PITTSFIELD — Justices in Washington, D.C., will hear in September directly from those for and against a plan to bury PCBs in Lee.
The Environmental Appeals Board has notified attorneys that justices are ready to hold oral arguments in the case, which pits two environmental groups against the Environmental Protection Agency, the General Electric Co. and other parties that supported the plan, revealed in February 2020, to allow the burial of sediments with lower levels of polychlorinated biphenyls in an engineered landfill at a former quarry above the Housatonic River.
The court said it will decide whether to convene the hearing at its headquarters in the William Jefferson Clinton Federal Building off 12th Street or allow it to take place by videoconference.
The hearing is set for 1:30 p.m. Sept. 2.
Two groups appealed the EPA’s plan for the cleanup, detailed in a December 2020 permit, but outlined the February before. In a dramatic change, the agency opted to allow local burial of some PCBs, contrary to an earlier permit. That move galvanized local opposition to how the agency now intends to confront GE’s legacy of pollution.
The permit was appealed in January by the Housatonic River Initiative and Housatonic Environmental Action League.
The groups claim that the EPA failed to show why it now supports a dump that it ruled out of consideration when shaping a revised permit that was made public in late 2016.
“The Region’s decision to require onsite disposal is based upon a complete reversal of its prior factual findings without any new investigation or change of circumstances,” the groups’ lawyers wrote in their brief. “That is the very definition of arbitrary and capricious agency conduct.”
The EPA says the current Rest of River cleanup plan promotes health and environmental good. Its lawyers have argued, in briefs to the EAB, that justices should grant deference to the judgment of its experts. The cleanup, it says, will get more of the toxic PCBs out of the river and do so sooner — addressing the “uncontrolled PCB contamination” that continues to threaten health.
In a recent statement to The Eagle, the agency said: “EPA Region 1 stands behind the permit issued in December as the best suited remedy for addressing the risks posed by the PCBs in the Housatonic River and its floodplain.”
The agency’s shift on allowing a local dump site is allowable and defensible, it says in its court filing, if explained publicly with “reasonable clarity.