GE promises to appeal latest EPA decision

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A day after a hearing officer upheld the EPA's plan to clean up the Housatonic River, General Electric on Wednesday signaled it was digging in for a fight.

The company issued a statement in response to the Environmental Protection Agency's Intended Final Decision, which was announced late Tuesday. That decision rejected challenges GE made to the agency's initial plan for the "Rest of River" portion of the cleanup.

"We remain committed to a common sense solution for the Housatonic Rest of River that protects human health and the environment, does not result in unnecessary destruction of the surrounding habitat, and is cost-effective," a GE spokesman stated. "EPA's Intended Final Decision doesn't meet this standard. We're disappointed by EPA's regional counsel response to GE's arguments, which were made in a thorough and thoughtful analysis."

The company signaled a prolonged legal challenge before any cleanup can begin.

"We look forward to resolving the shortcomings of EPA's Intended Final Decision over the coming months and, if necessary, through the appeals process provided by the Consent Decree so we can begin to clean the Housatonic Rest of River," the statement read.

The Consent Decree is a legal agreement filed at U.S. District Court in Springfield 15 years ago listing the requirements for PCB removal from the Housatonic, including a stretch in Pittsfield that was completed 10 years ago, and the Rest of River segment south of the city.

"GE will clean the Housatonic Rest of River," the statement read. "The only question is how it will be cleaned."

The ruling by EPA Regional Counsel Carl Dierker in Boston upheld the EPA plan for a 13-year dredging, excavation and removal of PCB-contaminated soil and sediment from Housatonic River "hot spots" south of Pittsfield.

Under the plan, GE would be required to pay $613 million for the agency plan to restore a 10.5-mile stretch of the river from Fred Garner Park in southeast Pittsfield to Woods Pond in Lenox, which would be dredged, and truck the toxic material to a licensed out-of-state disposal site.

"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," Dierker wrote.

The ruling calls the agency's cleanup plan "reasonable, supported by adequate data and information, permissible under the actual language of the Consent Decree and well within the scope of the agency's discretionary authorities."

A final permit detailing the requirements of the cleanup is expected to be released in several days, according to agency spokesman Jim Murphy.

In its challenge to the initial EPA plan, GE had proposed to dispose of the PCB-contaminated material in what it termed safe, cost-effective sites in the area, including Lane Construction on the Lee-Lenox line, a site off Forest Street in Lee and the Rising Pond area of Housatonic, a village within Great Barrington.

But the EPA decision rejected such a plan, citing state and local opposition to any "dumping" of the chemicals in Massachusetts, a violation of state environmental laws.

GE's likeliest recourse now is to file its objections to the EPA's Environmental Appeals Board, a three-judge panel in Washington. Others who have commented on the EPA's proposed cleanup also can enter an appeal. If no settlement emerges, the company or others could file suit at the U.S. First Circuit Court of Appeals in Boston.

The window for appeals is open for 30 days after the EPA issues its final cleanup permit, as expected in a few days.

Although the appeals board is part of the EPA, it maintains impartiality and independence from the agency and gives equal consideration to legal arguments by challengers and the positions of EPA lawyers. According to the board's website, "this independence allows the EAB to make fair decisions for or against any party to the appeal."

PCBs, listed as a probable cancer-causing agent in humans and animals by the EPA and international health agencies, flowed into the Housatonic from GE's electrical transformer plant in Pittsfield from the 1930s until 1977, when the United States banned use of the chemical.

Lenox Town Manager Christopher Ketchen described Tuesday's legal ruling by the agency as "a milestone, but it's obviously not the last one. We fully expect a long process that would include the Environmental Appeals Board as well as potentially, perhaps even likely, an appeal through the court system. We remain concerned about how the rest of the process plays itself out."

A meeting of the Rest of River Municipal Committee is slated for 9 a.m. Thursday in the Stockbridge Town Offices. Members include representatives from six communities — Pittsfield, Lenox, Lee, Stockbridge, Great Barrington and Sheffield — as well as the Berkshire Regional Planning Commission.

Members plan to discuss renewal of the three-year formal agreement, which expires Nov. 21, that created the committee and enabled it to hire legal counsel to seek potential compensation for the communities from GE.

The communities are represented by the Pawa Law Group, based in Newton just outside Boston. Last October, the firm won a decision by the New Hampshire Supreme Court upholding a $236 million verdict against ExxonMobil for contaminating the state's groundwater with the gasoline additive MTBE.

The law firm, headed by Matthew Pawa, had represented the state in the long-running environmental case since 2003. In 2012 and early 2013 all defendants except ExxonMobil settled. In April 2013 a jury had awarded the state all of the damages it sought against ExxonMobil.

Contact Clarence Fanto at 413-637-2551.

How the EPA appeals process works

The legal ruling by EPA Regional Counsel Carl Dierker upholding the agency's plan for a Rest of River PCB cleanup from southeast Pittsfield to Lenox can be challenged by filing objections to the EPA's Environmental Appeals Board, the final decision maker on administrative appeals under all major environmental laws that EPA administers.

Located in Washington, the board is an impartial tribunal independent for substantive purposes of all agency components outside the Immediate Office of the Administrator. The board's four environmental appeals judges sit in panels of three and make decisions by majority vote. Created in 1992, the board functions as an administrative appeals court within EPA. It primarily decides cases involving challenges to the terms of federal environmental permits and cases involving challenges to EPA's assessment of financial penalties for violations of the environmental laws.

An enforcement case will not ordinarily reach the board until an EPA administrative law judge or other presiding officer has issued a decision on the matter and someone who is adversely affected by that decision files an appeal.

Although the board is part of EPA, it is independent of the EPA offices who are parties to the cases. This independence allows it to make fair decisions for or against any party to the appeal. The board gives equal consideration to the legal arguments made by members of the public and their counsel and the legal arguments made by EPA lawyers. To ensure it remains impartial, the board will not communicate with one party to a case that is pending without the other party being present.

The board's decision is EPA's final decision on the dispute and is binding on the parties to the dispute, unless the decision is reversed by a federal court. A party (other than EPA) who is dissatisfied with the board's decision may appeal that decision to a federal court.

Source: U.S. EPA Environmental Appeals Board. Online: https://yosemite.epa.gov/oa/EAB_Web_Docket.nsf


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