GE Wants Superfund Declared Unconstitutional
By H. Josef Hebert, Associated
The General Electric Co., confronting hundreds of
millions of dollars in cleanup costs for hazardous chemical spills,
asked a federal court Tuesday to declare the Superfund toxic waste
cleanup law unconstitutional.
In a lawsuit filed in U.S. District Court, the
company argued that the law gives federal regulators
"uncontrolled authority" to order "intrusive"
cleanup remedies "of unlimited scope."
This, along with a failure to provide timely
judicial review, amounts to an unconstitutional violation of due
process, the lawsuit contends.
The law is "flatly unconstitutional on its
face," said Laurence Tribe, the Harvard University constitutional
law expert, who is among the lawyers representing General Electric in
the suit filed against the Environmental Protection Agency.
While the suit does not seek redress on specific
Superfund claims, it comes only weeks before the EPA is expected to
announce a preliminary proposal to clean up PCB-laced sediment in the
The PCBs, or polychlorinated biphenyls, were
released into the river between 1946 and 1977 by two General Electric
plants on the upper Hudson River and now are buried in sediment. As a
result, a 197-mile section of the river has been officially declared a
Superfund site because of the contamination.
The EPA is widely expected to order General
Electric to dredge about 35 miles of the river just north of Albany,
N.Y., where most of the PCBs have settled.
General Electric, which already has spent $160
million on studies and shore cleanup, has argued for years that the
sediment poses no health threat because the PCBs are buried. But
environmentalists contend the PCBs contaminate fish and pose a health
threat to those who eat fish caught in the waters.
A large-scale dredging project could cost as much
as $1 billion, according to some estimates.
Noting the pending action on the Hudson River case, EPA
spokesman David Cohen called the timing of the lawsuit
"They're questioning a law that has been
used for over numerous years in countless cases successfully to remove
toxic wastes and threats to the health of the American people. It has
never once been challenged on constitutional grounds," said
Mark Behan, a spokesman for General Electric,
said the suit "is not about any individual matter" but
acknowledged – as does the legal brief filed by the company - that
General Electric is involved in a number of potentially expensive
In addition to the Hudson River cleanup, General
Electric also is involved in Superfund projects at a former factories
in Hoboken, N.J. and Milford, N.H. All three sites are cited in the
The 1980 Superfund law has come under broad attack over the years as critics charge that its provisions have spawned more litigation than cleanup. Enacted by Congress after the Love Canal toxic waste scandal in the 1970s, the law requires anyone responsible for past toxic waste contamination to clean up the contamination, even if the polluter no longer operates or owns the site.
Tribe, the attorney for GE, said the Superfund
law has "an Alice-in-Wonderland regime of punishment" that,
even in non-emergency cases, "gives the EPA the power to skew the
evidence, ignore other points of view and order action without any