Citizens for PCB Removal believes that PCBs are harmful to public health.  Not only are they probable carcinogens, but they have been proven to be hormone disrupters and can cause lower IQs.  The studies reaching these conclusions are not limited to the United States.  Most of the world has banned the use of PCBs and we believe that these chemicals must be removed from our environment.

Citizens for PCB Removal ("CPR") believes any settlement concerning PCB and other contamination in Pittsfield and Berkshire County, Massachusetts must accomplish a few basic goals:

1) it must provide for a thorough clean up;
2) it must leave open options for dealing with future problems when they arise;
3) it must not balance the settlement on the backs of innocent property owners and taxpayers.

1.  The settlement burdens innocent property owners in a way that is not in the public interest.
The Consent Decree ("CD") contains 68 pages of cross covenants not to sue and grants of contribution protection which protect the United States government and the governments of Massachusetts and Connecticut and the defendant, General Electric, while leaving all other property owners who own land containing General Electric fill or which was contaminated by the river exposed to potential future liability.  Those owners are not only innocent of any role in causing the pollution, but have already been victimized by it.  Leaving them exposed to future liability while letting General Electric off the hook is not in the public interest.

The CD provides, in paragraph 189, that all parties to the CD preserve all their rights against all others not parties to it.  Thus innocent property owners may be held liable under CERCLA or MGL c. 21E, for future problems caused by General Electric's pollution.  While the law may allow liability to be imposed on innocent property owners, it is our understanding that the public policy behind the law seeks to ensure that there is some party available who can be held responsible for cleaning up the pollution.

The need to hold someone liable, even an innocent someone, simply does not apply here.  This is not a case where the polluter is unknown, or is bankrupt, or whose assets are for some other reason unavailable for clean up.  The polluter here is a party to this agreement and is not only solvent but in fact is one of the wealthiest companies in the world.  A policy designed to ensure that funds are available to clean up pollution is not served by shifting the future burden from a wealthy culpable defendant to innocent persons with vastly fewer resources. 

The potential for future liability is very real.  Many properties are being cleaned only to a depth of a few feet.  Deeper contamination is not being addressed.  Particularly for the "oxbow properties" (see #7) which are filled to a depth of as much as 20 plus feet and which have not been thoroughly tested, the potential exists for future releases which could impact the river.  Liability for that clean up, should it be needed, should not fall on the property owners.  If the plaintiff government agencies are confident that the solution they have agreed upon is indeed protective of public health and safety for the long term, they should, in this CD or an appended document, grant immunity from future liability to all contaminated property owners.

In addition, in paragraph 189, the CD specifically sites the right of contribution as one of the rights reserved by the parties against all others.  Moreover, in paragraphs 194 and 195, the CD grants to the State of Massachusetts and the City of Pittsfield, the same contribution protection it grants to General Electric, should those entities acquire an interest in land that is the subject of this CD. 

Government agencies entered into negotiations that did not permit other interested parties to participate, then secured for themselves protection from liability while specifically preserving the potential for future liability of innocent property owners who were not allowed to participate.   If forced to fund a clean up under CERCLA or MGL c.21, these property owners could not then seek contribution from General Electric.  General Electric, however, can still seek contribution from them.   Defending oneself is expensive; and where, as here, the  polluter is being exonerated from future liability, there is no need for them to retain a right to contribution. 

2. The Consent Decree does not appear to leave the agencies the flexibility they need to deal with inadequate cleanups or subsequent recontamination of residential and commercial properties.
One of our longstanding concerns has been the use of widespread discrete testing to investigate fill which could have been deposited in very small areas but with high concentrations, and at shallow depths with clean material above.  Our concerns have been borne out on two properties where homeowners, after their properties were "remediated", have found transformer parts while digging holes to plant shrubs or erect clothesline poles.  CPR has, on several occasions, asked what will be done in these situations, in terms of retesting or further remediation and has never received an answer.   We would like one now.

Do the CD and the Administrative Consent Order (ACO) prevent the government agencies from taking administrative action on those properties ever again or would the post remediation discovery of evidence of contamination allow further investigation and clean up? If further action against General Electric is completely foreclosed, then once again the settlement lets the culpable party off the hook and shifts the burden to the innocent property owner in a way that is not in the public interest.

Furthermore, for properties along the water bodies, Silver Lake, Goodrich Pond, Unkamet Brook and the Housatonic River, the CD and the ACO appear to preclude cleanup of recontamination.  Again this shifts the burden of clean up to innocent property owners who are unlikely to have the resources to undertake a clean up while absolving the wealthy polluter.  This is particularly problematic for properties along Silver Lake because the remedy selected for the Lake itself is suspect (see #8 below).

3. The liability relief granted to General Electric is unreasonably broad.
The General Electric facility contains a vast number of chemical contaminants in, on and under the entire site.  There is much more than PCB contamination to be addressed: Dioxin, Trichloroethylene, Benzine, and Toluene, to name a few, are documented as present.  Much of this contamination will be here forever because of the agreement to "cap" some of the most contaminated locations and turn them over to PEDA, as well as to leave Hill 78 in place.  Under the CD, it appears General Electric will never be liable for clean up of these areas in the future, even if they are impacting the river or may be found to be a greater health risk in the future than they are considered to be today, and even though GE will do no clean up initially.

Since one of the primary arguments in favor of the CD seems to be that funding the clean up could be problematic if we have to rely on government resources, we are concerned that the CD will put our community in the future position of being recontaminated and without the resources to clean up.  A grant of immunity from future liability for areas that are not being cleaned is overly generous and not in the interests of our community. 

4. The Hill 78 Landfill poses an unacceptable risk.
One of the elements of the proposed Settlement between EPA and GE that is most disturbing and unpalatable is the plan to locate a toxic waste dump IN THE MIDDLE of our city: surrounded by an elementary school, family neighborhoods, retail businesses, industries including the potentially volatile US Generating plant, Silver Lake, Goodrich Pond, Unkamet Brook, and our long-suffering river!

The EPA and DEP have not conducted a thorough investigation of the contents of the General Electric landfill known as Hill 78; instead they propose to cap this landfill without ever obtaining that information.  While the cap will be an improvement of the existing situation, it leaves an unacceptable risk.  This landfill is not lined.  There is apparently no paper trail to indicate what was disposed of in there.

Without knowing what the landfill contains, EPA and DEP cannot possibly assess the impact of this solution's failure.  They do not know what contaminates might be released or what impact those releases could have.  While the agencies believe an "early warning" system of test wells provides adequate protection, we are well aware of other areas where the agencies were confident the existing array of test wells and borings provided adequate information, but were subsequently proven wrong.

For example:

   1) The plume under the Newell street parking lot was not discovered through early and fairly comprehensive testing; it took further investigation of a type that will not be performed on Hill 78 to locate the plume;
   2) The plumes on the residential side of Newell Street were not discovered through initial testing; we were given repeated assurances that testing had been done and there was nothing to worry about;
   3) Tests at the Pittsfield Municipal Landfill revealed nothing of concern, but a bulldozer attempting to cap the landfill uncovered barrels of toxic waste; a discovery that has yielded over 800 barrels of GE associated waste;
   4) Dorothy Amos Park was tested and cleaned and found not to be impacting the river; had it not been for testing to attempt to establish background levels, the hot spot in the river next to the park would not have been located.  The cap over Hill 78 and the test wells around it are not an adequate solution for a landfill adjacent to an elementary school and a residential neighborhood and which could potentially impact a "cleaned" river in the future.

5. The Building 71 containment area is not an acceptable long term solution for ridding our community of contamination when treatment is not only possible but also feasible from a cost perspective for this defendant.
The CD also provides for a separate, lined landfill adjacent to Hill 78, known as Building 71 containment area.  It will house higher levels of known PCB contamination.  Not only have there been problems with other containment facilities in places such as North Carolina and Colorado where failures have occurred within two years of their construction, but also there are current technologies available that remove contamination from sediment, leaving clean sediment and allowing the contamination to be destroyed.

We have a local business which has CLEANED PCB's from other sites around this county.  It has been estimated that treatment of PCB contaminated material in this case would cost about 40 million dollars.  While this may seem like a large sum, it is almost insignificant to the largest company in the world.  In fact, it is less than HALF of what General Electric paid Jack Welch in salary and bonuses ($87 million) for 1999 alone.  Clearly treatment is a feasible option for this defendant.  Construction of the Building 71 facility, if it expedited the clean up of Allendale School, was justifiable as a short term option, but treatment should be evaluated, and periodically reevaluated as the long term solution.

We plead that the decree be changed to name these facilities as TEMPORARY and that a final time limit be set on the complete treatment of the waste contained therein.  While we prefer immediate treatment, a maximum time limit should not exceed thirty years.

6. The clean up options offered to the commercial property owners are inadequate and insulting.
At public and other meetings with EPA and DEP, commercial property owners were promised repeatedly that the agencies would support their needs even though they themselves were excluded from the negotiations.  But the CD gives these owners only two options, neither of which allows them to operate their business without the cloud of contamination impacting their operations.  Neither option will allow them to engage in future construction or expansion without finding themselves in negotiations with General Electric and the regulatory agencies.

Furthermore, while the banking community has pronounced itself more comfortable with the idea of lending money to these property owners, assurances that PCB contamination will not affect lending in the future have not been forthcoming.  These  property owners still may not be able to grow, alter or sell their business in the future.  We are not proposing specific solutions to this problem, but instead insist that this portion of the CD be reconsidered in a process that includes the affected property owners. 

7. Better investigation and clean up of the "oxbows" is needed to protect the river from the risk of recontamination.
Along the river, in several places, are areas called "the oxbows", which were filled with General Electric facility "material" by the Army Corps of Engineers in the 1930's and '40's in an effort to straighten the flow of the river and reduce widespread area flooding.  Again there is no paper trail of what materials were actually placed in these oxbows, but PCB laden fluids have been discovered and are being pumped from one of the oxbow areas.  We ask for a complete investigation of these oxbows and that all clean up options be considered, including treatment and removal.  It is not logical to spend millions cleaning the river and flood plain properties and then leave them subject to potential recontamination because known areas of fill were not properly explored.

8. The proposed solution for cleaning Silver Lake is not credible.
The proposed remedy for the multi-contaminated Silver Lake, as we understand it, is to place a sand cap on the bottom of the lake.  We are not aware of any engineering to back up that proposal.  From a layperson's perspective, however, we cannot believe that a sand containment layer can prevent recontamination of a spring fed lake while 3 layers of plastic liner are needed to keep contaminated particles from filtering up into the river.

9. Natural Resource damages are unreasonably low.
The report by Industrial Economics estimated the maximum probable natural resource damages at well over 200 million dollars.  The government has asserted that the uncertainty involved in proving those damages justifies settling for a reduced amount.  It does not justify settling for approximately 10% to 12% of that amount. 

10. The extent (lack) of cleanup is based upon possibly overly optimistic science.
As stated in our opening paragraph, CPR believes PCB's and the other contaminants found with the PCB's are a substantial health risk, as does EPA and DEP.  However, standards and levels of cleanup, including decisions of how deep to excavate, levels of ppms in soil, water, and air, and even the concept of "averaging" levels of contamination to varying amounts dependent on usage are based upon a very complex science called "risk assessment".

Our objections to many of the risk assessment conclusions are based upon the concept of environmental and human blood serum "background levels".  We question whether the background levels cited for this Settlement are a valid standard for this state, country and the world, in general, or are they higher and specific to what is "normal" in this area, in particular, based upon the long term, widespread contamination throughout Berkshire County and adjacent areas specifically from the General Electric plant. 

Numerous world wide studies support these suspicions, as well as evidence that even very low levels of contamination pose serious threats to the safety and well-being of certain populations, in particular the unborn and very young, most notably in the areas of hormone disruption, intelligence, behavior and learning capabilities.

We suspect a long-anticipated study by an Expert Panel commissioned by the Mass Department of Public Health which we believe will confirm these health threats and will outline further toxin dangers has been inexplicably delayed beyond this CD Comment deadline.  This Settlement should not be confirmed without this further scientific data and unless the calculations upon which it is based are verified, confirmed and validated as reasonable by recent and ongoing world-wide research.

11. Citizen participation has not been enhanced by the Citizen Coordinating Council and the existence of that body should not influence the review of this settlement.
Interested citizens groups were invited to participate in an enhanced public participation process though the Citizens Coordinating Council.  The council has not enhanced participation, and in retrospect, its failure should have been anticipated.  For many months the council meetings proceeded in the following  fashion: a public member would make a comment which might be picked up on by some other public member but EPA, DEP or General Electric would not respond because they were bound by confidentiality rules of the ongoing negotiation.  Clearly, a forum to enhance communication can not succeed where the parties who are charged with determining the solution are precluded from communicating.

In addition, the single productive session of the council, concerning the remediation of the first half mile of the river, demonstrated strong opposition to a plastic liner being used in the river and that opposition was backed up by an expert from the Army Corp of Engineers who deemed it unnecessary.  However, when the revised  plan for the river was published it provided for not 1 but 3 layers of plastic liner.  The public's concerns had been discounted without explanation and were clearly no more effective than if they had been made in writing and hadn't had expert support.  In fact, because members of the CCC are volunteer activist with limited time to devote to reviewing the issues surrounding the clean up of our community, the time spent on the CCC feels more like misdirection than enhanced participation.

In conclusion, we submit that this Consent Decree, as it is now written is solely in General Electric's best interests in terms of liability, and economic responsibility.  It fails to protect the interests and principles of the general public and federal, state and local governments and their agencies, the environment, and the directly affected property owners and their communities for which it is intended.  Therefore, we ask that substantial modifications be made in this document, as based on these comments, with many more opportunities for the interested public to submit effective input, or to, ultimately, go back to mediation with all affected and interested parties well-represented at the bargaining table for another effort at a more equitable and long-term public-protective outcome.

We would honor the opportunity to have a representative of Citizens for PCB Removal appear before the Court for the purpose of addressing these comments and concerns.

Respectfully Submitted,

Dorothy M. Mara
Charles P. Cianfarini
Barbara E. Cianfarini

Comment Committee representing
CITIZENS FOR PCB REMOVAL
c/o 20 Bank Row
Pittsfield, MA  01201

This position paper was filed with the U.S. Environmental Protection Agency &  the U.S. Department of Justice by Citizens for PCB Removal on February 22, 2000.