Mediator again seeks elusive compromise on Housatonic River cleanup
PITTSFIELD — Same problem. Same disputing parties. Same mediator.
It begs the question: Is a breakthrough possible on the region's costliest environmental disaster?
The last time attorney John G. Bickerman waded in to help the Environmental Protection Agency, the General Electric Co. and a flotilla of stakeholders come to terms on further removal of a probable carcinogen from the Housatonic River, he didn't see much hope.
That was two years ago, before the EPA ordered GE in late 2016 to spend as much as $613 million over 13 years to remove sediment and soil contaminated with polychlorinated biphenyls, or PCBs, from miles of the river south of Pittsfield.
Until that "Rest of River" hammer came down, locking in terms of the current faceoff, GE and the agency were engaged in required mediation — and for a time, Bickerman journeyed up from his Washington practice to perform the role of the "neutral," just as he has in dozens of cases, from environmental disputes in Alaska to water rights battles in Montana.
But Bickerman walked away from his earlier Rest of River assignment, after meeting with the big players and then hearing from residents and environmental activists in the Berkshires.
Once they had weighed in, Bickerman saw no point in continuing, he said in interviews this week.
"It was going to go nowhere, so they should go off and litigate," he said.
And so the EPA order came, GE appealed, environmental groups rebelled — and 20 more months went by.
And yet today, as EPA staffers work to shore up their 2016 order, Bickerman is back in the Berkshires, his mediation fees covered by the EPA and GE, in search of compromise yet again.
If his renewed mediation can overcome obstacles, chief among them mistrust, it could hasten cleanup efforts.
Bickerman's mediation quest now holds center stage. It will delay the EPA's plan to respond by this week to a request from the Environmental Appeals Board, the nation's top environmental court. That body, which heard GE's appeal a year ago, wants the agency to justify its requirement that GE ship contaminated soils to licensed facilities outside Massachusetts.
The agency is holding off, a spokesman said, to give the renewed mediation time to advance — or fail.
"If there's daylight and he's making progress, we'll encourage him to keep going," Jim Murphy, an EPA spokesman, said of Bickerman.
The buzz in the Berkshires suggests that Bickerman will face the same challenge he did in 2015 and 2016 to bring environmentalists and communities affected by the cleanup to the table.
GE used PCBs for decades to make electrical transformers in Pittsfield until a federal ban in 1979. A consent decree in 2000 laid down principles for future environmental remedies; the fight now, 18 years later, is over the details.
In interviews this week, representatives of three environment groups who have met with Bickerman expressed doubts about the process.
They are looking for assurances that mediation will hear them out on a top concern: GE's request that it be allowed to bury PCB-laden materials in sites close to the river, rather than shipping them out of state, as the EPA order says.
"Mediation is supposed to be that you listen to both sides and find middle ground," said E. Heidi Ricci, assistant director of advocacy for Massachusetts Audubon. The group manages a recreation site, Canoe Meadows Wildlife Sanctuary, near the start of the Rest of River cleanup.
Ricci said Bickerman, in a 90-minute meeting with members of her group, expressed the view that mediation was not likely to advance unless community members are willing to rethink their opposition to in-state dumping.
When asked to respond, Bickerman said his meetings with all parties so far have been confidential and, for that reason, declined to respond to Ricci's characterization of their meeting.
But he said that in general, as he gathers facts and viewpoints from mediation participants at this early stage, no boundaries are erected.
"The negotiations have not even begun," he said. "Nothing is off the table."
Still, other environmentalists who have met with Bickerman shared Ricci's concern about how the mediator will deal with the disposal site issue.
Jane Winn, executive director of the Berkshire Environmental Action Team in Pittsfield, said she felt that Bickerman gave her steadfast opposition to local dumping too little credence in her initial talk with him.
"I didn't feel like there was anything in the way of mediation," she said.
Bickerman declined to answer Winn's criticism, citing his pledge to participants not to disclose what has been said.
But in an earlier interview this week about his method, Bickerman said his first goal is to gather facts, not undertake actual mediation.
Given the earlier failure of mediation to bring results, Bickerman said he was clear, when the EPA invited him to try again to find compromise, about his doubts.
"The first thing I said was, `What's changed?'" he said.
In his initial meetings, Bickerman said he has been working to assess whether enough has changed to proceed.
"For the mediation to succeed, the parties have to trust me and trust the process," he said.
According to Murphy, the EPA spokesman, Bickerman believes that threshold of trust exists.
For its part, GE is ready to join in.
Jeff Caywood, a company spokesman in Boston, said GE will participate with the hope of finding "a commonsense solution" in the cleanup.
"Mediation holds the potential for the Rest of River to be cleaned up sooner than would be realized through protracted litigation," he told The Eagle via email, "and provides the parties the opportunity to address their concerns rather than leave them to the courts."
Further litigation has always loomed over the case, given the financial stakes involved and the depth of disagreement.
It is estimated that if it is able to use disposal sites in Massachusetts, GE stands to save $250 million.
One new factor is Scott Pruitt's leadership at the EPA. Shortly before the GE appeal was heard in Washington, D.C., last June, Pruitt signaled in a memo that he wanted to be personally involved in high-stakes cleanups.
Murphy, the EPA staffer, said the agency is encouraging the new mediation and finishing up work it began in January, when the appeals board sent its 2016 order back on "remand" — with a request that the agency reconsider allowing use of in-state disposal sites.
The EPA has been reaching out to state officials in Massachusetts and Connecticut, where the Housatonic continues its run to Long Island Sound, and to affected municipalities, in a bid to gather additional evidence.
Murphy said the EPA expects to reaffirm its call for out-of-state shipments of contaminated soils, unless new data emerge.
"Minus that, we're going to be consistent," he said of the 2016 order.
No date is set for responding to the appeals board, Murphy said, in part to allow Bickerman room to move.
"It is going to take a little longer," he said. "We're going to look at everything."
One of the mediator's first goals, Murphy said, was to get on the ground in the Berkshires and gather views. He credited Bickerman with having a good grasp of the issue.
"That was kind of his priority, because if there is to be a mediation solution, it's going to involve the stakeholders," Murphy said. "He's in the midst of talking to those stakeholders. He thinks it's worth continuing those conversations."
But around the region, environmentalists question whether mediation is in their best interests, in light of the EPA's stance opposing in-state disposal.
Representatives of the Rest of River Municipal Committee — from towns along the river south of Pittsfield — expressed those concerns when the idea of a new round of mediation arose last winter, at the urging of the appeals board itself.
Thomas Matuszko, executive director of the Berkshire Regional Planning Commission, which convenes the four-town committee, said that, to his knowledge, the group had not yet committed to participating in mediation.
Attorney Matthew Pawa of the Pawa Law Group, who represented the committee at the June 2017 hearing before the Environmental Appeals Board, could not be reached for comment.
Bickerman said it will be up to each party in the long-running dispute to decide whether to join the mediation.
All views must be heard, he said.
"Their interests have to be addressed, and they have to have a seat at the table," Bickerman said. "It's quite a few parties. That's the challenge of a mediation like this."
To get to the table, participants must trust that their interests will be treated fairly. That's a particular concern among environmental groups.
One of Bickerman's most chilly visits in the region, it appears, came when he stopped in Lee to visit Tim Gray, executive director of the Housatonic River Initiative, at the Golden Hill Nursery he co-owns.
Gray has been fighting for decades to address GE's pollution of the river.
"I told him right away when he came where we stand," Gray said of Bickerman, as nursery customers hefted lush plants up onto a counter beside him.
That stand among environmental groups, Gray said, is that the EPA's remedy doesn't go far enough.
"Why are we leaving it all contaminated?" he asked. "We really don't feel good about the way EPA is proceeding right now."
At Mass Audubon, Ricci also wants her group's prime issue — opposition to in-state disposal — to get proper consideration.
In their meeting with Bickerman, Mass Audubon staffers weren't reassured on that point.
"So, we were concerned about that," Ricci said, speaking of what she took to be early outlines of mediation; Bickerman notes the process has not started. "I wish there was a more clear structure to it."
But at the same time, the group is looking to see Rest of River work begin, removing PCBs, decades after the substance was deposited in river sediments.
"We are eager to see this whole thing move forward," Ricci said. "So the cleanup can proceed sooner rather than later."
Larry Parnass can be reached at firstname.lastname@example.org, at @larryparnass on Twitter and 413-496-6214.
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