Two environmental groups came up short Tuesday in their legal efforts to block disposal of toxic sediments in a landfill near the Housatonic River.
Their fight against local disposal of polychlorinated biphenyls, a probable carcinogen, now will move to the 1st Circuit of the U.S. Court of Appeals.
Two justices with the Environmental Appeals Board ruled that the Environmental Protection Agency was justified in changing course on how it would require the General Electric Co. to handle soils contaminated with PCBs.
In February 2020, the agency revealed, after a secretive mediation process, that it would allow GE to bury most of the PCB-tainted sediments pulled from the river in a specially designed Lee landfill, a plan that it confirmed in a formal determination in December 2020.
GE polluted Berkshire County’s premier river over decades from a transformer factory in Pittsfield. Previously, the EPA required GE to ship all PCBs removed from the river to facilities outside Massachusetts.
The switch, which will save GE hundreds of millions of dollars, was appealed by the Housatonic River Initiative and the Housatonic Environmental Action League in early 2021.
In September, the EAB heard oral arguments, then issued its decision Tuesday.
“We reject the Citizen Groups’ contention that the [EPA’s New England regional office] clearly erred in choosing to allow disposal of the less-contaminated PCB wastes from the Rest of the River site at the Woods Pond Landfill,” the justices wrote.
Tim Gray, executive director of the Housatonic River Initiative, said the citizens’ groups expected to be rebuffed by the District of Columbia court, which is part of the apparatus of the Environmental Protection Agency itself.
“We totally expected this. We’re in a court that is an EPA court. And right now we’re arguing and having a huge fight with the EPA,” Gray said in a phone interview Tuesday night.
“Where we’ll finally get a fair judge will be in federal court, which is where we’re headed next, to try to stop this terrible thing for Lee, for Lenox and for Berkshire County,” he said.
This is the second time the river cleanup has gone to the D.C. court. It ruled in January 2019, after arguments the previous spring, that the EPA should revisit its decision to require out-of-state disposal of PCBs.
The environmental groups argued last year that the EPA made a reversible error in deciding, in December 2021, that GE could bury up to 1 million cubic yards of sediments containing PCBs in the landfill. Soils with PCBs above a certain threshold still must be shipped outside Massachusetts for disposal, the EPA said.
The EAB justices, Aaron P. Avila and Kathie A. Stein, ruled that the citizens’ groups “fail to show that the Region (the EPA) clearly erred in allowing less-contaminated wastes to be disposed of at an on-site facility ...”
Lawyers for the environmental groups argued that the EPA changed its position without conducting new research or facing changed circumstances. In their ruling, five months after the oral arguments Sept. 2, the justices rejected that theory.
“The Board concludes that the Citizen Groups’ argument lacks merit,” the decision states.
The justices say, in their 125-page decision, that the EPA did further analysis that the court had found lacking in the earlier 2016 permit that had disallowed local PCBs disposal, which GE appealed, sending the matter to the D.C. court for the first time.
Gray, of the Housatonic River Initiative, said the legal team working for free for the groups already is at work on their appeal to the 1st Circuit.
“Our lawyers called it right from day one, that we’ll only have our day in federal court,” he said, referring to the 1st Circuit. “They’re with us and believe in our cause. They believe we’re right.”
The groups are represented by Andrew Rainer, of Brody, Hardoon, Perkins & Kesten LLP, Boston; Stephanie R. Parker, of O’Connor, Carnathan & Mack, Burlington; and Katy T. Garrison, of Murphy & Riley, Boston.
Parker, in remarks to the court Sept. 2, called the EPA’s decision to allow local disposal of PCBs “a stunning reversal of course.” She argued that the agency’s basic facts didn’t change from 2014 to 2020, but, nonetheless, the EPA dropped its decision in 2016 to require off-site disposal.
“The underlying facts are the same,” she said.
Rainer, another attorney for the groups, faulted the EPA for dismissing calls from the community for the government to consider “alternative technologies” to remove GE’s toxins from the river. The court said Tuesday that it saw the issue of alternative technologies as “not within our scope of review of this permit.”
Gray said the appeal to the 1st Circuit, which sits in Boston, gives the groups a chance to overturn the EPA decision, but he cautioned that it is only “a chance.”
“We may lose. It will be very sad if Berkshire County gets a permanent dump. What a shame for General Electric to do this again to Berkshire County. It’s really, really sad,” Gray said. “This whole thing is about letting GE save $250 million. And what do we get? We get a toxic dump forever.”