The federal government’s plan to clean up toxic PCBs from the Housatonic River faces a new legal challenge.
In February last year, the then-chair of the Lee Selectboard signed the agreement with the Environmental Protection Agency, General Electric and others to clean up contamination from the river, caused by GE, and dispose some of it in Lee. As part of the agreement, GE gave $63 million to Pittsfield and five towns near the river — of which $25 million went to Lee.
Lee Town Meeting Representative Bob Jones said the money doesn't make it OK.
"Not for $25 million or any other amount do we want a toxic waste dump in our town and particularly in a neighborhood," Jones said. "We don't want it in Lee and we don't want it in Berkshire County."
Jones is one of the residents who filed a complaint Tuesday in Berkshire Superior Court challenging the lack of public input in the deal. Judith Knight, another Lee resident, is the plaintiffs’ attorney.
"The goal of the lawsuit is to ultimately have the contract, that we believe that the Lee Selectboard signed illegally, rescinded," Knight said. "But to start that process, the lawsuit is going to begin by filing suit on an open meeting law violation."
The office of Massachusetts Attorney General Maura Healey has already weighed in. Last spring, three town residents, including one of the plaintiffs, Clare Lahey, filed complaints about the closed Selectboard meeting.
Healey's office said that meeting behind closed doors is not against the law if an open meeting would hurt the "litigating position" of the Selectboard. It decided the Lee Selectboard "was not required to ratify the settlement in open session."
The complaint filed this week asks the court to review the attorney general's determination. And it argues that under the state's open meeting law, the Selectboard did not have a legitimate reason to go behind closed doors, because — Knight claims — the cleanup agreement was already negotiated.
"There's no way in the world this thing hadn't been worked out weeks in advance," Knight said. "They could no longer have been discussing strategy and positioning at that point. So there was no reason to go into closed session."
Thomas Wickham sees it differently. He was chair of the Selectboard when it met in executive session.
"I think we did exactly right. We've been backed up by the attorney general of Massachusetts," Wickham said in an interview before the lawsuit was filed. "So everything by the book, by the book. I made sure of that."
Wickham said the cleanup is the best thing for the town and what he describes as a "highly toxic" river, where he used to play hockey as a kid.
"My mother used to tell me, 'Don't eat the snow. Don't eat the snow around the river,'" he said.
Wickham also points out the EPA said the disposal site will be safe. The agency said it will hold only waste with lower levels of PCBs, on average, but will be engineered to be as protective as sites with the highest concentrations.
"They're going to double-line it. They are going to monitor it. It is to be the most well-built low-level facility in the country," Wickham said.
David Consolati, a former Selectboard member who was also named in the complaint, said he voted for the disposal site because he was advised that it was the town's best option, even though he doesn't want it.
"I don't want a dump in my town," he said. "As far as I'm concerned, they can leave it in the damn river, but that's not what I can do. I have to base what I have to say and do on what's in front of me. And this is what's in front of me."
Even so, Town Meeting Representative Bob Jones said the Selectboard should have given the people of Lee the chance to weigh in.
"All of a sudden they just may make a unilateral decision to put a dump in a town of 6,000 people," Jones said. "There's something wrong with that. How can that be legal? How can that be right? How can this be foisted upon a citizenry that had no say in it whatsoever?"
Knight said, in this case, the onus is on the defendants to show they didn't violate the open meeting law and why. She said they have 20 days to respond to the complaint after they're served. Knight said she doesn't expect to have a hearing on the case until June or July.
Meanwhile, a separate effort looking to block the cleanup agreement continues. Earlier this month, a pair of environmental groups filed an appeal with the EPA's Environmental Appeals Board. A decision on that is due in about the next month.
This story is a production on New England News Collaborative. It was first published by New England Public Media on March 25, 2020.
This segment aired on March 26, 2021.