Bottom line: Nothing said in 400 public comments this summer moved the Environmental Protection Agency to reject a proposed PCB disposal site in Lee.
And with that, a new court battle looms.
Today, the agency released what might be its last word on steps the General Electric Co. must take — over 13 years, and at a cost of $576 million — to address the great stain of its former Berkshire County manufacturing: polychlorinated biphenyl pollution that has threatened and compromised public health for decades along the Housatonic River.
Four years ago, the EPA ordered a cleanup that called for all PCBs to be shipped to licensed disposal sites outside Massachusetts. Now, as widely expected, the agency’s revised final permit allows GE to save millions by placing about 1 million cubic yards of low-level PCB soils and sediment into a lined and capped landfill in a former Lee quarry.
Dennis Deziel, the EPA’s regional administrator, said in an interview that the agency believes that the material can be stored safely, with no risk to human health.
“We’ve done our homework on this,” he said.
Opponents of local burial say they will go to the Environmental Appeals Board in Washington in an attempt to derail the planned cleanup in favor of one that takes more PCBs out of the river and ships the toxins out of Massachusetts.
“We’re going to be launching an appeal,” said Tim Gray, executive director of the Housatonic River Initiative.
The revised Rest of River cleanup plan, sketched in a landmark settlement agreement last February and then detailed this summer, calls for sediments with PCB concentrations over 50 parts per million, which are regulated by the Toxic Substances Control Act, to be sent for disposal out of state.
“EPA insisted on this provision in the negotiated settlement,” Deziel said.
But, sediments pulled from the flood plain with lower levels of the toxin would remain — and that is unacceptable to the initiative and to a grassroots group, Stop the Dump, that has been protesting the deal since February.
Gray said that attorney Andrew A. Rainer, of the Boston firm Brody Hardoon Perkins & Kesten LLP, called to offer his legal services and those of attorneys with two other firms, for free. Rainer is a former assistant attorney general with extensive trial experience.
“The phone call was incredible. We’re feeling pretty good about our representation,” Gray said Thursday.
The appeal must be filed during a 30-day period that begins Jan. 4. The agency delayed the start of that because the permit was signed during the holiday season and the coronavirus pandemic, Deziel said. “This will give people time to review it and understand it.”
Participants in a mediation effort, which led to the February settlement, have pledged not to contest the permit. The Housatonic River Initiative, though, did not back the settlement and is free to contest it in court.
Gray, the group’s executive director, has said he is not convinced that the EPA’s design for the Lee landfill is foolproof.
“It’s way too close to our water supply and directly uphill from the river,” he told The Eagle in an earlier interview. “We just don’t think you put a dump in any community. Liners have failed. The whole thing is just a bad idea.
“We don’t want this dump in our neighborhood,” Gray said Thursday. He lives just south of the former quarry. “And now we get what I consider a crappy cleanup, a terrible cleanup.”
The EPA calls the Lee project the “Upland Disposal Facility.” Opponents use a simpler term: the dump.
Bryan Olson, a senior EPA official who has worked on the Housatonic project for nearly three decades, said the agency is convinced that the Lee disposal site will pose no hazard.
“We’re totally sure that this is safe. But, we’re going to back that up with significant monitoring,” Olson said. “It’s not just ‘Take our word for it.’”
A greater threat to human health, Olson long has argued, are the PCBs that remain in the flood plain. In July, when the agency detailed its plan and invited public comments, Olson said that risk must be removed.
“We do need to clean up the river for those who live adjacent to it,” he said.
What’s more, the agency believes that the settlement broadened the scope of the cleanup, extending it to 15 new locations in the river. Sediments from as many as 100 acres that were to be capped, leaving tainted soils in place, instead would be removed under the permit. To reduce road congestion during sediment removal, the EPA will compel use of a hydraulic pumping system that would eliminate the need for 50,000 truck trips.
In response to public comments, the agency’s revised permit also steps up its commitment to finding alternative means of combating PCBs at some point in the future. Olson said the EPA is issuing a challenge to researchers to find and prove the ability of new technologies to break down the toxins. He said those efforts, if found, could be targeted at PCBs in the Lee landfill.
Olson said this week that, in recent months, the EPA has gone over the plan in minute detail, after most of the public comments received called on the agency to jettison the plan for local PCB disposal. The toxin is listed as a probable carcinogen.
“We’ve done a lot of work, basically to ensure that we were right in what we said before,” he said. “We all are excited to see construction get started.”
Gray said he believes the revised permit was moved along this year for political reasons.
“We could feel the push of the Trump administration getting interested in this site,” he said.
The permit requires GE to continue efforts to prepare for the cleanup in the next two to three years, even if the permit is appealed.
The money that GE is poised to pay local municipalities will flow only if the appeal period ends with no challenge, EPA officials confirmed this week. The settlement calls for GE to pay Lee and Lenox $25 million each, with Great Barrington, Sheffield and Stockbridge each receiving $1.5 million. The dollar amounts are based on perceived local impact of the cleanup.
Pittsfield stands to get $8 million, as well as actions by GE to address blight around its former buildings and properties in the city.
If the Environmental Appeals Board rules against the challenge, Gray said, the legal team is prepared to take it to the next stage — U.S. District Court in Boston. Such actions would keep the Rest of River project in limbo for years. Already, it has been 20 years since GE entered into a consent decree that still governs basic elements of river cleanup.
Actual cleanup work would not begin until 2023 at best, without a legal challenge.
When crews actually get to the task, the EPA and its contractors plan to monitor phases of the cleanup in the approximately 15 years of work that lies ahead, most of it in the initial 11 miles of the river and its flood plain south of the former GE transformer site in Pittsfield.
“We certainly intend to keep active on the oversight,” said Dean Tagliaferro, the EPA’s point person in Pittsfield. “We will have construction reps out there watching the work.”
The U.S. Environmental Protection Agency has chosen this former gravel pit from among three possible locations in the Berkshires to serve as the final local resting place for low concentrations of PCB-contaminated material that will be dredged from the rest of the Housatonic River. The others sites under consideration were off Forest Street in Lee and at Rising Pond in Great Barrington.