GE, government entities in court over PCBs

PHOTOGRAPHER: Stephen Williams

Attorneys for the town of Halfmoon, Saratoga County and the county Water Authority will face off against General Electric Co. attorneys today in federal court in Utica.

U.S. District Court Judge David N. Hurd has scheduled most of the day to hear oral arguments in a 5-year-old lawsuit in which the government entities seek millions of dollars in damages stemming from GE’s PCB contamination of the Hudson River.

The sides have been filing motions and deposing potential trial witnesses for the last few years. In the hearings being held today, each side seeks a pretrial judicial ruling in its favor on some of the motions made in the case.

Hurd said he will also hear arguments on the objections to the various experts each side has retained to testify, should the case go to trial.

The town of Halfmoon is seeking to collect up to $25 million in damages for being unable to use the Hudson as a drinking source since a PCB dredging project started in 2009. The fear before the project started was that PCBs roiled up by the dredging would make the water unsafe to drink. Aside from a few spikes in PCB levels, tests have shown that the water generally has remained safe to drink, however.

“The evidence establishes that GE understood the potential impacts of PCBs on the environment well before 1975 and 1976, when it finally stopped the direct discharges of PCBs,” wrote David Engel, an attorney representing Halfmoon.

GE, in a response, seeks to block evidence requests it calls “vague,” and said it had no knowledge of environmental harm from PCBs before it received a letter from their manufacturer, Monsanto, in 1970.

GE also seeks to prevent Halfmoon from arguing for “replacement-cost” damages, saying the town waited too long before raising the “replacement cost theory.”

“GE has been severely prejudiced by Halfmoon’s failure to disclose its replacement-cost theory and computation of damages during the fact discovery period,” wrote William J. Bachman, an attorney with Williams & Connolly, the Washington, D.C., law firm representing GE.

The Water Authority, whose separate lawsuit has been combined with the Halfmoon case, contends that having to develop a water source upstream of the PCB contamination added $27 million to the cost of development to a county water system whose primary customers are in central and southern Saratoga County.

The authority argues it is entitled to a ruling in its favor under the federal Superfund cleanup law.

“Plaintiffs’ response to the threatened release of PCBs during dredging was to incur additional millions of dollars in public funds to construct over 20 miles of otherwise unneeded transmission main to access public waters upstream of the pollution created by defendant GE,” Water Authority attorney Donald W. Boyajian wrote in one of the motions to be argued.

GE, however, contends in a written reply that “the issues surrounding environmental contamination and PCBs at the time GE used them are very different than Saratoga’s representation of them.”

The company also argues that the statute of limitations for some of the claimed damages has expired.

The lawsuit originally included other plaintiffs, but GE last March reached a $7.95 million settlement with three Saratoga County communities that contended their water-supply costs rose because of the PCB dredging project — the village and town of Stillwater and the town of Waterford.

The communities sued in 2009 for compensation for the costs of making other water arrangements during the dredging project.

GE is paying more than $1 billion for the dredging, which is being done under the supervision of the U.S. Environmental Protection Agency and is expected to conclude in 2015. This year’s dredging concluded in November, though some replacement of fill continued until this past weekend, said EPA spokeswoman Larisa Romanowski.

The PCBs — polychlorinated biphenyls, which are a suspected carcinogen — were discharged from GE plants in Hudson Falls and Fort Edward between 1946 and 1977. The EPA ordered the dredging in 2002, largely over the objections of local communities like those that drew water from the river and feared dredging would cause PCB levels to spike. Those fears have largely proved unfounded.