Opinion/ by Dorothy M. Mara, Charles P. Cianfarini, & Barbara E. Cianfarini
Citizens for PCB Removal:
To download the GE Consent Decree and related Cleanup Agreements click here
Citizens for PCB Removal believes that PCBs are harmful to public health. Not only are they probable carcinogens, but they have been proven to be hormone disrupters and can cause lower IQs. The studies reaching these conclusions are not limited to the United States. Most of the world has banned the use of PCBs and we believe that these chemicals must be removed from our environment.
Citizens for PCB Removal ("CPR") believes any settlement concerning PCB and other contamination in Pittsfield and Berkshire County, Massachusetts must accomplish a few basic goals:
1) it must provide for a thorough clean up;The Consent Decree and the appended work plans are a good start to accomplishing a thorough clean up; but are just that - a beginning. The Consent Decree is lacking in many ways. Our comments are informal, not technical, but state our passionate belief that the Consent Decree needs modification.
1. The settlement burdens innocent property owners in a
way that is not in the public interest.
The CD provides, in paragraph 189, that all parties to the CD preserve all their rights against all others not parties to it. Thus innocent property owners may be held liable under CERCLA or MGL c. 21E, for future problems caused by General Electric's pollution. While the law may allow liability to be imposed on innocent property owners, it is our understanding that the public policy behind the law seeks to ensure that there is some party available who can be held responsible for cleaning up the pollution.
The need to hold someone liable, even an innocent someone, simply does not apply here. This is not a case where the polluter is unknown, or is bankrupt, or whose assets are for some other reason unavailable for clean up. The polluter here is a party to this agreement and is not only solvent but in fact is one of the wealthiest companies in the world. A policy designed to ensure that funds are available to clean up pollution is not served by shifting the future burden from a wealthy culpable defendant to innocent persons with vastly fewer resources.
The potential for future liability is very real. Many properties are being cleaned only to a depth of a few feet. Deeper contamination is not being addressed. Particularly for the "oxbow properties" (see #7) which are filled to a depth of as much as 20 plus feet and which have not been thoroughly tested, the potential exists for future releases which could impact the river. Liability for that clean up, should it be needed, should not fall on the property owners. If the plaintiff government agencies are confident that the solution they have agreed upon is indeed protective of public health and safety for the long term, they should, in this CD or an appended document, grant immunity from future liability to all contaminated property owners.
In addition, in paragraph 189, the CD specifically sites the right of contribution as one of the rights reserved by the parties against all others. Moreover, in paragraphs 194 and 195, the CD grants to the State of Massachusetts and the City of Pittsfield, the same contribution protection it grants to General Electric, should those entities acquire an interest in land that is the subject of this CD.
Government agencies entered into negotiations that did not permit other interested parties to participate, then secured for themselves protection from liability while specifically preserving the potential for future liability of innocent property owners who were not allowed to participate. If forced to fund a clean up under CERCLA or MGL c.21, these property owners could not then seek contribution from General Electric. General Electric, however, can still seek contribution from them. Defending oneself is expensive; and where, as here, the polluter is being exonerated from future liability, there is no need for them to retain a right to contribution.
2. The Consent Decree does not appear to leave the agencies the
flexibility they need to deal with inadequate cleanups or subsequent recontamination
of residential and commercial properties.
Do the CD and the Administrative Consent Order (ACO) prevent the government agencies from taking administrative action on those properties ever again or would the post remediation discovery of evidence of contamination allow further investigation and clean up? If further action against General Electric is completely foreclosed, then once again the settlement lets the culpable party off the hook and shifts the burden to the innocent property owner in a way that is not in the public interest.
Furthermore, for properties along the water bodies, Silver Lake, Goodrich Pond, Unkamet Brook and the Housatonic River, the CD and the ACO appear to preclude cleanup of recontamination. Again this shifts the burden of clean up to innocent property owners who are unlikely to have the resources to undertake a clean up while absolving the wealthy polluter. This is particularly problematic for properties along Silver Lake because the remedy selected for the Lake itself is suspect (see #8 below).
3. The liability relief granted to General Electric is unreasonably
Since one of the primary arguments in favor of the CD seems to be that funding the clean up could be problematic if we have to rely on government resources, we are concerned that the CD will put our community in the future position of being recontaminated and without the resources to clean up. A grant of immunity from future liability for areas that are not being cleaned is overly generous and not in the interests of our community.
4. The Hill 78 Landfill poses an unacceptable risk.
The EPA and DEP have not conducted a thorough investigation of the contents of the General Electric landfill known as Hill 78; instead they propose to cap this landfill without ever obtaining that information. While the cap will be an improvement of the existing situation, it leaves an unacceptable risk. This landfill is not lined. There is apparently no paper trail to indicate what was disposed of in there.
Without knowing what the landfill contains, EPA and DEP cannot possibly assess the impact of this solution's failure. They do not know what contaminates might be released or what impact those releases could have. While the agencies believe an "early warning" system of test wells provides adequate protection, we are well aware of other areas where the agencies were confident the existing array of test wells and borings provided adequate information, but were subsequently proven wrong.
1) The plume under the Newell street parking lot was not discovered through early and fairly comprehensive testing; it took further investigation of a type that will not be performed on Hill 78 to locate the plume;The worst part about this is that it will be designated as a "permanent" solution. Despite man's best efforts, the evidence that Mother Nature is relentless in her ability to destroy whatever man creates is all around us. Every homeowner knows the struggle it takes to keep one's property in good repair, especially the parts exposed to the harsh New England winters. Every gardener marvels at how the earth constantly changes, moves, evolves; rocks reappear yearly in flower beds that have been meticulously stripped of such. Roads and bridges crumble, majestic trees are felled, monuments wear away. Even in this area, we are not immune to tornadoes, hurricanes, even the occasional earthquake. The forces of nature are ongoing, permanent; landfills, dumps -- though they may be humans' "state of the art" -- are, at best, temporary.
5. The Building 71 containment area is not an acceptable long
term solution for ridding our community of contamination when treatment
is not only possible but also feasible from a cost perspective for this
We have a local business which has CLEANED PCB's from other sites around this county. It has been estimated that treatment of PCB contaminated material in this case would cost about 40 million dollars. While this may seem like a large sum, it is almost insignificant to the largest company in the world. In fact, it is less than HALF of what General Electric paid Jack Welch in salary and bonuses ($87 million) for 1999 alone. Clearly treatment is a feasible option for this defendant. Construction of the Building 71 facility, if it expedited the clean up of Allendale School, was justifiable as a short term option, but treatment should be evaluated, and periodically reevaluated as the long term solution.
We plead that the decree be changed to name these facilities as TEMPORARY and that a final time limit be set on the complete treatment of the waste contained therein. While we prefer immediate treatment, a maximum time limit should not exceed thirty years.
6. The clean up options offered to the commercial property owners
are inadequate and insulting.
Furthermore, while the banking community has pronounced itself more comfortable with the idea of lending money to these property owners, assurances that PCB contamination will not affect lending in the future have not been forthcoming. These property owners still may not be able to grow, alter or sell their business in the future. We are not proposing specific solutions to this problem, but instead insist that this portion of the CD be reconsidered in a process that includes the affected property owners.
7. Better investigation and clean up of the "oxbows" is needed
to protect the river from the risk of recontamination.
8. The proposed solution for cleaning Silver Lake is not credible.
9. Natural Resource damages are unreasonably low.
10. The extent (lack) of cleanup is based upon possibly overly
Our objections to many of the risk assessment conclusions are based upon the concept of environmental and human blood serum "background levels". We question whether the background levels cited for this Settlement are a valid standard for this state, country and the world, in general, or are they higher and specific to what is "normal" in this area, in particular, based upon the long term, widespread contamination throughout Berkshire County and adjacent areas specifically from the General Electric plant.
Numerous world wide studies support these suspicions, as well as evidence that even very low levels of contamination pose serious threats to the safety and well-being of certain populations, in particular the unborn and very young, most notably in the areas of hormone disruption, intelligence, behavior and learning capabilities.
We suspect a long-anticipated study by an Expert Panel commissioned by the Mass Department of Public Health which we believe will confirm these health threats and will outline further toxin dangers has been inexplicably delayed beyond this CD Comment deadline. This Settlement should not be confirmed without this further scientific data and unless the calculations upon which it is based are verified, confirmed and validated as reasonable by recent and ongoing world-wide research.
11. Citizen participation has not been enhanced by the Citizen
Coordinating Council and the existence of that body should not influence
the review of this settlement.
In addition, the single productive session of the council, concerning the remediation of the first half mile of the river, demonstrated strong opposition to a plastic liner being used in the river and that opposition was backed up by an expert from the Army Corp of Engineers who deemed it unnecessary. However, when the revised plan for the river was published it provided for not 1 but 3 layers of plastic liner. The public's concerns had been discounted without explanation and were clearly no more effective than if they had been made in writing and hadn't had expert support. In fact, because members of the CCC are volunteer activist with limited time to devote to reviewing the issues surrounding the clean up of our community, the time spent on the CCC feels more like misdirection than enhanced participation.
In conclusion, we submit that this Consent Decree, as it is now written is solely in General Electric's best interests in terms of liability, and economic responsibility. It fails to protect the interests and principles of the general public and federal, state and local governments and their agencies, the environment, and the directly affected property owners and their communities for which it is intended. Therefore, we ask that substantial modifications be made in this document, as based on these comments, with many more opportunities for the interested public to submit effective input, or to, ultimately, go back to mediation with all affected and interested parties well-represented at the bargaining table for another effort at a more equitable and long-term public-protective outcome.
We would honor the opportunity to have a representative of Citizens for PCB Removal appear before the Court for the purpose of addressing these comments and concerns.
Dorothy M. Mara
Comment Committee representing
This position paper was filed with the U.S. Environmental Protection
Agency & the U.S. Department of Justice by Citizens for PCB Removal
on February 22, 2000.