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GE Suit Charges Superfund Provisions Invalid

The General Electric Co. has filed suit seeking to have provisions of the\r\nSuperfund law declared invalid for failing to provide\r\nconstitutional due process.

The General Electric Co. (GE) yesterday filed suit in Federal District Court in Washington, D.C., seeking to have provisions of the federal Superfund law declared invalid for failing to provide constitutional due process.

The provisions give EPA uncontrolled authority to order intrusive remedial projects of unlimited scope and duration in non-emergency situations.

The provisions fail to provide for constitutionally adequate hearings or opportunity for judicial review, according to GE.

The company said that EPA''s authority to issue such unilateral orders violates due process in two basic ways:

  • Superfund fails to provide any kind of neutral hearing prior to EPA''s order. EPA alone selects the evidence it will use and the scope of required actions, without any court review, said GE.
  • Superfund fails to provide timely and meaningful judicial review even after a unilateral EPA order. If a party believes such an order is unlawful and refuses to comply with it, then the party immediately faces severe fines and treble damages. Yet, EPA, not the party, unconstitutionally controls the timing and content of any subsequent independent court review, and review delayed is review denied, according to the company.

Professor Laurence Tribe of Harvard University Law School, who represents GE in the case, said, "This is an Alice-in-Wonderland regime of punishment first, trial afterwards -- even in a non-emergency setting. The statute gives EPA the power to skew the evidence, ignore other points of view and order action without any independent review. Then the party has to do the work and wait years for a hearing. Even then, the long-delayed hearing is inadequate because it is not impartial. This offends the Constitution."

"Because it deprives parties like GE of liberty and property but fails to provide an impartial and timely hearing -- an basic protection guaranteed to all persons by the Constitution -- the Superfund provision is flatly unconstitutional on its face," continued Tribe.

The suit maintains that these unilateral orders from EPA and totally out of line with the hearing and judicial review protections afforded by other administrative agencies in non-emergency situations.

by Virginia Sutcliffe

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