General Electric and PCBs – Latest News
EPA issued their Final Administrative Decision
On October 13, 2016, the United States Environmental Protection Agency (EPA) issued their Final Administrative Decision (pdf) in regard to the General Electric Company’s (GE’s) dispute of the EPA’s Intended Final Decision on the Rest of the Housatonic River Remedy.
- Note: The EPA released its Final Permit Modification on the Rest of the Housatonic River Remedy on October 24, 2016. (see below for more on BEAT’s reaction)
The Final Administrative Decision took into account GE’s allegations saying that elements of the EPA’s Intended Final Decision violated the arbitrary and capricious standard as well as GE’s allegations that EPA’s actions violate or are in conflict with the Consent Decree.
Considering Stakeholder Views
The Final Administrative Decision finds that EPA’s approach regarding consideration of state and local stakeholder views to be entirely reasonable. (GE had argued that EPA was not allowed to consider state and local stakeholder views.)
“EPA here has come to the conclusion that the long-standing and vigorous opposition to a new PCB landfill by state and local stakeholders effectively means that a certain path forward (i.e., on-site disposal) would be difficult or impossible to pursue, and thus would not be implementable.” (p4)
“Finally, to ignore such opposition would severely diminish and undermine the public participation opportunities set forth in the Consent Decree.” (p4)
No On-Site Disposal
GE argued that EPA’s risk-based management determination was arbitrary, capricious, and unlawful because on-site disposal would likewise meet the regulatory conditions. EPA’s Final Administrative Decision upholds the requirement that GE must take all contaminated sediment and floodplain soil to an existing TSCA-approved facility or RCRA hazardous waste landfill or a landfill permitted by the receiving state to accept PCB remediation wastes.
BEAT believes it is critically important that we do not create new toxic landfills and that all toxic landfills be considered temporary – until treatments are developed that can render the toxic components, such as PCBs, non-toxic.
The decision agreed with EPA’s reasoning for not accepting GE’s proposed disposal sites in Berkshire County: specifically, that GE site-specific “factors increase the risks of potential future release to the Housatonic watershed, compounded by the poor suitability of the proposed locations given such factors as soil permeability, proximity to the Housatonic watershed, and/or drinking water sources.”
EPA Issued their Final Permit Modification
BEAT is still combing through the so-called “Final Permit Modification” for the remediation of the Rest of the Housatonic River.
We are pleased that adaptive management approach was retained and that EPA is making sure Alternative Technologies can be used as they become available. We are especially pleased that EPA stood firm in their commitment to have all the toxic material sent to an existing, licensed toxic waste dump. It is crazy to create new dumps all over the place. We need to consolidate this material in TEMPORARY dumps that will be remediated as soon as the technology is available.
We do not believe the remediation goes far enough. It leaves in place areas of high level toxic waste (>50 ppm).
It calls for a “cap” in the river – anyone who has helped with one of our river cleanups knows what large, heavy items get moved by the river, digging DEEP into the river bed. Not only that, when a tree falls into the river, the water digs DEEP under the tree (creating a scary situation if you think you might flip your boat and get sucked under the tree!)
BEAT believes that the aim should be to remediate ALL the contaminated vernal pools. Vernal pool amphibians are especially sensitive to even very low concentrations of PCBs. GE has proven that they can successfully remediate one vernal pool. We would want them to use small equipment, recreate the microtopograhpy the way they did on the first vernal pool, and have very careful monitoring as they go. Start with one of two vernal pools, see if they work as well as the first – then proceed if all goes well.
On October 24, 2016, EPA issued their Final Permit Modification for the Rest of the River. That permit may be appealed within 30 days to the EPA Environmental Appeals Board in Washington, DC. EPA provides A Citizens’ Guide to EPA’s Environmental Appeals Board, a plain language guide for members of the public participating in matters before the Board.
A member of the public or an organization that objects to a permit decision and has participated in the process, may file a petition within 30 days of issuance with the Clerk of the Board asking the EAB to review the permit decision. The petitioner only may raise the specific issues that were raised during the Region’s permit review process (by the petitioner or another commenter).
The EAB typically will review a permit decision only if you demonstrate that the permit issuer made a “clearly erroneous” finding of fact or legal conclusion, or that your issue concerns an exercise of EPA discretion or an important policy consideration that the EAB in its discretion should review.
Any party other than EPA has a right to appeal the EAB’ s decision to a federal court after the EAB decision is issued and the permit issuer issues the final permit decision. The particular environmental statute at issue determines the court in which the appeal must be filed and the standard of review that the court must apply.