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Federal appeals court rejects environmentalists' challenge to EPA's Housatonic cleanup plan

A sign on the Housatonic River in Lee, Massachusetts advises against eating fish, frogs, turtles and ducks because they are contaminated with PCBs. The advisory is from the Massachusetts Department of Public Health.
Nancy Eve Cohen
A sign on the Housatonic River in Lee, Massachusetts advises against eating fish, frogs, turtles and ducks because they are contaminated with PCBs. The advisory is from the Massachusetts Department of Public Health.

The U.S. Court of Appeals for the 1st Circuit this week rejected a challenge to the EPA'S toxic waste cleanup plan for the Housatonic River.

Two environmental groups, the Housatonic River Initiative and the Housatonic Environmental Action League, appealed the EPA's plan to clean up PCBs that General Electric dumped in the river for decades.

Andrew Rainer, one of the groups' attorneys, argued key parts of the cleanup — including a PCB disposal facility in the town of Lee — were settled in a closed-door mediation.

Rainer argued in a Boston courtroom last month that the mediation sessions were "conducted in secret," without a public record, "in which participants were paid millions of dollars."

General Electric paid $55 million dollars to the five towns along the river, and $8 million to the city of Pittsfield.

In its ruling, the appeals court said there is nothing in the law that prohibits mediation or requires public access.

"[T]he mediation and resulting Settlement were procedurally sound," the court said in its decision. "And the mediation resulted in an agreement that was acceptable to all involved parties except the Petitioners."

The court also said the EPA found the "hybrid approach" of shipping waste with higher concentrations of PCBs to facilities in other states, and disposing waste with lower PCB concentrations in Lee, would "result in fewer greenhouse gas emissions, involve fewer truck trips" than sending it all out of state.

In a statement, EPA New England Administrator David W. Cash said the agency "is thankful for the ruling, which allows the cleanup of the river and restoration of this valued and treasured resource to proceed."

Tim Gray, executive director of the Housatonic River Initiative, who has been fighting to clean up the river since the 1970s, said he is very disappointed.

"We just lost," he said. "I think the judges — they came out massively attacking us. It felt right from the beginning  of the hearing that we didn't have a lot of chance."

Sen. Elizabeth Warren, whose own opinion on the PCB disposal site has shifted in recent years, weighed in on the court's ruling. Once supportive of the plan, she called the dump "an insult" earlier this year.

“Following the First Circuit Court of Appeals’ decision," Warren said in a statement this week, "the EPA should continue working closely with town officials and stakeholders in the clean up of the Housatonic River and implement safeguards to help address the community’s concerns."

U.S. Rep. Richard Neal also released a statement. Neal said he looks forward to working "with my local, state, and federal colleagues to ensure GE upholds its obligations.”

Meanwhile, the town of Lee is bringing a new lawsuit — against Monsanto, which manufactured the PCBs.

"There has been long-term harm to residents in the river corridor and long-term harm to residents of Lee," said Bob Jones, the chair of the Lee Select Board.

He said he hopes the Monsanto case could lead to altering the current clean up plan "and not have a dump in Lee."

Besides the Monsanto case, four Lee residents, including Jones, filed a case in Berkshire Superior Court in 2021 against the town and three former select board members who approved the cleanup plan in a closed executive session. Judge Michael Callan dismissed the case, but it remains pending in appeals court.

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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