the record straight about legality of G.E.'s PCB discharges
by Peter Lehner
New York State Attorney
January 5, 2001
debate over dredging toxic PCB's from the Hudson River should not be clouded
by misleading assertions concerning the legality of the General Electric
Company's discharges of PCB's.
Reports have suggested that G.E.
has always had a governmental permit for its releases of PCB's into the
Hudson from its Fort Edward and Hudson Falls facilities. Also, G.E.
has claimed that its discharges were lawful. While under federal
cleanup law, G.E. is responsible for the cleanup regardless of whether
the discharges were legal, it is important to make the record clear on
these two points.
G.E.'s own records show that the
company began discharging PCB's from its Fort Edward plant in 1947, and
from its Hudson Falls plant in 1951. When G.E. submitted a permit
application to the federal government in 1973, it reported that it did
not have any permits for these discharges. The first permit G.E. obtained
was in 1975. Thus, it is not correct that the company had permits between
1947 and 1975.
G.E. discharged the vast majority
of the PCB's released into the Hudson before obtaining a permit. This is
because the pre-1975 discharges were many times higher than the more recent
discharges. G.E.'s 1973 permit application noted that G.E. was directly
discharging an average of 30 pounds per day of PCB's. Pursuant to
a later settlement with the government, G.E. agreed to reduce its facility
discharges to an average of less than one-hundredth of a pound per day
Moreover, at no time has G.E. obtained
permits for the seepage of PCB's into the River from the bedrock and soil
beneath its Hudson Falls plant – the same discharges G.E. claims are significant
sources of PCB's to Hudson River fish. These discharges date back
many years and continue to this day.
Whether the unpermitted discharges
were also unlawful is another question. As to the discharges before
the 1975 permit, it must be noted that by the 1960's, many courts (including
the United States Supreme Court) interpreted federal law to prohibit these
types of unpermitted releases. The fact that neither the federal
nor the state government prosecuted G.E. for these PCB discharges does
not, of course, mean that the discharges were lawful.
In fact, the N.Y.S. Department of
Environmental Conservation charged G.E. in 1975 with illegally releasing
PCB's from 1972 through 1975. After a full hearing, the administrative
judge ruled that G.E.'s discharges violated state law. In particular,
the administrative judge found that "the record in this case overwhelmingly
demonstrates violations of [two sections of the state environmental
law] within the applicable statutory period. ... G.E. has discharged
PCB's in quantities that have breached applicable standards of water quality."
G.E. then settled the case by agreeing to stop using PCB's at its facilities
and to stop its direct manufacturing discharges of PCB's into the Hudson
River by 1977, as noted above.
Since 1977, G.E. has had a permit
for discharges containing PCB's from its wastewater treatment facility.
However, G.E.'s discharges have exceeded the permit limits on numerous
occasions. In addition, other PCB releases from the plants since
1977, such as the seepage of PCB's from underneath the G.E. plants into
the River, are not allowed by that permit. Thus, although G.E. has
had a PCB discharge permit since 1975, it is inaccurate to say that all
of its PCB discharges since that date have been lawful.
In sum, the record should be clear
that G.E.'s very large discharges prior to 1975 were not authorized by
any permit, that the continuing seepage of PCB's into the River is not
authorized by any permit, and that certain of G.E.'s discharges both before
and after 1975 have been unlawful.
Did G.E.'s Welch lie
to '60 Minutes' ?
Prince or Pig: What
will Welch's legacy really be?