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'How are the citizens to know?' Critics of EPA's Housatonic plan take fight to federal appeals court

Attorney Andrew Rainer gets ready to take a picture of residents from Lee, Massachusetts, who came to the Moakley Courthouse in Boston to hear Rainer argue for the appeal of the EPA's cleanup plan of the Housatonic River. The plan includes a PCB disposal facility in Lee.
Nancy Eve Cohen
Attorney Andrew Rainer gets ready to take a picture of residents from Lee, Massachusetts, who came to the Moakley Courthouse in Boston to hear Rainer argue for the appeal of the EPA's cleanup plan of the Housatonic River. The plan includes a PCB disposal facility in Lee.

People who have been fighting to clean up the Housatonic River in Massachusetts and Connecticut for several decades finally had their day in federal court.

Two environmental groups — the Housatonic River Initiative and the Housatonic Environmental Action League — are appealing the EPA’s cleanup plan, which is backed by General Electric and a committee representing towns along the river.

The case was heard in the 1st Circuit Court of Appeals in Boston on Tuesday before a three-judge panel.

Two environmental nonprofits against the EPA, with GE intervening: two proverbial Davids fighting a couple of Goliaths.

General Electric contaminated the river for more than 40 years with PCBs, which can cause cancer. Up until the 1970s the chemical compound was used to manufacture electrical transformers at a GE plant in Pittsfield.

The cleanup plan includes a dump in the town of Lee for river sediment containing PCBs. It was negotiated in a closed-door mediation — something Andrew Rainer, attorney for the environmental groups, said “is not compatible” with the law.

But Judge Gustavo Gelpí pushed back.

"There's nothing in the book saying you can't do mediation," Gelpí said.

"Absolutely not, your honor," Rainer replied. "The question is, how do you do it and how should it be done? What happened here, however, were mediation sessions that were conducted in secret, not on an administrative record, in which participants were paid millions of dollars. How are the citizens to know that that was a proper process in the absence of a clear record?"

After the mediation, the EPA did hold a public comment period and heard from 400 people.

As part of the mediated settlement, GE gave five towns along the river a total of $55 million. It also gave the city of Pittsfield $8 million.

Jeffrey Hammons, who represented the EPA, noted to the judges that the river towns were part of the mediation and backed the settlement.

"At the time that the settlement agreement was entered, for example, all five towns, including the municipal committee which represents them, was on board and they signed the settlement," Hammons said.

The attorney for the river town committee, Matthew Pawa, said the towns agreed because they saw many benefits. Those include fewer truck trips carrying toxic waste, GE’s promise to improve the roads, and those millions of dollars the company gave the towns.

"The money is meant to compensate the towns for the fact that there's huge socioeconomic disruption of the communities while this cleanup is going on for many years," he said. "And that's what that was for."

"Has there been any, any challenge in state courts to the towns agreeing to the cleanup process?" Judge Gelpí asked. "Has anybody challenged that in court?"

"There was a state court proceeding and it was unsuccessful," Pawa replied.

It was residents of Lee who brought the state-level case. The town’s Board of Health is now deliberating about whether the planned PCB dump poses risks to the community.

Anne Langlais was one of about 15 people who drove out from Lee to hear the appeal. Outside the courtroom, she explained that the Lee Select Board members who voted for the cleanup plan have all been replaced. And the town’s representative on the committee of river towns has been pushing back against the PCB dump.

"At every Rest of River [Committee] meeting," Langlais said, "our town representative has continued to say, 'No for the town of Lee, no for the town of Lee, please allow public comment. The town of Lee does not agree with this.'"

Another Lee resident, Janice Castegnaro Braim said she talked to the attorney from GE outside the courtroom and asked that GE come talk to the town.

"I says, 'Please. Please just come to talk to us. We don’t want your money. We want the cleanup and we want it done right!'" she said.

It’s not known how long the appeals court will take to rule on the appeal. In the meantime, GE and the EPA are gearing up for the cleanup agreed to in the settlement, including designing the PCB disposal site in Lee.

Nancy Eve Cohen is a senior reporter focusing on Berkshire County. Earlier in her career she was NPR’s Midwest editor in Washington, D.C., managing editor of the Northeast Environmental Hub and recorded sound for TV networks on global assignments, including the war in Sarajevo and an interview with Fidel Castro.

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