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Aug 31, 2023

GE’s Housatonic River Cleanup Plan Sees Friendly First Circuit

The Environmental Protection Agency’s cleanup plan for the Housatonic River,

The Environmental Protection Agency's cleanup plan for the Housatonic River, which became heavily polluted from chemical dumping by the General Electric Co., garnered support from the First Circuit Tuesday during an unusually lopsided oral argument.

The Housatonic River Initiative and the Housatonic Environmental Action League are suing the EPA over its remedy for GE's dumping of pollutants known as polychlorinated biphenyls, or PCBs, into the environment. The chemicals can cause neurological and reproductive issues. The Housatonic River spans 150 miles of western Massachusetts and Connecticut and is home to many endangered species.

The EPA "went through notice and comment" about its plan and listed "about 10 reasons" that it thinks it is preferable, Justice Sandra Lynch said during oral argument. "I think you have to address why all of those reasons are arbitrary and capricious," Lynch told one of the lawyers representing the advocacy groups.

After the lawyer for environmental groups challening the cleanup plan attempted to deflect her question, Lynch interrupted, "no, no, no, no, no."

The EPA's cleanup plan is to dispose more than one million cubic yards of PCB-contaminated waste into a landfill near the river, which the advocacy groups claim was crafted behind closed doors without sufficient public participation, violating the Administrative Procedure Act. The groups also argue a plan to dump the contaminated soil near the river isn't enough to protect the environment.

Cleaning up the contaminated waterway will cost GE more than $576 million, according to the EPA.

At times, the justices appeared to be speaking directly to the environmental advocates packed into the courtroom. "Assume that the court finds this is not arbitrary and capricious" but community members are still interested in giving feedback to the EPA. What should they do to voice their concerns? Justice Gustavo Gelpí asked the EPA's attorney, who invited them to participate in public meetings.

Many members of the Housatonic cleanup groups criticized the balance of the hearing outside of the courtroom.

The EPA has updated its cleanup plan several times since it was proposed in 2016 to incorporate feedback from the agency's Environmental Appeals Board, as well as a 2020 settlement agreement.

That "closed-door settlement negotiation from which the Petitioners and the rest of the public were excluded, of which no administrative record was made, and in which certain invited stakeholders were paid millions of dollars," violated the Administrative Procedure Act, the advocacy groups said in a brief.

"Your case comes down to the fact that a record was not kept during the discussions in the mediation. Is there anything in the law" requiring a record to be kept? Lynch asked one of the advocacy groups’ lawyers.

"This court has never held that you can use a secret mediation process as an administrative procedure," said Andrew Rainer, an attorney from Brody Hardoon Perkins & Kesten LLP representing the groups.

The EPA says the provisions of the cleanup plan "protect human health and the environment."

"No one seriously believes that disposing of 1.3 million cubic yards of PCB-contaminated sediment directly above the Housatonic is ‘more protective of human health and the environment’ than disposing of it in a licensed off-site facility in another state," the advocacy groups said.

"Why is that arbitrary and capricious? You may not agree with it, but argue within the standard," Gelpí asked, which Lynch echoed.

The attorneys for the environmental groups alleged that the EPA didn't meaningfully take into account 400 comments on the proposal from stakeholders, and emphasized that the plan lacked community support. Those responses didn't appear to satisfy the judges.

The EPA, the Housatonic Rest of River Municipal Committee, and General Electric all said the cleanup plan was well-reasoned.

"There is a lot of waste here," said Jeffrey Hammons, the Department of Justice attorney representing the EPA. "If you were to ship all of it out of state, it is not clear where it could go" and that could cause more harm than good, Hammons said.

"The largest stakeholders involved are all on the same page," Hammons said. The chemicals "need to be cleaned up as quickly as possible," and the EPA's cleanup plan will allow that to happen.

The case is Housatonic River Initiative v. US Env't Protection Agency, 1st Cir., No. 22-1398, Oral argument 6/6/23.

To contact the reporter on this story: Allie Reed in Boston at [email protected]

To contact the editors responsible for this story: Andrew Childers at [email protected]; Stephanie Gleason at [email protected]

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