At Housatonic cleanup hearing, attorneys spar over fate of PCB-tainted soil
A week after circulating a memo hinting at a change in course, EPA attorney Timothy Conway argued fully in support of the agency's October order compelling the General Electric Co. to spend $613 million over 13 years to remove PCB-tainted soil and sediment from sections of the river, put there over many years by the company's transformer manufacturing business in Pittsfield.
Through six and a half hours of arguments, the EPA jousted with a GE legal team over the legality, extent and logistics of the proposed "Rest of River" cleanup.
The company is appealing the EPA's order partly on the grounds that it exceeds terms of an October 2000 consent decree. GE also rapped the cost of the remedy, saying materials dredged from the river could be disposed of locally just as safely and for much less money — hundreds of millions less.
At no point did attorneys or the three judges sitting on the Environmental Appeals Board mention Conway's May 31 memo, which said that due to a change in direction from EPA leadership in Washington, the agency was seeking to delay the appeals board session for 90 days while it seeks to negotiate anew with GE.
The memo had been sent to parties in the case; The Eagle obtained a copy of the memo and reported on it last week.
On the eve of the hearing, Nancy Grantham, an EPA spokeswoman, said Conway would participate as planned, responding to the judges' questions.
Asked after Thursday's hearing whether the agency is still seeking a stay or change in course on the massive cleanup, Conway declined to comment.
"I have nothing to say," Conway responded. "I can't talk."
The EPA spokeswoman could not be reached for comment Thursday night.
The day's hearing began with a clash over GE's desire to dispose of tainted soil and sediment in Berkshire County, rather than shipping materials removed during a cleanup out of state. It played out in a cavernous courtroom built in the 1930s, lit by a broad, flat skylight and four chandeliers stuffed with bulbs in the shape of candles.
"GE has built a record to show that disposal in these sites would not pose a threat," said Andrew Nathanson, an attorney representing the GE.
Those sites lie along sections of the river and would receive soils and sediments containing polychlorinated biphenyl, or PCB.
Until it was banned in the 1970s, the substance, listed as a probable carcinogen by the federal government, was released into the river by GE in Pittsfield.
GE's position that it should not be required to ship roughly a million cubic yards of material out of state received a sharp rebuke from Matthew Pawa, the attorney representing the Housatonic Rest of River Municipal Committee.
Pawa said people in the five towns he represents should not be subjected to the threat of new environmental degradation. The towns include Great Barrington, Lee,
Lenox, Sheffield and Stockbridge, through which the Housatonic River passes south of Pittsfield.
"This is not where you put a permanent waste site," Pawa told the judges, who listened in a courtroom inside the William Jefferson Clinton Federal Building, the EPA's home base, facing a row of 10 attorneys.
"Next to a river?" Pawa asked, his voice rising. "You don't put a hazardous waste site next to a river. You don't plunk it down in the middle of a community. People live there."
"Not to save $150 million, which is what this is all about," Pawa said. "Enough of the PCB contamination in Berkshire County."
Pawa was one of several attorneys pressing the board to uphold the EPA's order that the company, now based in Boston, remove PCBs from areas on the river south of Fred Garner Park in Pittsfield. An earlier cleanup removed the toxic material from the manufacturing facility itself and from Silver Lake in Pittsfield. About a quarter of the sediment to be removed lies within the city limits.
The appeals board, which is part of the EPA but operates independently of its administrator, is hearing GE's appeal to the cleanup order that the agency put in place last October.
For more than an hour, attorneys sparred over whether the 2000 consent decree circumscribed the EPA's reach on ordering cleanup conditions.
They also talked money.
The GE team argued that the cost of the cleanup should be considered, with Nathanson noting that in a Wisconsin case, the EPA agreed to a change that saved $46 million in dredging costs.
Cost-effectiveness should be a factor, he said. "We have two remedies that are essentially the same remedy," he said of disposal locations.
Judge Aaron P. Avila asked Conway how much would be too much to ask GE to spend. "Five hundred million?" he asked. "A billion?"
Kathie A. Stein, the board judge coordinating the hearing, began the morning by reassuring the attorneys that their legal briefs, running into thousands of pages by now, have been read.
"This is an important and complicated case," Stein said from the bench. She invited the attorneys to join "a conversation" about the legal issues driving the EPA order and GE's appeal.
But it was a conversation in which the judges interrupted often, gently but firmly, with questions about the case.
The hearing began with more than an hour of discussion about the laws that should govern the board's decision.
Nathanson, GE's attorney, argued that the guiding document should be the consent decree reached in October 2000.
But Conway, the attorney for the EPA's Region 1, argued that other federal laws, including the Resource Conservation and Recovery Act, come into play.
"There is no reason to treat this action any differently," Conway said. "This is a straightforward review of an RCRA permit modification."
In a two-minute closing argument at day's end, Conway put the matter forcefully to the board.
In its appeal, GE has to show that the agency erred or engaged in an abuse of discretion, he said. He called on the board to allow the process to proceed.
"We're hopeful that this long-running process will continue," Conway said.
The primacy of the consent decree is a key issue for GE, which claims in its brief and in Thursday's oral argument that the decree will eventually be upheld as a binding contract in separate federal court proceedings. The decree, he said, binds the EPA to conditions set nearly 17 years ago.
"You do need to look to the structure of the entire consent decree," Nathanson said.
The company claims that the EPA order issued last fall is "capricious."
But Pawa and Conway both argued that the government's role in the cleanup now involves more than the nine criteria outlined in the consent decree.
"The nine criteria do not constrain EPA," Pawa told the judges. "If nobody made the brief, I'm making it now. EPA is acting consistently."
The day's second session also focused on whether the EPA's cleanup is extensive enough, which some environmental groups question, or went too far, as GE suggests.
The GE legal effort, though presented by Nathanson, included at least four others, some of whom passed notes and suggestions forward to the attorneys' table as oral arguments continued.
Peter deFur, an environmental scientist who presented on behalf of the Housatonic River Initiative, said the group supports the EPA plan. "Now is the time to get them out of there to the greatest extent possible," he said of PCBs.
Nathanson agreed with Stein that the case is unusually complex.
"These are truly extraordinary events in my adult experience," he told the judges.
Reach staff writer Larry Parnass at 413-46-6214 or @larryparnass.
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