EPA moves to settle with GE on 'rest of river' PCB cleanup challenge
PITTSFIELD — The Environmental Protection Agency now seeks to settle its long dispute with the General Electric Co. over Housatonic River pollution, just months after ordering GE to embark on a $613 million cleanup.
In a move that caught Berkshire environmentalists by surprise, and that stems from new leadership atop the EPA, the agency will ask to postpone a Washington hearing on its cleanup order.
Instead, it seeks to reopen talks with the company. That development raised red flags for Berkshires environmentalists.
"All the pieces are lining up right here," said Dennis Regan, Berkshires director of the Housatonic Valley Association. "We're in the dark ages right now for the environment."
The EPA's planned action, outlined in a memo that first circulated Wednesday, comes a week before the case is scheduled to be heard by the three-judge Environmental Appeals Board. GE last fall appealed the agency's directive that it remove or cap most of the tainted sediment from southeast Pittsfield to Lenox and points south.
For years, the company discharged PCB, or polychlorinated biphenyl, into the river related to its transformer manufacturing business in Pittsfield. The substance, a suspected carcinogen, was banned in the 1970s.
The EPA memo says the agency wants to delay the appeals board action for 90 days "pending completion of settlement discussions."
"The EPA administrator," the agency says, "has expressed a strong policy interest in expediting and finalizing resolution at Superfund cleanups."
That is a reference to a May 22 memo from EPA Administrator Scott Pruitt. In it, Pruitt says he is taking personal charge of cleanups that would cost $50 million or more.
In addition to having him take control of big-ticket cleanups, Pruitt's memo calls for a task force that would, among other duties, "reduce the administrative and overhead costs and burdens borne by parties remediating contaminated sites, including a re-examination of the level of agency oversight necessary."
As of Thursday, the clerk of the independent appeals board had not learned of any delay in the planned arguments set to be presented June 8 in Washington.
It is believed that for the session to be postponed, the EPA must file a request with the board and then that body must approve. No such request had been filed in the board's online docket as of 5 p.m. Thursday.
Jeff Caywood, a spokesman for GE, said the company remains ready to proceed to next week's scheduled oral arguments before the Environmental Appeals Board.
But he said that litigation often includes negotiations.
"GE welcomes the opportunity to try to find a commonsense solution that meets our commitment to a comprehensive cleanup and complies with the Consent Degree that we agreed to nearly two decades ago," Caywood said.
The company stands ready, he said, to shoulder a cleanup "that fully protects human health and the environment [and] does not result in unnecessary destruction of the surrounding habitat."
Asked whether GE sought the change in approach to the case, Caywood said the company acted after Pruitt announced his plan to handle cleanups that would cost over $50 million in a new way.
"Consistent with that initiative, we reaffirmed our previous support to EPA for settlement negotiations with the parties ... ," he said.
A spokesman for the EPA office in Boston said all comments about the request to delay the appeal had to come through the agency's headquarters office.
Nancy Grantham, an EPA spokeswoman in Washington, D.C., said Timothy M. Conway, a senior enforcement counsel for the agency's Region 1, which includes Massachusetts, will appear before the appeals board at its meeting next Thursday. That is when Conway is expected to present the request for a delay in the proceeding, in light of the directive to favor negotiations.
The agency on Thursday filed an appearance notice for Conway before the board next week.
"EPA will not be filing the motion to stay today," Grantham said in an email late Thursday, in response to questions from The Eagle. Instead, the issue will go before the appeals board.
She added, "We appreciate the feedback from the parties to this matter."
Notice of the agency's intent to request a 90-day delay in the appeals process reached the Berkshire Regional Planning Commission around 3 p.m. Wednesday. The email said responses had to be filed that same day.
Nathaniel Karns, the commission's executive director, said an attorney representing five Berkshire County towns bordering the lower Housatonic River acted quickly to file an objection to the delay in the hearing and the move to reopen talks with GE.
Karns said the same-day notice of the change, in a case that stretches back over a decade, struck him as odd.
"That's awfully unusual, from my understanding," he said.
Karns said Pruitt's directive appears to have triggered an about-face by the EPA on the GE cleanup.
By seeking to reopen talks with GE, the agency is backing down from the costly, 13-year cleanup it ordered last fall.
"He [Pruitt] felt he had the power to pull this back," Karns said.
Jane Winn, executive director of the Berkshire Environmental Action Team, said she was unable to respond to the EPA memo in the limited time made available to her and others.
"I wish I knew what was behind it," she said of the requested delay. "We do not think they [EPA] will be negotiating to better protect the environment. I'm suspicious."
Regan, the Housatonic Valley Association official, said the EPA administrator's move to reduce cleanup costs may make sense for private business, but doesn't fulfill a duty to protect public health.
"That sends up multiple red flags if their goal is to make it more affordable," Regan said. "We need to make it more healthy."
Regan said he is discouraged by what he sees as evidence that the EPA under Pruitt is pulling back from its regulatory role. The EPA order concerning GE's "Rest of River" cleanup came in the final months of Gina McCarthy's leadership of the agency during the Obama administration.
McCarthy is scheduled to receive an honorary degree Sunday from Williams College.
Tim Gray of Lee, executive director of the Housatonic River Initiative, said his group managed to file an objection to the stay in the few hours allowed — but is worried about what he sees as shifting values within the EPA that could undercut its stated mission to protect the environment.
"We fear that Pruitt's promotion ... with his background of being anti-EPA ... means that he will do Donald Trump's bidding," Gray said. The president's proposed 2018 budget cuts EPA funding by 31 percent and would remove roughly a third of the $1.1 billion Superfund allocation.
Though the EPA memo about the stay promises an effort "to reopen mediation discussion with interested parties," Gray questioned whether environmental groups that have participated in the process for nearly two decades will retain seats at the table.
"They're going to yank it out from under us," he said. "I think they're going to exclude all the environmental groups and maybe the municipalities."
The text of the EPA memo announcing the shift reads as follows:
"EPA proposes to move for a 90-day stay in the five In Re General Electric Company actions ... and, further, to hold oral argument in abeyance pending completion of settlement discussions.
"The EPA Administrator has expressed a strong policy interest in expediting and finalizing resolution at Superfund cleanups. Although the case has been fully briefed, EPA has determined that a stay of the proceedings at this time is appropriate and necessary to reopen mediation discussions with interested parties to ascertain if a comprehensive settlement of the pending appeals can be reached.
"A discrete stay of the proceedings would provide the administrator an opportunity to pursue a narrowly defined objective — to assess the viability of a negotiated resolution of this matter in lieu of protracted administrative/judicial proceedings — and would hold the promise of conserving the parties' limited resources and would hold the potential of expediting necessary remedial actions if agreement can be reached.
In his May 22 memo, Pruitt noted that one consideration for the task force will be to "streamline and improve the remedy development and selection process, particularly at sites with contaminated sediment."
The Housatonic PCB cleanup focuses in large part on removal of contaminated soils and sediment. "Remedy selection" concerns the types of cleanups required by the EPA.
One key point of contention concerns the disposal of sediment and soil removed during the cleanup.
Further, GE has argued that the EPA order is not clearly defined. "The final permit contains vague, open-ended performance standards that leave the door open for future second-guessing," GE said in a 127-page filing in March.
GE also argued that the EPA cannot require it to transport the sediment out of state when, it said, "safe, cost-effective local options exist." The requirement to bring PCB-tainted soils out of state would add $160 million to $245 million to the cost, the company has said.
State rules bar PCB disposal because no sites are licensed federally to receive the materials. But the company claims that the EPA order contains "arbitrary decision-making" that is not in keeping with a consent decree reached in October 2000.
The EPA's Rest of River order last fall compels GE to dredge and remove PCBs downstream from Fred Garner Park in southeast Pittsfield and through Lenox, Lee and Stockbridge and other river environments to the south.
While the GE river cleanup was not initially considered a Superfund project, according to Karns, it fell under that statute once a remedy was selected.
"It seems to have crossed that line," Karns said.
Reach staff writer Larry Parnass at 413-496-6214 or @larryparnass.
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