The opinion of the court was delivered by: David N. Hurd United States District Judge
MEMORANDUM-DECISION and ORDER
The United States of America brought this action against General Electric Company ("GE") pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601-9675. It sought injunctive relief and recovery of response costs. A hearing on the issues, described in detail below, was held in Utica, New York, on August 2, 2006. Decision was reserved.
The following facts are as alleged in the complaint and as set forth in the record. The background facts are not in contention.
GE operated two capacitor manufacturing facilities along the upper Hudson River in New York State. GE used polychlorinated biphenyls ("PCBs") in its operations. Over a period of about thirty years, ending in 1977, GE discharged oils containing PCBs both directly and indirectly into the Hudson River. The total quantity of PCBs discharged directly into the river has been estimated to be as high as 1,330,000 pounds (approximately 605,000 kilograms).
PCBs introduced into the river adhere to sediments, with some fraction being carried in the water column. PCBs are hazardous substances within the meaning of CERCLA. 42 U.S.C. § 9601(14). PCBs have been detected in the Hudson River from the Village of Hudson Falls ("Hudson Falls") in the north to the Battery in New York City in the south, leading to the designation of an almost 200 river-mile stretch of the river as the Hudson River PCBs Superfund Site ("Site") pursuant to CERCLA. See 26 U.S.C.A. § 9507 (2002) (establishing a Hazardous Substance Superfund); see also 42 U.S.C.A. § 9611 (2005) (setting forth uses for the Superfund). PCBs have been found in water, sediments, plant life, animal life, and the soils at the Site.
Areas of Hudson River sediments upstream (north) of the former Fort Edward Dam also contain PCBs, after exposure to the contamination when the water level dropped following removal of the dam in 1973. These five "Remnant Deposits" are included within the Site. The Upper Hudson River portion of the Site covers just over 43 river miles from the Fenimore Bridge in Hudson Falls to the Federal Dam at Troy. The Lower Hudson River portion of the Site begins at the Federal Dam at Troy and continues to the southern tip of Manhattan at the Battery in New York City.
In September 1984 the United States Environmental Protection Agency ("EPA") placed the Site on the National Priorities List. See 42 U.S.C.A. § 9605(a)(8)(B) (2005). It then issued a Record of Decision ("1984 ROD") for the Site. The 1984 ROD required a detailed evaluation of the Waterford Water Works public water supply treatment facility. The New York State Department of Environmental Conservation ("NYS DEC"), funded by the EPA, conducted a study at the Waterford Water Works and concluded that standards applicable to public water supplies were met.
The 1984 ROD also required in-place capping, containment, and monitoring of exposed sediments (the Remnant Deposits), as well as stabilization of associated riverbanks and revegetation of the areas. Pursuant to a 1990 consent decree, GE completed the remediation for the Remnant Deposits called for by the 1984 ROD. It continues to conduct maintenance and long-term monitoring pursuant to that consent decree.
An interim "No Action" remedy was selected for the Hudson River sediments because of uncertainty surrounding reliability and effectiveness of technologies available to remediate the contaminated river sediment.
In 1989 EPA initiated a reassessment and feasibility study, in part due to availability of improved technologies for sediment dredging and treatment. EPA proposed a plan for sediment cleanup in the Upper Hudson River portion of the Site which called for dredging contaminated sediment. The plan was released for comment. Thousands of comments, both in favor of and opposed to dredging, were received. GE strongly opposed dredging.
In February 2002, the EPA issued another Record of Decision ("2002 ROD") selecting a remedy for the Upper Hudson River portion of the Site. The 2002 ROD requires targeted environmental dredging of about 2.65 million cubic yards of sediment (containing about 150,000 pounds of PCBs) from the river, in two phases. The 2002 ROD called for the dredged sediment to be transported, by barge or in-river pipeline, to a sediment processing/transfer facility ("processing facility"). At the processing facility the sediment would undergo dewatering and stabilization prior to being sent to an appropriate, licensed off-site landfill for disposal. Treated water would be returned to the river. Transport of the dewatered sediment offsite for disposal would be by rail or possibly by barge. Places in the river that were dredged would be backfilled with material that was brought in by barge or rail.
The 2002 ROD specified that the processing facility would be considered on site for purposes of the CERCLA permit exemption. (2002 ROD at 90.) Also, the EPA was tasked with selecting a site for the processing facility.
Completion of the remediation called for by the 2002 ROD was expected to take six years--one year for the phase one dredging and five years for phase two. The cost of this remediation was estimated at $460 million.
In the first phase only about ten percent of the total dredging would take place. The 2002 ROD set Engineering Performance Standards, containing objective criteria, to assure that the dredging would comport with human health and environmental standards,*fn1 and would be timely completed. External peer review of the phase one dredging in light of the Engineering Performance Standards would be conducted. Additionally, a written report at the conclusion of phase one dredging would be subject to peer review to assure the effectiveness of the remedy as set forth in the Engineering Performance Standards. Necessary modifications would be made to the dredging process and/or performance standards. Phase two dredging would then begin.
In July 2002 and August 2003 the United States and GE entered into Administrative Orders on Consent. Pursuant to these orders on consent GE undertook a sediment sampling program, collecting over 50,000 samples. GE also mapped the river sediment using side-scan sonar and other methods which, in combination with the sediment sampling, was used to target and refine dredging locations. GE developed a remedial design for the ROD remedy comprised of a detailed plan for dredging, transport, and disposal of sediment as well as replacing the habitat. Work plans for the design of dredging, baseline monitoring, cultural and archeological resources assessment, and habitat delineation and assessment were developed. A community health and safety plan was ...