932 to 1977, when the U.S. government acted to ban use of PCBs.
Klee restated the global company's commitment "to a substantial Rest of River remedial action that would protect human health and the environment while minimizing impacts on the unique Housatonic ecosystem."
She contended that GE tried to avoid the confrontation with the EPA by agreeing to "a more expansive cleanup" than required by the original legal agreement on the overall river remedy. The Consent Decree set the stage for GE's cleanup for the first two miles downstream from its plant in Pittsfield.
The company asserted that it worked extensively with the EPA and the states of Massachusetts and Connecticut to agree on a Rest of River remedy.
But Klee's letter depicted the effort as unsuccessful because the federal government's solution "cannot be reconciled" with the EPA's commitments in the Consent Decree and related law.
She listed "indefensible elements" of the EPA plan, accusing the agency of recognizing "the unique ecology of the upstream portion" of the river designated by the state as an Area of Critical Environmental Concern "only when the EPA believes it serves its purpose."
GE argues that the agency "ignores that unique ecology" by insisting on a remedy "far larger "than alternatives favored by the state." According to Klee, state agencies depict the EPA plan as causing "inevitable damage" that will "far exceed the theoretical benefit of lower PCB concentrations."
The company also firmly denied the government's position that GE has ever sought "virtual total certainty and finality in the cleanup, with uncertainties and costs to be borne by the public."
"GE seeks only that EPA honor its commitments in the Consent Decree and now identify the response actions it believes are necessary in the Rest of River," Klee's letter declared. She called on the government to perform "robust analysis required by the Consent Decree and not punt those decisions into the future."
Contact Clarence Fanto at 413-637-2551.
On the Web ...
The GE rejection document and other filings on the EPA's Rest of River cleanup plan can be accessed at https://semspub.epa.gov/src/collection/01/SC32124