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American Enterprise Institute

November 28, 2000

GE Wants Superfund Declared Unconstitutional

By H. Josef Hebert, Associated Press Writer 

 

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 Hudson River. 

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 "exceedingly curious." 

"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 Cohen. 

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 Superfund cases. 

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 lawsuit. 

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 independent review."