The last significant legal obstacle to the Hudson River dredging project was hurdled Thursday when a federal appeals court ruled that the agreement between General Electric Co. and the federal Environmental Protection Agency for the PCB cleanup is fully legal.
The affirmation by the U.S. Court of Appeals for the 2nd Circuit of the 2006 consent decree between GE and the EPA, which had been challenged by the town of Fort Edward, means the environmental dredging of the upper Hudson River may now proceed, according to one EPA official.
“If the town had won [the legal challenge] that would have delayed it,” said Alan Steinberg, the administrator of EPA’s Region II, during a telephone conversation from his New York City office.
Steinberg said he sees no other major obstacles that will cause a delay in the 2008 completion of the multimillion-dollar sludge processing and transportation facility and the scheduled start of dredging in 2009.
“We have felt all along that the EPA’s actions and decisions on the Hudson dredging project were in accordance with the law,” Steinberg said.
The town’s newly elected supervisor, Mitch Suprenant Jr., said that the town will not appeal the consent decree decision. “The case is closed,” the new supervisor said.
He also said the town will stop any further action toward taking the 100-acre site through eminent domain, which was an initiative of former Supervisor Merrilynn Pulver, whom Suprenant defeated in November.
The estimated $700 million dredging project — to remove 2.65 million cubic yards of PCB-contaminated river sediment between Fort Edward and Troy — is scheduled to start in the spring of 2009.
The town of Fort Edward had challenged the 2006 agreement in federal court, saying it was illegal and arguing that the town should have been allowed to have jurisdiction over the 100-acre river sludge processing and dewatering facility in Fort Edward.
The town said the PCB sludge-processing and transportation facility, which is currently under construction, was not contiguous to the actual river cleanup site and not governed by the federal laws exempting such cleanup sites from local jurisdiction.
The federal appeals court disagreed with the town.
“The 1.4 miles separating the facility from the contaminated area, viewed within the totality of circumstances, including the adjacent canal [Champlain Barge Canal] that affords easy access to the contaminated river, is a sufficiently minimal distance to preclude us from identifying legal error in EPA’s or the district court’s challenged assessments of the facility’s compliance with the regulatory requirement,” states the decision made by three federal circuit judges on Thursday in Manhattan.
Steinberg said that when he toured the 100-acre processing and dewatering site being built along the banks of the Champlain Canal in October, it “was a breathtaking moment” for “one of the most significant river remediations in U.S. history.
“We are pleased by this ruling and look forward to continued progress on the cleanup of the Hudson River,” Steinberg said.
Mark Schachner, the attorney who represented Fort Edward in the appeal, said the former Town Board members who hired him were “disappointed” with the court’s decision “to allow the EPA to stretch the law” to accommodate its desires.
However, Schachner said, after Dec. 31, 2007, he no longer represents the town. Suprenant appointed a new town attorney, Robert M. Winn of Fort Edward.
Mark L. Behan, a GE spokesman, said the company continues to move ahead on the construction of the processing and dewatering facility. He said the company will continue to work with the town.
The EPA ruled in 2002 that GE should pay for the PCB cleanup project. GE capacitor plants in Fort Edward and Hudson Falls discharged an estimated 1.3 million pounds of PCBs into the Hudson for 30 years, ending in 1977 when the practice was banned by the government.
PCBs, polychlorinated biphenyls, are described by the EPA has a probable carcinogen that also cause other health problems in humans and wildlife.
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