- WEB EXCLUSIVE
- PE COFFEEHAUS
The decision in the case of General Electric Company v. Jackson again bolsters the agency's right to order cleanups under the Superfund program. At issue was whether the EPA violates due process when it denies a hearing and other procedural safeguards before issuing an order requiring remediation of a hazardous waste site.
According to court documents, GE originally filed a lawsuit in 2000 after it was ordered by the EPA to dredge soil from the Hudson River that had been contaminated with polychlorinated biphenyls (PCBs) discharged over the course of many years by a GE plant. The cost of the cleanup at that time was estimated at $460 billion. Estimates today are considerably higher.
In a report issued this week, Business & Legal reports noted that in 2003, the district court agreed with the EPA's motion to dismiss, ruling that Congress designed the Superfund law to give the executive department, through the EPA, extensive authority to enforce the cleanup provisions of the law.
CERCLA provisions, in most cases, prohibit courts from reviewing challenges to removal. However, the Appeals Court held that GE's suit could move forward because it is not challenging any particular action or order by the EPA, but rather it challenges the CERCLA statute itself. Congress, according to the court, did not intend to preclude a pre-enforcement review of constitutional challenges to CERCLA.