Judge Rules New York's Hudson River Pollution Case Meritless

By Cat Lazaroff

ALBANY, New York, September 26, 2000 (ENS) - New York state’s attorney general has lost the latest round of a battle to force General Electric to pay the costs of decades of pollution in the Hudson River. A court decision filed earlier this month dismissed the state’s suit seeking economic damages, but left the door open for similar suits in the future.

hudson

Parts of the Hudson River are heavily contaminated with PCBs from GE plants (Three photos courtesy GE)
In November 1999, hoping to break a decade long stalemate that has delayed cleanup of the Hudson river, the state’s filed its first lawsuit against General Electric, targeting economic damages caused by pollution from the company’s plants, rather than health and environmental problems.

The suit, filed by New York Attorney General Eliot Spitzer, charged that polychlorinated biphenyl (PCB) contamination is preventing the river from reaching its full potential as a commercial and recreational waterway, and is restricting economic development in certain areas of the state.

Polychlorinated biphenyls (PCBs) are a group of manufactured organic chemicals that contain 209 individual chlorinated chemicals. PCBs have been used widely as coolants and lubricants in transformers, capacitors, and other electrical equipment. The manufacture of PCBs stopped in the United States in 1977 because of evidence that they build up in the environment and cause harmful effects.

New York's lawsuit against General Electric centered on the idea that New York is unable to dredge key sites in the Hudson that are at or near what the state calls "hot spots" where PCB contamination is most acute. Spitzer argued that the costs of removing and disposing of the contaminated sediments would make dredging at those sites up to 10 times more expensive than normal.

remediation

A network of 239 recovery and monitoring wells has been installed around GE’s plants to monitor PCBs in the groundwater, prevent movement of PCBs to the river and recover PCB oils from the bedrock
But state Justice Stephen Ferradino called the suit, which sought more than $10 million in damages, "meritless."

"The most telling fact before the court is that no dredging has occurred, and no permits issued," Ferradino wrote in a decision dated September 14 but released Monday. "In fact, with the need for obtaining several permits and approvals from a variety of agencies as a precondition for dredging, the process may never occur."

Ferradino’s ruling did not undercut the basis for the novel suit, whichaimed to set a legal precedent establishing a clear link between General Electric (GE) and its responsibility to pay for the harm caused by PCB contamination.

In fact, Ferradino dismissed GE’s argument that the statute of limitations for legal claims regarding the PCB pollution had expired.

In a narrow ruling, Ferradino said he could not order GE to perform the dredging in the river, as requested by Spitzer’s suit, because the U.S. Environmental Protection Agency (EPA) has not yet determined the best approach to cleaning up PCB pollution in the upper Hudson River.

drill rig

With the help of a helicopter, GE contractors install a 5,000 pound drill rig on the riverbed near Bakers Falls
"GE would be under court order to do what it could not do," wrote Ferradino. "The court will not put the defendant in such an untenable position."

The EPA is expected to issue a final cleanup decision by the end of this year.

Spitzer says Ferradino’s decision is just a setback, and the other lawsuits seeking economic damages will likely be filed.

"I view this decision as an affirmation that the underlying legal theory works," said Spitzer said. "This is sound environmental litigation that is part of the overall agenda to clean up the Hudson."

Spitzer said municipalities throughout the region and downstream could advance suits to recoup their increased dredging costs. Private facilities such as marinas and riverfront businesses could do so as well, he said.

spitzer

New York Attorney General Eliot Spitzer (Photo courtesy Office of the Attorney General)
"Once we establish this legal theory, GE could be opened up to vast damages, payable to communities up and down the river that have been impaired because of the PCBs in the Hudson," said Spitzer. Lost commerce and jobs are some of the economic problems caused by the inability to dredge, he said.

GE estimates that its Hudson River plants discharged about one million pounds of PCBs into the river between the 1940s and 1977, when use of the chemicals was banned. PCBs were used by GE to manufacturer insulators for electrical equipment.

Those discharges were legal under the company’s state and federal permits, but Spitzer said the actual figure exceeds 100 million pounds.