andrew schneider investigates

March 12, 2008

EPA sued for not making polluters pay

W.R. Grace may have paid the largest Superfund fine in history for contaminating an entire Montana town with asbestos, but five groups of conservationists said it took far too long to get the company to do what was right. They say there are many other corporations across the country stalling the same way.

The organizations filed suit today to force the Environmental Protection Agency to do what Congress ordered 27 years ago — require high risk industries to demonstrate the financial capability to clean up the environmental disasters they create.

Lisa Evans, a lawyer with Earthjustice, said that when polluters are unable or unwilling to pay what they should, cleanup occurs exceedingly slowly, or not at all. This puts the public at great risk. Further, she added, bankruptcies like Grace’s have rocked the foundation of Superfund and are a continuing threat.

Libby, Mont. cleanup. Photo by Andrew Schneider

Speaking for the other groups who filed the suit — the Sierra Club, Idaho Conservation League, Great Basin Resource Watch and Amigos Bravos — she said nearly half of all Americans live within 10 miles of a Superfund site.

“We can’t afford more delay in cleanups, any more than we can afford the cleanups themselves,” she said.

In reality, there is no longer a Superfund in any form that resembles what Congress intended in 1980, when it created the fund to ensure cleanup of the nation’s many hazardous waste sites. The Superfund tax expired in 1995, and the fund has been bankrupt since 2003.

Evans said, “It is absolutely critical that companies who generate waste be held responsible for cleanup. Bankruptcy can no longer be a ‘Get out of jail free’ card. Without regulations requiring financial responsibility, Superfund’s ‘polluters pay’ principle is turned on its head.”

To ensure that industry would do its part, Congress specifically required EPA to write regulations that require high risk industries to demonstrate financial responsibility. Congress gave EPA five years to do this, and that was 27 years ago.

The organizations filed their suit to ask the court to require EPA to write these critically important regulations addressing financial assurance.

The issue of financial assurance — of bonds, letters of credit, corporate guarantees — may sound dry, but these are not just paperwork requirements or an academic exercise.


The suit explained that the regulations, if enforced, will ensure that funds for environmental cleanup are provided by the polluter, thereby ensuring more timely cleanups and that the regulations will provide a powerful financial incentive for industries to prevent releases of hazardous waste in the first place.


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