SUPERFUND:

Court rebuffs GE on federal cleanup authority

A federal appeals court today dealt a significant blow to General Electric Co.'s decadelong fight against a provision of Superfund law giving U.S. EPA authority to order companies to pay for cleanup of hazardous waste sites.

GE has long argued that EPA's tool for forcing responsible parties to pay for restoring Superfund sites, known as unilateral administrative orders (UAOs), violated its right to due process by depriving the company of a chance to dispute the agency's findings.

But the U.S. Circuit Court of Appeals for the District of Columbia disagreed, siding with the Obama administration in upholding an earlier federal court ruling that affirmed EPA Superfund authority.

In his opinion, Judge David Tatel wrote that the cleanup order concept "satisfies due process because UAO recipients may obtain a pre-deprivation hearing by refusing to comply and forcing EPA to sue in federal court."

Another claim by GE that UAOs -- at least 68 of which have been issued to the company, according to the court -- pose an immediate threat to companies' stock price and ability to pay for Superfund cleanups was also rejected by the court.

"[S]uch 'consequential' injuries -- injuries resulting not from EPA's issuance of the UAO, but from market reactions to it -- are insufficient to merit Due Process Clause protection," Tatel wrote.

GE first filed a constitutional challenge to EPA's Superfund powers in 2000, as it battled with the Clinton administration over its liability for removing hundreds of thousands of pounds of carcinogenic polychlorinated biphenyls from the Hudson River in upstate New York. A deal inked two years later by the company and the agency set guidelines for dredging the chemicals, but EPA reserved the right to use UAOs to compel GE's participation if the company balked.

Environmental groups have depicted GE's constitutional case against the 1980 Superfund law as a bellwether for the future of the Hudson River Superfund cleanup (Greenwire, May 13). Underscoring the broad set of interests in EPA's future authorities, the U.S. Chamber of Commerce and National Association of Manufacturers filed briefs in support of GE's suit, while the Natural Resources Defense Council (NRDC) joined in support of EPA.

The company could yet ask the Supreme Court to hear its lawsuit, but NRDC attorney Larry Levine said the lack of a split between district and appeals courts made such a prospect unlikely.

"This puts to rest the most serious and longest-running challenge to EPA's authority on this in a pretty conclusive way," Levine said, adding that the agency's future ability to issue UAOs "is in the back of people's minds in other cases, as well."

EPA did not respond to a request for comment on the decision by publication time. Its activity on Superfund has heated up in recent days, with agency chief Lisa Jackson formally urging Congress to restore the "polluter pays" tax on the oil and chemical industries that helped pay for cleanups before its expiration in 1995 (E&ENews PM, June 21).