Landmark Court Ruling to Impact Superfund Cleanups Nationwide

The Jan. 29 ruling of the U.S. Court of Appeals in the District of Columbia protects taxpayers, the environment and human health nationwide. The Idaho Conservation League was the lead named petitioner that brought this matter before the Court. Earthjustice was the legal counsel for ICL and our partners.

The Jan. 29 ruling of the U.S. Court of Appeals in the District of Columbia protects taxpayers, the environment and human health nationwide. The Idaho Conservation League was the lead named petitioner that brought this matter before the Court. Earthjustice was legal counsel for ICL and partners on this case.

In 1980, Congress enacted the nation’s bedrock hazardous waste cleanup law, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as the Superfund. Two means of ensuring cleanup of hazardous waste were written into this law. First, the U.S. Environmental Protection Agency was directed to develop rules requiring individual companies that handled toxic materials to secure bonds to cover future cleanup. Second, industries were directed to pay into a fund to help cover the costs of orphaned contaminated sites.

While the provisions creating the “Superfund” were implemented, the EPA failed to enact the provision of CERCLA that required bonding. Therefore, for over 35 years, CERCLA has only been partially implemented. As a result of this recent court ruling, CERCLA will be implemented, as directed by Congress.

In its decision, the Court wrote, “[I]t is a common practice for operators [of sites that produce hazardous substances] to avoid paying environmental liabilities by declaring bankruptcy or otherwise sheltering assets.”

“At long last, companies that handle these toxic substances will need to set aside money to cover the cleanup costs,” said Justin Hayes, program director at the Idaho Conservation League. “Not only will these bonds cover cleanup costs if facility owners go bankrupt, but it will also provide incentives for companies to operate responsibly so that they can get their bonds back.”

“There is a reason why landlords require security and cleaning deposits from renters. It creates an incentive for renters to treat their apartments with respect and clean up before they move out. And if they don’t, the landlord has the deposit money to make things right,” continued Hayes.

The Court order lays out a schedule for the EPA to develop rules to require bonds for several industries having the greatest potential for creating contained sites that require cleanup. These industries include hardrock mining, chemical manufacturing, petroleum and coal products manufacturing, and electric power generation.

Although initiated by an Idaho organization, effects of this ruling will be felt nationwide; all facilities in the United States that fall into these categories will be required to develop bonds to ensure that contamination is cleaned up. This requirement will protect the environment and taxpayers, who have footed the bill for many of these cleanups.

In the short time since the Court’s order, at least one senator has drafted legislation to prevent its implementation.

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