TOWN OF LENOX BOARD OF SELECTMEN 6 Walker Street, Lenox, MA 01240 www.townoflenox.com 413/ 637-5500 (x7)

October 23,2014

Mr. Dean Tagliaferro EPA New England, c/o Weston Solutions 10 Lyman Street, Suite 2 Pittsfield, MA 01201

Channing Gibson, Chair Dave Roche, Clerk K enneth Fowler Edward P. Lane Warren E. Archey

Re - Town of Lenox comments regarding Housatonic River/Rest of River Remedy

Dear Mr. Tagliaferro:

The purpose of this letter is to formally convey the concerns and comments of the Town of Lenox regarding the proposed remediation of polychlorinated biphenyls (PCBs) in the Lenox portion of the Housatonic River. This letter constitutes the Town's response to the Environmental Protection Agency's (EPA) solicitation for public comment during the period ending October 27,2014.

Lenox citizens, more than most stakeholder groups, are directly and severely impacted by the proposed plan especially as it relates to clean-up and capping of Woods Pond. Lenox, in collaboration with five other communities along the Massachusetts portion of the river, has submitted comments through the "Rest of River Municipal Committee." We are in agreement with our neighbors on the points made in that letter. Furthermore, below is a summary of additional concerns related specifically to Lenox, with greater comment provided on the pages that follow:

• Cleanup proposal is disruptive, inefficient, and ultimately ineffective; • Under no conditions can storage and disposal of PCBs occur in Lenox and/ or Berkshire

County via landfill or other disposal method(s); • Phasing of the cleanup, and subsequent capping, as it relates to the long-term health of

Woods Pond is a major concern; • Local considerations with respect to economic impacts are not addressed in the federal

government's pennit; • The permit addresses neither amelioration for loss of property values, nor impacts on

neighborhood character and social structures; • It is unclear what role, if any, the Town would have in mitigating traffic flow and safety

during the clean-up; • It is unclear what indemnification, if any, the Town may have from the prospect of future

liability if the federally mandated cleanup proves to be insufficient;

1

• The extent to which a natural gas pipeline is permitted, as currently pre-flied by Kinder Morgan with the Federal Energy Regulatory Conunission (FERC), the Town demands to be part of any conversations/negotiations between Kinder Morgan, FERC, GE and/or EPA;

• Moving forward, Lenox must be afforded an opportunity to respond to the fmal permit agreed to by GE and EPA.

Implicit in the concerns expressed above is the need for Lenox to have meaningful authority in approving and regulating clean-up activities. We acknowledge that such authority granted to a municipal entity is unusual in a federally-permitted cleanup. However the preservation of local authority is the only means by which Jeffersonian values can be honored in such a massive and disturbing project.

DISRUPTIVE. INEFFICIENT. AND ULTIMATELY INEFFECTIVE

Cleanup efforts are proposed to impact Lenox for 13 years. Residents and commercial entities subjected to a project of such duration deserve a thorough and effective cleanup. This is not the case. The cleanup will only remove 25% of the PCBs in the Lenox portion of the river. The remaining PCBs are expected to remain in place, suspended in the flood plain and captured beneath capping. We have grave concerns that this strategy will not withstand the natural meandering and periodic extreme weather that will change the river's future course.

Furthermore, the performance standards for PCB removal change dramatically, and inexplicably, between Reaches SA (Pittsfield) and SB (Lenox)- from 5 mg/kg to 50 mg/kg, respectively. We struggle to understand why this substantial difference in cleanup effort is permitted simply by crossing a municipal boundary.

NO LANDFILL OR OTHER PCB DISPOSAL IN BERKSHIRE COUNTY

We support EPA's requirement that disposal of hazardous waste take place at a licensed landfill, noting that there are no such facilities cumnt!J licensed in Massachusetts. However, the wording of the permit could easily be interpreted as allowing a permanent landfill in-state, or even in-county, at afoture date. Therefore, for the purposes of clarity, Town of Lenox opposes any plan from EPA or GE that would result in permanent disposal of contaminated material at any site in Massachusetts. EPA's permit should be worded explicitly to prohibit such disposal.

Additionally, we are concerned about the extent to which PCB-contaminated material is stored while awaiting transport. The proposed plan lacks detail in this regard. In the absence of sufficient detail, Lenox cannot support the plan described in Attachment D of the Permit. For example, we agree with our neighbors that "temporary stockpiling" of contaminated material should be defined in the permit and that the defined period should be as short as practical. Furthermore, the town should have a voice in developing such plan details for any temporary storage sites in Lenox or upriver.

2

PHASING OF CLEANUP AND CAPPING

The proposed permit would require dredging in Woods Pond for the first three years of remediation. Afterward, dredging and capping activities would continue and/ or commence up-river. After dredging/ capping for Reaches SA-SC and the "Backwaters" are complete, Woods Pond is proposed to be capped. While we understand the desirability of using Woods Ponds as a "sump" to capture PCBs disturbed during work in Reaches SA-SC, we are very concerned that this approach will serve to further and permanently pollute Woods Pond. This is unacceptable.

AMELIORATION FOR RESIDENTS AND PROPERTY OWNERS: CONCERN FOR NEIGHBORHOOD CHARACTER AND SOCIAL STRUCTURES

We struggle to reconcile why residents and businesses- through no fault of their own- must suffer with the presence of PCBs and the associated impact of cleanup without any expectation of economic or social amelioration. Ultimately, we have come to understand that the RCRA/CERLA process makes no explicit provision for compensation of economic and social impacts. If our understanding is accurate, the Town has no leverage in compelling GE to compensate for such impacts unless granted a formal, authoritative role in developing the means and methods of cleanup procedures. With these concerns in mind, it seems only reasonable that the Town have a formal role in the review and planning of the cleanup.

FISCAL IMPACT AND TAXATION

We are aware that municipal taxation of GE property during the cleanup is a source of contention for remediation of the Hudson River in New York. In an effort to avoid future disagreement, we request that EPA prescribe the method of assessment (cost, income, etc.) for equipment and property owned by GE subject to taxation in Lenox. Furthermore, EPA should require that information on the value of such property not be unreasonably withheld from the Lenox Board of Assessors.

TRAFFIC FLOW AND SAFETY

It is estimated that 285,000 cubic yards of PCB contaminated material will be taken from Woods Pond during the cleanup project. This effort alone constitutes 29% of total material volume for the entire river and will result in an estimated 43,344 truck loads or freight car-equivalents passing through our community. Reaches SB and SC will yield 18,400 cubic yards and 197,600 cubic yards of contaminated material, respectively. This work will result in an estimated 30,000 truck loads or freight car-equivalents in Lenox. For this reason alone, Lenox must be granted an authoritative role in cleanup planning and execution. Furthermore, given the impact on our road and bridge system, rail transport is preferred.

Beyond the fact that our infrastructure was never designed for the required weight and volume of truck travel, our public safety agencies are neither staffed nor trained to manage such flow.

3

Particularly in the case of the contaminated material moving through our rural road network, personnel will need appropriate training and equipment to respond to the inevitability of truck accidents involving hazardous waste. Either the offending entity (GE) or the permitting authority (EPA) must reasonably provide for such training and equipment if the project is to commence safely and responsibly. Finally, if an alternate plan is proposed to remove more or all PCBs, the impacts described above would increase in severity- putting further burden on the Town.

FUTIJRE PROSPECT FOR POTENTIAL LIABILITY

We agree with our peer communities along the river that either EPA or GE must bear perpetual responsibility for the pollution of the river and the required cleanup. In either event, it is unjust for the Town of Lenox to assume the prospect of any potential ongoing liability whatsoever, since the Town is neither responsible for the contamination in the river nor is it the regulatory authority overseeing the quality of remediation.

We further note that the permit exempts GE from certain provisions of the Clean Water Act and other federal regulations. The concept of a waiver in any form is problematic for Lenox in the flrst instance. It implies that a hazard may remain and may preclude the Town from responsibly permitting future enjoyment of the river for recreational or other uses. This is an unacceptable outcome of any cleanup effort.

KINDER MORGAN /FERC

Kinder Morgan/Tennessee Gas has pre-filed with FERC to construct a 36" high-pressure natural gas pipeline west-to-east through the Town of Lenox, crossing the Housatonic River near the border between Reaches SB and SC -one of the most polluted parts of the river. The Town has repeatedly asked representatives of Kinder Morgan and EPA if there has been any collaboration between the four parties (i.e. Kinder Morgan, FERC, GE and/ or EPA) on how such a crossing will be safely accomplished. The answer has consistently been "no". As if having two major, federally-regulated projects occurring in Lenox at the same time were not cause enough for concern, with the two projects also intersecting, we would at least expect that some coordination would have taken place. Since this is not the case, we are distressed.

In the same way that we have public safety and environmental concerns about the EPA proposal for the Housatonic River, we have similar concerns about the pipeline project. Therefore, the Town needs to be informed about how these two projects will manage their construction efforts while occupying the same space. We fear that pipeline construction may disturb PCBs in the 1-iver and floodplain. Similarly, we fear that dredging may damage the pipeline. Whereas communication and coordination have been non-existent to date, the Town needs to be present in order to ensure that the safety of residents and the overall interests of Lenox are represented.

We admonish, therefore, Kinder Morgan, FERC, GE and EPA to meet with Town representatives soon and strive to ameliorate the massive and harmful impacts of these projects.

4

MOVING FORWARD

Finally, we submit the above comments with some trepidation regarding how the process will continue. This letter responds to a specific proposal, which will be modified through joint negotiations between the polluter (GE) and the regulator (EPA). There is no provision for subsequent comment from the Town after plan modifications take place. Therefore, we demand that the process be altered in order to make such provision and that Lenox have an opportunity to respond to the elements of the final plan.

Thank you in advance for your consideration of our deep concerns. We look forward to your favorable response.

Channing Gibson Chair, Board of Selectmen

cc: The Honorable Edward Markey, U.S. Senate The Honorable Elizabeth Warren, U.S. Senate The Honorable Richard Neal, U.S. House of Representatives His Excellency Deval Patrick, Governor of Massachusetts The Honorable Benjamin B. Downing, State Senator The Honorable William "Smitty" Pignatelli, State Representative, 4'h Berkshire Mr. Joel Bard, Esq., Kopelman and Paige, PC Ms. Janet Pumphrey, Esq., Kopelman and Paige, PC Housatonic Rest of River Municipal Committee, BRPC

5