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Feds push back on challenge to Massachusetts river cleanup plan

A First Circuit panel was skeptical of environmentalists’ arguments and dismissive of their implication that General Electric paid its way into a settlement with local officials.

BOSTON (CN) — Massachusetts conservationists faced off with the Environmental Protection Agency on Tuesday before a skeptical federal appeals court, arguing that the agency’s plans for cleanup of the long-polluted Housatonic River were inadequate and that it had cut the public out of the planning process.

The river served for over 40 years as a dumping ground for General Electric, which manufactured electrical transformers at its now-defunct Pittsfield plant for much of the 20th century and, from around 1932 to 1977, discharged highly carcinogenic chemicals called polychlorinated biphenyls, or PCBs, into the river. 

The EPA designated the plant and several miles of the river a Superfund site in 1997 and directed GE to begin cleanup of those areas in 1999, focused first on the immediate vicinity of the plant. A plan for cleanup of the remainder of the river was to be issued at a later date. That plan, first pitched in 2016 and finalized with revisions in 2020, was decided upon in a mediated settlement between GE, the EPA and a coalition of local governments. 

The EPA opened the plan up for public comment in the aftermath of this settlement, but the Housatonic River Initiative and the Housatonic Environmental Action League argued before the First Circuit on Tuesday morning that the agency had already made up its mind. 

“If the public comment process had actually taken place before the mediation, then there would have been an effect,” said Andrew Rainer, one of the groups’ attorneys.

Rainer also cast aspersions on the municipalities’ decisions to agree to the settlement. The Housatonic Initiative, Housatonic League and their supporters, he said, did not have much faith in the products of “mediation sessions that happened in secret, not on the administrative record, in which participants were paid millions of dollars.” 

Central to the environmental groups’ arguments was the fact that the EPA allowed for public comment only after settlement discussions had completed, and their contention that the closed-door settlement discussions violated the Administrative Procedure Act by generating no administrative record and by failing to take public comment into account. 

Rainer was joined by two other attorneys, Stephanie Parker and Katy Garrison, who each addressed different aspects of the environmental groups’ arguments. The three-judge panel of Gustavo Gelpí, Lara Montecalvo and Sandra Lynch– George W. Bush, Bill Clinton and Joe Biden appointees, respectively— took a skeptical approach to the environmentalists’ arguments. Lynch in particular admonished Rainer, Parker and Garrison for being repetitive on several occasions. 

Parker discussed the groups’ concerns with the “hybrid disposal” methods added in the 2020 version of the plan. The 2016 plan called for disposal of the contaminants in out-of-state facilities, but the current cleanup plan involves the creation of a 20-acre landfill in Lee, Massachusetts, a thousand feet from the riverbed. Sediment with average-to-low contamination, between 20 and 25 parts per million, would be placed at the site, christened the Upland Disposal Facility, by way of a hydraulic pumping system. 

Parker argued that this remedy – which would place 1.3 million cubic yards of the 1.4 million expected to be removed from the river in the landfill, by the environmental groups’ reckoning – served only GE. “The only community support that was different in 2020 came from the government level, where there were large payments being made to these municipalities,” she said, pointing to negative community feedback from residents. 

Lynch and Gelpí took issue with that, noting that several local governments – and the elected officials who led them – had signed on to the plan. “That grassroots community is part of a community of elected officials who decided to sign off, am I correct?” Gelpí asked. Parker pointed out that these officials were the same whose cities stood to gain millions, to little effect. 

The environmentalists were opposed in court by three attorneys: Jeffrey Hammons, representing the EPA; Matt Pawa, representing the coalition of local governments involved in the settlement; and Kwaku Akowuah, representing General Electric. All argued that the new settlement, hybrid cleanup included, would improve and expedite the cleanup efforts. 

Lynch confronted Pawa with the environmental groups’ implications that his clients were paid off – with a somewhat arch tone. “The core of the opposition argument is kind of cynical: the towns were bought off,” she said. “You got money, and that’s all that was important to you. Do you want to respond to that?”

“We got a lot more than money,” Pawa responded. "We got a great combination of factors…. The double liner [in the landfill], the bond of $150 million that GE had to post, the system for monitoring potential leaks, in perpetuity responsibility imposed upon GE.” 

The payments, he said, would help with the socioeconomic disruption that cleanup could cause in the communities. Akowuah added that it also limited the potential for future litigation to slow down cleanup efforts. “These are gives that GE made to bring a consensus together,” he said. “It did take work. It did take time, but ultimately what it did is produce an agreement that will start the cleanup faster.” 

On rebuttal, Rainer argued that litigation risks were not a proper factor for the EPA to consider, and added that “if it was the right cleanup, then there wouldn’t be more litigation.” 

“Yes, it’s true that elected officials made a decision, and yes we have to consider what they think, but the people actually don’t support this,” he concluded. “And that, you have in the record.” 

Categories / Appeals, Environment, Government, Regional

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