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AG says state law preempts attempt in Lee to block proposed PCB dump

WOODSPONDPCB2020-3.jpg (copy) (copy)

This aerial view of Woods Pond shows the Housatonic River entering the pond at the north end. The Upland Disposal Facility for lower-level PCBs is planned for near the south end in Lee. This week, the state Attorney General's office said Lee did not have the power to pass a bylaw last year prohibiting PCB disposal in the town. 

LEE — A governmental body in Lee had the will last year to prohibit a PCB dump in town. But not, a new ruling says, the way.

The Attorney General’s office ruled this week that a bylaw change approved during Lee’s June 24 town meeting cannot go into effect because it conflicts with state law.

The office routinely reviews bylaws approved in Massachusetts cities and towns to verify they do not run counter to existing state laws.

In a letter to the Lee town clerk dated Tuesday, an official with the office’s municipal law unit said it “must disapprove” of the measure backed by elected town meeting representatives in June.

The bylaw, Article 18 on the meeting warrant, empowered the town to ban “the storage, burial, incineration, or disposal of radioactive and Polychlorinated Biphenyls,” the toxic material that the General Electric Co. allowed for years to contaminate vast reaches of the Housatonic River.

Removal of PCBs is the focus of the Rest of River project overseen by the Environmental Protection Agency.

It is the latest legal development to go against opponents of the dump.

While town meeting members took a no-dump stance in June, the town’s Select Board, as constituted in early 2020, approved a plan to allow GE to create a disposal site off Woodland Road that would receive lower levels of PCB-contaminated sediments pulled from the river in the course of a planned $550 million cleanup over the coming decade.

GE continues to prepare for that work, though the EPA’s approval is being challenged by an appeal before the Environmental Appeals Board.

Margaret J. Hurley, of the AG’s office, wrote in the agency’s seven-page decision that the state Department of Environmental Protection has exclusive jurisdiction over the regulation of hazardous waste.

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“Local bylaws that second-guess the ... determination of what should (as well as should not) be allowed would frustrate the statutory purpose of having a centralized, statewide determination of such matters,” Hurley wrote.

Townspeople will finally get their say on whether Lee should host a toxic waste landfill.

Town meeting representatives voted 31-8 on Thursday night to allow local residents to vote on the controversial waste dump. The decision was made during an hourslong annual town meeting that went late into the evening at Lee Middle and High School football field.

The DEP, she said, holds “broad authority” over the regulation of hazardous waste. The state Department of Public Health, meanwhile, is the only entity authorized in Massachusetts to regulate radioactive waste.

Federal government authority, Hurley wrote, also preempts municipal rules.

The AG’s decision notes that the “limited” bylaw reviews the office conducts do not consider the merits of a municipality’s intended policy – and seeks to “favor” the validity of a city or town rule.

In addition to guidance provided by statute and case law, the issue was also treated in a Supreme Judicial Court finding on an attempt by the town of Warren, in Worcester County, to enact a similar restriction on hazardous waste.

“Because DEP comprehensively regulates the generation, storage, collection, transport, treatment, disposal, use, reuse and recycling of hazardous waste,” Hurley wrote in the Lee decision, “the Town’s by-law prohibiting the storage, burial, incineration, or disposal of PCB substances conflicts with the DEP’s broad authority to regulate hazardous waste and therefore, we must disapprove it.”

The Lee bylaw, she wrote, is “in clear conflict.”

Aside from the challenge before the D.C. environmental court, opponents of the dump sued town officials last March in Berkshire Superior Court, claiming they exceeded their authority when they voted Feb. 4, 2020, to endorse a Rest of River settlement. A judge ruled against the plaintiffs in September.

Last March, the AG’s office ruled that the Lee Select Board did not violate the Open Meeting Law when it met in executive session to discuss proposed terms of the Rest of River settlement agreement, which was made public in February 2020. Boards in other South County towns involved in the agreement were also cleared of meeting law errors.

Larry Parnass can be reached at lparnass@berkshireeagle.com and

413-588-8341.

Managing editor for innovation

Larry Parnass joined The Eagle in 2016 from the Daily Hampshire Gazette, where he was editor in chief. His freelance work has appeared in the Washington Post, Boston Globe, Hartford Courant, CommonWealth Magazine and with the Reuters news service.

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