The Eagle is providing live updates from today's Environmental Appeals Board in Washington, D.C. The court is hearing arguments on an appeal that seeks to overturn an EPA permit allowing a PCB landfill in Lee.
IT'S A WRAP: "The case is now submitted." With those words, Judge Kathie A. Stein closed the hearing at 4:03 p.m., after 153 minutes of arguments and comments. The Environmental Appeals Board will issue a ruling on the appeal, at a time of its choosing. When it last heard arguments in the case, in June 2017, it took about eight months to rule.
Thursday's proceeding ended with two “friend of court” presentations. One lambasted the secret mediation that produced the settlement. The other celebrated it.
Judith Knight, the Great Barrington attorney representing citizens opposed to the landfill, told the court that residents in the affected towns had no idea a plan to bury PCBs locally was in the offing.
“None of the citizens in those towns were informed of the settlement,” she said. A group of citizens is suing the town of Lee, claiming its Select Board did not have authority to enter into the agreement.
Knight said the soil conditions at the Lee quarry that would house the landfill are unsuitable. “It’s a textbook terrible place to put a landfill site,” Knight said.
Matthew Pawa, the attorney representing five towns that accepted and signed onto the agreement, said the EPA had made no errors that the court should seek to correct.
Like the attorneys for GE and the EPA, he praised the permit now in place. “This cleanup is very comprehensive and very protective of human health and the environment,” Pawa said.
And he disputed characterizations of the settlement as a handout to GE. “It was a hard-fought and very difficult negotiation,” Pawa said. “We got so many things out of this remedy that we never would have got without this kind of negotiation. … It’s a commendable process we went through.”
In a short rebuttal, Andrew Rainer, an attorney for the two environmental groups appealing the permit, said GE’s corporate interests were foremost during the mediation. The result saved GE $250 million on shipment costs for out-of-state PCB disposal. He noted, with evident sarcasm, that the company “generously” offered to give $50 million back to communities involved.
“That’s actually what happened here,” Rainer said.
Pawa, moments earlier, took issue with that notion, saying, “It’s absolutely not true.”
STAYING AT THE TABLE: Attorney Kwaku Akowuah, representing the General Electric Co., took issue with claims, from environmental groups, that they were excluded from the private mediation that produced the breakthrough settlement that includes local PCB burial.
That process shaped a "reasonable" plan, he said.
One of the groups appealing, he said, declined to agree to a confidentiality agreement, indicating the Housatonic Environmental Action League. And he asserted that the other, the Housatonic River Initiative, led by Tim Gray of Lee, opted out after seeing that a consensus was emerging in favor of local PCB disposal, under new conditions.
Akowuah said that in his legal career, he’s never encountered a mediation that didn’t require confidentiality. “If you walk away from the table you walk away from the table,” he said.
In a later rebuttal, Andrew Rainer, an attorney for the appellants, rejected that statement. He said that HEAL was not invited to participate. Rainer faulted the secretive process and called it invalid, in part because there is no record of its proceedings.
Echoing the EPA’s presentation, Akowuah, the GE attorney, said that the settlement’s terms will bring a faster and better cleanup. And the Lee landfill, he said, can be constructed safely.
“The UDF is safe and protective of human health,” he said.
Like John Kilborn, the EPA’s lawyer, Akowuah noted that more sediment will be removed. “We have a more comprehensive cleanup that will move more quickly, and that’s all to the good.”
Judge Aaron P. Avila questioned why it made sense to bury PCBs pulled from the Housatonic within the river’s own watershed. “Intuitively, doesn’t that seem kind of odd?” he asked.
“Not at all, your honor. I take the point,” Akowuah said.
A BETTER, FASTER CLEANUP: Before diving into the arcane details of permits and appeals, attorney John Kilborn, representing the Environmental Protection Agency, opened with a simple message: Reaches of the Housatonic River are still full of PCBs.
The toxins are uncontrolled, after all these decades, and need to be removed, he said.
“The region’s remedy will do just that and restore the river,” Kilborn said, speaking of the December 2020 permit.
But how, Judge Kathie A. Stein asked, will this permit lead to a faster cleanup, given this the appeal the court is now hearing, as well as possible future court action? “How is it that on-site disposal leads to a speedier cleanup?" she asked. "We still have an appeal here."
Kilborn pointed out that the settlement calls for GE to continue planning for the cleanup, even amid challenges to the settlement reached by mediation and announced in February 2020.
Then Kilborn took on a particular point of criticism in the appeal. It’s wrong to claim the EPA flip-flopped on the question of local disposal, he told the justices. That came after Kilborn got this potent question from a judge: Isn’t the Upland Disposal Facility now planned the same as one the EPA rejected in its 2016 permit?
He said yes, before arguing that the answer is no.
The difference, he said, is that the landfill would now house only sediments containing lower levels of PCBs. Materials with concentrations above 50 parts per million, a key threshold, will be taken away for disposal out of state, the permit says.
On top of that, Kilborn told the justices that the permit improves the eventual outcome for the Housatonic watershed by removing dams to free water flow, dredge away more sediment than was scheduled to be capped in the 2016 permit and cut back on truck trips during the cleanup. By 50,000 such trips, he said.
On the issue of thermal desorption raised in the appeal, Kilborn said critics “cherry-picked” from the EPA’s record on alternative technologies. He said the agency is aware of some advantages of that technology, “but also known were its drawbacks.”
And in terms of the court’s own process, Kilborn argued, as the EPA did in its brief, that the issue of alternative technologies is outside the scope of the appeal.
THEY ‘BEGGED’ FOR A BETTER WAY: Wrapping up for the groups appealing the cleanup permit, attorney Andrew Rainer faulted the EPA for, in his view, never taking seriously long-standing calls from the community for the government to consider “alternative technologies” to remove toxins released into the Housatonic River by the General Electric Co.
Rainer, who like the other appeal attorneys is working pro bono, said that at one point, the EPA rejected the idea of using such technologies, including one known as “thermal desorption,” because it had not been proven on Housatonic River materials specifically.
“That is the paradigm, in my view, of arbitrary and capricious decision-making,” Rainer said.
The community, he told the court, practically “begged” the agency to consider alternative technologies. “Treatment was one of the things that [the EPA] should have taken into account,” Rainer said.
Further, he said proponents of using alternative technologies agreed not to oppose the 2000 Consent Decree after being promised that such approaches would be considered. That decree has guided the response to GE's pollution.
Rainer also offered praise for his clients, who have worked only for the public interest. “These are people who have nothing but the best for the community at heart. They’ve always been concerned about the environment,” he said.
COMMENTS ON COMMENTS: Justice Kathie A. Stein asks attorney Stephanie Parker whether her clients, the appeal groups, raised one of their central objections during the permit’s public comment period. That objection centers on the fact that the PCB landfill in Lee would be placed in an area the state had identified as an “area of critical environmental concern.”
Parker said that the groups had, in fact, spoken of that concern, even if they didn’t use that term. “It’s our position that that was certainly done.”
And lay people, she argued, shouldn’t have to sound like lawyers.
Stein conceded that point, but pushed back a little, saying comments need to be specific enough to “alert the permit issuer,” the EPA, “so it can adequately respond.”
‘STUNNING REVERSAL’ BY EPA: Attorney Stephanie R. Parker, speaking in support of the appeal, calls the EPA’s decision to allow local disposal of PCBs “a stunning reversal of course.” She argues 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 says.
Both Kathie A. Stein and Judge Aaron P. Avila, the two justices hearing the case, note that after the court heard the case in 2017, it sent it back to the EPA. Doesn’t that “wipe table clean?” Avila asked.
Parker argued that rather than take a whole new look, the EPA acted to keep the 2020 settlement agreement intact. “It’s permeated with language about the settlement agreement,” she says, and notes that the EPA has spoken of a wish to avoid delays in the river cleanup.
Judge Kathie A. Stein urges lawyers not to belabor their briefs, which the court’s justices have already studied. “We ask that you think of today as an opportunity to have a conversation,” she said.
Expect a lot of questions, Stein told the lawyers, before they introduced themselves one by one. Those questions don’t suggest the court has decided the case, she cautioned. “I can assure you that we have not,” she said.
THE LINEUP: The court’s justices will allow 40 minutes of arguments from those appealing the permit, the Housatonic River Initiative and the Housatonic Environmental Action League. The other parties, including the Environmental Protection Agency and the General Electric Co., will get the same amount of time.
The appeal team: Andrew Rainer, of Brody, Hardoon, Perkins & Kesten, LLP, Boston; Stephanie R. Parker, of O’Connor, of Carnathan & Mack, Burlington; and Katy T. Garrison, of Murphy & Riley, Boston.
Parker is expected to present the main argument for the environmental groups. Rainer is scheduled to talk about what the appellants’ see as the EPA’s failure to incorporate “alternative technologies” for the river cleanup. And Garrison is going to question whether the EPA’s remedy goes far enough to protect human health and the environment.
The GE team: Attorney Kwaku A. Akowuah make the company’s main case in support of the EPA permit issued last December, which allows local burial of PCBs in a Lee landfill. Akowuah will be backed up by attorney James R. Bieke.
The EPA team: Attorney John Kilborn will present the agency’s case, supported by Tim Conway and Samir Bukhari. Also, the agency has notified the court that it may seek to present expertise from Dean Tagliaferro, Bob Cianciarulo and Bryan Olson.
At 1:30 p.m. today, the Environmental Appeals Board in Washington, D.C., will hear oral arguments on an appeal that seeks to to overturn the permit, issued in December, allowing a PCB landfill in Lee.
The proceeding is being conducted by videoconference. The Eagle will provide live updates during the hearing.
The hearing is being streamed on Zoom and is open to the public.