LEE — “Ipse dixit.” That’s the Latin phrase lawyers for a group of elected officials use to rebut claims that Berkshires residents “overwhelmingly” oppose a proposed PCB landfill in Lee.
It means “dogmatic and unproven.”
And so begins the latest court fight over the Environmental Protection Agency’s planned cleanup of polychlorinated biphenyls — PCBs — spewed for years into the Housatonic River by the General Electric Co.
As briefs begin to stack up at the Environmental Appeals Board in Washington, D.C., the legal players are front-loading their arguments. In recent filings, the EPA, in a move backed by GE, wants the court’s justices to strike 10 of the 18 attachments that two environmental groups filed with their appeal this year. The agency and company claim that the added material — 562 pages in all — should be removed from consideration because it isn’t part of the administrative record.
The 10 attachments include a range of topics that lawyers for the Housatonic River Initiative (HRI) and the Housatonic Environmental Action League (HEAL) submitted to bolster grounds for their appeal of a Rest of River cleanup that now includes a proposed “Upland Disposal Facility” of PCBs on an old quarry site in Lee. That appeal, detailed in documents filed last month, faults the EPA for backing a local dump it refused to endorse in an earlier permit in 2016.
As of Wednesday, the EAB case docket had 14 filings since Jan. 14, including a friend-of-court brief from three groups in support of the appeal. The groups are Citizens Against the PCB Dump, the Berkshire-Litchfield Environmental Council and the Schaghticoke Indian Tribe of Kent, all represented by Great Barrington attorney Judith C. Knight. Separately, Knight represents the first group in a Berkshire Superior Court lawsuit filed in late March against the town of Lee and members of its Select Board.
That brief calls on the Superior Court to order that the latest cleanup plan be sent back to the EPA with instructions to require shipment of all untreated PCBs out of the state. It also asks that the agency outline a cleanup for reaches of the Connecticut River “that will actually protect human health and the environment.”
The big ‘why’
The newest filing with the EAB, the nation’s top environmental court, answers a question much on the minds of people who don’t want to see up to a million cubic yards of sediments containing lower levels of PCBs buried on a hill near the river below Woods Pond.
A 15-page brief filed Monday seeks to explain why the Housatonic Rest of River Municipal Committee — made up of elected officials and appointees from Great Barrington, Lee, Lenox, Sheffield, and Stockbridge — agreed to allow GE to bury PCBs on that Lee hillside.
The reasons echo what those officials said a year ago, when the EPA dropped its opposition to local PCB burial. The brief, by lawyers Matthew F. Pawa and Benjamin A. Krass, says public health demands the cleanup begin. The latest EPA permit calls for GE to engage in about $576 million worth of work over 13 years. The option of local disposal will save the company as much as $146 million, according to the new filing.
“There already is a local PCBs disposal facility of sorts that already presents an unacceptable condition,” the friend-of-court brief says. “[T]he Housatonic River. Although the Committee sympathizes with HRI’s concerns, it is well past time to clean up the River and isolate the PCBs in properly designed facilities where they belong.”
Members of the five-town panel wanted to get that cleanup underway, their lawyers say, a claim also made a year ago by EPA officials and other groups that backed the agreement, including the Berkshire Environmental Action Team and Massachusetts Audubon.
Other familiar arguments: One dump is better than three originally proposed by GE. The heaviest concentrations of tainted soils will still go out of state. The cleanup will expand. People in the region will have more input into logistics on moving the sediments.
In their appeal, HRI and HEAL argue that the dump site is unsuitable and that landfill liners can eventually leak.
The committee’s lawyers grant that point, but argue that safeguards would be in place. The EPA has said liners last for 400 to 800 years. “HRI says liners ‘eventually fail,’ but even if this is true, in this case ‘eventually’ means really far into the future,” the brief says. But, they claim, for a landfill to leak, water has to get into the structure and then leach out.
In its deliberations, the municipal panel decided public health can be protected. The brief cites an EPA finding that “PCBs move up to 3,000 times more slowly than the groundwater itself moves. … So even if the cap and both liners fail, PCBs will not reach the River for a very long time, if ever,” with the toxins clinging to material in the landfill.
Who’s right about that? The justices on the EAB will have to weigh these arguments in deciding whether to grant the appeal from HRI and HEAL.
Back to “ipse dixit” — and to the brief’s claim that the appeal overstates local opposition.
The filing acknowledges that the EPA has pointed to “some community opposition,” as well as “some community support.” It notes that the five towns, along with Pittsfield, agreed to the settlement.
“This mixed assessment of community sentiment was, if anything, generous to the opponents,” the brief says. “While HRI says the ‘overwhelming public sentiment’ about the selected remedy ‘is one of horror,’ this is pure ipse dixit. The record tells a different story: the Select Boards of the five ‘Rest of River’ towns voted unanimously to sign the Settlement Agreement, and these boards are the duly elected representatives of the public.”
Motion to strike
If the justices agree to calls by the EPA and GE to thin the submitted material, here’s what’s coming out:
– Comments from two real estate brokers, Audrey Cole and Janice Braim, on the dump’s likely effect on property values.
– A 2011 article by David Scribner on behind-the-scenes work by GE to cultivate opposition to a full cleanup with dredging.
– An expert opinion, from David J. DeSimone, on the geology of the landfill location.
– Descriptions from two businesses, Biotech Restoration and TerraTherm, on alternative cleanup methods for PCBs, which are a probable carcinogen.
– A document related to the Hudson River PCB cleanup.
– A journal article by David O. Carpenter on the health effects of exposure to volatile PCBs.
– Two EPA documents that related to the cleanup approach known as “monitored natural attenuation.”
In arguing that the attachments be struck, the EPA says lawyers for HRI and HEAL are attempting to get around word limits on court filings by including arguments presented in the attachments.