Federal appeals court rejects General Electric’s constitutional challenge to Superfund law

Appeals court rejects GE’s Superfund challenge

ALBANY, N.Y. — A federal appeals court on Tuesday rejected General Electric Co.’s claim that the Environmental Protection Agency’s unilateral authority to order pollution cleanups under the Superfund law is unconstitutional.

GE sued in 2000, just before the EPA determined the company was responsible for cleanup of 200 miles of the Hudson River from Manhattan northward and that it should dredge PCB-contaminated sediments along a 40-mile stretch of the Hudson north of Albany.

GE claimed the Superfund law violated its due-process rights under the Constitution because it gives no opportunity to contest cleanup orders before they’re issued.

On Tuesday, the U.S. Court of Appeals for the District of Columbia Circuit ruled unanimously that the Superfund law satisfies due-process requirements because a company can refuse to comply with a cleanup order and force the EPA to sue in court.

“GE is reviewing the court’s opinion and reviewing its options,” company spokesman Mark Behan said. He said the case was not brought as a challenge to the Hudson River dredging project and will have no effect on the work there.

“It was a challenge to one provision of the Superfund law, which raises questions about fairness,” Behan said. “It denies companies or individuals the right to go to court to challenge an order from the government that would require the expenditure of potentially millions of dollars.”

When the EPA determines that a cleanup is necessary, it has four options: negotiate a settlement with the responsible party; do the cleanup and then sue for reimbursement; file an abatement action in federal court to compel the company to do the cleanup; or issue a “unilateral administrative order” forcing the company to do the cleanup. The last option was the focus of the GE lawsuit.

GE has received at least 68 unilateral administrative orders over the years, according to the court, and is currently involved in 79 cleanup actions where such orders may be issued, including the Hudson River Superfund site. While the EPA hasn’t issued GE a unilateral administrative order for the Hudson River, it has reserved the right to do so.

GE performed the first phase of the Hudson River dredging project north of Albany last year, estimating that it has spent $561 million on the project. The company and the EPA disagree on how to proceed with the next phase. A panel of scientists will make recommendations for the next phase this summer.

“This ruling removes any doubt that EPA can require GE to finish the job of cleaning up the Hudson, and the same goes for all Superfund polluters across the country,” said Lawrence Levine, an attorney for the Natural Resources Defense Council, which filed a legal brief in support of the EPA in the case.

“Because the suit was pending for so long, it cast a cloud over what could be done at Superfund sites nationwide, but today’s ruling makes it clear that EPA has this authority,” Levine said.