Posted on April 4, 2017
By Clarence Fanto, The Berkshire Eagle
As the three-judge independent Environmental Appeals Board panel continues its review of the EPA’s Rest of River order to General Electric to remove PCBs from the Housatonic, the company has fired back with a hard-hitting response striking at the front lines of its legal confrontation with the federal government.
In its 127-page filing on the March 27 deadline set by the board for “friend of the court” responses, the company contends that the EPA cannot impose off-site disposal of toxic PCB waste as there is “no environmental benefit.”
On the contrary, GE argues that there are “adverse environmental impacts associated with the out-of-state transport and disposal of sediment and soil.”
“Safe, cost-effective local options exist,” according to the company.
Last year, GE listed three potential local sites where PCB contaminants could be dumped — an existing landfill on the Lee-Lenox line adjacent to Woods Pond, the hottest of PCB “hot spots,” a site off Forest Street in Lee or a tract near Rising Pond in Housatonic, a village within Great Barrington.
However, state regulations bar the dumping of PCBs in Massachusetts since there are no qualified federally-licensed facilities.
Local residents, town governments, environmental groups and the state Department of Environmental Protection have strongly backed the EPA’s insistence that the probable cancer-causing toxins must be trucked, or preferably shipped by rail, to a licensed federal facility out of state.
Other key points in GE’s response to the EPA order:
– The agency “must clearly define the scope of the remedy. The final permit contains vague, open-ended performance standards that leave the door open for future second-guessing.”
– EPA “cannot impose additional dredging that is not required to protect human health or the environment.”
– The agency must abide by the legal requirements of the Consent Decree governing the cleanup of the river, a legal filing at U.S. District Court in Springfield in October 2000. “Under this standard, EPA’s interpretations are untenable.”
The federal government’s Rest of River cleanup order for the river downstream from Fred Garner Park in southeast Pittsfield through Lenox, Lee, Stockbridge and points south calls for GE to fund a $613 million dredging, excavation and soil-sediment disposal in phases over 13 years.
The company argues that out-of-state shipping of contaminants would cost an additional $160 million to $245 million to achieve the same results as local dumping.
GE contends the EPA’s required remedy is arbitrary and clearly erroneous “by offering rationales that are inconsistent with the evidence and by reaching conclusions that cannot be attributed to the application of agency expertise.”
“When EPA disregarded cost and opted for out-of-state disposal, it improperly relied on factors beyond” the Consent Decree requirements, the document states. “These fundamental errors constitute arbitrary decision-making.”
GE also stated that “state and local concerns are not valid” for selecting cleanup remedies such as the location of PCB waste disposal: “Nothing EPA says can explain or justify its pivot to the contradictory position that `off-site disposal is more protective of human health and the environment than on-site disposal.'”
The company’s team of attorneys also blasted the government’s requirement that additional cleanup based on monitoring could be required after the dredging and excavation project has been completed.
Zeroing in on a central legal dispute, GE stated that “under EPA’s argument, on the one hand, the [Environmental Appeals] Board would lack jurisdiction over arguments that GE did not raise in comments, and on the other hand, it need not hear arguments raised in comments and addressed in the [EPA’s] Response to Comments.
“If that were true, then there would effectively be nothing for this Board to review, and the Consent Decree’s provisions for administrative and judicial review would be nullified.”
On the thorniest issue — the disposal of PCB waste — GE alleges that the EPA “erred when it selected out-of-state disposal” because, as GE has already argued, cost is a “key factor in the Consent Decree permit and cost-effectiveness is a fundamental principle of reasoned agency decision-making.”
According to GE, “EPA continues to insist that [the Consent Decree] mandates only `off-site’ disposal, implying that it does not necessarily require out-of-state disposal. The response submitted by Massachusetts exposes this as a fiction by admitting that no qualified disposal facilities exist in the Commonwealth.”
Company attorneys also complain that “when trying to justify its extraordinary selection of costly out-of-state disposal, EPA has consistently cited what it has called `public and state opposition,’ and described, in detail, `persistent and vigorous opposition’ by local communities and governments. That opposition has undeniably played a critical role in EPA’s selection of a disposal remedy, and it is therefore a critical element of this Board’s assessment.”
The company also accuses the EPA of failing to “mention or account for the increased risks that would result” from off-site shipment of PCB-contaminated material.
It cites “the risk of releases during long-range transport of over a million cubic yards of contaminated sediment/soil to an out-of-state facility, and the substantially greater greenhouse gas emissions that would result from out-of-state rail transport.”
Supporting its contention that nearby disposal of PCB waste in South Berkshire would be safe and effective, GE states that “of course the on-site facility would be fully regulated by EPA and compliant with applicable federal and state law.” The company contends that there’s an exemption in the Consent Decree that allows unlicensed on-site disposal.
GE also reminds the Environmental Appeals Board judges that “EPA has previously recognized the protectiveness of on-site disposal by approving on-site disposal facilities at an existing landfill (Hill 78 in the Allendale section of Pittsfield).”
On another sharp bone of contention between the government and the company, GE calls the EPA’s requirement for a deep-dredging cleanup of Woods Pond in Lenox “arbitrary and capricious because it is disproportionately costly and disruptive compared to a remedy that would involve much less removal yet be equally effective.”
The company describes the EPA solution as requiring “vastly more sediment removal from Woods Pod, at greater cost and with more short-term adverse effects, than is needed to achieve protectiveness.”
Instead, GE is calling for much less removal of sediment followed by an engineered cap of the pond. The EPA argues that a cap could be compromised by a flood, dam breach or engineering failure.
Source: The Berkshire Eagle
