GE Challenges Superfund Law

Brook Raflo

Facing hundreds of millions of dollars in cleanup costs at three contaminated sites, including a 40-mile stretch of the Hudson River, General Electric Co. (GE), Fairfield, Conn., is hoping to block the U.S. Environmental Protection Agency's power to issue "unilateral" cleanup orders.

To this end, GE has asked the U.S. District Court of Washington, D.C., to declare one provision of the 1980 Superfund toxic waste cleanup law unconstitutional.

"Our lawsuit challenges a provision of Superfund which gives the EPA unlimited authority to order massive, long-term remediation projects in non-emergency situations, without any opportunity for the party that receives the order to have it reviewed by an impartial court," GE Spokesman Mark Behan says.

Also known as "106 Authority," the disputed provision allows the EPA, Washington, D.C., to bypass the courts - at least initially - by issuing a "unilateral administrative order" that requires potentially responsible parties to clean contaminated sites immediately, or risk significant penalties.

In its complaint, GE argues that by denying defendants the right to contest such unilateral orders, the 106 Authority violates the Due Process Clause of the Fifth Amendment of the U.S. Constitution.

Not so, says an EPA spokesman who asked not to be identified. Parties forced to comply with a unilateral order may challenge that order in court after cleanup is completed, he says. And, if the court finds that the EPA has accused the wrong party, the agency faces significant fines.

Such potential fines deter the agency from issuing cleanup orders without researching the responsible parties extensively, the spokesman adds.

But GE's constitutional challenge to Authority 106 does not end with the Due Process Clause. The company also charges that Authority 106 delegates Congress' legislative powers to the Executive branch, blurring the separation of powers described in Article I of the U.S. Constitution.

"This system of unfettered coercion by Executive fiat is precisely the evil that the constitutional system of separated powers is intended to prevent," GE's complaint says.

Yet despite the company's claims, EPA officials are confident the agency will prevail in this case.

"On December 11, the Superfund statute celebrated its 20th anniversary," an EPA spokesman says. "There is not a word in the statute that has not been litigated. Our goal is to get sites cleaned up and protect taxpayers' dollars," he continues, noting that a speedy cleanup often is in taxpayers' best interest.

"Seventy percent of site cleanups are done by responsible parties," the spokesman adds. And, unilateral orders help to ensure that responsible parties will pay for remediation, he explains.

Since 1980, the Superfund program has targeted more than 1,500 sites for cleanup, including hundreds of landfills that don't meet the strict environmental standards of Congress' Subtitle D. In many of the landfill cases, the EPA has issued unilateral orders to ensure cleanup.

Members of the waste industry, such as Houston-based Waste Management Inc., have paid millions of dollars to clean Superfund sites.

"The way the EPA has it is terrible," says Dick Clark, founder and president of waste hauling company Clark Inc., Westchester, Ohio. "A small hauler can be identified and made to do the major part of the cleanup - even if he didn't bring in anything hazardous."

"It could cost thousands of dollars for a small hauler to prove his innocence," Clark says. "[The EPA] doesn't want to find the guilty party," he adds. "They just want to find the person they can get their money from."

GE's complaint takes this argument one step further, saying that the Superfund statute deprives the company of its most basic rights guaranteed under the Constitution.

"Although GE is not here challenging any specific order," the complaint says, "GE will continue to be deprived of its liberty and property by reason of being forced to comply with these provisions."

Meanwhile, the EPA is moving ahead with its Hudson River cleanup efforts. A final decision on GE's cleanup responsibilities at the site is expected in June or July 2001 - likely too soon for a ruling on unilateral orders, some lawyers say.

However, the EPA does not wish to issue a unilateral order in the Hudson case, according to an agency spokesman.

"It is not our hope to order GE [to clean the Hudson], but rather to work out a cleanup agreement with them," he says.

Recycled Haven On a 23-acre plot of land in the mountains of northern Georgia, overlooking a 24,000-acre wilderness, sits a family's dream house. What's remarkable about this home, however, is that it's made entirely from recycled materials.

Building one of the first energy-independent homes in the state, Atlanta residents Erica Frank and Randall White originally had doubts that such a home would work without propane backup. But with the help of San Francisco eco-architect Maria McVarish and Murphy, N.C.-based engineer Brian Kodra, the family designed a system that uses only 10 percent of the water from a small nearby stream to generate enough energy for the entire house.

To furnish the house, Frank and White spent a lot of time searching the Internet and consulting with eco-building experts. They sought the right recycled material for each detail of the house, such as soy-and-recycled-newsprint for the granite-like kitchen cabinetry, recycled milk jugs for the deck, titanium mined near Savannah, Ga., for the sheet rock walls and waste product glass for the front door sidelight. The chestnut cabinets were reclaimed from old warehouses and salvaged from construction and demolition (C&D) materials, and Frank made the light fixtures herself using scrap metal.

Admittedly, building this house cost the family more than building a traditional mountain home. But Frank says that recycled materials are not necessarily more expensive than virgin materials. The blocks made from salvaged, pulverized cement, for example, were less expensive than virgin materials, she says.

In total, the house measures 1,700 square feet, yet its footprint is 700 square feet.

"Given the number of people who don't even have one house, [we thought] it was self-indulgent to build a big house with a big environmental footprint," Frank explains. "I can't tell you what a joy it is to sit in a house with a much smaller negative effect on the planet than a regular house."