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Fort Edward v. United States

ELR Citation: 38 ELR 20011
Nos. No. 06-5535, (2d Cir., 01/03/2008)

The Second Circuit upheld a consent decree between the U.S. Environmental Protection Agency (EPA) and a private company involving the removal of polychlorinated biphenyls from the Hudson River. A town where some of the work will be performed intervened in the case arguing that provisions of the consent decree that exempt a sediment processing transfer facility from local permitting requirements violate the Comprehensive Environmental Response, Compensation, and Liability Act's cleanup standards. Specifically, the town argued that the facility should not be deemed "onsite." While there are spatial limits to what the agency may label “in very close proximity” to a contaminated site, there is no bright-line rule. Here, the 1.4 miles separating the facility from the contaminated area, viewed within the totality of circumstances, is a sufficiently minimal distance to preclude the court from finding legal error. In addition, EPA is merely exempted from “the administrative processes” of obtaining the necessary permits that “could otherwise delay implementation of a response action." It still must comply with the substance of state and local permits. The consent decree was therefore upheld.