Housatonic River cleanup remains 'in limbo' as GE appeal still lingers
PITTSFIELD — It's been eight months and counting since judges on the Environmental Appeals Board closed a daylong hearing in Washington, and went off to ponder efforts to remove toxins from the Housatonic River.
No jury, just judges — and they're still out.
"We're kind of stuck in limbo," said Tim Gray, of Lee, executive director of the Housatonic River Initiative.
The long wait is rattling the nerves of his and other groups that have long pushed for a thorough cleanup of the river, after earlier actions closer to the source of the pollution: the former General Electric Co. plant in Pittsfield.
Bill Clinton was still president when a 2000 consent decree spelled out how GE would repair environmental damage caused by its widespread release of a probable carcinogen, polychlorinated biphenyls, or PCBs.
Last June, the federal court heard GE's argument that the Environmental Protection Agency's revised cleanup order in late 2016 went beyond the scope of the consent decree. The company's appeal takes issue with three elements of the EPA order: disposal of sediments removed from the river, the scope of the remedy, and the extent of dredging required to remove PCBs from the river.
GE discharged PCBs into the river for years before the substance, used in the manufacturing of electrical transformers, was banned in the 1970s.
A big issue is money. The cost of the EPA's 13-year "Rest of River" plan, which compels GE to deal with a million cubic yards of contamination from southeast Pittsfield to Lenox and points south, is pegged at $613 million.
At the June hearing, lawyers for GE argued that the work could be done for less — as much as $250 million less — if it was allowed to dispose of dredged material closer to the river, among other changes.
On the eve of last spring's hearing, an EPA memo indicated that the agency wanted to postpone the proceeding for 90 days, "pending completion of settlement discussions."
It noted that Scott Pruitt, the new EPA administrator, had issued a May 22 edict saying he would personally handle cleanups projected to cost $50 million or more.
"The EPA administrator," the agency said at the time, "has expressed a strong policy interest in expediting and finalizing resolution at Superfund cleanups."
Judith A. Herkimer, director of the Housatonic Environmental Action League, said that before Pruitt's appointment, citizens groups monitoring the GE cleanup felt that they knew where they stood.
"Now, all bets are off," she said. "Anything could happen."
She said Thursday that the court, short of issuing a decision, could direct GE and the EPA to find ways to resolve their dispute. If that were to occur, it would fulfill the suggestion in the EPA memo last spring that the government favored "settlement discussions" over a court battle.
"I think they have the power to do that," Herkimer said of the appeals board.
The appeals board does not comment on the nature or timing of its decisions, according to Eurika Durr, the court's clerk.
Dean Tagliaferro, the EPA's project manager on the GE cleanup, told members of the Citizens Coordinating Council at a meeting Wednesday in Lenox that he did not know the status of the appeals board deliberations. He noted that the court, which operates independently of the EPA, faces no time limit on its work.
"My understanding is there is no statutory deadline," Tagliaferro said.
Gray, of the Housatonic River Initiative, suggested that Pruitt's tenure at the helm of the EPA does not inspire confidence among environmentalists.
"We're very worried about it because of what we see happening," he said. "We're all involved in this and biting our nails."
As The New York Times reported Dec. 15, Pruitt has taken steps to identify EPA employees critical of his management and of the Trump administration. The agency awarded a consulting firm a $120,000 no-bid contract, the Times said, to carry out that work. Pruitt has spoken openly about his wish to curtail environmental regulations.
If GE wins its appeal, interested parties have the right to take the case to the U.S. Appeals Court.
Herkimer said nongovernmental organizations like hers will have to think long and hard about the cost involved in taking that step.
"We don't know," she said of what lies ahead on the cleanup. "We projecting, in trying to predict."
Meantime, aspects of the Rest of River cleanup that are not in dispute continue to advance. They include securing environmental restrictions and easements along the river, the inspection and monitoring of dams, and the creation of warnings about the consumption of fish and fowl in the river environment, due to the presence of PCBs.
At Wednesday's meeting of the citizens council, several of the groups present criticized Tagliaferro and the EPA for a decision related to river monitoring.
While Tagliaferro announced that the agency has ordered GE to resume sediment sampling in areas of the river in five years, continuing three surveys already conducted, it allowed the company to discontinue tests for the presence of PCBs in the tissue of macroinvertebrates, a process known as "benthic sampling."
That refers to testing on submerged riverbeds. Common macroinvertebrates include snails, flatworms, leeches, crayfish, clams and mussels, as well as insects such as dragonflies and damselflies.
"I think that's a big mistake," said Jane Winn, executive director of the Berkshire Environmental Action Team, referring to the discontinued testing.
"If for some reason we're wrong, those samples are going to go back up," Winn said.
Lauren Gaherty, senior planner with the Berkshire Regional Planning Commission, also questioned the EPA's decision.
"I think keeping the biota going would have been a better idea," she said, referring to tests on living creatures to measure the presence of PCBs.
Others at the table also objected, saying they should not have heard about the discontinued tests only after a decision has been made.
Tagliaferro defended the agency's call. He said ongoing tests of sediment would provide a measure of the future presence of PCBs. One of the environmentalists questioning the decision took pains to express support for Tagliaferro's expertise.
But others stressed the need for evidence about the presence of PCBs taken from life, not just mud.
"Even these low levels of PCBs affect the ecosystems of the world, and people, too," Gray said. He cited evidence that toxic materials can interact with other substances, compounding the risk to health.
"The chemical soup becomes a real problem," Gray said.
Herkimer, of the Housatonic Environmental Action League, joined others around a crowded table in the Lenox Library to study slides in a presentation by Tagliaferro on PCB sampling results.
She noted improvements already seen in areas of the river where work on remediation has occurred.
"They're lower than what we started with, which is good," she said.
But she still wished GE had not been relieved of a requirement to repeat the macroinvertebrate tests in five years.
"We've just removed the canary in the coal mine," she said. "That's very concerning," she said.
Larry Parnass can be reached at email@example.com, at @larryparnass on Twitter and 413-496-6214.
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