July/August 2001 – VOLUME 22 – NUMBER 7 & 8
The Case Against GE
Toxics on the Hudson:
The Saga of GE, PCBs and the Hudson River
By Charlie Cray
Back in 1976, Jack Welch negotiated a settlement with the state of New York, which limited the General Electric (GE)
corporation's responsibility for polluting the Hudson River to $3 million. Welch's hard-nosed negotiating style gained the attention of top executives, launching his meteoric rise to the top of the company.
GE executives probably hoped the deal would bury the issue forever, and that everyone concerned about the PCBs (polychlorinated biphenyls) lying on the bottom of the river would let nature take its course.
But persistent concerns about the PCB contamination have caused the Environmental Protection Agency to study the issue on a continuous basis since the site was listed on the nation's Superfund priority site list in the early 1980s.
Finally, on December 6, 2000, after 16 years of studies, proposals and more studies, EPA announced a 5-year plan to dredge 2.65 million cubic yards of PCB-contaminated sediment along a 40-mile stretch of the river below two old GE factories in Hudson Falls and Fort Edward. The proposed dredging project would remove 100,000 pounds of PCBs from various high-concentration hot spots.
"This river needs to be cleaned up. It will not clean itself," then-EPA administrator Carol Browner said at the press conference where the proposal was announced. "My strong desire would be that we not simply study this river to death, but we get on with actually cleaning this river."
The cost of EPA's proposal to GE: $460 million.
The high cost of the cleanup has led company officials to mount one of the biggest public relations campaigns ever waged around a toxic waste site.
"There's nothing tentative about GE's attack," says Andrew Hoffman, an assistant professor of management at the Boston University School of Management. "There's nothing they've left untouched in their full-bore attack that could help them avoid paying the half billion dollars to clean up the river."
But what's at stake is much more than whether or not GE will be forced to foot the bill to dredge the Hudson: the case is likely to be a litmus test of how aggressively the Bush administration manages EPA's Superfund program — which includes 77 other sites where GE is responsible for the cleanup.
Attention to GE's Hudson PCB mess could also bring out some additional skeletons in GE's closet. An investigation of factory locations around the United States where GE once used PCBs to make electrical equipment turns up a pattern of waste sites which continue to need remediation. Plus, one-time company policies to give away or sell PCB-contaminated oil and dirt for fill and other purposes spread the contamination directly into surrounding communities, creating a number of orphan waste sites, some of which have only recently been discovered. The full extent of GE's PCB contamination is most likely still unknown.
THE SOURCE OF THE PROBLEM
According to GE, cost is not what is at issue in the Hudson, but rather whether the EPA's cleanup plan will work at all.
"The issue here is should the river be cleaned up, and the answer is yes. We support that," says John Haggard, GE's Hudson River project manager. "In fact, we've been working over the last two decades actively to do just that. And we've been very successful. The question is not about doing nothing, it's about doing the right thing. And dredging is not it."
Instead of dredging, GE officials say they have focused their efforts on measures they claim address the source of the problem: the company has spent $200 million on a groundwater pump-and-treat system to reduce the flow of PCBs from the bedrock below its Hudson Falls facility from 5 pounds to 3 ounces a day. As a result of these efforts and the "river's natural recovery processes," GE officials say PCB levels in fish have dropped 90 percent since 1977.
GE used to claim that microorganisms were breaking down the PCBs released into the river, but the company now says they are buried and made inaccessible by newer sediments.
"Burial of the historic PCBs (by upstream sediments) puts them further and further from reach from the biota," says Edward LaPoint, another GE project manager. "They don't get into the food chain and up into the fish because they're buried beneath cleaner, fresher, uncontaminated sediments."
But wildlife scientists say the fish are still too contaminated, that the levels have not declined significantly in recent years, and that it will probably be decades before they are safe enough to eat, because PCBs left on the bottom of the river continue to enter the food chain.
"The data don't lie," says Marion Trieste, a consultant for environmental groups monitoring the Hudson. She points out that state environmental officials have also found high levels of PCBs in floodplain shoreline soils up to 50 feet outside the normal width of the river. The PCBs are entering the land-based food chain as a result. "They've found incredibly high levels of PCBs in the river otters and mink, which have not declined in 10 years," says Trieste. "That's an indication that the problem is spreading beyond the river — it means we have to clean the river to deal with the impacts on shore."
Last year, scientists working for the state Department of Environmental Conservation also found high levels in turtles taken from the river — as high as 3,091 parts per million (although no federal action level exists for turtles, the standard for fish is 2 ppm). "If we don't do anything, we're looking at another 25 years where they will still be high," says department wildlife pathologist Ward Stone.
EPA officials say each day the company delays the sediment cleanup only allows the contamination to spread further downstream. Monitors indicate that 500 pounds of PCBs fall over the dam at Troy (40 miles downstream from the two GE factories) each year. With the seepage from the bedrock below GE's old factories significantly reduced, cleanup advocates say the PCBs on the river bottom are now the source of the spreading contamination.
"One of the things that you hear [from GE] is that the river is cleaning itself," says Ann Rychlenski, a public affairs specialist with EPA. "From those mouths to God's ears, I wish it was true, but it's not. PCBs don't break down. They change from one kind of PCB to another, and they're all a problem. The river is not 'cleansing itself' of them."
DREDGING UP A SORDID HISTORY
Monsanto began making PCBs (polychlorinated biphenyls) in 1929. The oily compounds were considered useful because they are stable, fire resistant and do not conduct electricity. For more than 40 years, PCBs were widely used as an insulating agent in electrical equipment, including capacitors (devices to store electricity) manufactured by GE at its plants in upstate New York.
But the same qualities that made PCBs so useful — especially their stability — make them a persistent problem in the environment. A good number of the 78 U.S. Superfund sites where Ge is listed as a responsible party are contaminated with PCBs.
And PCBs are more than just a problem for communities living near toxic dumpsites. Because they are long-lived, semi-volatile and don't dissolve in water, PCBs can travel long distances (the 200-mile stretch of the Hudson River below GE's factories is considered the biggest Superfund site in the United States).
The potential impact doesn't stop at the tip of Manhattan. Because of their stability and ability to travel long distances, PCBs can migrate around the planet. PCBs are part of a global class of chemicals known to migrate from warmer regions to colder regions. Inuit people living in the Arctic thousands of miles from any industrial source carry some of the highest body burdens of PCBs on the planet. Because they are global pollutants, PCBs are included in a list of POPs (persistent organic pollutants) targeted for elimination by the United States and over 120 other countries in a recent treaty. [See "Taking on Toxics I: Stopping POPs," Multinational Monitor, January/February 2001] Thus PCBs from the Hudson can potentially have a global impact.
PCBs are also fat-soluble, which means that they concentrate as they move up the food chain. Animals at the top of the food chain — especially mammals like polar bears and dolphins — have dangerously high levels of the chemicals, which they lack the ability to detoxify. Humans, too, are contaminated. PCBs regularly make the list of chemicals found in human tissue surveys.
As early as the 1930s, GE executives knew about problems in workers exposed to PCBs. GE executives met with colleagues from Monsanto and other companies to share information on the "systemic effects" of PCBs and other chlorinated hydrocarbons, including chloracne, a disfiguring skin condition. In 1937, GE's F.R. Kaimer published an article in the Journal of Industrial Hygiene and Toxicology about 50 workers who were in "very bad condition as far as the acne was concerned."
While scientists have warned about PCBs' carcinogenicity since at least the 1970s, recent attention to PCBs' interference with endocrine systems during fetal development and other critical stages of growth have increased concern and caused many to criticize federal cleanup standards as too weak. Studies conducted in both the United States and the Netherlands have concluded that children exposed in the womb to high-end "background levels" of PCBs experience signs of diminished intelligence and greater susceptibility to infectious diseases than children with lower levels of exposure.
Between the 1940s and 1976, when the U.S. Congress outlawed PCB manufacture, sale and distribution (except in "totally enclosed" systems), GE discharged about 1.3 million pounds of PCBs into the Hudson River. The contamination ruined a once-thriving commercial fishing industry and devastated recreational fishing, which was only opened on a "catch and release" basis in the 40-mile long upper Hudson in 1996, after being closed for two decades.
This isn't the first time EPA has proposed to dredge the river. In the early 1980s, EPA was ready to proceed when a highly politicized Reagan Administration stalled the process. Ultimately, EPA selected a "no action alternative."
As required by law, EPA and other agencies started to re-examine the issue during the first Bush Administration. After many years of study — looking at the movement of PCB hotspots, levels in fish, human health risks and (through the National Academy of Sciences) various dredging technologies — the EPA finally issued its proposal in 2000.
GE SUPER FUNDS THE FIGHT
Federal law requires the EPA to consider local opinion before it issues a final Record of Decision (ROD) in Superfund cases, which it expects to do in the Hudson River case in August. While downriver residents from New York City and the Hudson River valley strongly support EPA's proposal, opposition has increased with time in upriver communities. Much credit for that can go to GE, which has applied Jack Welch's hard-charging management style to the issue, ramping up a sophisticated, proactive, multi-layered legal, political and public relations campaign to stop the dredging plan.
The most visible part of the campaign have been the millions of dollars GE has spent on television commercials (at least 16 separate ads have been produced for the company), a half-hour infomercial (for upstate networks), radio ads, full-page newspaper ads, billboards, bus signs, newsletters and web sites. The heaviest advertising blitz came just before the April 17 deadline for public comments expired.
GE has refused to disclose exactly how much it has paid to wage its anti-dredging campaign, but observers estimate that the company has spent as much as $60 million to defeat EPA's $460 million proposal. After a shareholder resolution calling on the company to disclose how much it had spent came up for a vote at the company's annual meeting in April, Jack Welch claimed that the company has spent between $10 million and $15 million.
Dredge supporters like the Poughkeepsie-based environmental group Scenic Hudson have nowhere near the financial clout to counter GE's assault over the airwaves. Nor can EPA spend taxpayers' money on infomercials.
"The reason GE is buying television time is crystal clear: they want to muddy the water about the cleanup and are willing to invest a few million dollars today in order to stop the EPA from forcing them to pay hundreds of millions tomorrow," says Jay Burgess of Scenic Hudson.
POISONING THE DEBATE
Dredge supporters say GE has poisoned the debate by distorting the facts, manipulating scientific evidence and, by sheer force of repetition, stirring up unnecessary fear in upriver communities.
"If you live along the river, it's going to be like having an offshore drilling rig in your backyard 24 hours a day," says Steve Ramsey, GE's vice president for corporate environmental programs, in the half-hour infomercial the company ran on upstate networks during the public comment period.
"That's just ridiculous," retorts Ann Rychlenski, EPA's project spokesperson. "This is limited, targeted dredging. Out of all the 40-mile stretch of the Upper Hudson River bottom that is contaminated, we are talking about dredging 13 percent, not ripping up the river bottom in its entirety, as GE would have people believe."
"EPA has willfully ignored its own finding in 1984 that a massive dredging program like the one proposed today would be devastating to the river ecosystem," Ramsey says.
The infomercial shows navigational clamshell dredges spilling out contaminated slurry, and trucks hauling sludge to toxic waste dumps (the implication being that EPA is also secretly planning to build a sludge dump nearby, which the agency denies).
EPA officials say the new proposal is different than the 1984 proposal. Impartial experts empanelled by the National Academy of Sciences report that dredging methods have improved considerably in the past 15 years, with the addition of real-time water quality monitoring, global positioning systems that help locate exact target coordinates, and the use of vacuum-like hydraulic dredges which contain the sediments in a suction tube as they are hauled up. Other engineering controls like sheet piling and silk curtains are routinely used to contain any spillage.
"In the 1984 decision, what we rejected was bank-to-bank dredging over the 40-mile stretch. That's not what we're proposing here, which is targeted dredging," says EPA's Rychlenski.
"It's interesting to me that the same company that has been touting the fact that the Hudson is coming back says nature can't replenish itself if you're taking on any kind of remedy. The fact is that this has been done elsewhere, and the biota comes back quickly."
Other government agencies responsible for monitoring the Hudson, including the U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration, also support EPA's dredging proposal.
THE BEST SCIENCE MONEY CAN BUY
Another flank of GE's strategy is to challenge the conventional wisdom that PCBs are all that toxic to begin with. "There is no credible evidence that PCBs cause cancer," GE wrote in a 1999 report, a line company officials including Jack Welch have repeated since.
Key to GE's claims is a company-sponsored study which concludes (like two previous studies sponsored by the company) that workers at its Fort Edward and Hudson Falls plants have not suffered from excess rates of cancer.
The epidemiological study has been roundly criticized by occupational health professionals and officials from the Agency for Toxic Substances and Disease Registry (ATSDR). They say the study suffers from exposure misclassification (by including individuals who worked at the plants but had little to no exposure to PCBs), failure to account for the latency period between exposure and appearance of cancer, and other biases. PCB levels were actually measured in only 200 of the over 7,000 people in the study. "Nevertheless, the study did find excesses in three of the six cancers of interest," the ATSDR officials noted in a published letter criticizing the study.
"It's noteworthy that the GE-funded study is the only one of the major occupational PCB exposure studies that did not find some statistically significant elevation of incidence of cancer," says Dr. David Carpenter of the Albany School of Public Health. "Every international group of experts that has been asked to look at the issue has concluded that they are proven to cause cancer in animals and are probable carcinogens in humans." Carpenter adds that there can be no absolute proof that PCBs (or any other chemical for that matter) cause cancer in humans because there's no way to control for other exposures.
"There's just no doubt that PCBs are carcinogenic in the mind of any independent scientist," Carpenter says. "It's only people with close ties to industries that have conflicts of interest that would make such preposterous claims. It's very akin to the smoking, cancer and tobacco industry story. To have a corporation like General Electric deny that animal research, including research done by their own laboratories proving PCBs cause cancer in rats, is relevant to whether PCBs cause cancer in humans is ludicrous. Our whole system of study of disease is based on animal research."
Although the company's position that PCBs don't cause cancer has little credibility within the scientific community, observers say it's the court of public opinion that really matters. And by repeating its position often — in ads and public meetings — GE has been able to sow the seeds of doubt.
"They want to cause public confusion, and make the argument appear to seem scientifically complicated, because they know that oftentimes the public will tune out as soon as it gets complicated," says Judith Enck, a policy advisor to New York Attorney General Eliot Spitzer. The study is also used to wear down third-party support for the cleanup. The claim that PCBs donÕt cause cancer was brought out in April when GE officials led by NBC president and GE Vice Chair Robert Wright met privately with New York City Council members to lobby against a council bill endorsing the dredging project. GE's Albany lobbyist, James McMahon, sat in on the meeting, along with his brother Thomas, the City Council's former finance director and a lobbyist with the Chamber of Commerce.
Although New York City remains supportive of the project, 60 upstate local municipalities have passed resolutions opposing EPA's plan because of its immediate impact on businesses and recreational uses of the waterway (at least 50 have passed resolutions supporting it). To generate the resolutions, GE representatives and public relations specialists have complemented their advertising and lobbying blitz with constituency-building appearances before school groups, civic associations and sportsmen's groups, where they have sought support for GE's position.
But cleanup supporters say town leaders in some communities like Schuylerville, which has taken a tough anti-dredging position, may have been influenced by handouts from GE. Schuylerville received $30,000 from GE to fix a bathhouse just three months after tests confirmed the presence of PCBs in a riverside park.
"I guarantee you we wouldn't have gotten that money if we had not said we were against dredging," says Wendy Lukas, a village trustee. GE officials say the payments are not unusual — the company donates an average of $14 million a year to schools, municipalities and nonprofits in New York communities ($9 million in the Albany region alone), regardless of their position on the dredging. The payments are just what an upstanding corporate citizen does in a state where it has thousands of employees, say company representatives.
INSIDE THE BELTWAY
U.S. EPA is expected to issue its final decision on the proposal to dredge the Hudson River in August. Although few will venture to guess how EPA will rule, many believe it is unlikely a Bush-era EPA will forcibly follow up on the Clinton EPA's recommendation to dredge the Hudson. "I think they're paralyzed right now," Hugh Kaufman, an EPA hazardous waste specialist and internal watchdog says of the agency.
As governor of New Jersey, now-EPA administrator Christine Todd Whitman supported the dredging, because the contamination reached New York Harbor where sediment is dredged to keep the Harbor open for deep shipping channels. "That was her position then, so the question is, will she be consistent," says Judith Enck.
Whitman is not likely to feel much pressure from New York Governor George Pataki, who supports dredging but has done little to back it up. Garey Sheffer, an environmental policy advisor to the Pataki administration, accepted a job with GE last year. Sheffer was recruited by GE without applying for the position.
Some observers say EPA may defer a final decision to the regional branch in Manhattan, thus insulating Whitman and the new administration from having to deal with the consequences.
Others say the agency is likely to propose a pilot project to demonstrate to local opponents how little impact dredging will have, a decision that would effectively delay a full-scale cleanup for years.
Should Whitman or the regional office choose to follow through, however, GE will probably try to head them off at the pass, in Congress. "If we see GE stepping up their activities in Congress, it's a good sign that EPA's going to hang tough," says Enck.
It's hard to imagine who will stop GE in Congress. The company has been holstering some big guns inside the beltway to ensure that its interests will be well represented: 17 lobbyists have been retained to work in Washington on the "contaminated sediments/natural resources damage issue," including six ex-Members of Congress.
The team is led by Bob Livingston (the former Louisiana congressperson and House Appropriations Committee chair), former New York congressperson Gerald Solomon, a long-time GE booster whose old district includes the capacitor factories, and ex-Senate Majority Leader George Mitchell of Maine, who now heads the National Sediments Coalition.
GE's lobbyists have tried to keep EPA from dredging the Hudson by attaching riders (unrelated provisions) to recent EPA appropriations bills. The rider offered in 2000 would have blocked dredging of contaminated sites across the nation, but was finally dropped under pressure from the Clinton White House. Previously, the riders ordered the EPA to wait for a National Academy of Sciences study on PCB-contaminated sediments before taking any action.
In January, dredging opponent Representative John Sweeney, R-New York, gained a seat on the House Appropriations Committee, the same place where he and Solomon tacked on provisions to tie up dredging in the past.
If anti-dredging legislation does pass Congress, few expect President Bush to exercise his veto power the way Clinton did to oppose anti-environmental measures. Sweeney's former chief of staff, Brad Card, is the brother of Andrew Card, President Bush's chief of staff.
FRONTING THE FIGHT
At least some of GE's largesse has gone directly to grassroots anti-dredging groups like the Citizen Environmentalists Against Sludge Encapsulation (CEASE) and Farmers Against Irresponsible Remediation (FAIR), two upper river non-profits which act as the face of opposition to EPA's proposal.
Both groups have focused on the potential impacts of dredging, including the environmental scars left from excavating backfill and contamination from the treatment of the contaminated sediments.
CEASE president Tim Havens doesn't deny that his group has received support from GE. "The pro-dredgers can't think of anything else to say, so that's what they say," he comments. GE has supplied CEASE with rally signs, bumper stickers and supporting studies. "They've given us any information that they think would be helpful. They've cooperated with us because we're a modest group in terms of finances. We don't work for them; we're a non-profit volunteer organization protecting our community. We just happen to be on the same side of the issue."
FAIR's attorneys say they have also received technical support from GE in filing objections to EPA's proposal since the EPA technical assistant grants (allocated as part of the Superfund program to local groups) were given to groups that support the proposal.
Not surprisingly, both groups tend to downplay GE's culpability.
"One of the big reasons GE doesn't want dredging is that they don't want the contingent liability of having to be responsible for other contaminants in the river that other companies put in there," Havens says. "This project was put forth for strictly political reasons. They don't give a damn about the Hudson. The only reason they want this river dredged is there is a lot of money to be made by some private dredging contractor somewhere. Under Superfund law, it doesn't have to be put out to bid. The whole thing is flawed, crooked from day one."
But not everyone in upstate New York opposes the dredging. In fact, support is strong even in the GE-lobbied riverside communities, where a divided audience attended public hearings held in December.
A public opinion survey conducted last fall by the Marist Institute for Public Opinion for Scenic Hudson, a regional environmental group that has advocated for the PCB cleanup for two decades, found that 91 percent of those surveyed who had not seen General Electric's ads supported the river cleanup, while 73 percent of those who had seen the ads supported dredging. Residents of Albany and northern areas — more divided over the issue — still leaned towards cleaning up the river, although GE's advertising blitz had clearly eroded support. "Despite General Electric's massive, multimillion-dollar advertising program designed to create anti-cleanup sentiments among the public, this poll shows what Hudson Valley residents want to see happen," says Ned Sullivan, executive director of Scenic Hudson. "General Electric should spend its money to lay the groundwork for a timely cleanup, not on efforts to misinform citizens."
"YOU OWE IT TO GOD"
Such a change of heart is not likely to happen anytime soon, at least not on Jack Welch's watch. Welch told Pat Daly, a Dominican nun from the Interfaith Center on Corporate Responsibility that she "owe[s] it to God to be on the side of truth here" after she suggested at the company's 1998 shareholders' meeting that GE's position on PCBs was like tobacco companies' claim that smoking was harmless. More may be at stake than Jack Welch's personal legacy when it comes to cleaning up GE's PCB mess. Environmentalists say the Hudson River is only the tip of GE's PCB waste barrel.
"The stuff is all over the place," says Walter Hang, an investigator with Toxic Targeting, Inc. who has mapped 40 PCB-contaminated sites in the upper Hudson River basin alone. Thirteen of the 40 sites have been designated as a "significant threat to the public health or environment" by New York's Department of Environmental Conservation because PCBs are still leaching into the river or other parts of the environment. State and federal data indicate that many of the sites are where old capacitors and contaminated soil (some generated by navigational dredging of the river) have been dumped.
And the problem doesn't stop with sites officially recognized by state and federal officials. GE sold or gave away thousands of cubic yards of PCB-contaminated soil for use as "clean fill" around people's homes, driveways, along roadbanks and to sand roads in the wintertime. "GE has never disclosed its past dumping practices, and nobody has ever tested for dioxin anywhere near these places," Hang says. Nor have many of the identified sites — like the Hudson — been adequately contained.
One of the 40 dumps is the Dewey Loeffel Landfill in Nassau. According to the New York Attorney General's office, GE and other companies dumped more than 46,000 tons of PCBs, heavy metals and other toxic wastes at the site during the 1950s and 1960s — more than twice the amount dumped at Love Canal.
The landfill was closed in 1970. GE reached a settlement with the state and, in 1984, the company capped the site with clay. Nevertheless, toxic chemicals continue to seep into groundwater because of a 70-foot crack in the bedrock under the site, while runoff from PCB-contaminated soil flows out into nearby Nassau Lake.
In 1999, the New York State Department of Environmental Conservation changed the status of the Dewey Loeffel site from Class 4 (remediated) to Class 2 (posing a significant health risk).
Residents say GE is currently remediating contaminated soil in a pond immediately outside the landfill, where the contamination is highest, but is not being forced to clean up lower-level contamination in Nassau Lake or to prevent the PCBs that have already been released from spreading all the way down to the Hudson River, 10 miles away.
"Our lake will be clean — in about 3,000 years," says Kelly Travers-Main, a local citizen activist, who adds that although there are fish advisories on the books, there are no signs posted at Nassau Lake.
GE has worked equally hard to limit its potential liability from other sites where it built or serviced transformers and capacitors, including at Pittsfield, Massachusetts and Rome, Georgia. Critics say that may be because each of these sites –like the Hudson River site — is only one of many created by corporate practices that spread toxic soil and PCB-contaminated oil around the community.
The old GE transformer plant in Pittsfield, Massachusetts is one such toxic hub. Unlike Hudson River communities, public opinion in Pittsfield turned towards dredging in the early 1990s, when GE cut production at the plant and idled thousands of workers. Many ex-workers joined the fight to get the company to clean up its mess before it closed the plant altogether.
By 1999, GE signed a 404-page agreement with EPA which committed the company to spend between $200 million and $750 million to clean up the site for redevelopment, and to remove toxic sediment from a two-mile stretch of the Housatonic River immediately downstream of the site.
Critics say that although the plan calls for monitoring and cleanup further downstream, that portion of the plan is likely to be delayed for years. Since 1982, there has been a fish consumption ban in effect for 85 miles of the river from Pittsfield all the way south through Connecticut to the Long Island Sound.
Nor are nearby property owners as satisfied with the agreement as the EPA, since it leaves only $1 million to clean up residential properties. Local residents say PCB-contaminated soils were dumped all over town since GE "donated" PCB-contaminated soil to Pittsfield homeowners and schools to use as "fill" for their yards and playgrounds.
EPA officials say that, after 20 years of negotiating with GE, the agreement is a good compromise (as in New York, GE used a variety of hardball tactics, including veiled threats to close the remaining plant in Pittsfield, full-page ads questioning the health risks of PCBs and threats to tie EPA up in court, as well as efforts to obtain state-level legislative "relief" from its cleanup liabilities).
EPA also says the cleanup plan includes a "reopener" clause that keeps GE responsible for contamination discovered in the future. But local critics say that clause is not likely to be exercised, since it may threaten the company's willingness to proceed with the cleanup.
WHEN IN ROME
PCBs were also used as an insulating fluid in transformers made in Rome, Georgia from 1953 until 1977. The resulting contamination has shown up in drainage ditches, sewer lines, parks, an elementary school and numerous private homes.
Although Steve Ramsey, GE's vice president for environmental programs, told local reporters that "it's safe to say that we know pretty much everything there is to know about conditions at the plant site," no one knows how extensive the contamination is off site, since the PCBs from the sewer lines ended up mixing with sludge at the Rome waste water treatment plant. Farmers and gardeners were given the sludge as fertilizer during the late 1960s and early 1970s.
GE also sold PCB waste oils to an undetermined number of employees for use as a dust suppressant, wood preservative and termite deterrent from 1953 to at least 1969.
In April, PCBs were found at 24,000 parts per million in soil at the home of a former GE employee. (2 ppm in surface soils is the level EPA used as a goal for cleaning up Anniston, Alabama residential areas near Monsanto's PCB manufacturing plant). A concentration of 3,000 ppm was found in the crawl space of a second home, and PCBs at 100 ppm were found in a garden at a third.
GE and the Law
Jack Welch told "60 Minutes" last fall that "we didn't dump [the PCBs]. We had a permit from the U.S. government and the State of New York to do exactly what we did."
In fact, GE did not have a permit to dump PCBs in the Hudson River until the mid-1970s, when the Clean Water Act came into force. By then most of the PCB dumping had already occurred.
Critics argue that GE should have taken action long before federal laws required a permit. For instance, language in a 1970 sales contract between GE and Monsanto proves the company knew PCBs were a problem when they were still dumping them directly into the Hudson River: "It is understood that the products sold hereunder contain polychlorinated biphenyls, which some studies have shown may be an environmental contaminant. Buyer agrees to use its best efforts to prevent such products from entering into the environment through spills, leakage, use, disposal, vaporization or otherwise."
In 1976, the state of New York held hearings on the PCB problem after the federal government declared the chemical a public health menace. Abraham Sofaer, a Columbia University law professor who presided over the hearings, judged GE guilty of violating state water quality standards, even though the company had a discharge permit. "These unlawful consequences are the product of both corporate abuse and regulatory failure," Sofaer wrote. The decision led New York to negotiate with GE. Jack Welch represented the company.
Although GE continues to claim its actions were not illegal, under federal Superfund law (Comprehensive Environmental Response, Compensation and Liability Act, CERCLA) responsible parties are liable for the cost of cleanup whether or not the pollution was legal at the time it occurred and whether or not the company was following accepted business practices.
The strength of CERCLA prompted GE to file suit last November to try to take away EPA's ability to order Superfund site cleanups. The company claims that the law is unconstitutional because it gives the EPA "uncontrolled authority to order intrusive remedial projects of unlimited scope and duration."
GE charges that EPA's authority to issue unilateral orders violates the company's right to due process by failing to provide any kind of neutral hearing prior to EPA's order and by failing to provide timely and meaningful judicial review even after a unilateral EPA order.
"This is an Alice-in-Wonderland regime of punishment first, trial afterwards," says Harvard Law Professor Laurence Tribe, who has represented GE in the case.
"We don't think [GE's lawsuit] will fly," says David Gordon, an attorney for Riverkeeper, a Hudson River environmental group which filed an amicus brief against the company. "There's no constitutional requirement that an agency have a formal public hearing before they come out with a ruling on a variety of different issues. In fact, GE has been heard amply in this proceeding. They've had 70 to 100 public meetings and numerous opportunities to communicate with EPA through meetings and written comments. The idea that GE has not been heard is just ridiculous."
Chairman Jack Speaks
Jack Says: "The word 'dump' is used! We didn't dump! We had a permit from the U.S. government and the State of New York to do exactly what we did. Do you think I'd come to work in a company that would do that or condone that? I wouldn't do it, Lesley! This is nuts!" — Jack Welch's response to Lesley Stahl's question about GE's pollution of the Hudson River (CBS News Transcripts, 60 MINUTES, October 29, 2000)
In fact, in 1976, a New York State administrative law judge found that GE;s discharges were in violation of permits and violated water quality laws. Although in 1970 GE had been warned by Monsanto — the manufacturer of PCBs — to prevent PCBs from entering the environment, GE discharged PCBs until 1977.
"We don't believe there are any significant health effects from PCBs." ("GE, Cinergy Map Future For Shareholders," by Mike Boyer, The Cincinnati Enquirer, April 23, 1998)
In fact, PCBs are recognized by the International Agency for Research on Cancer and are regulated by the federal government as "probable" carcinogens. New research has provided further evidence of the link between PCBs and malignant melanoma, non-Hodgkins lymphoma and other cancers. Studies also have linked PCBs with non-cancer health effects such as damage to the immune system, development, disease resistance, reproduction, learning and behavior. Some research suggests that PCBs pose a special risk for infants and children. In April, President Bush discussed the dangers of these persistent chemicals and declared that: "concerns over the hazards of PCBs, DDT and the other toxic chemicals … are based on solid scientific information. These pollutants are linked to developmental defects of cancer and other grave problems in humans and animals. The risks are great and the need for action is clear: We must work to eliminate or at least to severely restrict the release of these toxins without delay." For more information on the dangers of PCBs, see http://www.ipen.org/lester.htm
"Let me just tell you, as I tried to tell you in my report, we use sound scientific principles, we move forward and clean up past legal issues and we have no qualms at all about spending the right amount of money to get it done. To throw money at subjects that do not require it makes no sense." — Jack Welch responding to shareholders who wondered why GE simply did not bite the bullet and pay for Hudson cleanup. ("Bottom line is GE must fight it," by Kenneth Arraon, The Times Union, December 10, 2000)
After a decade of study, the Hudson River is the most studied Superfund site in the country. The scientific studies have been completed. The river is not cleaning itself and the threat to public health is not going away. After a review by five panels of independent experts, the EPA recommended that the river be cleaned up.
"For us, this is not about money. We will spend whatever it takes to do the right thing. This is about fighting for what we believe." — Jack Welch on how much GE is spending on lobbying and advertising to fight the EPA's plan to have GE pay for dredging of a 40-mile stretch of the Hudson River contaminated with PCBs. ("GE Chief Acknowledges Changeover at Annual Meeting," by Russell Grantham, Atlanta Journal and Constitution, April 26, 2001)
GE is indeed spending millions of dollars to develop arguments against a cleanup of the Hudson River and millions more on public relations to spread that message, but the issue may not be entirely based on principle, as Welch implies. There may be some concern about liability down the road because GE is partially or wholly responsible for at least 78 toxic Superfund sites nationally. A team of 17 high-powered lobbyists is working on GE's behalf in Washington to undo the company's liability.
GE REGISTERED LOBBYISTS ON
NATURAL RESOURCES DAMAGE ISSUES"
Senator George Mitchell, D-ME, Verner, Lipfert
Bernhard, McPherson and Hand law firm
Rep. Bob Livingston, R-LA, The Livingston Group
Rep. Gerald Solomon, R-NY, The Solomon Group
Rep. Jimmy Hayes, D-LA, Adams and Reese LLP
Rep. Vic Fazio, D-CA, Clark and Weinstock
Rep. Vin Weber, R-MN, Clark and Weinstock
Rep. Bill Brewster, D-OK, R. Duffy Wall and Associates
Peter Prowitt, former staff for Senator Mitchell, GE company lobbyist
Rob Wallace, former staff for Senator Wallop, GE company lobbyist
Keith Cole, former House Commerce Committee staff, Executive Director, National Sediments Coalition, Swidler & Berlin law firm
Phil Cummings, former staff for Senate Environment & Public Works Committee, The Accord Group
Jim Matthews, former staff for Rep. Tom Manton, Clark and Weinstock
Lee Forsgren, former staff Transportation and Infrastructure Committee, Adams and Reese LLP
George Mannina Jr., former staff, House Merchant Marine Committee, O'Connor & Hannan
Bob Barrie, O'Conner & Hannan law firm
Patricia Casano, former Department of Justice staff attorney, GE company lobbyist
Larry A. Boggs, GE company lobbyist