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In re General Electric Company

01/26/2018
Case Number:RCRA Appeal Nos. 16-01 to 16-05
ELR Citation:48 ELR 41399

The U.S. Environmental Protection Agency Region 1 (“Region”) issued a corrective action permit under the Resource Conservation and Recovery Act (“RCRA”) to the General Electric Company (“GE”) establishing the remedy for addressing the polychlorinated biphenyl (“PCB”) contamination in a major portion of the Housatonic River in Massachusetts and Connecticut. The permit requires GE to excavate nearly one million cubic yards of contaminated sediment and soil from the River and its floodplain, place a cap over much of the remaining PCB contamination, restore the River and its environs, and dispose of the excavated material in a properly-authorized off-site landfill.

This permit arises out of a Consent Decree entered by a federal district court in 2000 resolving claims under, among other statutes, RCRA and the Comprehensive Environmental Response, Compensation and Liability Act. The Consent Decree established a process for selecting a remedy for the PCB contamination in the Housatonic River that GE would implement. In the Consent Decree, the Region and GE agreed that the final product of this process would be a RCRA corrective action permit delineating the terms of the remedial action. That permit, which the Region issued in October 2016, is being challenged in this proceeding.

GE and four other parties filed petitions for review with the Board. GE contests both the scope of the cleanup and the requirement to dispose of the excavated materials at an off-site landfill. The other four petitioners are: (1) a private citizen, Mr. C. Jeffrey Cook, who also claims that the cleanup goes too far; (2) the Berkshire Environmental Action Team, a citizens’ group that argues that the cleanup does not go far enough; (3) the Housatonic River Initiative, Inc., another citizens’ group that also asserts that the cleanup should be more extensive and further claims that the excavated material should be treated to remove the PCBs before being disposed; and (4) a group of five Massachusetts communities that contend that the permit should have required GE to comply with the Massachusetts Hazardous Waste Facility Siting Act and to be responsible for the response action “in perpetuity.” The states of Massachusetts and Connecticut each filed a response GENERAL ELECTRIC COMPANY 435 VOLUME 17 brief opposing GE’s petition and supporting the Region’s choice of remedy. Amicus briefs expressing support for various aspects of the Region’s permitting decision and opposing other aspects were filed by the Massachusetts Audubon Society, the City of Pittsfield, Green Berkshires, Inc., and the Housatonic Rest of River Municipal Committee. After requesting and receiving several extensions of time, the parties completed briefing in May 2017, and the Board held an all-day oral argument in June 2017.

Held: In brief, the Environmental Appeals Board (1) upholds, with one exception, the Region’s decisions on the scope of the cleanup against both the claims that it goes too far and the claims that it does not go far enough; (2) remands for further consideration the permit requirements on additional response actions required for future work projects in the River by third parties; (3) upholds the Region’s decision not to require treatment of the excavated sediment and soil prior to disposal; and (4) remands for further consideration the permit condition requiring GE to dispose of the excavated material offsite rather than on-site.