REST OF RIVER SETTLEMENT AGREEMENT

PCB cleanup plan reached for rest of Housatonic River

Hybrid deal includes local low-level PCB landfill in Lee and out-of-state disposal; GE to pay $63 million to 6 communities

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LENOX — In a reversal, the U.S. government now agrees to allow local burial of toxic Housatonic River sediment, sparing the General Electric Co. the high cost of shipping it all out of Massachusetts as part of a long-awaited cleanup.

But the agreement to create a disposal site in a former Lee quarry, reached through more than a year of mediation, still calls for sediments containing the highest levels of polychlorinated biphenyls, or PCBs, to be sent to federally approved disposal facilities out of state.

Workers at GE’s transformer business for half a century released PCBs — banned in 1979 and later labeled a probable carcinogen — into soils around its Pittsfield works and into Berkshire County’s premier river system.

Federal and local officials involved say the compromise assures that toxins — and more of them — will be removed from the river sooner.

“We all collectively ended up with a better cleanup, a safe, sensible solution and much-needed economic benefit to the communities,” said Dennis Deziel, the Environmental Protection Agency’s regional administrator in Boston.

Backers of the plan say it will deliver a fuller cleanup, faster, and avoid the pitfalls of continuing legal fights.

If it clears legal challenges, the would end a two-year impasse. Though the EPA said in 2018 it planned to bolster its argument before the Environmental Appeals Board for out-of-state PCB burial, the agency instead joined a mediation effort led by attorney John Bickerman of Washington, D.C.

The agency’s standing demand for out-of-state PCB disposal, and that requirement’s $200 million to $250 million added cost, was GE’s central objection to the Rest of River permit the EPA issued in fall 2016.

The deal, announced Monday alongside the river in Lenox, requires the company to redeploy, not retain, most of its savings from local versus out-of-state disposal in the course of the “Rest of River” cleanup plan, outlined in 2016. The work has been tied up in the regulatory and court system for years.

The company must still send at least 100,000 cubic yards of PCB-laden materials, including any containing 50 parts per million or more of the toxin, to an out-of-state facility approved by the EPA.
In exchange, GE has agreed to do more work to remove PCBs than the EPA’s 2016 permit required, adding more than a dozen elements to the cleanup, including steps to remove rather than cap 100 acres of soils that contain PCBs.

Under the plan, GE also would pay six local communities a total of $63 million and invest about the same amount to extend the cleanup’s scope, according to an Environmental Protection Agency official.

The settlement agreement comes more than two decades after GE and the city of Pittsfield reached an agreement to confront the company’s legacy of pollution, a plan memorialized in a 2000 U.S. District Court consent decree.

The work targets roughly five miles of river and floodplain areas south of Fred Garner Park in Pittsfield and then in many locations along the Housatonic’s run to the Connecticut line.

Earlier work by GE resulted in PCB removal along two miles of river in Pittsfield. The company says it has invested $500 million to date in environmental remediation in the city.

GE relief

For its part, GE secures a measure of financial relief. The company’s overall cost would drop from the $613 million calculated by the EPA. The savings to GE would amount to about a third of the $200 million expense linked to full out-of-state burial, according to one EPA estimate, a sum roughly equal to the payments to communities and to the price tag of an enhanced cleanup.

Lee and Lenox will get $25 million each. Though in Lee, the landfill’s closest urban center is the village of Lenox Dale.

While two environmental groups engaged in mediation back the agreement, another, the Housatonic River Initiative, did not sign on.

Its executive director, Tim Gray, said he believes residents in affected towns should have been able to review and consider arguments in favor of a local landfill.

“The townspeople have been totally left out of this decision,” Gray said.

Roger Martella, GE’s director for environment, health and safety, said in a statement that the agreement lives up to the company’s pledge to undertake “a comprehensive cleanup of the Housatonic Rest of River that fully protects the environment.”

“This plan brings certainty to the parties, exceeds the cleanup requirements of the consent decree, and provides local communities with additional financial and land resources for development,” he said.

Though regulatory steps lie ahead, the company has agreed to begin planning next steps right away.

“We look forward to working with our partners to implement this project without delay,” Martella said.

Deziel, the EPA regional administrator for six months, told The Eagle the agency’s Washington, D.C., office issued one directive to his team: “Our marching orders were ‘clean the river.’”

Revising permit

The agreement will prompt the EPA to revise its 2016 permit for the Rest of River cleanup, which GE appealed in part due to the cost of shipping roughly 1 million cubic yards of PCB-laden soils out of Massachusetts. One current EPA estimate pegs the cost of that disposal at $500 per cubic yard.

The agency will now allow GE to create a 20-acre landfill at a quarry in Lee to receive more than 1 million cubic yards of material. At its planned size, the landfill would hold at least the equivalent of 71,428 full-sized dump truck loads of soil and sediment.

Steps outlined in the agreement, combined with environmental repairs detailed in a 2016 EPA permit, extend to areas polluted by GE in both Pittsfield and communities downriver not addressed in the consent decree.

That plan will face public comments, undergo a possible revision and reach final form later this year, EPA officials say. Public information sessions are planned Feb. 19, 20 and March 5. A court challenge remains possible. The board president of the nonprofit Housatonic River Initiative said the group hasn’t ruled that out. (See accompanying story.)

But officials with the EPA and participating communities view a legal fight as less likely, now that central players in the drama are in accord.

Along with the EPA and GE, the agreement was unanimously approved by all members of the Housatonic Rest of River Municipal Committee — Great Barrington, Lee, Lenox, Sheffield and Stockbridge — and by the Berkshire Environmental Action Team.

Massachusetts Audubon also backed the agreement. It would receive $500,000 from GE to offset disruptions at its Canoe Meadows property in Pittsfield related to river work.

Though such sums to municipalities and the nonprofit will be placed in escrow right away, they would not be released until any legal barriers is cleared.

The fact that litigation would continue to delay removal of PCBs from the river helped forge local alliances.

Jane Winn, executive director of the Berkshire Environmental Action Team, said the agreement improves on the EPA’s 2016 permit. Doing nothing, she said, allows a hazard to remain.

“The river basically is an unlined, uncapped PCB reservoir that’s currently admitting PCBs into our air, water and land. And those PCBs are traveling up the food web and getting throughout the world.”

Winn indicated that for the greater good, she accepted the creation of a local disposal site. “We are not thrilled with having a new PCB dump in the Berkshires, but we and our allies will always keep fighting for cleaning up these dumps,” she said.

City's deal

The city of Pittsfield negotiated separately with GE and the EPA, coming away with an $8 million contribution by the company to an economic development fund, steps to address blighted GE buildings and landscapes and agreements on how work will be handled in city neighborhoods along the river to minimize disruption.

The new money comes on top of $10 million GE has provided to Pittsfield for economic development projects.

Mayor Linda Tyer called the agreement a “remarkable” document that will speed the cleanup.

“We’re achieving a cleanup that is more protective, faster and more comprehensive than the original 2016 permit,” Tyer said.

“I have to emphasize that this is preventing protracted litigation with an uncertain outcome,” Tyer said. “The risk of litigation would have stripped the ability of the communities to negotiate any kind of enhancements. And that was a risk we weren’t willing to take.”

For the five river towns, mediation was seen not only as a hedge against losing in court, but as a way to gain influence in the nature of the cleanup along river banks and floodplains in their communities.

Channing Gibson of Lenox, a member of the five-town Housatonic Rest of River Municipal Committee, said the arrival of mediation offered a chance to be heard, beyond arguments that its lawyer made to the Environmental Appeals Board in 2017.

“This was a real opportunity for the towns. It was our first chance to have a seat at the table in a real way,” Gibson said, “and hope that we could come out of this … with improvements to what we were going to get under the permit.”

“We began to see that GE was willing to negotiate on these things,” he said of technical aspects of the cleanup. “We stayed at the table because we saw opportunity there for us. I gotta tell you, it wasn’t the money, at the beginning, at all.”

Patricia Carlino, a member of the Lee Select Board, said she worried that the towns would be outgunned in the court system. Members of the municipal committee say that the EPA had warned that it stood a 50-50 chance of prevailing, if GE pressed its legal options through the courts.

Though the group’s starting point was opposition to any local burial of PCBs, Carlino said she wanted a seat in discussions.

“If we’re going to mediate something, I want to be in the room with the committee, getting the best deal we can for our community,” Carlino said.

She said delays in the cleanup are not good for the public. “We currently have a hazardous waste site, and that is the Housatonic River.”

Deziel, the EPA regional administrator who began work six months ago, said parties reached “reasonable compromises” and the condition of removing the highest concentrations of PCBs from the region was pivotal.

“This is absolutely, absolutely essential to the deal,” he said. “EPA insisted on the worst material going offsite for disposal.”

Bryan Olson, a senior official in the EPA’s Boston office, said the agency came to question its ability to defend its demand that all PCB-tainted soils be shipped out of Massachusetts.

He said the agency believes that the limited local burial can be achieved in a way that’s “completely protective” of the environment. Olson said the agency plans to take 20,000 more samples of soil and sediment, adding to its understanding of where contamination is most prevalent.

Materials to be allowed into the Lee landfill, he said, will average PCB concentrations of 20 to 25 parts per million. The threshold under one federal law is 50 ppm.

“Anything that’s regulated under the Toxic Substances Control Act (TSCA) is going off-site,” Olson said.

The landfill will be built to TSCA standards, he said, even though the material to be contained does not require it.

“Sort of a ‘belt and suspenders’ approach,” Olson said. “That’s something that the towns insisted on from the beginning … just to make sure it’s safe.”

“The river is a landfill as it exists right now,” Olson said. “And it has been for 50-75 years. This stuff has been sitting in the bottom of the river, in the floodplain, the same stuff that we’re worried about whether we put it in a lined and capped landfill.”

“So that’s sort of the ironic part of the discussion … and GE constantly reminds us of that,” he said.

Larry Parnass can be reached at lparnass@berkshireeagle.com, at @larryparnass on Twitter and 413-588-8341.


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