New clock starts on fresh legal fight over PCB removal from Housatonic River Local News

Lawyers are gearing up for the next, and possibly last, legal fight over the government’s plan to remove toxic pollutants strewn into the Housatonic River decades ago by the General Electric Co.

This time, the legal authorities on the other side of the bench will not work for the Environmental Protection Agency.

Two environmental groups filed notice this month with the US Court of Appeals for the 1st Circuit that they want the Boston court to review the EPA’s decision to grant a final permit to remove PCBs from certain stretches of the river and its floodplain – and to bury most of those dredged sediments in an engineered landfill in Lee.

EPA: Trust us, we're the experts.  Dump opponents: GE bought this PCB deal

That is the approach devised by the EPA’s regional office through a mediation that won support in early 2020 from five affected Berkshire towns and several — but not all — environmental groups.

The filing only gets the appeal rolling. The court set a July 5 deadline to receive the voluminous record of the “Rest of River” cleanup plan, and the earlier legal proceedings, after which lawyers for the petitioners — the Housatonic River Initiative and the Housatonic Environmental Action League — and other parties will get deadlines to submit briefs.

It’s been 43 years since the government banned use of PCBs under the Toxic Substances Control Act. The material was used for years by GE as part of its manufacturing of transformers in Downtown.

The appeal was filed by lawyers working pro bono for the environmental groups: Andrew Rainer, of Brody, Hardoon, Perkins & Kesten LLP, Boston; Stephanie R. Parker, of O’Connor, Carnathan & Mack, Burlington; and Katy T. Garrison, of Murphy & Riley, Boston.

As of Friday, two attorneys for GE, James R. Bieke and Kwaku A. Akowuah, have filed notice that they will appear on behalf of the company.

In February, the petitioners lost an attempt to persuade justices with the Environmental Appeals Board that the 2020 cleanup plan represented a dramatic, and inadequately explained, reversal from the EPA’s earlier insistence that sediments containing polychlorinated biphenyls — which are listed as a probable carcinogen — be disposed of in licensed facilities outside of Massachusetts .

US environmental court backs PCB cleanup plan for the Housatonic River, rejecting claim of EPA error and allowing Lee landfill

Two justices with the EAB heard oral arguments last September, then ruled that the EPA was justified in changing course on the cleanup.

With the court’s decision in hand, the EPA’s regional administrator, David W. Cash, notified Andrew T. Silfer of GE that the path was clear for a cleanup involving local PCB disposal. “Pursuant to this decision, the Revised Final Permit shall become fully enforceable and effective,” Cash wrote. “For the purposes of judicial review, this decision constitutes final agency action.”

Live updates from Rest of River appeal hearing

An attempt to overturn the EPA permit allowing a PCB landfill in Lee goes to a hearing today before the Environmental Appeals Board in Washington, DC The proceeding is being conducted by videoconference, starting at 1:30 pm The Eagle will provide live updates during the hearing .

Being able to bury roughly one million cubic yards of tainted sediments in Lee is expected to save GE hundreds of millions of dollars.

The 2020 “settlement agreement” stands to pay the towns of Lee and Lenox $25 million each, with smaller amounts to the other affected Berkshires communities. It calls for soils with lesser concentrations of PCBs to be buried in what the EPA calls a planned Upland Disposal Facility off Woodland Road in north Lee, close to Woods Pond.

Evolving GE remains on hook for Rest of River cleanup, officials say

On May 16, Lee residents voted 652-388 in support of a nonbinding referendum that asks the Select Board to rescind its decision to accept the Rest of River cleanup plan and the Lee landfill. Voters also elected Gordon Bailey, an opponent of the PCB dump, to a three-year term.

“I’m not afraid to fight the dump,” Bailey told The Eagle after the results were in. “If [rescinding] is a good, legal option, I’m for it … but we need to know the ramifications.”

EPA officials say the landfill will be able to accommodate the PCBs without risk to the area environment or public health. Sediments containing concentrations of PCBs over 50 parts per million will be sent to other disposal sites. EPA officials have said that the the soils that would be placed in the Lee landfill would have PCBs concentrations of 20 to 25 parts per million. They say that level is below the federal rules that require shipment to designated disposal sites.

In their case before the EAB, attorneys for the environmental groups argued that the EPA had made a reversible error in deciding that GE could bury up to 1 million cubic yards of sediments containing PCBs in the landfill.

The lawyers claimed the agency changed its position without conducting new research, or facing changed circumstances, though that argument was rejected by the two justices.

“The Board concludes that the Citizen Groups’ argument lacks merit,” the 125-page EAB decision states. They found that the agency had in fact conducted further analysis.


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