The long-awaited final administrative decision from the Environmental Protection Agency on the Rest of River PCB cleanup along the Housatonic south of Pittsfield upholds the agency's plan to require GE to remove the toxic chemicals out of state.
And the ruling rejects GE's numerous objections to the plan, setting up the likelihood of another extended delay before the river cleanup can begin.
In a 10-page decision announced late Tuesday by the EPA's Boston office, regional counsel Carl Dierker turned aside GE's contention that the agency is "not allowed to consider state and local opposition to on-site disposal of the PCB waste."
GE has claimed that the federal court order governing the river cleanup makes no mention of local opposition for deciding where to dump the contaminants.
"In evaluating the positions advanced by GE and EPA, I find that EPA's approach regarding consideration of state and local stakeholder views to be entirely reasonable," Dierker wrote.
His ruling will be music to the ears of many local opponents to GE who have insisted that the chemicals be trucked out of state to a licensed disposal facility.
"EPA has come to the conclusion that the longstanding and vigorous opposition to a new PCB landfill effectively means that a certain path forward, i.e. on-site disposal, would be difficult or impossible to pursue and therefore would not be implementable," the final ruling asserted.
Dierker cited in support of his decision the "close intergovernmental partnerships EPA cultivates with state and local governments."
The Massachusetts Department of Environmental Protection has opposed creation of a local landfill in Lee or Great Barrington, as GE has urged, since state law prohibits dumping of PCBs within the state.
The chemicals, leached into the river from GE's Pittsfield electrical transformer plant from the 1930s until 1977, when the United States banned use of PCBs, are considered probable cancer-causing agents in humans, according to the EPA and international health agencies.
In a ruling likely to spark a GE appeal to the EPA's Environmental Appeals Board in Washington, Dierker also cited "meaningful opportunities to participate legally afforded to the public in general, including local community members and other stakeholders."
He asserted that those rights are "integral to the overarching principle of 'cooperative federalism' that the agency employs in carrying out all its environmental programs, including its cleanup programs."
In his document, the EPA's regional counsel states that "it would be unreasonable for EPA to ignore the ability of state and local authorities to thwart the implementation of proposed cleanup plans in deciding how to proceed."
Dierker also asserted that it would be "highly unusual" for any EPA cleanup order to be selected and carried out in the face of strong state opposition.
He cited the Consent Degree for the river cleanup approved by the U.S. District Court in Springfield 15 years ago, writing that "to ignore such opposition would severely diminish and undermine public participation opportunities" required by the legal agreement.
The EPA's plan for a $613 million, 13-year cleanup of Housatonic River's worst PCB "hot spots," primarily along a 10.5-mile stretch from Fred Garner Park in Pittsfield to Woods Pond in Lenox "is reasonable, supported by adequate data and information, is permissible under the actual language of the Consent Decree and is well within the scope of the agency's discretionary authorities," the ruling stated.
Dierker's decision also attacks GE's position that the EPA's "intended final decision" on the cleanup would "improperly make GE carry out natural resource restoration activities."
He cited the U.S. Clean Water Act as requiring "substantive regulatory compliance" with standards and guidelines for restoring natural resources. Dierker called for a "clear analysis" showing how PCB dredging, excavation and removal of contaminants would not overlap with federal restoration requirements.
As for GE's argument that the EPA's off-site PCB removal requirements are "arbitrary, capricious and unlawful," the ruling issued Tuesday takes issue with the company's position because it fails to present sufficient information to dispute the factual basis of the federal agency's plan.
Dierker also found that EPA's use of the Massachusetts Endangered Species Act to protect and ensure human health and the environment "appears reasonable and appropriate."
He supported the agency's requirement that GE take reasonable steps to avoid additional releases of PCBs in the future in case a downstream dam owned by another party fails because that would "undermine the integrity of the cleanup already undertaken by GE."
The ruling describes the company's other challenges to the EPA's proposed cleanup decision as "reflecting an honest disagreement" with the agency's approach.
Dierker knocked down the company's argument that the EPA plan "goes beyond what is necessary to protect human health" and he upheld the agency's authority to require additional work by GE to avoid the migration of PCBs along the Housatonic into Connecticut.
"It is EPA that has been vested with responsibility under federal law to determine what is needed to ensure protectiveness of human health and the environment and it has been given broad discretion in developing options and making decisions in this regard," he wrote.
While the EPA does not have "unbridled discretion" under federal law, Dierker pointed out, "it does get deference when making complex decisions involving numerous statutory and regulatory factors."
"I believe EPA has been and continues to be conscientious and balanced in applying its legal authorities, in considering its policies and guidance, and in developing a rational approach for protecting human health and the environment," the ruling asserted.
"Given the scope and variability associated with a site of this size and complexity, EPA's development of a cleanup approach overall is entirely reasonable and is supported by the data and information in the administrative record," he stated.
"While I can appreciate GE's disagreement with EPA's exercise of its discretion in making complex, scientific, technical and engineering decisions and with the way it has weighed and balanced other important factors, I find that overall EPA's reasoning, rationale and analysis are sound and adequately supported by the data and information it has fully considered," Dierker concluded.
EPA's next step is to issue its formal cleanup requirements to GE in the form of a permit to perform the river cleanup, said agency spokesman Jim Murphy.
Asked whether he expected GE to file additional legal appeals, he responded: "Your guess is as good as mine."
If the EPA's Environmental Appeals Board in Washington upholds the final ruling, GE could sue at the U.S. First District Court of Appeals in Boston.
The federal agency's "intended final decision," issued Sept. 30, 2015, required GE to excavate most of the PCBs heavily contaminating the 10.5-mile stretch of the Housatonic between southeast Pittsfield and Woods Pond in Lenox. There, the EPA has found PCB concentrations in wildlife are 100 times the limit considered safe.
In its attack on the proposed remedy, GE reserved its harshest criticism for the EPA's insistence that under Massachusetts environmental regulations, the contaminated PCB material must be shipped to a licensed out-of state facility.
Instead, the company targeted three sites near the river where the PCBs could be dumped — a landfill at Lane Construction on the Lee-Lenox line, an area off Forest Street in Lee, and the Rising Pond vicinity in the Great Barrington village of Housatonic.
The GE proposal triggered a series of intense citizen protests in Housatonic and strong concern at Town Hall in Lenox.
The company claimed that its preferred sites would be safe while acknowledging it would save at least $250 million by avoiding a requirement to ship the material out of state. The company has predicted that 100,000 trips by dump trucks would be required.
The EPA plan would remove 89 percent of the PCB contamination flowing over the dam at Woods Pond; GE wanted to save an additional $130 million by limiting that to 13 percent.
The two sides don't even agree on how much PCB contamination remains in the river. GE says 70,000 pounds, the EPA puts it at 600,000 pounds.
No immediate reaction to the latest EPA ruling was available after-hours from GE corporate headquarters.
Contact Clarence Fanto at 413-637-2551.