Opponents of a waste dump containing PCB sediment planned for Lee, Massachusetts, took their case before the federal Environmental Appeals Board on Thursday.
The Housatonic River Initiative and the Housatonic Environmental Action League are appealing a permit the EPA’s New England office issued for cleanup of sections of the Housatonic River. The river was polluted decades ago by a now-closed General Electric plant upstream in Pittsfield.
The permit is in line with a settlement reached in early 2020 by the agency, GE, local communities and some other environmental groups.
Lawyer Stephanie Parker represents the groups opposing the dump, which would be located about 1,000 feet from the river. Parker said the permit was not driven by science, but by a settlement agreement.
“The big issue here is that the [EPA’s] analysis was not done by means of applying denying criteria in good faith. It was done to preserve a result that was already decided,” Parker said.
One of the two appeals board judges who took part in the virtual hearing, Kathie Stein, took that issue to a lawyer for the EPA, John Kilborn.
“How do you respond to the argument that by the time of the public comment process, the settlement was sort of baked? You know, the cake is in the oven?” Stein asked.
“The expressed terms of the settlement agreement did not bind the EPA,” Kilborn replied. “And it is entirely proper for a… permitting... authority to engage in discussions with stakeholders and to come up with a settlement agreement.”
Kilborn argued the landfill in Lee will contain just low-level PCB waste, and be built with multiple safety measures. That argument was echoed by GE’s lawyer, Kwaku Akowuah.
“The less-contaminated portion of the materials will go into a highly protective landfilling environment that’s designed as if it’s going to receive more-contaminated materials. And the more-contaminated materials are going off-site,” Akowuah said, referencing out-of-state dump sites that have not yet been announced.
The cleanup of the first two miles south of the GE plant, which was completed in 2006, utilized PCB dumps in Pittsfield and primarily out-of-state disposal facilities.
The other presiding judge, Aaron Avila, asked a pointed question to Akowuah.
“Isn't there something a little counterintuitive to cleaning up the Housatonic River area and building yet another landfill in the Housatonic River area to do that? I mean, intuitively, doesn't that kind of seem a little odd?” Avila asked.
“Not at all, your honor. [But] I take the point,” Akowuah said. “But what the [EPA] has also pointed out is all off-site disposal has other environmental and human health implications,” such as increased greenhouse gas emissions caused by transportation of the waste.
PCBs are considered a probable carcinogen. They can also cause adverse health effects in the endocrine, reproductive, immune and nervous systems.
Opponents of the EPA’s permit also raised questions about monitoring plans along certain sections of the river, and said the agency has failed to consider alternative technologies to be used to treat PCBs in the river, rather than excavate sediments.
The appeals board will consider the arguments and issue a judgment, which could be further appealed in federal court.
Nancy Cohen contributed to this report.
