Parties consider mediation to resolve differences on Rest of River cleanup

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LEE — A judge with the nation's top environmental court might try to mediate a dispute over removal of Housatonic River toxins.

The venture, if embraced by the General Electric Co., municipalities and environmental groups, could reduce litigation over the company's pollution of the river — and speed the continued cleanup of polychlorinated biphenyls, or PCBs.

But it isn't clear whether parties will even agree to join mediation, much less come to terms over their differences.

Members of the Housatonic Rest of River Municipal Committee saw as much pitfall as promise in mediation, when briefed on the development Friday morning by Dean Tagliaferro, the Environmental Protection Agency's project manager on the GE cleanup.

"We need answers to the questions we raised today before we make a decision," said Patricia D. Carlino, a member of the Lee Select Board who sits on the panel.

Those questions included concerns about legal strategy, a matter the committee took up later Friday in executive session. The committee represents the interests of the towns of Great Barrington, Lee, Lenox, Sheffield and Stockbridge.

Tagliaferro asked the committee to consider joining what's known as an alternative dispute resolution program run by the Environmental Appeals Board in Washington. He said mediation would be run on a parallel track, apart from the agency's continued effort to defend the cleanup it outlined in a revised permit in October 2016.

"We don't have any preconceived endgame," Tagliaferro said. "Maybe something will work out. It's worth a try."

Normally, the court invites people involved in an environmental dispute to try mediation before a case is presented.

That moment came and went roughly a year ago, leading to a full day of hearings before three judges in the District of Columbia last June, then a seven-month wait for a decision.

In a ruling Jan. 26, the court upheld most of the EPA's plan for a $613 million, 13-year cleanup of PCBs along stretches of the river from Pittsfield south.

But it asked the EPA to revisit its plan to compel GE to ship sediments containing PCBs out of the state.

The substance is listed as a probable carcinogen and was banned in 1979, after decades of use by GE in Pittsfield to make electrical transformers. The future cleanup stems from terms of a 2000 consent decree addressing GE's history of pollution.

One million cubic yards of soils and sediments would be removed from the river under terms of the EPA's 2016 permit.

That's enough material to fill more than 83,000 commercial dump trucks with payloads of 12 cubic yards each. Environmentalists note that the amount of material slated to be taken out represents one-third of the extent of PCBs in the river.

General Electric pressed the court last year to allow it to dispose of PCB-laden sediment within the state.

The court also asked the EPA to reconsider a condition in the cleanup permit requiring future work projects in the river.

Tagliaferro said he expects the EPA to provide answers to the court in two to three months.

"They didn't reject it," Tagliaferro said of the court's view of off-site disposal. "They remanded it for more information."

Jim Murphy, an EPA staffer, told the group in Lee that the agency will hold firm on its view that sediments should be disposed at federally licensed facilities outside Massachusetts.

"We're going to make all the arguments for out-of-state disposal. They're going to be consistent with that," Murphy said.

But at the same time, Tagliaferro noted that Scott Pruitt, the EPA administrator, is pressing for the agency to "expedite" large-scale and costly cleanups.

The idea of mediation was proposed by an attorney associated with the Environmental Appeals Board.

"We don't want to delay the process any longer," Tagliaferro said.

That has led to what he termed "exploratory" conversations about mediation. He said he hoped to know by next week whether groups in Berkshire County are willing to consider mediation and then proceed "at a decent pace."

Mediation option

The idea of using mediation is being advanced to see if disagreements over the EPA's 2016 cleanup plan can be resolved more quickly than through the regular administrative process.

A fact sheet provided by the Environmental Appeals Court says that a "settlement judge" is named to oversee a mediation effort. In this case, it would likely be Judge Mary Kay Lynch, since she is the only one of the court's four judges not involved in the case.

"The primary purpose of this program is to provide a neutral, confidential forum for the settlement of cases," the court says.

Participation is voluntary and can be conducted through videoconferencing. Parties do not give up any rights to other legal options and can bow out at any time. One of the first steps taken is to have the settlement judge meet privately with the parties, hearing them out and giving "a confidential, oral assessment of the strengths and weaknesses of their case."

Other parties that would have the right to engage in mediation, other than GE itself, include the Housatonic River Initiative, the Berkshire Environmental Action Team and C. Jeffrey Cook, a Pittsfield resident who asked the Environmental Appeals Board to find that the EPA's cleanup is too extensive.

If mediation fails to resolve issues, the matters are returned to the court's normal docket.

Steve Shatz, a committee member from Stockbridge, joined several in questioning whether mediation best served the towns' interests.

"To me, it's a bit of a fool's errand," Shatz said, noting that the process can put the EAB judge at odds with her three colleagues, since they already have ruled. Shatz believes that before considering mediation, the municipal committee should allow the EPA to respond to the court's questions. 

While the normal process is now focused on the issues sent back to the EPA by the court, mediation might broaden the topics, several committee members noted.

"The scope needs to be determined," said Rene Wood, a committee member from Sheffield.

She questioned whether all the parties involved in the Rest of River cleanup can come to terms through mediation. Wood also flagged time and expense.

"If we go forward with this, we're going to put resources into it," she said.

Nathaniel Karns, executive director of the Berkshire Regional Planning Commission, said that if mediation is begun, stakeholders to the cleanup risk losing a voice if they stay away.

"Our attorney's opinion is, you don't want to be left outside the room if there is a table," he said.

Shatz said there is some merit to that argument.

"You do want to participate, even if the deck is stacked a little bit," he said.

But on balance, Shatz said the towns run the risk of undermining whatever advantage they may hold in the normal regulatory process.  

"This feels like bidding against yourself," he said.

The Rest of River Municipal Committee plans to hold a conference call this week with an attorney associated with the court to clarify terms of the mediation.

Meantime, as the EPA prepares its response to the court, Karns said he believes the case for out-of-state disposal of PCBs can be strengthened.

"I think there is some local knowledge that we can bring into play," he said.

Road ahead

After the EPA responds to the Environmental Appeals Board, judges there can uphold the 2016 permit, or order the agency to revise it.

If that happens, the clock resets, officials say. That could lead to further delays in the start of work.

A revised permit would face a new round of public hearings. Parties would also have the ability to appeal it, just as GE and environmental groups did after the 2016 permit.

Beyond that, anyone unhappy with the outcome can take their case to the 1st Circuit of the U.S. Court of Appeals.

A spokesman for GE said last month that the company stood ready to work with the EPA "to fix the plan so we can start the cleanup of the Rest of River."

Tagliaferro said the EPA remains focused on addressing toxins in the river.

"Our goal is to get a settlement that moves to a cleanup," he said.

Larry Parnass can be reached at lparnass@berkshireeagle.com, at @larryparnass on Twitter and 413-496-6214.


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