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Tuesday,
April 4, 2000
General Electric's
"Love Canal"
Pittsfield:
Sitting on a Toxic Time-Bomb?
Will GE get away
with it?
Decide for
yourself. Read The Housatonic River Initiative's amazing report
to the federal district Court detailing the facts about staggering levels
of toxic chemical pollution in and around Pittsfield. This report
has been out for more than a month and NONE of the other Berkshire
media have seen fit to let you read it for yourself. For your
health, for the health of yours and your neighbors' children, read the
ENTIRE report and prepare yourself to feel shock, sadness and anger......
( Logo
is a copyrighted trademark - © 2000 General Electric Company - and
is used here without permission.)
To
read the Lakewood/Get REAL amended federal Complaint, Click
Here!
The
report below filed by The Housatonic River Initiative with the federal
district Court in Springfield, Massachusetts is entitled "Memorandum of
Law in Support of Motion to Intervene". It details massive and pervasive
toxic chemical pollution in and around Pittsfield and its environs, involving
chemical contaminants capable of affecting human central nervous, endocrine,
and reproductive systems. If you live in Pittsfield or its environs,
be prepared to learn details that might shock you about the land you live
on, the woods you walk through, the water you play in, and the air you
breathe.
This document was originally
written using Microsoft Word for Mac, then reformatted using WordPerfect
6.1 for Windows, and then reformatted again using Netscape Composer to
create this webpage. As such, it contains minor punctuation and typographical
differences from the original document filed with the Court.
IN
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF
MASSACHUSETTS
WESTERN DIVISION
____________________________________
UNITED STATES OF AMERICA
STATE OF CONNECTICUT
COMMONWEALTH OF MASSACHUSETTS
CIVIL ACTIONS Nos. 99-30225; 99-30226; 99-30227-MAP
Plaintiffs,
THE HOUSATONIC RIVER
INITIATIVE
Plaintiff Intervenor,
GENERAL ELECTRIC COMPANY,
Defendant.
__________________________________________
MEMORANDUM OF LAW
IN SUPPORT OF MOTION TO INTERVENE
February 22,
2000
Respectfully submitted
By Pro Se intervenor,
THE HOUSATONIC RIVER
INITIATIVE
Tim Gray, Executive
Director.
Dave Gibbs, President
Al Bertelli, Vice-President
Wendy Phillips, Treasurer
Rep. Christopher Hodgkins,
Board of Directors
Etc., etc.
MEMORANDUM IN
SUPPORT OF MOTION TO INTERVENE
IN
UNITED STATES OF AMERICA,
STATE OF CONNECTICUT,
COMMONWEALTH OF MASSACHUSETTS,
Plaintiffs,
THE HOUSATONIC RIVER
INITIATIVE
Plaintiff Intervenor,
v. GENERAL ELECTRIC
COMPANY,
Defendant
TABLE
OF CONTENTS
I. INTRODUCTION..........To
read Click Here!
A. The Housatonic
River Initiative Has The Right To Intervene In This Action Under Fed. R.
Civ. P. 24(a)(2) Or In The Alternative By Leave Of Court Under Fed. R.
Civ. P. 24(b)...........To read
Click
Here!
B. HRI, As An
Organization, And Its Members Impacted By The Consent Decree, Have Contributed
Extensively In The Prior Eight Years To Solve The Problems of PCB Contamination
In Pittsfield And The GE Site And Were Denied Participation In The Negotiations
That Resulted In The Consent Decree...........To
read Click Here!
C. GE Dumped
Millions Of Pounds Of PCBs In Berkshire County From 1932 to 1981 Which
Contaminated, And Continue To Contaminate By Leaching From The GE Facility,
The Housatonic River And Properties Of HRI's Members In Berkshire County...........To
read Click Here!
II. THE CONSENT
DECREE DOES NOT RESOLVE THE PCB CONTAMINATION PROBLEMS IN BERKSHIRE COUNTY...........To
read Click Here!
A. CERCLA
And The Consent Decree...........To
read Click Here!
B. Impacted Areas
Not Properly Addressed In The Consent Decree...........To
read Click Here!
1.
The Remedial Decision For The 1/2 Mile of the Housatonic River from the
GE Facility to Lyman Street - ("The 1/2 Mile Reach") – Will Not Adequately
Prevent PCBs From Recontaminating The River And The Properties Of HRI Members
In The Future............To
read Click Here!
2.
The Hill 78 and Building 71 Landfills Located Within The GE Property Will
Continue To Pollute With PCBs Pittsfield's Groundwater, Endanger The Housatonic
River, The Schoolchildren At The Allendale School, And Affect The Properties
of HRI's Members............To
read Click Here!
3.
The Current Plan For Remediation of Silver Lake Will Render This Body Of
Water Useless, And A Continuing Threat To The Housatonic River, And A Danger
To HRI's Members..........To
read Click Here!
4.
The PCB Contamination Of The West Branch Of The Housatonic River Has Not
Been Addressed In The Consent Decree, Rendering Any PCB Removal From The
Confluence Of The West And East Branches An Exercise In Futility And Continuing
The Pollution With PCBs Of The Properties Of HRI's Members............To
read Click Here!
5.
The Consent Decree Fails To Address The Fact That GE Gave Away Contaminated
Wood From Its Transformers To The Citizens Of Pittsfield And Some Businesses
And Possible Homes Were Built With PCB-Contaminated Wood............To
read Click Here!
6.
The Consent Decree Fails To Address The Fact That Some Commercial Buildings
Have Earth Floors Contaminated With PCBs Presenting A Serious Danger to
HRI's Members Who Own These Buildings............To
read Click Here!
7.
The Compromise Reached Between GE And The Agencies Which Made The Consent
Decree Possible Was That Large Areas Of Pittsfield Encompassing Properties
of HRI's Members Will Not Be Cleaned-Up To Massachusetts Default Standards
Rendering These Properties Worthless Which Represents A Regulatory
Taking Of Those Properties............To
read Click Here!
8.
Pittsfield's Groundwater Will Remain Forever Unusable Due To Its
Contamination With PCBs Under The Terms Of The Consent Decree............To
read Click Here!
9.
The Natural Resources Damage Award Is Grossly Inadequate And Represents
A Fraction of the Defendant's Liability For Natural Resource Damages............To
read Click Here!
III. PUBLIC HEALTH
STUDIES PUBLISHED RECENTLY CONFIRM THE DANGERS OF EXPOSING HRI MEMBERS
AND OTHER MEMBERS OF THE PUBLIC TO EVEN LOW LEVELS OF PCBs..........To
read Click Here!
IV. CONCLUSION...........To
read Click Here!
Appendix A: List of
Exhibits...........To read Click
Here!
I. INTRODUCTION
A. The Housatonic River Initiative Has The Right
To Intervene In This Action Under Fed. R. Civ. P. 24(a)(2) Or In The Alternative
By Leave Of Court Under Fed. R. Civ. P. 24(b).
The Housatonic River Initiative, (HRI), a 501(c)(3) non-profit organization,
was formed in 1992 to advocate for the cleanup of the Housatonic River
and Silver Lake. HRI's Board of Directors includes a State Representative,
the Chairman of the Massachusetts Department of Fisheries and Wildlife,
educators, sportsmen and women, and environmentalists. HRI brings
this motion to intervene in order to achieve modifications to this Consent
Decree.
HRI has many hundreds of dues-paying members in every town and city
in Berkshire County. Many of HRI's dues-paying members are individuals
and families directly and negatively impacted by the actions to be taken
by General Electric (GE) and the Agencies as a result of the Consent Decree.
These members include Housatonic River property owners and contaminated
commercial property owners. HRI's newsletter is sent to more
than 2,000 residents.
HRI is a broad-based organization that has managed to bring together
an unusually unlikely alliance of duck-hunters, former GE workers, river
advocates, residents of Pittsfield's urban neighborhoods, and rural residents
of Sheffield – all united to clean and restore PCB-contaminated land and
our common River. (Exhibit 1).
HRI has been very successful in its efforts to galvanize public support
and many local Boards of Selectmen have relied on HRI to represent their
interests before the Massachusetts Department of Environmental Protection
(MADEP) and the United States Environmental Protection Agency (USEPA),
and to keep them informed of Agency activities.
Based on HRI's decade-long advocacy and its ability to represent a wide
variety of stakeholders, MADEP has recognized HRI "as a primary citizens
advisory group for these sites" suggesting that "interested citizens and
other parties are encouraged to join forces under the HRI umbrella.."
When negotiations began in 1997 between the United States, Massachusetts,
Connecticut and General Electric, HRI strenuously but unsuccessfully argued
that representatives of HRI and the Berkshire County community other than
the Mayor and City Council President of Pittsfield be invited to participate.
HRI was told that appropriate members of the USEPA, the U.S. Department
of the Interior (DOI), the National Oceanic Atmospheric Administration
(NOAA), etc., and MADEP could adequately represent and advocate for the
public interest.
HRI was told, additionally, that the newly formed Citizens Coordinating
Council (CCC) would serve as the appropriate forum where community input
could be offered. As active, and often frustrated members of this
Council, HRI was repeatedly told at CCC meetings that the most critical
and substantial matters regarding the cleanup were covered by the confidentiality
provisions of the negotiating process, and could not be fully or openly
discussed. True, substantive public participation was thwarted by
this closed-door negotiating process.
HRI's absence at the negotiating table and HRI's resultant inability
to adequately put forth alternative solutions and remedies to those fashioned
at the table is the fundamental reason why HRI is filing this motion to
intervene. Not only are those HRI members who own contaminated river-front
or commercial property injured, but many of HRI's members are otherwise
injured by the actions of GE and the Agencies.
HRI members who would like to swim and fish and consume the fish in
the Housatonic River and Silver Lake are injured. HRI members who
would like to trap and hunt and safely consume the River's game are injured.
HRI members who would more likely canoe, hike or more frequently engage
in other recreational activities in these contaminated areas are injured.
As Justice Ginsburg wrote recently in the Supreme Court's January 12,
2000 ruling in Friends of the Earth Inc., et al. v. Laidlaw Environmental
Services (TOC), Inc.:
We have held that environmental plaintiffs adequately allege
injury in fact when they aver that they use the affected area and are persons
"for whom the aesthetic and recreational values of the area will be lessened"
by the challenged activity, Sierra Club v. Morton, U.S. 405 U.S. 727, 735
(1972). See also Defenders of Wildlife, 504 U.S., at 562-563 ("Of
course, the desire to use or observe an animal species, even for purely
esthetic purposes, is undeniably a cognizable interest for purpose of standing.")…
the affidavits and testimony presented by FOE in this case assert that
Laidlaw's discharges, and the affiant members' reasonable concern about
the effects of those discharges, directly affected those affiants' recreational,
aesthetic, and economic interests. (Exhibit 2, No. 98-822, II
A)
HRI has standing to bring this motion under Article III of the United States
Constitution because many of its members are injured, and, as the Supreme
Court has ruled in Friends of the Earth v. Laidlaw, as an association
on behalf of its members who have standing in their own right, and whose
interests at stake are germane to the organization's purpose. This
Consent Decree, and its decisions to leave large amounts of PCB and other
toxic contamination in place, will clearly affect our members' recreational,
aesthetic, and economic interest.
The United States Court Of Appeals for the First Circuit has ruled in
Conservation
Law Foundation of New England, Inc., Et Al., v. Robert A. Mosbacher
that:
a regulated group has a sufficient interest to intervene
as of right in a suit filed by public interest organizations seeking more
extension regulation by a federal agency. We also conclude that the
proposed intervenors' interest would not be adequately represented by the
government. (Exhibit 3, No. 91-212, 966 F.2d 39; 1992 U.S. App.)
On August 28, 1991, the district court held that while seven commercial
fishing groups had an interest in a fishery plan approved by the Secretary
of Commerce under provisions of the Magnuson Act, 16. U.S.C.§§
1801-1882, those interests were adequately represented by a governmental
agency whose interests and purposes under the law are to protect the very
interests the proposed intervenors seek to protect. The district
court denied intervention.
Reversing the district court order denying intervention, Circuit Judge
Weis wrote:
"Rule 24(a)(2) allows intervention as of right if an applicant
meets four conditions. In Travelers Indem. Co. v. Dingwell, 884 F.2d
629, 637 (1st Cir. 1989), we listed those requirements:
1. The application must be timely (a factor not challenged
here);
2. The application must claim an interest relating to the
property or transaction which is the subject of the action;
3. Disposition of the action may, as a practical matter, impair
or impede that applicant's ability to protect the interest; and
4. The applicant must show that the interest will not be adequately
represented by existing parties.
…To justify intervention as of right, interests must be "significantly
protectable." Donaldson v. United States, 400 U.S. 517, 27 L. Ed,
2d 580, 91 S. Ct. 534 (1971). However, because the case law varies
substantially between courts, no bright line of demarcation exists.
In general, the Courts of Appeals for the Second, Sixth,
Tenth, and D.C. Circuits have adopted a liberal approach to intervention.
They view the interest test as a practical guide to disposing of lawsuits
by involving as many apparently concerned parties as is compatible with
efficiency[*42] and due process.
…Applying more restrictive criteria, the Courts of Appeals
for the Fifth, Seventh, Eleventh, and Federal Circuits reject [**8] interests
that are speculative, indirect, or contingent.
…This Court has not clearly adopted either of those approaches.
Instead, we have emphasized that "there is no precise and authoritative
definition of the interest required to sustain a right to intervene," while
reiterating "that the intervenor's claims must bear a ‘sufficiently close
relationship' to the dispute between the original litigants' and that ‘the
interest must be direct, not contingent." Travelers Indem., 884 F.2d
at 638.
…The circumstances that exist when individuals litigate private disputes
or those governed by state law differ from those where public law disputes
affecting federal regulatory programs are at issue. So too, the determination
of whether an interest is sufficient for Rule 24(a)(2) purposes is colored
to some extent by the third factor – whether disposition of the action
may, as a practical matter, impair or impede the applicant's ability to
protect its interest.
…The final matter for discussion is whether the fishing groups are
adequately represented by the Secretary of Commerce. We conclude
they are not.
…The Secretary's judgments are necessarily constrained by his view
of the public welfare. While the Secretary may well believe that
what best serves the public welfare will also best serve the overall interests
of fishermen, the fact remains that the fishermen may see their own interest
in a different, perhaps more parochial light.
…We realize that in other cases some courts have found representation
by a public agency to be adequate. Here, however, the interests of
the Secretary and the proposed intervenors do not appear to justify such
a conclusion. The circumstances are such that, viewed objectively,
it is unlikely that the fishing groups' interests, as those interests are
perceived and understood by them, would or perhaps even should be adequately
protected by the Secretary. Accordingly, [**19] we conclude that
in this instance governmental representation is not adequate.
(No. 91-212, 966 F.2d 39; 1992 U.S. App.)
As Circuit Judge Boudin notes for the United States Court of Appeals for
the First Circuit in Massachusetts Food Association, Et Al., Plaintiffs,
Appellants, v. Massachusetts Alcoholic Beverages Control Commission, Et
Al., Defendants, Appellees: The standard for intervention as of right
is set forth in Rule 24(a)(2) as follows:
"Upon timely application anyone shall be permitted to intervene
in an action: …when the applicant claims an interest relating to
property or transaction which is the subject matter of the action and the
applicant is so situated that the disposition [*16] of the action may as
a practical matter impair or impede the applicant's ability to protect
that interest, unless the applicant's ability to protect that interest
is adequately represented by existing parties."
In such cases, the timeliness of intervention and the practical impact
on the would-be intervenor are rarely in dispute: it is the "interest"
and "adequately represented" criteria that are usually decisive.
Rule 24(a)(2)'s reference to "an interest relating to the property
or transaction" suggests that the drafters had in mind something narrower
and more akin to property or contract interests in conventional private
litigation as the necessary stake; but this narrow reading has not been
accepted in practice. …But, perhaps as a counterweight to the broad
reading of "interest," the courts have been quite ready [*17] to presume
that a government defendant will "adequately represent" the interests of
all private defenders of the statute or regulation unless there is a showing
to the contrary. … And while there are various ways to show
that state representation is not adequate, the burden of overcoming the
presumption is upon the would-be intervenor. (Exhibit 4, No.
99-1277, 197 F.3d 560, 1999 U.S. App.)
In 1981, GE and the Agencies negotiated a Consent Order for this site.
Eighteen years have elapsed before any large scale permanent clean-up action
has begun in the Housatonic River. GE has brought to bear enormous
financial and legal resources in an effort to delay and limit its responsibility
to clean this site. Over these last two decades, the Agencies have
been hampered by a lack of financial and human resources. In the
1980s and early 1990s, the USEPA was constantly changing its personnel
in charge of this site. A close examination of the record will reveal
that there is ample evidence supporting HRI's claim that the Agencies cannot
"adequately represent" the interest of HRI and its members. HRI has
the right to intervene in this action for the following reasons:
1. The application is timely. The Consent
Decree was entered for approval by this Court in October, 1999, the comment
period for the Decree is still open, and HRI has participated and expressed
its concerns to all parties negotiating this agreement since 1992;
2. HRI, as an organization, and representing parties whose
property interests are directly affected, has a direct interest relating
to the property or transactions subject of the Consent Decree;
3. Disposition of this matter by approval of the Consent
Decree will impede the ability of HRI's members from protecting their interests;
4. The interests of the members of HRI are not adequately
represented by the existing parties in the case of the Newell Street property
owners. Approval of the Consent Decree will result in a regulatory
taking of these properties by the Federal and State Governments, as discussed
more extensively below.
B. HRI, As
An Organization, And Its Members Impacted By The Consent Decree, Have Contributed
Extensively In The Prior Eight Years To Solve The Problems of PCB Contamination
In Pittsfield And The GE Site And Were Denied Participation In The Negotiations
That Resulted In The Consent Decree.
HRI began public advocacy for a cleanup in 1992 after more than a decade
of widespread public frustration. HRI knew that only by marshaling
a broad-based citizens group could the clean-up process be propelled forward.
HRI became extremely frustrated when it learned that the USEPA had made
the critical strategic decision to handle this site under the Resource
Conservation and Recovery Act (RCRA), rather than the Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA).
In addition, state and federal environmental officials, and Massachusetts
public health officials had allocated few resources to addressing the problem.
Massachusetts agencies and USEPA were engaged in disputes about authority,
and non-action was the order of the day.
HRI's loud and consistent advocacy was met with a change in attitude
and personnel at both the state and federal level. It has been HRI's
experience that from the initial discovery of contaminated milk coming
from the DeVos farm in Lenox in the late 1970s, state and federal regulators
have been extremely slow to fully comprehend the vast extent of PCB-contamination
that moved, and continues to move, from GE's Pittsfield plant to the surrounding
areas, either directly through storm drains and storage tank leakage to
the river, or, in the form of contaminated materials transported from the
GE facility to locations throughout the County. The Agencies were
also extremely slow to take corrective action.
The court has ruled that Statute of Limitations prevents residential
and commercial property owners from pressing some of their claims against
GE. With all due respect, it is HRI's belief that public ignorance
and inaction stemmed from a complex mix of factors: GE's decisions not
to disclose pertinent information; regulatory inaction; a widespread desire
not to antagonize the principal employer of Berkshire County; and the very
slow process of the scientific and public health community to fully appreciate,
and adequately communicate to the public, the dangers of relatively small
dosages of the PCBs and other contaminants used on a daily basis at GE.
C. GE Dumped Millions
Of Pounds Of PCBs In Berkshire County From 1932 to 1981 Which Contaminated,
And Continue To Contaminate By Leaching From The GE Facility, The Housatonic
River And Properties Of HRI's Members In Berkshire County.
GE had a practice of allowing its PCB-contaminated oil and other contaminants
to move freely from its industrial facility out into the surrounding areas:
down its drains forming underground plumes, and contaminating Pittsfield's
groundwater, and Silver Lake, Unkamet Brook, and the Housatonic River.
Much of these discharges from GE's property were non-permitted wastewater
discharges.
GE had a practice of distributing PCB-contaminated materials off-site
to the community. So concerned was the Commonwealth with GE's failure
to notify state agencies about its program in the 1940s and ‘50s to distribute
PCB-contaminated fill that on October 7, 1997 it filed Civil Action No.
99-4841E in Suffolk Superior Court. The Complaint alleged that GE
failed to notify the Massachusetts DEP of releases and threats of releases
of PCBs, that GE failed to produce documents responsive to its official
requests, and that GE made inaccurate, incomplete and misleading statements
in the responses GE submitted, and that GE violated the Housatonic River
Order. (Exhibit 5, Commonwealth of Massachusetts Complaint Civil
Action No. 99-4841E; Exhibit 6, R. Kelly Neiderjohn May 15, 1981 Letter;
and Berkshire Eagle and Boston Globe articles).
Another example of inaccurate or incomplete information involves the
estimated amount of PCB-contamination in the Housatonic River. GE's
1982 Stewart Report estimated that there was a total of 39,000 pounds (less
than 20 tons) of PCBs in the Housatonic River from the GE site to the Connecticut
border. The USEPA, in its initial 1988 RCRA Site Assessment for the
entire GE/Pittsfield/Housatonic Site, quoted GE's Stewart Report's assessment
of the PCB problem in the Housatonic River:
The PCB levels in sediments ranged from less than 1 to 210
ppm (dry weight) and appeared to be confined to the upper 12 inches of
the sediment. (Exhibit 7, RCRA Site Assessment, III-29).
It took years and years of advocacy by HRI – including presenting
testimony of Ed Bates, the former Manager of Tests at GE Power Transformer
in Pittsfield, and his associate, Charles Fessenden, Supervisor of Calculations
at Power Transformer – to establish that at least a million and a half
pounds of GE's PCBs had gone down the drain and into the river, due to
daily spillage and loss at Power Transformer alone.
HRI has additional reports by former Pittsfield Mayor Remo DelGallo
about large PCB storage tanks leaking near Building 100 on East Street.
(Exhibit 8, video interviews with Ed Bates and Remo DelGallo, etc.).
GE not only grossly under reported the amount of PCBs in the Housatonic
River; it grossly misinterpreted the contamination levels in the River.
HRI believes GE's misrepresentations violated its responsibilities under
the 1981 Consent Agreement under RCRA to disclose all past releases.
From the onset HRI urged MADEP and USEPA to institute an independent
testing regime to more adequately determine the range and extent of PCB-contamination
in the Housatonic River and Silver Lake, and to conduct a more thorough
review of GE's sampling protocol. The Agencies resisted our efforts
from 1992 to 1996.
As a result of HRI's advocacy, in 1996 the USEPA undertook independent
sampling. This independent sampling effort, and greater oversight
of GE's sampling regime, has revealed large areas of previously undiscovered
contamination.
Due to a finding of major PCB concentrations in the banks of the Housatonic
River located on GE's facility, GE was forced to clean up contaminated
bank soil and river sediment in what has become known as the Building 68
Removal Action.
During the 1997 Building 68 removal of a 550-foot section of bank soil
and river sediment, HRI and the public learned from The Berkshire Eagle
that:
If GE's estimated average concentration of 1,550 parts per
million for the sediments in the hot spot is even close, then at least
10 tons of pure PCBs were removed from the river bed off Building 68.
That would represent more than half of the 39,000 pounds a GE consultant
estimated was in the Housatonic River sediments above the Connecticut border
in 1983. (Exhibit 9, December 16, 1997 issue of The Berkshire
Eagle).
Unfortunately, HRI believes today that, while the USEPA and MADEP have
made major strides in the last few years, they are still playing catch-up
with GE, both in fully delineating the scope of the problem and in their
remediation plans. Because of the respect HRI has earned in the community
over the years, many former and present GE employees or employees of GE
contractors have informed HRI of additional areas of contamination.
HRI has always communicated these concerns to the Agencies, and HRI is,
to a large degree, responsible for encouraging and prodding the Agencies
to take positive action in these areas.
But even after all these years of advocacy, the Agencies are still slow
to recognize how pervasive PCB distribution is throughout our community.
And while the Agencies have worked to reverse this dynamic, HRI is convinced
that this Consent Decree fails to thoroughly address several major areas,
and that several of its decisions fail to adequately protect either the
public health and safety, or that of the environment.
Because of the past and present record of GE and the Agencies, HRI believes
that under the fourth requirement noted in Conservation Law Foundation
of New England, Inc. Et Al., v. Mosbacher, our interest "will not be
adequately represented by existing parties." 966 F.2d. 39,41 (1st
Cir. 1992).
II. THE CONSENT DECREE
DOES NOT RESOLVE THE PCB CONTAMINATION PROBLEMS IN BERKSHIRE COUNTY
A. CERCLA And The Consent Decree
CERCLA Section 9621(b), General rules for cleanup standards, clearly
states:
(1) Remedial actions in which treatment which permanently
and significantly reduces the volume, toxicity, or mobility of the hazardous
substances, pollutants, and contaminants is a principal element, are to
be preferred over remedial actions not involving such treatment.
The offsite transport and disposal of hazardous substances or contaminated
materials without such treatment should be the least favored alternative
remedial action where practicable treatment technologies are available.
The President shall conduct an assessment of permanent solutions
and alternative treatment technologies or resource recovery technologies
that, in whole or in part, will result in a permanent and significant decrease
in the toxicity, mobility, or volume of the hazardous substance, pollutant,
or containment. In making such assessment, the President shall specifically
address the long-term effectiveness of various alternatives.
In assessing alternative remedies, the President shall, at
a minimum, take into account:
(A) the long-term uncertainties associated with land disposal;
(B) the goals, objectives, and requirements of the Solid
Waste Disposal Act (42 U.S.C 6901 et seq.);
(C) the persistence, toxicity, mobility, and propensity to
bioaccumulate of such hazardous substances and their constituents;
(D) short and long-term potential for adverse health effects
from human exposure;
(E) long-term maintenance costs;
(F) the potential for future remedial costs if the alternate
remediate action were to fail; and
(G) the potential threat to human health and the environment
associated with excavation, transportation, and redisposal, c. containment.
The President shall select a remedial action that is protective
of human health and the environment, that is cost effective, and that utilizes
permanent solutions and alternative treatment technologies or resource
recovery technologies to maximum extent practicable. If the President
selects a remedial action not appropriate for a preference under this subsection,
the President shall publish an explanation as to why a remedial action
involving such reductions was not selected.
(2) The President may select an alternative remedial action
meeting the objectives of this subsection whether or not such action has
been achieved in practice at any other facility or site that has similar
characteristics. In making such a selection, the President may take
into account the degree of support for such remedial action by parties
interested in such site. 42 USC 9621(b) (Emphasis added).
HRI believes that this Consent Decree fails to meet these standards.
This site calls for a range of remedial actions and treatment "which permanently
and significantly reduces the volume, toxicity, or mobility of the hazardous
substances." (Id at 9621(b)(1)). And this Defendant and Responsible
Party is more than able to meet the costs associated with alternative,
remedial actions and treatment "which permanently and significantly reduces
the volume, toxicity, or mobility of the hazardous substances" (Id at 9621(b)(1)).
The decision to exclude HRI from these negotiations has ensured the
fact that the great public support for selecting these alternative remedies
has been discounted by the parties. And this exclusion all but ensured
that, contrary to Section 9621(2), the President has unfortunately failed
to "take into account the degree of support for such remedial action by
parties interested in such site." (Id at 9621(b)(2))
Critical to this Consent Decree are the Plaintiffs' covenants not to
sue. Section 9622 (f)(4) of CERCLA states:
In assessing the appropriateness of a covenant not
to sue under paragraph (1) and any condition to be included in a covenant
not to sue under paragraph (1) or (2), the President shall consider whether
the covenant or condition is in the public interest on the basis of such
factors as the following:
(A) The effectiveness and reliability of the remedy, in light
of the other alternative remedies considered for the facility concerned.
(B) The nature of the risks remaining at the facility.
(C) The extent to which performance standard are included
in the order or decree.
(D) The extent to which the response action provides a complete
remedy for the facility.
(E) The extent to which the technology used in the response
action is demonstrated to be effective.
(F) Whether the Fund or other sources of funding would be
available for any additional remedial actions that might eventually be
necessary at the facility.
(G) Whether the remedial action will be carried out, in whole
or in significant part, by the responsible parties themselves.
(42 USC 9622(f)(4)).
HRI believes this Consent Decree fails to serve the public interest under
CERCLA in these respects:
The effectiveness and reliability of the remedy, in light
of the other alternative remedies considered for the facility concerned.
The nature of the risks remaining at the facility.
The extent to which performance standard are included in the
order or decree.
The extent to which the response action provides a complete remedy
for the facility.
The extent to which the technology used in the response action
is demonstrated to be effective. (42 USC 9622(f)(4)).
And because of these failures, HRI believes it is premature for the Plaintiffs
to agree to covenants not to sue.
B. Impacted
Areas Not Properly Addressed In The Consent Decree
1. The Remedial Decision For The 1/2 Mile
of the Housatonic River from the GE Facility to Lyman Street - ("The 1/2
Mile Reach") – Will Not Adequately Prevent PCBs From Recontaminating The
River And The Properties Of HRI Members In The Future.
Even though the Consent Decree has not been approved by the Court, GE
is moving with haste to implement the Removal Action Plan for the first
1/2 Mile Reach of the Housatonic River. By the time the Court has
had a chance to review and rule on the provisions of the Consent Decree,
a major portion of the 1/2-Mile Reach will have been remediated, and a
great precedent shall have been set. (Exhibit 8, video of 1/2 Mile
Reach remediation)
These precedents include a strategy based on limited testing, limited
removal, major capping, and extensive landfilling without treatment.
Extremely high levels of contaminated soils and sediments will be left
unremediated and covered up by a largely untested geotextile-based capping
regime. There will be no substantive reduction of toxic materials,
instead, these materials will be transported from the river and relocated
at the Hill 78 and Building 71 landfills, a mere 50 yards from the Allendale
elementary school.
The Agencies maintain that the public has had ample opportunity to comment
on the 1/2-Mile Reach Removal Plan. While HRI and its technical consultant,
Joel Loitherstein, submitted substantial written comments in early June
1999 to GE's proposed Action Plan, it was only until the Agencies' responses
were released to the public information repositories in November 1999 that
HRI discovered the underlying and motivating reasons for the Agencies'
decisions regarding the 1/2-Mile Reach.
EPA's response to our concerns can be found in its Responsiveness Summary
for Allendale School Removal Action:
1/2 Mile Removal Action and Consolidation, October 1999
(Exhibit 10):
Comment:
Two commenters expressed concerns about the use of spatial
averaging and also asked how EPA determined the cleanup levels for the
sediments and bank soils.
Response:
Sediments. EPA did not explicitly specify a cleanup
level for PCBs in sediments nor did EPA approve the use of spatial averaging
for the sediments in the 1/2-Mile Reach; rather a cleanup approach was
used to determine the limits of excavation. Based on the experience
of the Building 68 Removal Area (a 550-foot section of the river located
within the 1/2-Mile Reach), EPA determined that the complete removal of
PCB-contaminated sediments in the 1/2-Mile Reach is not feasible.
For example, during the Building 68 cleanup, the sediments in some sections
of the River were excavated to a depth of eight feet and PCB levels as
high as 2,240 remained. Therefore, EPA based its review of the limits
of sediment excavation on the following criteria: removing a significant
mass of PCB-contaminated sediments; reducing surficial PCB sediment levels
to less than 1 ppm; excavating sediments to a sufficient depth to allow
for the installation of an appropriate cap/backfill configuration that
would effectively prevent the residual PCBs that remain in the underlying
sediments from migrating up to the surface sediments or water column."
(Emphasis added)
This is the first time that HRI had heard so clearly that the most critical
decisions regarding the Agencies' cleanup strategy for the 1/2-Mile Reach
were determined by the experience of the Building 68 remediation.
In HRI's extended public comments to the Consent Decree (Exhibit 11), HRI
examines the Building 68 experience in greater detail. Suffice it
to say that there is reason to believe that both GE and the Agencies clearly
underestimated the amount and depth of the contamination at the site.
The Building 68 chronology mimics HRI's experience with every other
aspect of this site. A 1968 GE spill that goes unreported until 1982.
14 years of regulatory inaction that leads to a sampling program in 1996.
Remediation in 1997, and additional remediation in 1998, 30 years after
the spill, that still leaves large amounts of contamination in place.
The underestimation of contamination led to an engineering plan that
was ultimately unable to support dredging below 8 feet, and extremely high
levels of contaminants were left unremediated. These remaining contaminants
located with GE property continue to leach into the Housatonic River and
Pittsfield's groundwater, posing a threat to HRI's members and impacting
directly upon their properties.
GE's difficult experience with the Building 68 Removal Action, has,
in effect, determined the limits of remedial action for the entire 1/2-Mile
Reach. USEPA's analysis of the Building 68 Removal Action has affected
all the subsequent decisions concerning the 1/2-Mile Reach, including the
decision not to obtain PCB samples in the river beyond a depth of 2.5 feet.
As the USEPA states on page 4-1 of Appendix F of the Consent Decree:
Recent sampling performed by the USEPA (August – October
1998) involved establishing 63 transects, approximately 50 feet apart,
along the River in the 1/2-Mile Reach, and generally obtaining samples
(when retrievable) from three locations along each transect at 6-inch depth
intervals, to a maximum depth of 2.5 feet. Samples collected from
this reach between 1981 and 1998 indicate the presence of PCBs in sediments
ranging from less than 1 part per million (ppm) to 9,411 ppm."
(Emphasis added)
Why obtain deeper samples when a de facto decision had already been made
for the 1/2-Mile Reach to limit all activity to 2.5 feet. Unfortunately,
HRI believes that this decision will leave extremely large quantities of
PCBs untouched below the 2.5 feet level. And this strategic decision
has led inevitably to the determination to employ a multi-layered computer-designed
cap system.
The engineering limitations of the Building 68 Removal, and discovery
of an unexpected source, led to the decision to leave contaminated bank
soils with PCB levels as high as 102,000 ppm at a depth of 6 to 8 feet
deep and river sediments with PCB levels of 2,240 ppm at a depth of 8 feet.
HRI believes that more extensive engineering, and/or a pilot project,
ought to be considered as an alternative to the proposed plan. The
Building 68 Removal Action revealed the existence of an unanticipated source
of heavier-than-water contaminated Dense Non-Aqueous Phase Liquid oil (DNAPL)
which contains extremely high levels of contamination. The thick
underground DNAPL plumes that exist throughout this site contain not only
PCBs but other toxic contaminants, including chlorobenzene, benzene, trichloroethylene,
methylene chloride as well as metals.
HRI believes it makes sense now to consider a range of remediation strategies,
including the construction of a more extensive slurry ditch and pumping
system deep enough to capture and drain the DNAPL plumes that continue
to endanger the river system. There is certainly room enough on the
extensive GE property which borders the 1/2-Mile Reach for such a drainage
ditch and pumping system to ensure that the deep plumes heading to, and
possibly traveling below, the river itself are immobilized and remediated.
Installing such a system wherever possible would not only prevent any possible
future recontamination but would enable the remediation efforts in the
1/2 Mile Reach to go deeper and remove greater quantities of contaminated
sediment.
GE has already constructed a slurry ditch 380 feet long by 30 feet deep
to aid its efforts to recover oil from the massive plume in East Street
Area 2.
Our technical consultant, Joel Loitherstein of LEEI, has raised many
questions about the Agencies decision to rely on a capping solution:
"LEEI was not able to find other locations where
a cap and armor has been placed beneath a river. The available literature
refer to caps being placed beneath relatively calm surface waters such
as harbors and lakes. There is a similar project being proposed in New
York, but a pilot test is being performed before it is put in place.
It is the opinion of LEEI that these remedial decisions are based on entirely
too little data, and that the data itself are highly questionable.
Given GE's proposed plan to cap the remaining river sediment
subsequent to excavation, we seriously question the benefit that such an
exercise will have on the ecological systems and potential human receptors
when compared to the disruption and uncertainties that the exercise will
entail.
...It is also the opinion of LEEI that capping the sediment
should be further evaluated as a remedial option before it is implemented
over the entire 1/2-mile stretch. We have reviewed many articles
on capping, including some cited in BBL's report ...According to
one study 'capping is likely to be used only in environments where the
long-term integrity of the cap can be guaranteed. Typically this
would mean low hydrodynamic energy environments such as harbours, estuaries
and lake bottoms.'
...It is the opinion of LEEI that the Work Plan should also
involve a pilot test of a high velocity and scouring area before the cap
is implemented over the entire 1/2-mile reach. It is our opinion
that, rather than a prediction of PCB flux based on computer models (Appendix
G of BBL's report), that GE be required to obtain actual data on flux and
PCB concentrations using seepage meters placed at key locations on the
river bottom. These data could then be used to calibrate the model
to make more accurate predictions of the cap's useful life. (Exhibit
12)
HRI believes that the joint decision of the Agencies and GE to restrict
removal of PCBs and other contaminants to a depth of 2 1/2 feet in the
Housatonic River, coupled with their decision to employ an untested geotextile-based
capping remedy will not adequately prevent PCBs from recontaminating the
river and the properties of HRI members in the future.
2. The Hill
78 and Building 71 Landfills Located Within The GE Property Will Continue
To Pollute With PCBs Pittsfield's Groundwater, Endanger The Housatonic
River, The Schoolchildren At The Allendale School, And Affect The Properties
of HRI's Members
USEPA and MADEP are permitting GE to use two landfills located on the
GE facility to dispose of PCB contaminated soils and sediments. The
Agencies' plan is to put PCB-contaminated material less than 50 ppm on
top of an existing unlined landfill on Hill 78, and to create a new landfill
for higher-level contaminated materials above 50 ppm on the adjacent Building
71 Site. These sites border an elementary school and a residential
neighborhood. The Hill 78 landfill is 50 yards from the Allendale
School.
HRI knows from many Agency documents and the testimony of former GE
employees and Pittsfield residents that the existing dump at Hill 78, a
former ravine, was filled with extremely toxic materials, including barrels
containing Pyranol, GE's PCB oil. Sampling has shown contamination
at levels of 120,000 ppm in the soil. A 1991 investigation revealed
that the groundwater in the vicinity of Hill 78 had concentrations of PCBs
at 9 ppb and dioxins and furans (much more toxic even than PCBs) at 30
ppb.
HRI and many members of the public are very concerned that GE and the
Agencies are adding tons and tons of more waste on top of extremely dangerous
toxic wastes in Hill 78, ensuring that any potential problems of leaking
barrels will be that much more difficult to deal with. There is very
significant concern among HRI members and members of the public that these
dumps are located right across the street from a public elementary school,
needlessly exposing schoolchildren to possible migration of contaminants.
Several candidates for the Pittsfield City Council and the current Councilman
representing this district raised public concern about the enlargement
of these landfills, and expressed concern for the safety of the children.
(Exhibit 13)
HRI believes public health and safety will be unnecessarily threatened
by the Agencies' decision to not only leave such high-level contamination
in place at Hill 78 but to add to it and make more difficult any efforts
that may prove necessary at a later date to deal with potential problems
from the presence of buried barrels of liquid PCBs, contaminated fullers
earth, possible metals, solvents, VOCs, and SVOCs.
EPA Project Leader Bryan Olson's response at the May 18, 1999 public
meeting to some of these concerns was that:
"We have monitored this landfill ... for a fairly long time
and we don't see any impacts from the landfill, going away from the landfill
... we're expecting that they're probably drums in that landfill,
but we think that the solution will work no matter what's in the landfill."
HRI recognizes and appreciates that the Agencies have set up a long-term
monitoring program for this containment facility. But monitoring,
unfortunately, will only confirm that migration has occurred; and that
a problem exists. The Agencies are quick to tell the public that
this is a "public perception" issue, not one of public health. But
HRI's concerns are not based on a generalized, uninformed fear, or a typical
"Not In My Back Yard" response. HRI has conducted extensive research,
and contacted other communities who have had serious problems with landfills
that release contaminants.
There are valid reasons to doubt the long-term ability of these proposed
containment measures for both the Hill 78 and Building 71 landfills.
First, it is necessary to reiterate that the Hill 78 landfill, the repository
of PCBs in subsurface soils at an average concentration of 498 ppm and
a maximum concentration of 120,000 ppm, has no base liner.
This is what other EPA scientists have said about landfills in the past:
There is good theoretical and empirical evidence that
the hazardous constituents that are placed in land disposal facilities
very likely will migrate from the facility into the broader environment.
This may occur several years, even many decades, after placement of the
waste in the facility, but data and scientific prediction indicate that,
in most cases, even with the application of best available land disposal
technology, it will occur eventually. (Federal Register, Feb.
5, 1981, pg. 11128).
Eventually liners will either degrade, tear, or crack and will
allow liquids to migrate out of the unit. (Federal Register,
July 26. 1982, Pg. 32284).
Since disposing of hazardous wastes in or on the land inevitably
results in the release of hazardous constituents to the environment at
some time, any land disposal facility creates some risk. (Federal Register,
May 26, 1981, Pg. 28315).
Given EPA's own admission of the many problems that characterize landfill
liners, the inability of landfills to guarantee the long-term isolation
of these toxic chemicals, and the emphasis CERCLA places on alternative
and permanent solutions, HRI renews our advocacy for the treatment of these
wastes. And HRI respectfully reminds the Agencies of their stated
commitment to the treatment option.
According to the Corrective Action for Solid Waste Management Units
at Hazardous Management Facilities; Proposed Rule (Subpart S) states that
the four standards used in evaluating Corrective Measure technologies are:
1) overall protection of human health and the environment;
2) ability of the technology to attain media cleanup standards;
3) the ability of the technology to control the sources of
releases; and,
4) the technology's compliance with standards for management
of wastes.
If two or more technologies meet the evaluation standards
then there are five evaluation decision factors which must be considered.
The five evaluation decision factors are:
1) ability of the remedy to provide long-term reliability and
effectiveness;
2) ability to reduce the toxicity, mobility, or volume of
wastes;
3) short-term effectiveness;
4) ability to implement; and,
5) cost.
1. In accordance with the Permit and the proposed Subpart
S regulations, economic considerations shall not be the sole standard or
criterion applied to any technology in the Corrective Measures evaluation
process. (Federal Register, July 27, 1990)
While the decisions to enlarge the Hill 78 Consolidation Area, and construct
the Building 71, and possibly the additional New York Avenue/Merrill Road
Consolidation Areas, meet the above criteria for short-term effectiveness,
ability to implement, and cost, it certainly fails the criteria for reducing
the volume of waste. And there is reliable testimony and good reason
to doubt that this decision provides either long-term reliability or effectiveness.
HRI believes that there is a far more protective alternative: treatment.
There are several treatment methods - thermal desorption, for example -
which substantially reduce the volume of PCB-contaminated materials by
heating the sediments and soils. What results from the thermal desorption
process is large amounts of clean, sterile soil and very small and concentrated
amounts of liquid PCBs, which are easily stored and isolated.
The clean soil can often be recycled and used. The Agencies have
given HRI a cost estimate based on their experience with the remediation
at the Loring Air Force Base. There, HRI was told, dumping on site,
or very close to the site, was estimated to cost $30 a ton, as opposed
to $300 a ton or more to treat it.
GE, in its revised Removal Action Work Plan - Upper 1/2 Mile Reach
of Housatonic, estimates that it will remove approximately 12,740 cubic
yards of contaminated soil and sediment. One cubic yard is equal
to a ton and a half; 12,740 cubic yards equals 19,110 tons. Multiplied
by $300, the estimated cost of treating the soils and sediments of the
1/2 Mile Reach, is $5,733,000. Let's assume that the $300 a ton is
a low estimate. If treatment costs average $400 a ton, the added
expense for treatment comes to $7,644,000. If the treatment costs
average $500 a ton, the added expense for treatment comes to $9,555,000.
The remediation decisions negotiated in the Consent Decree also encompass
the next mile and a half of contaminated sediments and bank soils, the
contaminated soil from the Allendale School, and anticipated contaminated
soil from the Newell Street properties. GE arrives at a total estimate
in its June 1999 Detailed Work Plan for On-Plant Consolidation Areas:
Using:
1) the information available for each RAA;
2) GE's understanding of the response action requirements
established in the sediments;
3) information provided by the USEPA; and
4) several assumptions (summarized below), the volume of materials
potentially subject to on-plant consolidation is estimated to be approximately
230,000 cubic yards (cy). Of this total, it is currently estimated
that approximately half of the materials would be regulated under TSCA,
while the other half would be considered non-TSCA material containing less
than 50 ppm PCBs. (Page 2-2, Appendix E to Consent Decree, Volume
II, Annex 1)
Using the estimate of 230,000 cubic yards, brings the total volume of contaminated
soil and sediments subject to possible treatment up to 345,000 tons.
At $300 a ton, the costs of treating 345,000 tons equals $103,500,000.
At $400 a ton, the costs rise to $138,000,000. At $500 a ton, the
costs rise to $172,500,000.
So there is a range of $103 million to $172 million dollars to treat
all this waste rather than bury it across from the Allendale School.
The additional $103 to $172 million to ensure a permanent remedial solution
would be an impossible burden for many Responsible Parties, but HRI believes,
given the enormous profits General Electric made with its Power Transformer
and Capacitor divisions in Pittsfield, and its continuing status as one
of the world's most profitable corporations, that this extra expenditure
can, and should be, met. In years past, no one could reasonably expect
that this much money would be allocated to redress environmental grievances.
But in an era where basketball players are awarded $100 million dollar
contracts, and corporate CEOs are routinely awarded multi-million dollar
bonuses, why should public health and the environment be sacrificed when
the financial resources are available.
According to The Berkshire Eagle of April 9, 1999, Jack Welch,
CEO of General Electric doubled his annual earnings in 1998 to $83.6 million
dollars. According to a March 17, 1999 press release from the United
Electrical Workers, CEO Jack Welch's total compensation package for 1998
equaled $97 million dollars, averaging about $50,000 an hour. Clearly,
GE has the financial wherewithal to treat this contamination. (Exhibit
14)
For less than what GE's Board of Directors will compensate Jack Welch
for two years' work, GE can treat the total 230,000 cubic yards of contaminated
sediments, and bank soils from two miles of the Housatonic River, the Allendale
School and the Newell Street area. The Berkshire community has endured
irreparable damage because GE allowed PCBs and other toxics to escape its
industrial facility and move to the Housatonic River, Silver Lake, adjacent
neighborhoods and other towns. For an additional $103 to $172 million
GE can treat this waste, and almost completely reduce its volume and toxicity.
Given the financial price the Berkshire Community has paid, it is incumbent
upon the Agencies to not allow this additional cost to stand in the way
of the most thorough cleanup.
HRI refers once more to some of the strictures of CERCLA Section 9621(b):
In making such assessment, the President shall specifically
address the long-term effectiveness of various alternatives. In assessing
alternative remedies, the President shall, at a minimum, take into account:
… the long- term uncertainties associated with land disposal; … the persistence,
toxicity, mobility, and propensity to bioaccumulate of such hazardous substances
and their constituents; … long-term maintenance costs; …
the potential for future remedial costs if the alternate remediate action
were to fail; and … The President shall select a remedial action that is
protective of human health and the environment, that is cost effective,
and that utilizes permanent solutions and alternative treatment technologies
or resource recovery technologies to maximum extent practicable … (42
USC 9621(b)) (Emphasis added)
HRI believes that treatment will greatly reduce the large volume of toxic
contaminants. By destroying the contamination, rather than burying
it, the treatment option better provides the CERCLA standard cited above
of "long-term reliability and effectiveness." It clearly better meets
the CERCLA standard cited above of "reducing the toxicity, mobility, or
volume of wastes." It clearly eliminates the CERCLA concern cited
above of "the long-term uncertainties associated with land disposal."
It clearly eliminates the CERCLA concerns cited above of "long-term maintenance
costs" and "the potential for future remedial costs if the alternate remediate
action were to fail." (42 USC 9621(b))
Treatment is not only effective in the short-term, it is a far more
effective option for the long-term. It certainly protects public
health and the environment. In addition, GE has proven its ability
to implement the treatment option in its remediation of the Rose Superfund
site in Lanesboro, Massachusetts. Similarly, GE Canada is utilizing
thermal desorption treatment in Canada.
Finally, HRI would to bring to the Court's attention the USEPA's remediation
decision for the 2-acre PCB-contaminated site at Fletcher Paint Works and
Storage in Milford, New Hampshire, EPA Region 1 site ID# NHD001079649.
According to a March 12, 1999 EPA press release:
EPA signed the Record of Decision (ROD) on September 30,
1998 and called for excavation and use of thermal treatment as was proposed
in the 1996 plan. (Exhibit 15)
HRI believes that the advantages of cost, and the ability to implement,
are clearly outweighed by the limitations of landfilling. HRI calls
for the use of thermal treatment.
3. The Current
Plan For Remediation of Silver Lake Will Render This Body Of Water Useless,
And A Continuing Threat To The Housatonic River, And A Danger To HRI's
Members
One of HRI's greatest disappointments with this Consent Decree lies
with the Agencies' decision not to demand the removal of the highly-contaminated
sediments from the bottom of Silver Lake. Silver Lake is a beautiful
26-acre lake in the heart of Pittsfield, adjacent to the soon-to-be redeveloped
former GE plant. Older Pittsfield residents remember the days
when they swam in Silver Lake in the summer, and skated on it in the winter.
A truly remediated and renewed Silver Lake will once again attract Pittsfield
residents in great numbers. Clearly, a clean, fishable, swimmable
lake can serve as the centerpiece to the commercial renaissance envisioned
by the Pittsfield Economic Development Authority (PEDA).
Attachment K to the Statement of Work (SOW) for Removal Actions Outside
the River details the nature of the remedial solution intended for
Silver Lake:
b.(i) "This cap shall include an isolation layer
positioned directly above the sediments over the entire lake bottom.
This layer shall consist of silty sand, with a presumptive thickness of
10 inches, if geotextile is placed between the sediments and the cap (or
12 inches, installed in two six-inch lifts, if a geotextile is not placed
between the sediments and the cap), an organic carbon content of 0.5 percent
(as total organic carbon) and concentrations of PCBs at non-detectable
levels and other constituents at background levels as approved by EPA.
(The presumptive thickness of the cap is based on use of a 6-inch isolation
layer to control PCB migration from the underlying sediments into the surface
water of the lake, plus an additional 4 inches of silty sand if geotextile
is not used), to account for uncertainties associated with bioturbation."
Appendix E, Volume 1 to Consent Decree. (Emphasis added).
Thus, it appears the Agencies' solution to Silver Lake is to allow GE to
drop silty sand 30 feet down from a barge to create a sand cover of twelve
inches over contaminated sediments with levels as high as 20,700 ppm.
There will be no removal of highly contaminated lake sediments and there
will be no treatment of these sediments. The solution is just a silty
sand cover.
Even GE, five years ago, publicly expressed doubts about such an armoring/capping
strategy. At that time, GE was arguing that natural recovery, the
re-silting of sediment, (a do-nothing strategy), would eventually remove
the threat posed by Silver Lake sediments.
GE argued in their March 1995 revised Proposal for the Preliminary
Investigation of Corrective Measures for Housatonic River and Silver Lake
Sediment (PICM) that there are potential problems with an armoring
scenario in waters as deep as Silver Lake:
The armor layers are placed either from a barge, from
a floating platform, or from the banks of the river or lake. The
depth of the water affects the ability to effectively place the armoring.
In shallow water depths, the armoring can be placed with more control,
reducing sediment resuspension. However, as discovered in the New
Bedford Harbor Pilot Study described below, armoring is difficult to place
effectively in deeper waters (depths greater than approximately 10 feet).
(Exhibit 16 - PICM Page 2-3) (Emphasis added)
On occasion, placement of armoring at depth is difficult to
control and can result in mixing of contaminated sediment with the clean
cap material. In the New Bedford Harbor Pilot Study, one to three
feet of clean sediment was placed on sediment contaminated with PCBs in
an aquatic disposal area. Four months after capping, sediment cores
taken from the capped area and analyzed for PCBs indicated that the capping
effort was not successful [Herbich (undated) and USACE 1990b]. This
was due to the method of placement and the fact that the site was in deep
water, resulting in little control of placement of the capping material.
This site is in relatively deep water, and thus, is generally applicable
only to the deeper areas of Silver Lake and Woods Pond." (Exhibit
16 - PICM Page 2-5) (Emphasis added).
HRI believes it is reasonable to expect GE to truly clean Silver Lake.
HRI believes it is reasonable to expect the Agencies to order GE to truly
clean Silver Lake. For more than 50 years, PCBs, heavy metals, and
other contaminants flowed constantly from the GE plant to poison a prized
community resource. Few small communities in the United States have
a lake positioned adjacent to its industrial center.
In its Supplemental Phase II/RCRA Facility Investigation Report for
Housatonic River and Silver Lake (Bouck & Lee, Inc., January 1996),
GE estimated the following approximate volumes for sediments and bank soils:
Approximate Volumes (cubic yards) - Silver Lake
Containing Greater than 1 ppm PCBs: 175,000
Containing Greater than 10 ppm PCBs: 140,000
Containing Greater than 50 ppm PCBs: 70,000
Containing Greater than 100 ppm PCBs: 60,000
Containing Greater than 500 ppm PCBs: 46,000
(Exhibit 17, Page 3-46)
5.5 Estimation of Volumes of Impacted Floodplain Soils
Approximate Volume (cubic yards) Silver Lake
Containing Greater than 1 ppm PCBs:
5,000
Containing Greater than 10 ppm PCBs: 3,200
Containing Greater than 50 ppm PCBs:
800
(Exhibit 17, Page 5-34)
If GE were to remove PCB-contaminated sediments above 10 ppm from Silver
Lake, the approximate volume involved would be 316,000 cubic yards.
316,000 cubic yards is 474,000 tons. Let's use the high end estimate
of what it costs to treat this contaminated sediment: 474,000 tons at $500
a ton comes to $23,700,000. For $24 million dollars Pittsfield could
have a truly clean, fishable, swimmable lake. At a time when Pittsfield
and the state are considering spending $12 million to restore the Colonial
Theater, and communities are investigating hundreds of millions for sports
facilities, $24 million is not a large amount of money to restore and rehabilitate
a 26 acre gem.
While HRI supports the Agencies' decision to require a spatial average
of 2 ppm in the bank soils of residential properties abutting Silver Lake,
HRI is disappointed that a similar average is not required in the non-residential
properties abutting the Lake.
Unlike other areas of the site, such as the more industrial 1/2-Mile
Reach where public access has not been easy in recent years, the city can
reasonably anticipate large numbers of people taking advantage of Silver
Lake: walkers, picnickers, teenagers, men and women fishing. As Figure
2-25 of the Statement of Work for Removal Actions Outside the River
indicates, (Appendix E, Volume 1 to Consent Decree), Recreational Areas
1 through 5 circle Silver Lake, and provide the best access.
If, in fact, the City of Pittsfield invests time and energy in encouraging
a renewed public appreciation of Silver Lake, these areas will experience
great use. Why allow levels as high as 10 ppm when it is likely that
children will be active in this area? HRI urges the Agencies to find
some middle ground between their residential and normal recreational scenarios
in the Silver Lake Removal Area.
At the very least, HRI requests a pilot project for the Silver Lake
remediation to see whether or not extensive removal of contaminated sediments
is possible. If the Agencies are serious about their desire to restore
Silver Lake so that people can fish and swim in it, it is vital to restore
public confidence. It is commonplace for older Pittsfield residents
to reminisce about the years that the highly contaminated Silver Lake wouldn't
freeze or the time it caught fire. HRI does not, nor does it believe
that the public will, regard as adequate a clean-up scenario limited to
dropping twelve inches of sand from a barge thirty feet down to cover over
massively contaminated sediments. HRI believes the Agencies' decision
regarding Silver Lake fails to meet most of the strictures of CERCLA Section
9621(b) previously cited.
4. The PCB
Contamination Of The West Branch Of The Housatonic River Has Not Been Addressed
In The Consent Decree, Rendering Any PCB Removal From The Confluence Of
The West And East Branches An Exercise In Futility And Continuing The Pollution
With PCBs Of The Properties Of HRI's Members.
Based on information from former GE employees, and local waste haulers,
HRI informed the Agencies of possible contamination at the Dorothy Amos
Park and the King Street Dump. Both sites border the West Branch
of the River. Both GE and the Agencies insisted for years that PCB
contamination was confined to the East Branch. Finally, the Agencies
began two years ago to do their own independent testing in the Housatonic.
As part of this testing program, the Agencies sampled the confluence of
the West and East branches and adjacent to Dorothy Amos Park on the West
Branch. As the December 9, 1999 front page of The Berkshire Eagle
revealed: "PCB ‘hot spot' found near West Street park". (Exhibit
18). The Agencies' initial testing found levels as high as 7,630
ppm. Unfortunately, testing was limited to 11 locations and went
no deeper than two and a half feet.
Because the Agencies believed the West Branch hadn't been contaminated,
it was not included in the provisions of the Consent Decree. HRI
has always had questions about the decision to clean downstream sections
of the river even though all sources of upstream contamination have yet
to be identified and remediated. MADEP, as of its December 8, 1999
letter to GE, has asked GE to prepare a Scope of Work (SOW) that would
define the nature and extent of contamination in the West Branch "from
upstream of Dorothy Amos Park to the confluence of the East and West Branches"
and delineate "the presence of the PCB sediment hot spot at a location
in the West Branch adjacent to Dorothy Amos Park …" (Exhibit
19)
HRI urges that the Agencies insist on a testing program that includes
substantial sampling of the West Branch adjacent to the King Street Dump
and that all sampling extends vertically until they find levels at non-detect.
As HRI has learned from the Building 68 Remediation, substantial levels
of contamination can exist at great depth. The former scrapyard operation
at what is now Dorothy Amos Park may, in fact, have landfilled PCB-contaminated
liquids.
5. The Consent
Decree Fails To Address The Fact That GE Gave Away Contaminated Wood
From Its Transformers To The Citizens Of Pittsfield And Some Businesses
And Possible Homes Were Built With PCB-Contaminated Wood.
Based on information from former GE employees, HRI raised the issue
in 1998 of possible contamination problems stemming from the distribution
of PCB-oil-soaked hard wood throughout the Berkshire community. This
wood lined the insides of large power transformers. During the life
of the transformer, the wood absorbed PCB-oil. GE made this wood
available in much the way it handled the PCB-contaminated fill that is
now being cleaned up in homes throughout Pittsfield.
HRI knows of at least two commercial properties on Newell Street that
contain GE's contaminated wood: Stracuzzi Contracting and Ravin Auto Body,
and HRI is concerned that people may have used contaminated wood in residential
construction projects. HRI urges the Agencies to develop a public
information campaign, including the use of radio, television, and print
media, to alert the public to the possible dangers of using contaminated
wood. In addition, HRI urges the Agencies to interview former and
present GE employees to learn more about the wood giveaway program.
6. The Consent
Decree Fails To Address The Fact That Some Commercial Buildings Have Earth
Floors Contaminated With PCBs Presenting A Serious Danger to HRI's Members
Who Own These Buildings
While there has been a major effort to remediate residential properties
that have received PCB-contaminated fill to an averaged 2 ppm, there has
been no similar effort to identify or remediate properties built upon contaminated
fill, and still have exposed soil floors. Stracuzzi Contracting on
Newell Street is just such a property, and the owner and his employees
are continually exposed to possible PCB-contaminated soils.
7. The Compromise
Reached Between GE And The Agencies Which Made The Consent Decree Possible
Was That Large Areas Of Pittsfield Encompassing Properties of HRI's Members
Will Not Be Cleaned-Up To Massachusetts Default Standards Rendering These
Properties Worthless Which Represents A Regulatory Taking Of Those Properties
In its May 26, 1998 Combined Action and EE/CA Approval Memorandum,
the USEPA lists these former oxbows as Potential Sources of PCBs to the
Housatonic River:
6. Heavily contaminated soils in the
banks of the Housatonic River including the filled in portions of oxbows
A through I. GE has documented high levels of PCBs in contaminated
soils in the riverbanks in the subject area, especially in the former oxbows.
… In addition, PCBs have been detected in former oxbow soils in concentrations
as high as 290,000 ppm (both at Lyman Street, sampling location LS-11 and
Newell Street I, sampling location QP-9). The contaminated bank soils
pose a threat of release of PCBs into the Housatonic River via erosion
and storm runoff." (Appendix B of the Consent Decree, pp. 7-9).
In the Action Memorandum for Removal Action Outside the River at the
GE-Housatonic River Site, Appendix D, the Agencies state:
In parts or all of the Unkamet Brook Area, Oxbows A and
C, Oxbows J and K, … access is unrestricted and the land use is residential,
recreational, or commercial. Therefore, the potential exists for
residents, recreational users, workers, and trespassers to come into contact
with contaminated soil. Direct contact with contaminated surficial
soil could result in the ingestion, inhalation and/or dermal absorption
of hazardous substances. In addition, any disturbance of subsurface
soils, which is currently not prohibited, could expose people to contaminated
subsurface soils.
Other areas of the Site, such as Newell Street I, East Street Area
I and portions of the Lyman Street Area, are non-GE owned commercial/industrial
properties. Access in many of these areas is not restricted.
Therefore, the potential exists for workers, customers, and trespassers
to come in contact with contaminated surface soils. Also, any disturbance
of subsurface soils (e.g., for building expansion, installation of fence
posts, regrading of parking areas, repaving, etc.) could result in the
uncovering and exposure of contaminated soils. (Appendix D of
the Consent Decree, Pg. 24).
Section IX 23 e. of the Consent Decree sets the clean-up standards for
these areas. It allows GE to select one of three options for determining
spatial averaging of contamination for the top foot of soil at a property:
(i) consideration of the overall property as an averaging
area …
(ii) establishment of averaging areas which do not exceed
1.0 acre for GE-owned industrial portions of the GE Plant Area. 0.5
acre for other commercial/industrial properties or recreational properties,
or 0.25 acre for residential properties …
(iii) proposal of other specific averaging areas to EPA for
approval.
If GE selects the first option, it must: remove and replace all soils
in the top foot in unpaved portions of such property or area in which PCBs
have been detected in excess of the following NTE concentrations: 125 ppm
at a commercial/industrial property or area; 50 ppm at a recreational property
or area; or 10 ppm at a residential property. (Pp. 116-117, Consent
Decree)
HRI urges a downward revision of these allowable not-to exceed (NTE) concentrations
for Removal Actions Outside the River for the top foot of soil: current
levels of 125 ppm at commercial/industrial properties; 50 ppm at recreational
properties; and 10 ppm at residential properties should all be lowered.
Appendix E, Volume I, provides further details:
For GE-owned commercial/industrial properties in the
Former Oxbow Areas, or properties for which an Environmental Restriction
Easement (ERE) has been obtained, cleanup levels are as follows: 0 to 1
foot, a spatial average of less than 25 ppm; 1 to 6 feet, less than 200
ppm; and if averaged levels at 0 to 15 feet, incorporating anticipated
response actions, will exceed 100 ppm, then GE shall install an engineered
barrier. For properties where an ERE cannot be obtained, cleanup
levels are as follows: 0 to 1 foot, a spatial average of less than 25 ppm;
if the spatial average, after incorporating anticipated response actions,
will exceed 25 ppm at 0 to 3 feet, then GE shall remove and replace soils
to achieve a less than 25 ppm average; from 1 to 6 feet, after incorporating
anticipated response actions, less than 200 ppm; and if averaged levels
at 0 to 15 feet, incorporating anticipated response actions, will exceed
100 ppm, then GE shall install an engineered barrier. (Appendix
E to Consent Decree, Volume I, Pg. 50).
For recreational properties within the Former Oxbows: if the
spatial average PCB concentration exceeds 10 ppm in the top foot or 15
ppm in the 1- to 3-foot depth increment, GE shall remove and replace soils
as necessary to achieve spatial average PCB concentrations at or below
those levels … GE shall then calculate the spatial average PCB concentration
for the 0- to 15-foot depth increment … If that spatial average PCB
concentration exceeds 100 ppm, GE shall install an engineered barrier…"
(Appendix E to Consent Decree, Volume I, Pg. 51).
HRI does not believe that these decisions fully protect public health or
the environment. GE and the Agencies arrived at an averaged cleanup
level of 2 ppm for residential fill properties. While HRI does not
challenge that there is some difference between 24 hour a day residential
exposure and less constant occupational or recreational exposure, HRI does
not believe leaving PCB contamination at levels up to 25 ppm in the top
foot in commercial areas like Newell Street fully protects public health.
Newell Street is a perfect example of an area that transcends simple categorization.
The same area is home to the workers and management of Moldmaster Engineering,
the members of the Italian American Club, an active social club, and borders
many homes.
Similarly, a sampling and remediation regime which allows averaging
areas of half an acre does not adequately serve to either discover or remove
potential hotspots. Finally, HRI does not believe that a remediation strategy
which calls for an engineered barrier when and if high levels of contamination
are found at depth is an adequate solution to the potential dangers of
buried barrels, new-found potential plumes and free product in the oxbows.
Vincent Stracuzzi recently unearthed GE electrical parts eight feet beneath
the surface of his commercial property, directly adjacent to his building.
Former GE workers have spoken often of buried barrels, and yet to be discovered
GE dumpsites. Only a more comprehensive testing regime in the Former
Oxbows and a commitment to remove all high level contaminants at depth
can adequately protect the public health for years to come and ensure that
the Housatonic River will not be recontaminated.
Recent experience reveals that the Agencies and GE have yet to detect
all possible sources of contamination within the Former Oxbow areas.
For several years HRI has been questioning the reliability of GE's demarcation
of the thick heavily contaminated DNAPL and LNAPL plumes. For several
years HRI questioned whether or not it was possible that the plumes had
migrated below and to the other side of the Housatonic River, and were
assured that this had not happened. The recent public announcement
by EPA Project Manager Bryan Olson of a new plume in the Newell Street
area reveals that HRI's concerns are well-founded. And since July
1999, they've pumped out at least 10,000 gallons of PCB-contaminated oil
from this previously undetected plume.
According to Technical Attachment H of Appendix E, Groundwater/NAPL
Monitoring, Assessment, and Response Programs, GE recovered 1,750 gallons
of LNAPL and 600 gallons of DNAPL from 1990 to March 1999 from the Lyman
Street Area, and 700 gallons of LNAPL from 1991 to the present in East
Street Area 1. This new plume has already greatly exceeded those
outputs. Hopefully it is far less extensive than the large plume
at East Street Area 2, from which, since the 1970s, GE has removed 800,000
gallons of NAPL.
Additionally, the Consent Decree calls for GE to either:
a) obtain an ERE from owners of contaminated
properties in Pittsfield (including HRI's members) for a value equivalent
to 18% of the most recent assessed value of the property, in which case
the property owners will be forever unable to dig, put foundations in or
in any way alter more than the first foot of soil from their properties.
(Consent Decree, Section 60, Pg. 191)
Those properties for which an ERE has been obtained will be
cleaned to the following standards: GE shall calculate the existing spatial
average PCB concentration for the 0- to 1-foot depth increment for (a)
the unpaved portion of each averaging area, and (b) the paved portion of
each averaging area.
If the spatial average PCB concentration in the unpaved portion
of such area exceeds 25 ppm, GE shall remove and replace soils as necessary
to achieve a spatial average PCB concentration of 25 ppm or below in the
top foot. …GE shall also calculate the existing spatial average PCB concentration
for the 1 to 6-foot depth increment at each such property (considering
the paved and unpaved portions together). If that spatial average
PCB concentration exceeds 200 ppm, GE shall remove and replace soils as
necessary to achieve a spatial average of 200 ppm or below in the 1 to
6-foot depth increment.
GE shall then calculate the spatial average for the 0- to 15-foot
depth increment (or to whatever depth sampling data exist, if less than
15 feet), incorporating the anticipated performance of any response actions
for the 0 to 1-foot and 1 to 6-foot depth increments. If that spatial
average PCB concentration exceeds 100 ppm, GE shall install an engineered
barrier in accordance with the specifications for such barriers in Attachment
G to this SOW. (Appendix E to Consent Decree, Volume I, Pp.. 48-49).
Or: b) clean up those properties for which an
ERE has not been obtained to the following standards:
GE shall initially calculate a spatial average PCB concentration
for the 0 to 1-foot depth increment at each averaging area at the property.
If the spatial average PCB concentration exceeds 25 ppm in this depth increment,
GE shall remove and replace soils as necessary to achieve a spatial average
PCB concentration at or below 25 ppm for this increment at each such area.
(In addition, if GE selected the option described in Standard
#3.a, GE shall remove all soils containing PCB concentrations greater than
125 ppm from the top foot of unpaved portions of such property.)
GE shall then calculate the spatial average PCB concentration for the 0
to 3-foot depth increment at each averaging area (incorporating the anticipated
performance of any response actions for the 0 to 1-foot depth increment).
If that spatial average exceeds 25 ppm, GE shall remove and replace soils
as necessary to achieve a spatial average PCB concentration at or below
25 ppm for the 0- to 3-foot depth increment. … If the resulting
spatial average concentration exceeds 200 ppm in the 1 to 6-foot depth
increment, GE shall remove and replace soils as necessary to achieve that
spatial average concentration.
Finally, GE shall calculate the spatial average PCB concentration
for the 0- to 15-foot depth increment (or to whatever depth sampling data
exist, if less than 15 feet), incorporating the anticipated performance
of any response actions for the uppermost 6 feet. If that spatial
average PCB concentration exceeds 100 ppm, GE shall install an engineered
barrier in accordance with the specifications for such barriers in Attachment
G to this SOW … (Appendix E to Consent Decree, Volume I, Pp..
49-50).
The Agencies, in either case, are setting clean-up standards that leaves
substantial levels of contamination in place: up to 25 ppm in the top foot,
and 200 ppm from 1 to 6 feet. And should higher levels appear at
depth, an engineered barrier will be installed.
Some of the affected Newell Street properties, currently used for commercial
purposes, are zoned for residential use, use as restaurants, old age homes,
hospitals and many other uses by right. In return for payment of
18% of the total value of the most recent accessed value, the affected
property owner who agrees to an ERE agrees to restrict future use, abandoning
these other uses, such as residential, day care and educational, community
center for children etc., and agrees not to dig, excavate, or construct
buildings or structures.
Those property owners who refuse to agree to an ERE receive no financial
compensation from GE, who caused their property to be contaminated and
devalued, and will continue to own property with levels as high as 25 ppm
in the top foot. These properties are known to be contaminated and
several affected property owners, and HRI members, have been unable to
sell these properties or receive loans for improvements to these properties.
GE has removed its PCB contamination from approximately 60 homes to an
averaged level of 2 ppm. Unless GE and the Agencies clean these properties
to the standards for which they can used, they will continue to render
these properties worthless.
HRI believes that the Agencies' actions in refusing to enforce a clean-up
of these properties for uses they have by right, constitutes a violation
of the Fifth Amendment of the United States. These property owners
were not allowed to participate in any of the negotiations leading to these
decisions of the Consent Decree: either to the figure arrived at of 18%
of assessed value, or the clean-up levels their properties will be cleaned
to. The decision on the part of the Agencies to exclude these property
owners, and HRI members, and subject them to the aforementioned provisions
of the Consent Decree violates the Due Process Clause of the Fifth Amendment
of the United States.
8. Pittsfield's
Groundwater Will Remain Forever Unusable Due To Its Contamination With
PCBs Under The Terms Of The Consent Decree
Appendix C of the Consent Decree gives a sense of how compromised Pittsfield's
groundwater has become. Within Groundwater Management Removal Action
Area #1 (GMA #1), which includes the GE Plant, East Street Areas 1 and
2, Newell Street I and II and the Silver Lake, the groundwater contains:
PCBs in levels as high as 51,600 ppb (unfiltered) and 420
ppb (filtered) in the Lyman Street Area and 3,700 ppb in unfiltered samples
and 770 ppb in filtered samples along the east edge of Silver Lake …
Newell Street Area II: DNAPL that contains up to 388,500 ppm PCBs, 430,000
ppm 1,2,4- trichlorobenzene … At the Hill 78 and Building 71 areas:
PCBs have been detected in unfiltered groundwater in concentrations as
high as 960 ppb. Non-PCB hazardous substances … at the following
maximum concentrations: chlorobenzene (36,000 ppb-estimated), … trichloroethene
(320,000 ppb) … (Appendix C of Consent Decree, pp. 17-20).
The August 4, 1999 Request for Removal Actions Outside the River at
the GE-Housatonic River Site Action Memo, Appendix D of the Consent
Decree states:
The groundwater at the Site discharges to either Unkamet
Brook, Silver Lake or the Housatonic River. Currently, control of
the groundwater discharge to these surface waters consists mainly of groundwater
extraction and treatment in support of preventing the migration of NAPLs.
At a majority of the groundwater/surface water interface, there is no hydraulic
control to prevent discharge to the surface water. Therefore, there
is a potential threat of release of these hazardous substances to surface
waters (i.e., sensitive ecosystems). Part of the proposed actions
contained in this Action Memorandum are procedures to further characterize
the groundwater contamination, the magnitude of the threat to the surface
waters, and if necessary, to conduct additional response actions.
(Appendix D of Consent Decree, Pp. 27-28).
The Agencies seem to have made the decision that Pittsfield's groundwater
has been so thoroughly contaminated by GE's PCBs and other toxics that
it will never serve as a source for drinking water. Therefore, their
remediation decisions at the GE plant, East Street Area 1 and 2, the first
two miles of the Housatonic River, Silver Lake, the Oxbows etc. consist
of limited removal/capping scenarios rather than complete removal.
The Agencies also believe that for now the City has sufficient alternate
sources of water so that it won't have to tap this groundwater.
Let's review some recent history as regards Pittsfield's groundwater.
Concerned about future water needs in the early 1970s, the City of Pittsfield
took land in Windsor for a reservoir. During a court battle, when
this supply was in jeopardy, the city was assured by consultants that even
if the court ruled against them, the city had plenty of usable groundwater
available in the southeastern quadrant of the city. In 1974, the
Vincent property on East Street, not far from GE and the Housatonic River
and 2,000 feet from the old city landfill in that section of town, was
identified as one of the best sources for water. In 1977, the city
was informed by the state that PCBs were found in the groundwater at the
Vincent property. Afterwards, the City of Pittsfield in the late
1970s and the 1980s was so concerned about its limited water reserves,
that it began a testing program to search for usable groundwater.
During a drought in 1981, the City was considering pumping water from Lake
Onota.
The city's concern for future water sources was quite clear. Based
on that concern, the Berkshire Regional Planning Commission sought in 1983
a $250,000 state grant for expanded monitoring to determine the extent
of contamination under the Vincent property on East Street, and for a possible
clean-up program. The application was rejected because the state
felt that, given the PCB contamination, the site was a poor choice for
potential drinking water, and that Pittsfield was competing against towns
and cities forced to close already existing water supplies because of contamination.
Former Pittsfield Mayor Remo DelGallo has spoken about the city's concern
for an increased water supply and the city's widespread concern with contaminated
groundwater. (Exhibit 8 – video interview with Remo DelGallo)
While HRI appreciates the cost considerations involved in thorough removal
scenarios rather than partial removal and capping, HRI nevertheless questions
the wisdom and long-term efficacy of a policy that abandons a community's
ability to utilize its groundwater to meet its growing needs for water
in the years to come.
HRI therefore suggests an expansion of the provisions of the Consent
Decree regarding groundwater and NAPL. Not only should GE implement
an increased monitoring and assessment program but should immediately expand
its Groundwater Treatment Program to begin a systematic and comprehensive
treatment regime of all Pittsfield's PCB-contaminated ground water throughout
the entirety of the GE/Pittsfield site, including those areas endangered
by PCB-contaminated fill that was transported from the GE facility.
9. The Natural
Resources Damage Award Is Grossly Inadequate And Represents A Fraction
of the Defendant's Liability For Natural Resource Damages
HRI would like to challenge the provisions of Section XXII of this Consent
Decree. HRI believes the amount of money negotiated by the Agencies
and the Trustees and the Settling Defendant for Natural Resource Damages
(NRD) fails to adequately reimburse the nation, the Commonwealth of Massachusetts,
the State of Connecticut and the people who live within the reach of the
Housatonic River and Silver Lake for the almost 70 year loss of these resources
and future losses until full restoration, and for the damages to them.
Unlike the typical CERCLA process, the expedited nature of these negotiations
created a pressing need for the Natural Resource Trustees to quicken the
process of assembling the Natural Resource Damage Assessment. HRI
believes, as a result of this time crush, that the Trustees and their contractors,
Industrial Economics, Incorporated of Cambridge, Massachusetts failed to
adequately quantify lost availability to the public of the Housatonic River
and Silver Lake, and damages to these natural resources, and therefore
underestimated the natural resources liability of the Defendant.
By excluding the Housatonic River Initiative from the Consent Decree
negotiations, some of whose members have a lifetime experience with these
resources, as hunters, fishermen, sportsmen, canoeists, hikers, etc., the
Trustees failed to involve some of the most important and informed stakeholders.
These stakeholders ought to have been involved in the critical discussions
between the Plaintiffs and the Defendant regarding Natural Resource Damages.
From the very beginning of these negotiations, HRI has been asking to
see both the raw data and estimated amounts of the Natural Resource Damage
Assessment that the Trustees had prepared. HRI was told continually
that these documents could not be made public during the negotiations and
were considered to be privileged documents under the rules of the process.
On January 3, 2000, HRI finally received a copy from the Massachusetts
Executive Office of Environmental Affairs (EOEA) of Industrial Economics,
Inc.'s January 28, 1997 Housatonic River Preliminary Natural Resource
Damage Assessment.
Without having the pertinent data, HRI has, up to now, been unable in
a timely manner to critically and competently offer an alternative assessment.
While HRI will offer preliminary comments about the substance of this report,
HRI can more generally speak to the failure of the Assessment process to
reasonably involve a wide range of stakeholders with critical knowledge
and experience with regard to the issues of the injuries these resources
sustained as a result of GE's release of PCBs and other toxics, and to
recreational and passive use losses.
Section 114 of the Consent Decree states:
Within 30 days of the effective date of this Consent
Decree, Settling Defendant shall make the following payments:
a. $15,000,000 for Natural Damages, plus interest
from the date of lodging of this Consent Decree;
b. $600,000 as mitigation for wetlands impacts
associated with PCB contamination and with response actions at the Site,
plus interest from the date of lodging of this Consent Decree;
c. $60,000 as mitigation for additional habitat
impacts associated with PCB contamination and Removal Actions at the Site;
and
d. $75,000 for Restoration Work to be performed
by the Trustees in Silver Lake. (Consent Decree, pp. 258-59)
While HRI will examine the $15,000,000 award in greater depth, Section
124 of the Consent Decree outlines another aspect of the Natural Damages
settlement: the future contribution of the newly established Pittsfield
Economic Development Authority (PEDA):
PEDA shall pay to the Trustees a total of $4,000,000
consisting of in-kind services and/or a percentage of Net Revenues.
PEDA intends to use good faith efforts to satisfy this obligation as soon
as feasible."
a. In-Kind Services. The Trustees may accept
in-kind services of any type that may be offered by or through PEDA, by
the City of Pittsfield or by other entities, including those who may be
involved in the redevelopment at the GE Plant Area … Such in-kind
services may include, but are not limited to, building space for use by
the Trustees (for restoration, coordination, administration and public
information) and habitat enhancements at the portion of the GE Plant Area
to be redeveloped under the Definitive Economic Development Agreement.
(Consent Decree, pp. 276-77)
HRI objects to the consideration of in-kind services as a fulfillment of
PEDA's $4,000,000 NRD obligation. This NRD award hardly begins to
adequately compensate the Berkshire community for the loss of such a major
resource: to further reduce potential financial compensation for building
space, coordination, and administration, hardly serves the public interest.
To the extent that the Trustees believe that these are pressing needs,
they ought to have negotiated appropriate reimbursement from the Defendant;
not reduced the public's already meager compensation.
Let's examine the Industrial Economics, Inc. report, which served as
the preliminary assessment for natural resource damages the Agencies relied
upon in their negotiations. On Page 1-3, in the Limitations
section, the authors state:
The nature of existing, readily available data and
information limited our ability to complete all of the objectives described
in the Statements of Work. In particular, our injury assessment does
not identify and quantify all of the natural resources injuries likely
to present in the Housatonic River…
I. Contaminants of concern: Polychlorinated biphenyls
(PCBs)are the primary contaminants of concern at this stage of the damage
assessment. Though there are other hazardous substances present in
the Housatonic River that may contribute to natural resource injuries,
we have not addressed potential injuries resulting from exposure to substances
other than the PCBs.
Geographic Scope: … We have not assessed potential injuries
and damages associated with Silver Lake and Unkamet Brook. Both may
require additional scrutiny. In addition, we have not addressed specific
injuries and damages that might be associated with the former oxbows located
in Pittsfield, though we do recognize the potential importance of these
areas to a final determination of restoration and compensation requirements.
Furthermore, we recognize that these areas may be sources of continuing
contamination to the Housatonic River.
1. Injury Assessment: Existing data are available
to characterize the nature and extent of contamination in the Housatonic
River environment but do not in all cases provide sufficient information
to document natural resource injury. As a result our injury assessment
focused on a summary of the existing contaminant concentration data and
the likelihood that those data are indicative of natural resource injuries
(which could be documented through additional data collection and/or analysis).
F. Restoration: Due to the limitations of the
injury data and the dependence of restoration planning on the injury assessment,
we focused our efforts in his area on the preliminary identification of
categories of activities as well as specific activities that might be appropriate
for the purposes of compensatory restoration. These activities do
not include primary, physical restoration of natural resources (e.g., sediment
removal), the specification of which would be the primary outcome of a
completed injury assessment. (Housatonic River Preliminary Natural
Resource Damage Assessment, Pp. 1-3 to 1-4) (Exhibit 20) (Emphasis added).
The clearly stated limitations of the report itself buttress HRI's previously
stated concerns that the Trustees entered the negotiations with insufficient
information: limited natural resource injury data; a failure to include
potential injuries resulting from exposure to substances other than the
PCBs; and the failure to assess past active and passive use loss of Silver
Lake are the most glaring examples. HRI reminds the Court that many
older residents of Pittsfield have spoken fondly of swimming in both the
Housatonic River and Silver Lake, and Silver Lake was also the site of
winter sports and outings.
The acceptance of a Natural Resource Damage Award absent a thorough
assessment for past use loss of an extraordinarily popular 26 acre lake
in the heart of Pittsfield reveals a major weakness in this settlement.
Similar questions are raised by the lack of sufficient data for the Housatonic
River.
HRI has written about the ongoing struggle for reliable data concerning
the entire GE/Pittsfield/Housatonic site. A quick look at the information
sources that Industrial Economics relied upon reveals why they've acknowledged
the limitations of their work – all the data they accessed was generated
by GE, beginning with the MCP Interim Phase II Report of 1991 on through
the May 1996 PICM that HRI has previously referred to.
It is HRI's belief that these reports have systematically unreported
the contamination at these sites. The Building 68 remediation coupled
with the EPA's most recent acknowledgment of the contamination of the West
Branch revealed major PCB contamination at levels and in places previously
unreported.
As this report reveals, this lack of accurate data regarding contaminated
river sediments and bank soils is absolutely critical. The authors
state in Exhibit 2-1, on Page 2-3:
Sediments are the key link in the pathway to biological
resource injuries. Sediment toxicity testing and/or a comprehensive
review of the sediment toxicity literature is recommended. … Contaminated
floodplain soils may also be an important link in the pathway to biological
resource injuries. Toxicity testing may be warranted. (Id,
Pp. 2-3) (Exhibit 20)
Because of the time rush associated with the negotiations, the Trustees
were unable to access data that only now is emerging as a result of the
most recent EPA testing and studies on the River. The authors note
in Exhibit 2-1: Injury Assessment Summary – Housatonic River NRDA, their
lack of sufficient injury data about birds on Pages 2-3:
Lack of organism-specific data limits the current value of
existing toxicity literature; expert opinion needed to judge likelihood
of injury given PCB concentrations to which birds are potentially exposed.
(Id, Pp. 2-3 to 1-4) (Exhibit 20) (Emphasis added)
New data generated by Susan Svirsky and her team at EPA has just emerged
about the very high levels of contamination in young wood ducks is only
one example. These PCB levels were the highest levels ever found
in wood ducks in the nation (more than 17 times higher on average than
levels found at the Lower Fox River Superfund Site in Wisconsin).
These levels triggered an immediate health advisory by the Massachusetts
Department of Public Health alerting hunters not to consume wood ducks
from Pittsfield south to Rising Pond in Housatonic, and for hunters to
skin and remove fat from ducks found in southern sections of the river.
Those hunters were urged to limit intake to two meals a month. These
ducks accumulated these high levels in a very short time, as a result of
feeding on plants and small invertebrates. The authors also note
their lack of data about birds:
Previous investigations have not included the collection
of organism-specific data that could be used to assess the effects of PCBs
on bird populations that utilize habitat provided or influenced by the
Housatonic River.
We note that a terrestrial ecosystem assessment (ChemRisk
1994) evaluated the density, diversity and reproductive success of avian
species in a 5.85 hectare portion of the floodplain forest between New
Lenox Road and Woods Pond. … This study concluded that the
weight of evidence indicates that the ‘floodplain ecosystem … is not impacted
by the presence of PCBs. (Id, Page 2-16) (Exhibit 20) (Emphasis
added).
The GE-funded study the authors quote either totally ignored or drastically
underestimated the quantity and/or the effects of PCB-contamination.
The same floodplain ecosystem that GE consultants claimed in 1994 had no
adverse impact as a result of PCBs, is the cause in 1999 for the highest
known levels of PCB contamination found in wood ducks.
This lack of critical data also impacted the consultants' ability to
adequately gauge injury to invertebrates and the authors have noted similar
concerns about the lack of organism-specific data regarding mammals.
To quantify natural resource injuries, and gauge an appropriate restoration
award, it is necessary to first establish a baseline condition for the
resource, the "conditions that would have been expected at the assessment
area had the … release of hazardous substances not occurred …"
While the authors note that GE began to use PCBs in 1932 and continued
their active use until 1977, they state that because PCBs were first detected
in fish and sediments approximately 20 years ago, and because:
"many damage assessments have limited the quantification
of injury and damages to the period that began with the promulgation of
CERCLA in December 1980" they have chosen "the date of CERCLA promulgation
as a conservative starting point for injury determination and quantification."
(Id, Pp. 2-4 to 2-6) (Exhibit 20) (Emphasis added).
Section 9607(f)(1) of CERCLA states:
There shall be no recovery under the authority of subparagraph
(C) of subsection (a) of this section where such damages and the release
of a hazardous substance from which such damages resulted wholly before
December 11, 1980." (42 USC 960(f)(1)) (Emphasis added).
The fact of the matter is, that while GE stopped its use of PCBs before
December 11, 1980, there has been since that time, and continues to be,
a continuing release of PCBs and other substances into the Housatonic River
and Silver Lake. GE, after all these years, has not yet controlled
the release of hazardous substances into these natural resources and, as
a result, there is on-going damage.
HRI believes Industrial Economics, Inc. has misread the intent of CERCLA
in this matter. And their decision to limit the "Temporal Scope"
for injury determination and quantification to the onset of CERCLA does
a grave disservice to all those whose activities in and on the River and
Silver Lake have been limited all these years by contamination.
Everyone in Berkshire County knew that pollutants had invaded the River
and Silver Lake beginning in the 1930s with the use of PCB-oil at the GE
facility. They smelled PCBs in the air and they had friends and family
working at GE who spoke about the stench in the factory buildings and they
knew men who suffered rashes from contact with Pyranol. They stopped
swimming. Take a simple walk in the Lakewood community of Pittsfield
and you can find people who can speak about what happened to the river
and Silver Lake.
A truly accurate portrait of the baseline condition can be drawn from
the drastically changed actions of real people, not the compilation of
statistics or the promulgation of legislation in Washington, D.C.
Hiring consultants from Cambridge, Massachusetts may not have been the
best idea when it came to accurately establishing a true picture of how
the Berkshires felt about and utilized its own natural backyard.
This lack of local input translated into lost opportunities for assessing
other potential damages. The authors state:
We also considered the potential magnitude of impacts
on wildlife viewing and other general outdoor activities involving the
Housatonic River environment. In this case, while the number of participants
affected may be large, no data exist to allow us to generate a preliminary
damage estimate. (Id, Page 3-17) (Exhibit 20) (Emphasis added).
Another important factor associated with an injury assessment is endangered
and threatened species. The authors note:
As reported in the PICM (HE&C 1996), a total of
120 species of flora and fauna that have protected status at the state
and federal level are known or likely to occur in the Housatonic River
environment. We do not currently have information that would lead
us to conduct a focused injury assessment of one or more of these species.
As for "Collateral Injury During Remediation", the authors state:
Our assessment of injury focuses on the current state
of resources associated with the Housatonic River. However, for restoration
planning purposes, it may be necessary to estimate the extent of additional
injury that might occur as a result of remedial activities (e.g., loss
of wetlands due to dredging) and include this estimate in the final accounting
of injury. (Id, Page 2-6) (Exhibit 20) (Emphasis added)
There are many other examples where the consultants were hampered by the
lack of data: injury to mammals, including mink, reptiles and amphibians,
and an assessment of groundwater resources.
In light of concerns HRI has noted in the section regarding the Former
Oxbows and Groundwater, HRI notes the authors' statements on Page 2-21
concerning injury assessment for Groundwater Resources:
We have not yet reviewed the groundwater data collected
as part of the investigations of the other GE-Pittsfield disposal sites.
"In general, groundwater is injured if concentrations of
hazardous substances in the groundwater exceed existing standards for a
potable drinking water supply. Injury can also be established if
concentrations of hazardous substances in the groundwater are sufficient
to cause injury to other natural resources (e.g., surface water) (43 CFR
11.62(c)(1)(iv)).
As noted in Chapter 5, injury to groundwater resources would
be a significant concern if the injury were based on the degradation of
a public water supply.
Without such an occurrence, the groundwater resource would
be important only in the context of its contribution to the contamination
of surface water. (Id, Page 2-21) (Exhibit 20) (Emphasis added).
Clearly, contaminated groundwater has and continues to be a threat
to the Housatonic River. But even beyond that clearly acknowledged
injury to the River, HRI contends that the Agencies have overlooked Pittsfield's
past desire to utilize its groundwater. The de facto contamination
and loss of a highly valuable potential source of potable water – a source
the City invested funds to study and develop – surely needs to be considered
for possible natural resource damage claims. And as the authors previously
have noted in Exhibit 2-1, an injury assessment for Groundwater:
Would be based on contamination of existing or potential
drinking water supply; groundwater may be a continuing source of PCBs to
the Housatonic River. (Id, Page 2-3) (Exhibit 20) (Emphasis added).
The authors state on Page 2-22:
The services that the Housatonic River provides can
be divided into three general categories: human use-recreational, human
nonuse (i.e., passive value), and ecological (i.e., habitat). In
terms of restoration, the first two services are addressed separately through
our calculation of a preliminary estimate of compensable values for recreational
and passive use losses (which relies largely on the observed injury to
fish). Additional injury assessment must be geared toward the third
category. Therefore, future data collection and/or analysis must
focus on the exposure of different resources to PCBs through a variety
of pathways. This effort should emphasize the effects that PCBs in
the environment have had or are having on biological resources.
With yet another caveat regarding inadequate data, the authors made several
estimates regarding damages:
The results presented are for settlement and case
management purposes only. These analyses could be extended and refined
through primary data collection and analysis at this site. … compensable
damages for those categories for which preliminary damage estimates
have been developed include $11 million to $32 million in direct use losses
and $25 to $250 million in passive use losses.
Recreational fishing damages are estimated to be on the order
of $10 million to $30 million. This range reflects uncertainty in
the assumed recovery period (i.e., the date on which the human health risk
advisories will be lifted), as well as uncertainty in the damages associated
with fishing trips still taken to the river, despite the presence of elevated
levels of PCBs.
Recreational boating damages are believed to fall in the
range of $1 million to $2 million; this range also reflects uncertainty
in the assumed recovery period. Compensable losses associated with
changes in recreational behavior can also be expressed in terms of the
number of ‘trips lost' or ‘trips with diminished value,' as described in
the following sections.
Passive use losses are thought to fall in the range of $25
million to $250 million. This range reflects uncertainty in the extent
of the ‘market' for passive use values for the Housatonic environment,
as discussed below.
While the presence of elevated levels of PCBs has likely
had an effect on hunting and trapping activities near the Housatonic River,
the relatively small number of participants involved leads us to conclude
that this category of damages is likely to small.
In addition, wildlife viewing and other general outdoor activities
may have been, and continue to be, affected by the presence of PCBs.
However, no data are available to quantify this category of loss.
Finally, economic damages may be associated with (1) reductions in the
value of state-owned land in the Housatonic River floodplain; (2) contamination
of groundwater resources in the vicinity of the GE facility; (3) the increased
cost of development in and near the river, as a result of the presence
of PCBs; and (4) a diminishment in ecological services provide (sic) by
this resource. These categories of damage, however, are outside the
scope of this preliminary damage assessment. (Id, Pp. 3-1 to 3-2) (Exhibit
20) (Emphasis added).
While HRI believes this report reveals major flaws in the assessment process,
HRI is nonetheless struck by the preliminary figures of between $11 million
to $32 million for Recreational Damages, and $25 million to $250 million
for Passive Use Losses. While Industrial Economics cautions that
these two categories cannot be automatically added because of possible
overlap the sums nevertheless exceed by a large factor the amounts the
Agencies and Trustees negotiated with the Defendant.
As an exercise let's reduce the combined sums by 25% to account for
possible duplications in accounting for lost use. That leaves a combined
range of $27 million to $211,500,000. Now let's imagine a Resource
Damage Assessment that takes into account the newly acquired data being
gathered by the EPA's Susan Svirsky and her team working on the Ecological
Risk Assessment. Add the emerging data about tree swallows, amphibians,
small mammals and minks, etc. Add an accurate assessment about the
lost use and ecological damage to Silver Lake. Take into account
the fact that the Agencies now know the West Branch of the Housatonic River
has large levels of PCB contamination, and assess that ecological damage.
Do the same for Goodrich Pond which the Agencies now know has high levels
of PCBs in bank soils. Add the appropriate assessment for loss of
Pittsfield's groundwater. And with a Berkshire-based comprehensive
study, more accurately estimate how wildlife viewing and other general
outdoor activities have been, and will continue to be, affected by the
presence of PCBs.
This is particularly important because many of us who have worked diligently
to reawaken an appreciation for the Housatonic River, know all too well
that the Berkshire community early on understood how poisoned their river
was. While PCBs cannot be seen, their presence was palpable throughout
the County, and extraordinarily large numbers of people turned their back
on the River. That some poor people and some particularly hardy and
stubborn fishermen continued and continue to eat fish from the River is
quite different from the larger, more pervasive reaction of the community,
which early on considered the River damaged goods. A similar dynamic occurred
with Silver Lake.
Because of this, a Resource Damage Assessment that starts the clock
on lost use with the passage of CERCLA legislation thoroughly misperceives
the everyday experience and history of Berkshire County. Industrial
Economics, Inc. made a good faith effort to fill its data gaps, but much
of the pertinent data regarding lost use requires knowledge of, and experience
with, Berkshire life. On Page 3-3, the authors state:
In order to develop estimates of lost or diminished
value, we generally look to compare fishing pressure at a contaminated
site prior to the issuance of public health advisories with current pressure
(i.e., pressure given the presence of contaminants). Such comparisons
of baseline angler behavior given a contaminant problem allow us to estimate,
at a minimum, the number of trips lost or displaced from the site.
In this instance, however, data on fishing pressure prior to the public
health advisories generally do not exist … (Id, Page 3-3)
(Exhibit 20) (Emphasis added).
HRI respectfully submits that this information can be gathered by interviewing
older active and retired members of the many sportsmen's clubs active in
the County. George Darey, HRI Board Member and Chairman of Massachusetts
Division of Fisheries and Wildlife, is only one of several local residents
who grew up near the Housatonic and has fished and trapped for more than
60 years. An organized effort could gather the extension anecdotal
testimony that is available, and, in the process fashion an accurate portrait
of how many people fished before fish advisories were posted. In
fact, it was Massachusetts Fisheries and Wildlife who posted the river
when it became apparent that the other Agencies hadn't gotten around to
it.
Industrial Economics begins without accurate baseline data for fishing,
then compounds the problem by its choice of current data for various stretches
of the River from New Lenox Road south:
For each of these segments we consider both current
and potential fishing pressure based on various data sources and assumptions.
For example, for the New Lenox Road to Woods Pond segment we use data from
a 1985-86 Connecticut angler survey to estimate potential fishing trips.
Specifically, we use the data from Lakes Lillinonah and Zoar given their
comparability to the New Lenox Road-Woods Pond segment in terms of fishery
type (warm water), fish species, and fishing method (boat). We then
assume that the 1985-86 data an adequate approximation of annual potential
fishing pressure from 1980 forward.
To estimate actual fishing trips for the New Lenox Road-Woods
Pond segment, we use data from a 1992 creel survey that includes fishing
pressure estimates for Woods Pond and for the river segment between Woods
Pond and Pittsfield. We calculate the fishing pressure per mile on
the latter segment in order to estimate the number of trips on the portion
of the segment downstream of New Lenox Road. (Id, Pp. 3-4 to
3-5) (Exhibit 20) (Emphasis added).
With all due respect, it is possible to gather accurate data for current
use without having to extrapolate from Connecticut surveys. George
Darey, in particular, has an intimate knowledge of the New Lenox Road to
Woods Pond stretch; canoes it and fishes it frequently. There are
many people who have long-term past and continuing experience fishing that
stretch of the river.
As Exhibit 3-3, all final estimates for fishing losses in Massachusetts
begin with 1980. The lack of prior data severely reduces the estimated
damages.
HRI appreciates the fact that the Trustees and Agencies settled for
a significant remediation package, and that such remediation fulfills in
part the mandate of the Trustees to ensure that the injured resources be
restored. Nevertheless, the Plaintiffs' and public's interest is
ill-served by an underestimation of the damages these resources incurred
and an inaccurate accounting of the lost use of these resources.
HRI believes the public interest would be better served by conducting
a full-fledged Natural Resource Damage Assessment that better incorporates
the newly emerging EPA data and more accurately accounts for past and future
lost Massachusetts usage.
Finally, HRI believes that a November, 1999 Fox River/Green Bay Natural
Resource Damage Assessment prepared in Wisconsin by the U.S. Fish and Wildlife
Service provides a more accurate model for a NRDA. According to Ecological
Services Assistant Regional Director Charlie Wooley:
Following intensive studies, rigorous methodologies
and very conservative assumptions, which include factoring in an aggressive
cleanup proposed by the Wisconsin Department of Natural Resources, the
Service has calculated over $100 million in public damages due to the impacts
of lost fishing opportunities from fish consumption advisories alone.
However, a less-complete cleanup would increase damages further.
Additional economic studies which look at injuries beyond fish consumption
advisories are nearing completion as well. (Exhibit 20)
(Emphasis added.)
These collective concerns with the grossly inadequate Natural Resource
Damage Award, HRI believes, are one more reason why, under the standards
of both Conservation Law Foundation of New England, Inc., Et Al., v.
Mosbacher and Massachusetts Food Association, Et Al., v. Massachusetts
Alcoholic Beverages Control Commission, Et. Al., that HRI's interests
"are
not adequately represented by existing parties."
III. PUBLIC
HEALTH STUDIES PUBLISHED RECENTLY CONFIRM THE DANGERS OF EXPOSING HRI MEMBERS
AND OTHER MEMBERS OF THE PUBLIC TO EVEN LOW LEVELS OF PCBs
HRI would like to put our concerns about remediation levels in a larger
public health context. Recent history has taught us that there is
almost always a lag between the introduction of potentially-dangerous chemicals
and a clearly demonstrated understanding and quantification of the risks
to human health.
The latest research on PCBs reveals a trend: lower levels than previously
expected are causing cancers and creating developmental problems.
Recent research seems to suggest that neurodevelopmental effects are the
critical effects – the effects that show up first as exposure levels increase
from zero. These results have been noted both in animal study and
human studies.
According to a June, 1998 article entitled "Assessing the Cancer
Risk from Environmental PCBs" by Vincent James Cogliano, Chief, Quantitative
Risk Methods Group, USEPA:
Twenty years after their manufacture was halted,
polychlorinated biphenyls (PCBs) remain a major environmental concern.
Standards often have been based on cancer risk, yet before 1996 only commercial
mixtures with 60% chlorine had been adequately tested. … A
recent study compared the cancer potential of the commercial mixtures Aroclors
1016, 1242, 1254, and 1260 (1). Its results strengthen the case that
all PCB mixtures can cause cancer, although different mixtures have different
potencies. (Exhibit 21: Environmental Health Perspectives, Vol.
106, No. 6, Page 317)
Cogliano cites the 1998 Mayes study which found that a variety of Aroclors
caused significant increases in liver cancer in rats. Some of the
Aroclors were linked to increased thyroid cancer in male rats. According
to Cogliano, the 1996 Brunner rat study found a 20% increase in liver tumors
in females when they were exposed to doses of 25 ppm of Aroclor 1260; and
a 48% increase when exposed to levels of 100 ppm. The Brunner study
also revealed that less than lifetime exposure to the more persistent mixtures
may pose disproportionately high risks. Aroclor 1260 is common to
the GE/Pittsfield site.
A December 18, 1999 article in New Scientist (Exhibit 22) reports
on a link between PCBs and the death of harbour porpoises they studied
since 1990. Peter Bennett and Paul Jepson of the Institute of Zoology
in London have found that harbour porpoises who died stranded on British
coast had an average level of PCBs of 31.1 milligrams per kilogram of blubber.
They compared these levels to levels found in otherwise healthy porpoises
who suffocated in fishing nets. These healthier porpoises had an
average level of PCBs of 13.6 milligrams per kilogram of blubber. In a
paper delivered at the December 1999 International Symposium on Environmental
Endocrine Disruption, Dr. John Peterson Myers noted:
The levels of exposure known to cause serious effects
in laboratory experiments with animals is dramatically lower, thousands
if not millions of times lower, than what was even five years ago toxicologists
thought was relevant.
Every hormone system that has been studied carefully has
been found vulnerable to one endocrine disruption or another. …
[and] the research is forcing us to ask about the adult consequences of
fetal exposure. Niels Skakkebaek's work with testicular cancer, Fred
vom Saal's with prostate effects, Dick Peterson's with dioxin impacts on
sperm count, and many many others, fundamentally challenge generations
of studies that appear to refute the links between chemical exposure and
human health. (Exhibit 23) (Emphasis added).
Fetal exposure seems to be increasingly critical. A Science News
article of November 27, 1997 entitled "Breast Milk: a leading source
of PCBs" by Janet Raleigh (Exhibit 24) reports that a Netherlands study
of 137 Rotterdam pre-schoolers found that those children who were breast-fed
had 3.6 times more PCBs in their blood plasma that those who were fed formula.
A December 21, 1999 report by Reuters Health Information highlights
an article in the December 18/25 issue of The Lancet that links
organochlorines such as DDT and PCBs with gene mutations found in patients
with cancer of the pancreas. The Reuters report declares:
The study is the first to link a genetic alteration
commonly found in pancreatic cancer patients and an environmental substance,
according to a statement issued by the editors of the journal.‘The results
… suggest new roles for organochlorines in the development of several cancers
in human beings,' according to Professor Miquel Porta from Institut Municipal
d'Investigacio Medica in Barcelona, Spain and associates. …Patients
who were already diagnosed with pancreatic cancer were 5 to 10 times more
likely to show increased blood levels of organochlorines than were patients
hospitalized for reasons other than cancer … (Exhibit 25) (Emphasis
added)
The Lancet article states:
Organochlorine compounds such as p,p9-DDT, p,p9-DDE,
and some PCBs could play a part in the pathogenesis of exocrine pancreatic
cancer through modulation of K-ras activation. (Exhibit 26: "Serum
concentrations of organochlorine compounds and K-ras mutations in exocrine
pancreatic cancer" Miquel Porta, etc. The Lancet, December
18, 1999, v354 i9196, p2125.)
A January 3, 2000 article on the WebMD website by Rochelle Jones
reports that:
Rapidly falling sperm counts in the United States.
Rising rates of genital defects in male infants. Unprecedented numbers
of cases of testicular cancer among young American males. Scientists
are increasingly worried that these problems are being caused by environmental
estrogens, man-made chemicals capable of interfering with the hormones
that regulate the male reproductive system. …A review of data from
61 studies, published in BioEssays in 1999, found that the dramatic decline
of average sperm density in the United States and Western Europe may be
even greater than previously estimated. An earlier review, conducted
by researchers at the University of Copenhagen in 1992, found that sperm
density had fallen by 50 percent between 1938 and 1990. In the 1999
reanalysis of the controversial studies, Shanna Swan, Ph.D., a professor
at the University of Missouri-Columbia, confirmed the findings and concluded
that the decline may be more than 50 percent. (Exhibit 26) (Emphasis
added).
The people of the GE/Pittsfield site have had and continue to have many
routes of exposure. According to Vincent James Cogliano, Chief, Quantitative
Risk Methods Group, USEPA:
Capacitor manufacturing workers exposed to a series
of commercial mixtures with 41-54% chlorine had increased mortality from
liver, gall bladder, and biliary tract cancers, gastrointestinal tract
cancers, or malignant melanoma. An analysis of these and a smaller
study found the combined results significant for liver, gall bladder, and
biliary tract cancers and for malignant melanoma. Earlier, petrochemical
refinery workers exposed to Aroclor 1254 and other chemicals had significantly
increased mortality from increased melanoma. More recently, electric
utility workers exposed to PCBs had significantly increased mortality from
malignant melanoma and brain cancer. Recent case-control studies have found
a significant association between non-Hodgkin's lymphoma and PCB concentrations
in adipose tissue and serum. In a general population, dietary consumption
of rice oil accidentally contaminated with PCBs and chlorinated dibenzofurans,
which can be formed when PCBs are heated above 270ºC, was associated
with significantly increased mortality from liver cancer and lung cancer.
(Exhibit 21, Id, Pg. 317)
PCBs bioaccumulate, and as the chemical works its way through the food
chain, the most potent PCB congeners, and the most difficult to eliminate,
are passed on and up. Along the way PCBs can undergo a chemical transformation,
where they no longer resemble the original Aroclor. Cogliano writes:
… ingesting contaminated sediment or soil or
inhaling contaminated dust can pose relatively high risks. …
Bioaccumulated PCBs appear to be more toxic than Aroclors and more persistent
in the body. The Aroclors tested in laboratory animals were not subject
to prior selective retention of persistent congeners through the food chain.
For exposure through the food chain, therefore, risks can be higher than
those estimated in this assessment.
… Early-life exposure is treated with special concern
because of the potential for higher exposure during pregnancy and nursing
and the possibility of greater perinatal sensitivity. Metabolic pathways
are not fully developed in human infants; for example, some nursing infants
receive a steroid in human milk that inhibits the activity of glucuronyl
transferase, reducing PCB metabolism and elimination. In animals,
Aroclor 1260 induced high incidences of liver tumors when exposure began
early in life and lasted a short time.
… It is, therefore, important to assess early-life
exposure through human milk and other pathways.
… Finally, the EPA's assessment proves that good research
can improve risk assessments. (Exhibit 21, Id, Pp. 320-322).
(Emphasis added).
Recent studies have found a link between low levels of PCB exposure with
immune system suppression and developmental neurotoxicity. Research
in the Netherlands has linked dietary exposure to PCBs and dioxins – found
in dairy products – with decreases in cognitive functioning. Negative
effects were found at levels as low as 3 ppb in maternal plasma.
This 3 ppb level corresponds with our current background level in the United
States. The fact that levels as low at 3 ppb have been linked with
observable problems in cognitive functioning is troubling given the results
of the September 1997 Massachusetts Department of Public Health study,
"Housatonic
River Area PCB Exposure Assessment Study." (Exhibit 27)
HRI was critical of this study and questioned its methodology and the
fact that only 79 participants had blood drawn. Nevertheless, the
results are illuminating. Serum PCB levels ranged from not detect
to 115 ppb, with a mean of 9.07 ppb and a median of 6.60 ppb. 53
of the 69 participants who had no opportunity for occupational exposure
had a mean serum PCB level of 5.77 ppb (median 4.86 ppb). Those with
opportunities for occupational exposure had a mean level of 15.79 ppb (median
8.81 ppb).
Participants had a range of exposure scenarios: fish-eating, eating
fiddlehead ferns from the watershed, canoeing in the Housatonic, birdwatching,
other recreational activities along the River, hunting, etc.
When evaluating these results, the Massachusetts Department of Public
Health relied on an outdated estimate of U.S. background serum PCB levels
of 4 to 8 ppb. They therefore found that these levels fell within
the normal background range. HRI believes the most recent data shows
background serum levels at 1 to 3 ppb. In which case, Berkshire County
levels range from 2 to 8 times higher than national levels, and there is
serious reason to be concerned that as much contamination as possible is
removed from our community.
IV. CONCLUSION
As with much legislation, RCRA and CERCLA attempt to confront and provide
remedies for extraordinarily complicated problems. And there are
various interpretations about how best to implement the intentions of the
laws in the real world of hazardous waste sites, and the competing interests
of the public, the regulatory agencies charged with statutory responsibility,
and the responsible parties.
The intrinsic problem with excluding knowledgeable members of the public
from settlement negotiations is that they are without an intimate understanding
of what might have been better negotiated. Compromise is strongest
when it is forged by all the parties who must live with its consequences.
That said, HRI believes a better settlement can be crafted. HRI
specifically calls for:
-
More extensive removal of contaminated sediments and bank soils in the
1st 1/2-Mile Stretch of the Housatonic River.
-
A remediation strategy that does not require a geotextile liner for the
River.
-
Construction of a slurry ditch, wherever technically feasible, to more
effectively guarantee source control along the 1/2-Mile Stretch of the
Housatonic River
-
Treatment of the contaminated sediments and bank soils instead of landfilling
at Hill 78 and Building 71 landfills
-
Excavation and removal of all contaminated sediments and bank soils in
Silver Lake
-
An extensive sampling program, at depth, for the West Branch; and a thorough
removal of all contaminated sediments and bank soils
-
A thorough investigation of the GE contaminated wood giveaway program and
complete cleanup of affected properties
-
A thorough investigation of buildings with PCB-contaminated earth floors
and a complete cleanup of affected properties
-
Excavation and removal of all PCB-contaminated sediments and bank soils
in the former Oxbow Areas, and especially the Newell Street properties,
to the Massachusetts DEP Default Standard of 2 ppm
-
Immediate treatment of PCB-contaminated groundwater throughout the GE/Pittsfield
site
-
A more accurate Natural Resource Damage Assessment and a Natural Resource
Damage Award from the Defendant that better compensates the Trustees for
damages and lost use.
Wherefore, HRI respectfully asks you allow the Housatonic River Initiative
to intervene and be a party to this action, so that this Consent Decree
may be modified to better protect human health and the environment.
Respectfully submitted,
By Pro-se Attorneys for The Housatonic River Initiative
Timothy Gray, Director, The Housatonic River Initiative
David Gibbs, President, Housatonic River Initiative
Al Bertelli, Vice-President
Wendy Phillips, Treasurer
Massachusetts Rep. Chris Hodgkins, Board of Directors
Mickey Friedman, Board of Directors
Benno Friedman, Board of Directors
Shepley Evans, Board of Directors
Donald Roeder, Board of Directors
Housatonic River Initiative
20 Bank Row
Pittsfield, Massachusetts 01201
Tel. (413) 499-6112
IN THE UNITED
STATES DISTRICT COURT
FOR THE DISTRICT OF
MASSACHUSETTS
WESTERN DIVISION
____________________________________
UNITED STATES OF AMERICA
STATE OF CONNECTICUT
COMMONWEALTH OF MASSACHUSETTS
CIVIL ACTIONS Nos. 99-30225; 99-30226; 99-30227-MAP
Plaintiffs,
THE HOUSATONIC RIVER
INITIATIVE
Plaintiff Intervenor,
GENERAL ELECTRIC COMPANY,
Defendant.
__________________________________________
EXHIBITS SUBMITTED
IN SUPPORT OF MOTION TO INTERVENE
February 22,
2000
Respectfully submitted
By Pro Se intervenor,
THE HOUSATONIC RIVER
INITIATIVE
Tim Gray, Executive
Director.
Dave Gibbs, President
Al Bertelli, Vice-President
Wendy Phillips, Treasurer
Rep. Christopher Hodgkins,
Board of Directors
Etc., etc.
Appendix
A: Lists of Exhibits
Exhibit 1 – HRI Articles
of Incorporation.
Exhibit 2 - Friends
of the Earth Inc., et al. v. Laidlaw Environmental Services (TOC), Inc.
No. 98-822, II A
Exhibit 3 - Conservation
Law Foundation of New England, Inc., Et Al., v. Robert A. Mosbacher
No. 91-212, 966 F.2d 39; 1992 U.S. App.
Exhibit 4 - Massachusetts
Food Association, Et Al., Plaintiffs, Appellants, v. Massachusetts Alcoholic
Beverages Control Commission, Et Al., Defendants, Appellees.
No. 99-1277, 197 F.3d 560, 1999 U.S. App.
Exhibit 5 - Commonwealth
of Massachusetts Complaint Civil Action No. 99-4841E.
Exhibit 6 - R. Kelly
Neiderjohn May 15, 1981 Letter; and The Berkshire Eagle and Boston
Globe articles.
Exhibit 7- USEPA RCRA
Site Assessment, III-29.
Exhibit 8 - video interviews
with Ed Bates, Remo DelGallo, George Darey, views of the Housatonic 1/2-Mile
Remediation, Hill 78 and Building 71 landfills, public comment about Hill
78, and some community concerns about health issues.
Exhibit 9 - December
16, 1997 article of The Berkshire Eagle.
Exhibit 10 – USEPA
Responsiveness Summary for Allendale School Removal Action. 1/2 Mile Removal
Action and Consolidation, October 1999.
Exhibit 11 - HRI's
public comments to the Consent Decree.
Exhibit 12 - Joel Loitherstein's,
(LEEI), comments to the Agencies on the 1/2-Mile Remediation.
Exhibit 13 – The
Berkshire Eagle articles concerning public concern of candidates for
Pittsfield City Council about the enlargement of Hill 78 and Building 71
landfills.
Exhibit 14 - The
Berkshire Eagle article of April 9, 1999, and March 17, 1999 press
release from the United Electrical Workers.
Exhibit 15 - March
12, 1999 EPA press release regarding Fletcher Paint Works and Storage in
Milford, New Hampshire, Region 1 site ID# NHD001079649.
Exhibit 16 - March
1995 revised Proposal for the Preliminary Investigation of Corrective Measures
for Housatonic River and Silver Lake Sediment (PICM) Page 2-3, Page 2-5.
Exhibit 17- Supplemental
Phase II/RCRA Facility Investigation Report for Housatonic River and Silver
Lake (Bouck & Lee, Inc., January 1996, Page 5-3.
Exhibit 18 - December
9, 1999 issue of The Berkshire Eagle.
Exhibit 19 - MADEP
December 8, 1999 letter to GE
Exhibit 20 - Housatonic
River Preliminary Natural Resource Damage Assessment, Pp. 1-3 to 1-4; Pp,
2-3 to 2-6; Page 2-16; Pp. 2-21 to 2-22; Pp. 3-1 to 3-2; Pp 3-3 to 3-5;
Page 3-17.
Exhibit 21 - November,
1999 Press Release regarding Fox River/Green Bay Natural Resource Damage
Assessment prepared in Wisconsin by the U.S. Fish and Wildlife Service.
Exhibit 22- "Assessing
the Cancer Risk from Environmental PCBs" by Vincent James Cogliano,
Chief, Quantitative Risk Methods Group, USEPA, June, 1998: Environmental
Health Perspectives, Vol. 106, No. 6, Page 317, Pp. 320-322.
Exhibit 23 – "Progress
on Endocrine Disruption", John Peterson Myers, Ph.D. delivered on December,
11 1999 at the International Symposium on Environmental Endocrine Disruption.
Exhibit 24 - Science
News article of November 27, "Breast Milk: a leading source of PCBs"
by Janet Raleigh.
Exhibit 25 – December
21, 1999 report by Reuters Health Information and "Serum concentrations
of organochlorine compounds and K-ras mutations in exocrine pancreatic
cancer" Miquel Porta and others., the December 18/25 issue of The Lancet.
Exhibit 26 – "Experts
agree: Male reproductive health at risk" Rochelle Jones, WebMD,
January 3, 2000.
Exhibit 27 - September
1997 Massachusetts Department of Public Health study, "Housatonic River
Area PCB Exposure Assessment Study--Revised Public Involvement Plan for
the Housatonic River and the General Electric Company Pittsfield Disposal
Sites, prepared by Massachusetts Department of Environmental Protection,
April 1995, Pg. 66.
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