EPA official: Legal challenge over Housatonic cleanup could take three years
LENOX — The intensifying wrangle between GE and the EPA on the scope and cost of a proposed Housatonic River cleanup south of Pittsfield would require at least two or three more years to resolve if it winds up in federal court.
That was the message from Dean Tagliaferro, local project manager for the Environmental Protection Agency, during Wednesday's quarterly public meeting of the Citizens Coordinating Council.
GE and the EPA are in the midst of a lengthy legal battle known as "formal dispute resolution" as they attempt to narrow wide differences on how much PCB must be removed from 10.5 miles of the Housatonic from Fred Garner Park in southeast Pittsfield to Woods Pond in Lenox, the primary hot spot for contamination.
Other key issues include the extent and cost of the cleanup at Woods Pond, the company's long-term obligations to monitor the recovery of the river, and a highly contentious obstacle: Where to dispose of more than one million cubic yards of contaminated soil and sediment expected to be dredged from the river and its banks.
GE has identified three potential PCB waste-disposal sites near the river, Tagliaferro said as he displayed aerial overview sites.
— A gravel pit just south of Woods Pond on land owned by Lane Construction Co. in Lee, adjacent to Lenox;
— A site off Forest Street in Lee, just south of the Massachusetts Turnpike, near the Prime Outlets shopping complex and Goose Pond.
— The Rising Pond area along Route 183 in the Great Barrington village of Housatonic.
The company holds an option on the Lane Construction site, making it a likely disposal site if the company succeeds in overturning EPA's demand, shared by Massachusetts, to ship the polluted material to a licensed out-of-state facility.
GE would run afoul of state Department of Environmental Protection regulations banning the storage of PCB contamination in Massachusetts. The company first listed the three potential Berkshire sites in 2010, Tagliaferro pointed out to the CCC members and the audience of about 50 attending the meeting at the Lenox Library.
DEP officials continue to emphasize outright opposition to a local disposal solution. In 2013, Kenneth L. Kimmell, then the agency commissioner, told The Eagle that multiple state regulations "prohibit dumping contaminated materials in those areas. Nothing in these regulations would allow that to happen. There's no wiggle room."
"The record is clear on our position, and we continue to support the EPA's remedy," said Eva Tor, deputy director of MassDEP's western regional office in Springfield, at Wednesday's meeting.
But GE, in a 62-page document released a month ago, rejected the EPA's final $613 million, 13-year Rest of River cleanup plan as "arbitrary, capricious and illegal" and acknowledged that it wants to save up to $250 million by storing the toxic material locally rather than shipping it out of state.
The company seeks an additional $130 million in savings by limiting the extent of PCB removal from Woods Pond to 13 percent of the toxic chemicals, rather than the EPA's plan to remove 89 percent.
The EPA's response to the company's strongly worded rejection of its "intended final decision" on the river cleanup is due Monday. GE continues the legal ping-pong with a follow-up reply to the EPA by March 15. The next step would be a definitive ruling by a top EPA official in Boston, followed by the EPA's release of a final permit for the cleanup.
"Then you go into what could be a never-ending duel, hopefully not," Tagliaferro said.
The EPA's final permit may be challenged by GE or others to the government's Environmental Appeals Board in Washington, D.C., which could reject, modify or approve the government's cleanup plan.
The board decision, if still disputed, could then be taken to the U.S. First Circuit Court of Appeals in Boston.
Pittsfield attorney C. Jeffrey Cook, a CCC member, urged other participants to "accept that there are certain procedures and rules, complicated as all get out, but EPA has stuck with them. This is just going to go on forever."
"The people in this room are not going to be responsible for prolonging this to death," said Tim Gray, founder of the Housatonic River Initiative. "The entity that has been doing that for 25 or 30 years is called the General Electric Co."
He contended that GE has "staked out" all possible grounds for legal opposition to the EPA plan. "That is what will make it go on forever and ever, if GE cannot settle with EPA and vice-versa, obviously," Gray said. "I don't think anybody in this room will be against that. If it's a reasonable thing, we can make comments and say we don't like it, but if they decide it, everyone has to be abide by that. Nobody's living in a fantasy land."
Cook depicted litigation as "war, so when you go to war and put everything on the table, EPA is going to be well-represented and will do as well. I just look at that and say, 'Ye Gods, how long.' I'm not suggesting that anybody in this room is making it worse."
Tagliaferro said while a mediation effort " by John Bickerman of Bickerman Dispute Resolution in Washington remains in place for two more weeks, discussions have been "generally suspended." Bickerman is paid 50-50 by the EPA and GE.
"He thought we had an uphill battle to stop more toxic waste dumps in Berkshire County," said CCC member Valerie Anderson of the Housatonic Cleanup Coalition, who met with Bickerman recently.
Bickerman, who did not respond to a message from The Eagle on Thursday, believed the EPA's more extensive PCB cleanup remedy for Woods Pond would be "easier for us to win," Anderson added. "He thought that whether GE should be on the hook in perpetuity or for a long, long time is easier to win on, too."
The CCC advisory group includes 35 federal and state officials, business leaders, attorneys, area environmental advocates and other concerned individuals.
Gray called for a united effort to advocate "for the best possible cleanup we can achieve using innovative technology and different ways to make this a better site for cleanup, because the cleanup is coming."
He compared it to a "freight train that's started, it's moving, the EPA adds engines as time goes along, and the freight train will not be stopped. Everybody needs to remember this is our one chance in history to try to effect a better cleanup."
Contact Clarence Fanto at 413-637-2551.
What's next . . .
Monday: The EPA responds to GE's Jan. 27 rejection of the agency's Rest of River PCB cleanup plan.
March 15: Deadline for GE's reply to EPA's response.
March 16: Deadline for concluding informal mediation discussions, unless either side chooses to end the talks sooner.
TBA: An EPA-designated senior official in Boston issues a binding decision.
TBA: If either side or other stakeholders who have commented dispute 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 taken to the U.S. First Circuit Court of Appeals in Boston.
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