Friday, March 05, 2004
By Devlin Barrett, Associated Press
WASHINGTON — 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 this week,
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 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.
Source: Associated Press
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