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Op-Ed/                                Wednesday, March 1, 2000                by Benno Friedman
HRI: A Reply to The Berkshire Eagle
Setting the record straight--
Intervenor Status & the GE Consent Decree To download the GE Consent Decree and related Cleanup Agreements click here

Several years ago, after repeated failures to achieve a passage of zoning bylaws, the Selectmen/women and town manager of Sheffield came up with a novel proposal.  They convened a group of residents, including many who were openly opposed to zoning.  The assumption was, that if those who opposed zoning were included, and if an agreement could be hammered out, the final package would stand better chance of passage.  Much to their credit, their gamble paid off and Sheffield now has a creditable, functioning set of bylaws.

I served on that zoning commission.  We were initially faced with a seemingly insurmountable level of division between those in favor of and those opposed to zoning.  Yet in time, with one exception, came a gradual appreciation of the opposing point of view, and with it the willingness to compromise for the greater good of the town.  Perhaps those events may provide a model for the current difficulties being experienced about the crafting and adoption of the Consent Decree.

The Eagle's editorials vilify HRI 
The Berkshire Eagle has used its considerable editorial weight in vilifying The Housatonic River Initiative's petition for intervenor status.  It incorrectly suggests that we have had plenty of past opportunities to inject meaningful comment and that our actions are incomprehensible at this late date.  The Eagle darkly reminds us that if our petition becomes legally validated by the judge, the entire Consent Decree is jeopardized " . . .because all parties must agree to any changes in the settlement which essentially opens it up to renegotiation."  This may be true, but whose fault is that and what are the alternatives?

General Electric wanted no direct role for public 
The operative understanding, shared by all who presided at the negotiating table, was that 1.) because of General Electric's stated opposition, there could be no direct role for public participation and 2.) that the public's interest was adequately represented by other, attending parties to the negotiation. Perhaps this points to a significant flaw in the process by which the Decree was crafted and the manner in which it was presented to the public.

A legally required period, allowing for public comment on the Consent Decree, has just ended. Theoretically, this was to have been a sincere attempt by the agencies to canvas the public and to be responsive to their concerns. It also implies that the Decree was open to refinement. This clearly was not the case.

The Citizen's Coordinating Council, created over a year ago, was supposed to offer the public an opportunity to provide input and voice concerns. Yet at the initial meeting and regularly thereafter, representatives were informed that their ability to modify the Decree was severely limited; that the decisions of substance would remain unchanged.

Decree crafted in secrecy
The Decree was crafted in secrecy. The records, transcripts of the discussions and the supporting documentation are unavailable for public scrutiny. Finally, the agreement in its current form is impervious to modification. The inescapable conclusion is that the decree was never intended to be open to substantive modification, and that the CCC meetings, public forums and the comment period were little more than exhausting exercises to foster the appearance of public participation.

The Eagle is being disingenuous;  HRI not alone 
In this light, I suggest that it is The Eagle that is disingenuous, not Chris Hodgkins, in suggesting that numerous, alternate forums were available for legitimate public participation.  In frustration, fully recognizing the futility of concerns raised in the all the other venues, the HRI has been forced to seek intervenor status as an avenue of last resort.  And events in recent days suggest that the HRI is far from alone in its frustration.

A few other organizations, representing contaminated property owners, neighborhoods and communities, directly affected by the Decree's shortcomings, have either filed or are signaling their intent to do so.  Are all dissenters to be automatically pilloried by The Eagle?

The HRI has no interest in scuttling the Consent Decree. On the contrary, we have applauded it from the day it was first announced.  It is a significant, positive departure from the years of inaction, holding great promise for the Housatonic and Berkshire County. Yet even though the river flows downstream, throughout Berkshire County, none of the other towns (except Pittsfield), their constituencies or their concerns were directly represented in crafting the Decree. This concern was raised regularly during the two years of negotiations, and each time dismissed or minimized.

The Eagle argues "bad science", but is it?
The Eagle would have you believe that the issues raised by the citizen groups and effected property owners are based on bad science and only represent fringe interests. The success of our petition rests on the accuracy of the document's contents. Its legitimacy is based on information and studies generated by undisputed, world-class scientists and many of the EPA's own documents. The continuing, wholesale dismissal of legitimate interests is largely to blame for the inevitable frustration behind recent actions.

Court being asked whether citizen groups adequately represented "in absentia"
The underlying question we are asking the court is whether or not citizen groups have been adequately represented "in absentia" and whether or not they should have had access to directly participate in the negotiations.  General Electric, the agencies, and Pittsfield's politicians have all, from the outset, presumed against our involvement. In the event that the legal system disagrees with their proposition, it is up to the original team of negotiators to make room at the table for additional voices.  If the occasion is provided, the citizen groups welcome the opportunity for serious engagement and will bring with us the commitment to succeed and a willingness to compromise, should it be fairly met by all other parties.

The success or failure of a reopened negotiation cannot be predetermined now any more than it could have been two years ago.  If General Electric refuses to sit at an expanded table, and will not make a sincere attempt to negotiate through our respective differences, it is they, not the Initiative who deserve blame for the Decree's ensuing failure.

Mr. Friedman lives in Sheffield and is a founding member of the Housatonic River Initiative.
The above op-ed piece also appears as a letter to the Editor in The Berkshire Eagle on March 1, 2000, and is reproduced here with permission of the author. 

Tax-deductible contributions to Housatonic River Initiative can be sent to 20 Bank Row, Pittsfield, MA 01201.


The following editorial appeared in The Berkshire Eagle on February 26, 2000 and is reproduced here without permission.
Taking the fight to HRI

Mayor Doyle deserves commendation for moving aggressively to block the spiteful and frivolous move by the Housatonic River Initiative, now endorsed by other fringe special interest groups, to sabotage the consent agreement among state and federal agencies and General Electric.  The settlement was a negotiated compromise and compromises by definition mean that all parties gave up some individual goals for the good of the whole. Further delay can only cause GE to reconsider its role and thus endanger the entire project, including an ongoing cleanup of the Housatonic River that could not be accomplished in years of court cases. HRI is doing nothing more than cutting off its nose to spite the Berkshires. There's too much at stake to impede
progress towards a goal everyone wants. Let's get on with it.

© 2000 by MediaNews Group, Inc. and Pittsfield Publications, Inc.
Reproduced by BerkshireRecordDotCom without permission.

The following editorial appeared in The Berkshire Eagle on February 23, 2000 and is reproduced here without permission.
Consent decree put in needless jeopardy

The Housatonic River Initiative's effort to force modifications to the PCB consent decree by appealing to a U.S. District Court threatens to stall if not unravel a landmark agreement that has already begun to show results and could have huge economic and environmental benefits for the Berkshires. The court should throw out a motion that is without merit at best and spiteful at worst.

None of the major parties involved in the settlement, from the city of Pittsfield to the federal Environmental Protection Agency to General Electric, was entirely pleased with its provisions but agreed to them in the best interests of the whole -- that is the nature of compromise. The HRI stubbornly refuses to acknowledge that there are interests beyond its own, and it doesn't realize, or care, that by challenging the agreement at this suspiciously late date on a few select points, it threatens to cause the agreement to come apart. That would not only jeopardize the economic tenets of the agreement but the cleanup of a river the HRI claims to hold dear, a cleanup that
has already begun.

The challenge brought by the HRI suggests the organization either does not comprehend the consent agreement or is willfully misrepresenting it. HRI director Tim Gray asserts that the agreement does not anticipate future re-pollution of the Housatonic River from underground chemical plumes on or near the riverbanks and should be redrawn. In truth, the agreement is full of reopeners that would force GE and/or the government to return to the river if more cleaning of PCBs is required.  Similarly, the HRI's claim that the Hill 78 disposal site will pose a health threat to residents is without foundation and an insult to the EPA and the state Department of
Environmental Protection, neither of which would have signed off on the agreement if that were the case.

The HRI's insistence that it was not sufficiently involved in the PCB settlement negotiations suggests it is motivated in part by petulance in bringing the court case.  In truth, the Initiative was involved in the process at any number of meetings and hearings, but it is not a government agency nor are its members elected officials.  The HRI has long been involved in pushing for a Housatonic River cleanup but that does not earn a group answerable to no one but its narrow constituency a position at the negotiating table, and it is a shame its apparent bitterness would cause it to jeopardize an agreement it should be pleased with.

State Representative and HRI member Christopher Hodgkins, a party to this dangerous court action, is either disingenuous or naive when he asserts the motion to intervene amounts to a simple effort to improve the settlement in some fashion.  As Mindy S. Lubber, acting regional administrator of EPA New England, declared yesterday, this action is a potential deal-breaker because all parties must agree to any change in the settlement, which essentially opens it up to renegotiation. Mr. Hodgkins has constituents beyond the HRI and should immediately disassociate himself from this action.

Through 20 years of on-again, off-again court action, nothing was done to remove PCB contamination in the Berkshires or resurrect abandoned industrial property in Pittsfield.  Much has happened of a positive nature since the PCB settlement was reached, but the HRI would throw the matter back into the courtrooms.  We hope the court will find that the HRI has no standingv to bring the case and, if it goes beyond that point, that the HRI case has no merits. Should the case go further, and companies looking to move to resurrected GE property move on, settlement money is frozen, and work already begun to clean up the Housatonic River is halted, Berkshire residents will know whom to blame.

© 2000 by MediaNews Group, Inc. and Pittsfield Publications, Inc.
Reproduced by BerkshireRecordDotCom without permission.