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US: Court Revives GE Challenge of Superfund Law

by Devlin BarrettAssociated Press
March 4th, 2004

WASHINGTON (AP) --A federal appeals court has revived a lawsuit challenging the constitutionality of the 1980 Superfund law that allows the government to assess polluters for cleaning up toxic waste sites.

The unanimous decision by a three-judge panel of the U.S. Court of Appeals directs a lower court judge to reopen General Electric Co.'s suit against the Environmental Protection Agency arising out of a planned $500 million cleanup of the upper Hudson River.

U.S. District Court Judge John D. Bates wrongly dismissed the suit a year ago when he ruled GE didn't have standing to bring it until after EPA issued a cleanup order requiring the company to pay the entire cost of removing carcinogenic PCBs it had dumped into the river since the mid-1940s, the panel said.

Environmental groups decried the ruling released late Wednesday, fearing it could set a precedent that would allow other toxic polluters to stall cleanups. The 1980 law provides that companies proven to have dumped toxic chemicals have to pay to clean them up.

Katherine Kennedy of the Natural Resources Defense Council said lawsuits like GE's can "slow down the process by the inherent threat, by saying they're cooperating in New York at the same time they're pressing this legal claim in Washington."

The EPA has issued more than 1,000 such orders since the Superfund program was created. GE filed a suit challenging the constitutionality of the Superfund law in November 2000, just before the EPA announced a preliminary plan for dredging PCB-contaminated pockets along the upper Hudson River.

The lawsuit claimed the Superfund statute violates due process rights by giving regulators unchecked authority to order costly, intrusive cleanups with no chance at a timely review by the courts.

In its 12-page ruling, the three-judge panel took note of the government's claim that a GE victory in the case "would have the effect of interfering with EPA's ability to issue orders and enforce clean-up operations."

"These concerns cannot lightly be dismissed given the nature of the hazards to health and the environment addressed (by the law)," the panel said. But it said an early court decision on GE's claim would likely remove the possibility of a similar legal delay later.

EPA spokeswoman Bonnie Bellows on Thursday cited the failure of previous legal challenges to the Superfund law.

"At this point, we are proceeding with our enforcement powers under the existing law and we're also optimistic that the court will uphold the constitutionality of Superfund," said Bellows.

Kennedy said she was confident the EPA would ultimately win the case, and that such a victory would then dissuade other companies from using the courts to delay or deter enforcement.

GE spokesman Mark Behan said the company should be allowed to dispute an EPA Superfund decision early in the bureaucratic process, before it has shelled out millions of dollars.

"Just as every person in America faced with a government order has the right to appeal to an impartial judge, a company faced with an order from the Environmental Protection Agency to undertake a project of unlimited scope and duration has the right to a timely hearing in front of an impartial judge," Behan said.

GE negotiated two agreements with the EPA in 2002 for designing the PCB-dredging project. The company is currently negotiating a third, final agreement on the cleanup itself.

Behan said GE already has already spent about $70 million on planning the dredging operation.

More than a million pounds of PCBs, or polychlorinated biphenyls, were released by two General Electric plants into the river between 1946 and 1977, the year the federal government banned chemical compound as a probable carcinogen. A 197-mile stretch of the river has been declared a Superfund site.

The appeals court decision was written by Judges Douglas Ginsburg, Judith Rogers and David Tatel. Ginsburg was appointed to the court by President Ronald Reagan. Rogers and Tatel were appointed by President Bill Clinton.

In trading, GE shares were up 5 cents to close at $32.90 on the New York Stock Exchange.



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