Holding Polluters Accountable

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CHEJ founder Lois Gibbs, considered the mother of the federal Superfund program, said it was “about time polluters were held accountable” when she heard that the U.S. Court of Appeals ordered the Environmental Protection Agency to stop letting polluters off the financial hook for the contamination they cause. At the end of January, the court directed EPA to finalize its “financial assurance” regulations that have been more than 30 years in the making. The Superfund law has teeth to hold corporate polluters accountable and this is an important step towards making that happen.

The financial assurance provision of the Superfund law – officially known as the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) – ensures that responsible parties, and not the public, bear the financial burden of completing Superfund cleanups. This provision requires corporate polluters to demonstrate that adequate financial resources are available to complete required cleanup work. One of the main tenets of this law is to prevent companies who created toxic sites from declaring bankruptcy and walking away, leaving taxpayers to foot the bill for cleanup, often causing long delays before these dangerous sites are cleaned up.

The court recognized that “Although CERCLA requires operators to pay to clean up hazardous releases, many avoid payment by restructuring their operations so they never have to pay. It is a common practice for operators to avoid paying environmental liabilities by declaring bankruptcy or otherwise sheltering assets.”

For 35 years since the law was passed in 1980, EPA has failed to issue regulations that describe how it would implement and enforce this provision of the Superfund law. As a result, company after company found ways to pass the cost of environmental disasters on to taxpayers. With this new ruling EPA has no choice but to finally issue these financial assurance regulations which will require polluting companies to pay up front, or place funds aside to cover the costs of cleaning up contaminated sites. It will also provide an incentive for polluters to reduce their pollution and thus reduce their liability.

As the nation’s leading source of toxic pollution (nearly 2 billion pounds per year), the mining industry was targeted to be the first in line for the new regulations. The court has ordered the EPA to complete the draft regulations by December 1, 2016, and finalize the regulations by Dec. 1, 2017. EPA must also establish regulations for three other industries, including coal ash ponds, chemical manufacturing facilities and petroleum and oil refineries by Dec. 1, 2016.

The lawsuit was filed Earth Justice on behalf of Earthworks and several coalition partners. For more information, see https://www.earthworksaction.org/media/detail/court_orders_environmental_protection_agency_to_finalize_rules_so_polluters/04270#.Vs4bj-btiwZ