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October 12, 1990


The opinion of the court was delivered by: Cholakis, District Judge.


This action concerns an area of land in the Town of Moreau, Saratoga County, known as the Caputo/Moreau landfill, the water supply of which is impacted by or threatened by the impact of hazardous substances released into the soil from 1958 to 1968 when 30 acres of the "Impact Area" were used as industrial waste disposal facility. In 1982, it was discovered that the water in the Impact Area had high levels of trichlorethylene ("TCE"). See An Assessment of Drinking Water Quality in the Area of the Caputo Inactive Hazardous Waste Site, Administrative Record ("AR") at 011-131 to 137.*fn1 The Environmental Protection Agency ("EPA") installed temporary activated carbon filter systems on the drinking water systems of 70 residences near the facility. Defendant General Electric Company ("GE"), which had deposited 452 tons of waste in the facility between 1958 and 1968, is the potentially responsible party ("PRP") under § 107 of the Comprehensive Environmental Response Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9607. See Letter from EPA to GE dated May 27, 1983, wherein EPA notified GE that it is a responsible party under CERCLA. AR at 001-2540 to 2542.

In November 1983, the EPA and GE entered into an Administrative Consent Order ("ACO"), AR at 003-1971 to 1982, wherein GE agreed to, inter alia: (1) take immediate temporary corrective action; (2) conduct a Remedial Investigation ("RI") "to fully define the nature and extent of contamination that constitutes the release and threatened release; (3) conduct a Feasibility Study ("FS"), an engineering study of feasible remedial alternatives, from which EPA would select a remedy to be implemented by GE; (4) perform a Remedial Design, or schedule for completion of remedial work; and (5) perform the chosen Remedial Action.*fn2 The ACO was subject to 30-day public commentary period, and a public information meeting was to be held.*fn3 The public was put on notice of the ACO on December 2, 1983. AR at 001-2162 to 2165. After the commentary period had run, during which numerous comments were made, EPA issued its response on January 27, 1984, but did not alter the ACO. AR at 001-2114 to 2121. On February 7, 1984, EPA issued letters of thanks to all who had submitted comments on the ACO. AR at 001-2081 to 2111.

GE hired Dunn Geoscience Corporation ("Dunn") to perform the Remedial Investigation ("RI") and Feasibility Study ("FS"). In October 1984, Dunn issued the RI, AR at 003-1732 to 1877, where it determined, inter alia, that hazardous substances were being released into the environment, and that the aquifer underneath the Impact Area was contaminated. See RI at 124, AR at 003-1864, where Dunn states:

  The most significant aspect of contaminant
  distribution illustrated by the section is the
  tendency for TCE concentrations to be highest at
  intermediate and deep levels within the aquifer.

In response to a direction from EPA, an Addendum to the RI was prepared for GE by Dunn in March 1985, to study contamination at an area bounded by Cheryl Drive, Myron Road and Terry Drive in the Town of Moreau. AR at 002-1529 to 1739.

In August 1985, GE issued the FS. AR at 001-812 to 947. Dunn discussed various remedial alternatives, which included two alternatives for restoration of the aquifer. The first alternative, entitled "Source Containment, Groundwater Monitoring and Air Stripping Groundwater Discharge," has been referred to in prior motion papers as the "natural restoration" approach. AR at 001-904 to 909. First, the contaminated area, or "plume," would be sealed up by a capped slurry wall made of a combination of soil and bentonite (a claylike substance). The slurry wall would purportedly prevent the contamination from spreading, hence the term "source containment." The second step of natural restoration is groundwater monitoring, whereby the groundwater would be periodically sampled to determine whether the levels of contamination are decreasing, and whether the plume migration is changing. The final step is "air-stripping," a process whereby water is treated at its discharge point to surface waters at the Reardon Brook, in that the contaminants are removed from the water and dispersed into the air. The natural restoration alternative did not provide for treatment of the water in the aquifer. The aquifer is expected, through natural processes, to flush itself clean over time. AR at 001-916. Dunn estimated that the "duration of natural flushing will likely be on the order of decades." AR at 001-905. The natural process was expected to cost $3.2 million. AR at 001-908.

The other alternative is entitled "Source Containment, Groundwater Pumping and Recharge," and has been referred to in prior motion papers as the "active restoration" approach. AR at 001-909 to 915. This approach featured the slurry wall "source containment" from the natural restoration approach, but continued with "groundwater pumping and recharge." The water is pumped out of the aquifer and into various wells for cleaning, and then pumped back into the aquifer. Dunn could not estimate how long the active restoration method would take, but put it up into "decades" along with natural restoration. AR at 001-912. The active restoration option had advantages in that the processes were well-defined and thoroughly understood by hydrologists, and in perhaps taking less time to purify the aquifer. However, this process had its disadvantages — uncertainty as to effect on the direction of groundwater flow and the discharge at Reardon Brook, and cost — $7.9 million. AR at 001-914. The Dunn Report recommended taking the natural restoration approach to treatment of the aquifer. AR at 001-924.*fn4

A lengthy public commentary period followed the issuance of the FS. The State of New York issued its concerns in a letter to EPA dated October 4, 1985. AR at 001-750 to 753. The State indicated that "the sizing of the pipes will have to be sufficiently large to reflect possible future residential expansion into the now largely vacant plume impacted area." AR at 001-750. The State strongly opposed the natural restoration approach, and concluded:

    Finally, if USEPA decides to allow the General
  Electric Company to deal with aquifer restoration
  by the natural processes and the air stripper on
  Reardon Brook, then the State requests the USEPA
  to require GE to commit to installing permanent
  water supply to any residential areas that would
  be developed between Bluebird Road and Reardon
  Brook and periodic monitoring of the plume to
  determine present conditions and movement.

AR at 001-752. The Town of Moreau issued its comments on November 26, 1985, and objected to the failure of the FS to provide for an adequate alternate water supply, as well as the alleged incorrect analysis of the number of homes affected by the contamination. AR at 001-696 to 731. The Town echoed comments made by the State concerning treatment of the aquifer. AR at 001-727 to 730.

Under the terms of the ACO, EPA was to select a remedy for treatment of the Impact Area, and put it in a document known as a Record of Decision ("ROD"). In a letter to EPA dated January 14, 1986, the State indicated its concern that a ROD would issue which would fail to address adequately aquifer restoration. AR at 001-574 to 576. As the letter indicates, EPA via telephone had notified the State that it would select natural restoration in the ROD. In the State's opinion, "[t]he agreement which USEPA intends to conclude with General Electric Co. will, in essence, leave a once productive aquifer unusable, essentially forever." AR at 001-574. The State further commented:

    It should also be recognized that the
  institutional controls on aquifer use, i.e. G.E.'s
  proposal to provide for a public water supply to
  all areas of the town impacted by its contaminant
  plume, do not completely address the "human
  exposure" and future development issues. . . . . .
    Please make certain that the Record of Decision
  reflects the realities involved in USEPA's
  settlement, i.e., the complete loss to New York of
  a vital aquifer system, the continued groundwater
  violations, and the need to monitor the health and
  environmental conditions in the plume area, so
  that future hazardous waste polluters are not
  under the impression that the installation ...

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