GE Wants Help to Clean Hudson of PCBs

     ALBANY, N.Y. (CN) – General Electric asked a federal judge to order an upstate utility to help foot the bill for cleaning the Hudson River of massive contamination with PCBs.
     GE has been dredging polychlorinated biphenyls from the river since 2009. In its federal complaint, it claims that defendant Niagara Mohawk Power Corp. dba National Grid spread the pollution when it removed a 19th-century dam and let loose a torrent of silt and sludge containing “a significant quantity of PCBs that had previously been trapped in the pool behind the dam.”
     PCBs once were widely used as a coolant in transformers, capacitors and electric motors, but now are a suspected carcinogen.
     “Plaintiff GE has contacted defendant NiMo regarding its contribution to the presence of hazardous substances at the site and has sought defendant’s cooperation in and contribution to the dredging project,” the complaint states. “Defendant has refused to cooperate with, pay for, or contribute in any way to the dredging project.”
     The U.S. Environmental Protection Agency declared 200 miles of the Hudson River north of New York City a Superfund site in 1984. In 2002 it ordered that thousands of pounds of PCBs be removed from the riverbed in a 40-mile area between Glens Falls and Troy.
     GE operated two capacitor-manufacturing plants near Glens Falls, in the villages of Hudson Falls and Fort Edward, and obtained a federal permit to release PCBs into the river in 1975. That authorization was later converted to a state permit, and GE stopped using the chemical at the plants in 1977.
     In 1979, the EPA banned the manufacture of PCBs and began phasing out their industrial use.
     GE and the EPA started working in 2002 on a long-term plan to remediate the Hudson by dredging 2.65 million cubic yards of contaminated sediment to remove some 150,000 pounds of PCBs. According to the EPA, the estimated cost of the project is $500 million.
     Dredging began in 2009, then took a year off for evaluation and study. It resumed in 2011 and follows a round-the-clock schedule from about May to November. The project is expected to be completed in 2017 or 2018.
     GE seeks to recover past and future costs for the work by having NiMo declared liable for its “equitable share” under the Superfund law, or CERCLA: the Comprehensive Environmental Response, Compensation and Liability Act of 1980.
     NiMo, a longtime upstate utility acquired by London-based National Grid in 2002, serves about 3.5 million gas and electricity customers in New York, Massachusetts, Rhode Island and New Hampshire.
     According to the complaint, NiMo took ownership of the Fort Edward Dam, south of GE’s Hudson Falls and Fort Edward plants, in 1953. It intended to reconstruct the dam, which was built in the early 1800s, but engineering studies deemed that too expensive.
     In the early 1970s, the utility sought state and federal permission to remove the dam, and promised to eliminate silt and sludge deposits in pools above the structure. NiMo said it anticipated no environmental impacts from the dam’s removal, according to the complaint.
     But except for about 200 cubic yards of sludge immediately behind the dam, NiMo failed to eliminate most of the silt and sediment that had accumulated in the upstream pool, the complaint states.
     “As later events made obvious, NiMo, in its permit application to remove the dam, significantly underestimated the amount and composition of silt and sludge that remained in the pool behind the dam and that was available to and in fact would be released into the Hudson River as a result of the dam removal.”
     When the dam came down in 1973, more than 1 million cubic yards of sediment – “far more than NiMo estimated” – was released, according to the complaint. The material contained PCBs formerly trapped behind the dam.
     In the early 1980s, the EPA told both GE and NiMo that they were potentially responsible parties under the Superfund law for remediation of the river. The EPA cited the dam’s removal in the formation of PCB “hot spots” downstream.
     The United States sued GE under the Superfund law in 2005; a consent decree committed GE to beginning the Hudson dredging project in 2009.
     “As a result of NiMo’s actions and omissions in the removal of the dam in 1973, the extent and expense of the remediation ordered by EPA and being conducted by plaintiff GE is significantly greater than it otherwise would have been,” the complaint states.
     GE and NiMo have signed several tolling agreements on recovery of dredging costs since 2009, according to the complaint. The last one tolled the statute of limitations to March 29 of this year.
     Since the companies “have been unable to determine an agreeable allocation of the costs of and responsibility for the dredging project,” GE says, it seeks declaratory relief.
     It also seeks prejudgment interest on all response costs incurred in connection with the project, and attorneys’ fees.
     GE is represented by Joseph Petrosinelli, with Williams & Connolly in Washington.

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